All right. Back on the record in the Simpson matter. All parties are again present. I see we have Detective Luper.
Yes, your Honor. I have a motion in limine with respect to Deputy Mulldorfer's testimony. We intend to call her for a very limited purpose, and that is to establish that she was conducting an investigation of possible violation of OPG rules, that during the course of her investigation, she determined that there was a system for logging, who goes in and out the area where the Bronco was being held, that information came to her attention that several detectives and officers had been in and out, but were not logged in. She went to--she could not ascertain who those individuals were. She did ascertain that an SID person, Mr. Fung, had gone in and out. She then had a conversation with Mr. Fung concerning the times he went in and out.
There was no log of who went in and out. That's the point that I want to establish from her; that she had a report that certain officers and detectives--this is--came in and out. She couldn't ascertain who those were. The only person she asked was Detective Vannatter, and that she did ascertain that Mr. Fung had been in and out and that she asked Mr. Fung what he did, and then he gave a statement to her that on July 6th he went to the Bronco, looked at it to refresh his memory for Court and did not remove anything from it, which was a prior inconsistent statement that I'm seeking to introduce in terms of Mr. Fung's testimony.
Mr. Fung testified that on July 6th, he went to the Bronco at the request of Miss Clark for purposes of seeing whether or not there were stains on the con--the door sill of the Bronco, that--and he then performed a presumptive test. I'm sure you don't forget that. That got us into some trouble on that ruling. And he testified that he performed a presumptive test on a stain from that Bronco at that time. And I asked him specifically--
Well, what he said to Detective Mulldorfer was that he went there just to refresh his memory for Court, he didn't remove anything from the vehicle. And I asked him during the course of questioning whether he removed anything for purposes of performing the presumptive test, which of course, he had to do, which he said yes. So those are the points.
KEY QUOTESo in other words, all you want to get from Detective Mulldorfer is, a, she conducted an investigation as far as the security there and determined that there was no system for logging in officers in and out?
They had a system, but they didn't follow it. That was her conclusion. And that there were various people in and out of there she couldn't run down. She ran down Fung. She spoke to Fung.
She got information from Mr. Jones, who had brought her in that, to quote her report, that several people, officers and detectives, had been in and out, but they hadn't been logged in. She attempted to find out who those individuals were, and the only person that she inquired about that to, she tells me is Detective Vannatter. And that was it.
And the point of this ruling is that I'm not going into anything about Mr. Meraz and what he said and the reasons that the city attorney did have or didn't have for bringing this--a complaint against Mr. Meraz and all that stuff that's been gone into. If they choose to bring it on the rebuttal case--but that's not the purpose of bringing her here.
Well, we have a couple of objections, your Honor. First of all, as to anything Mr. Jones may have told Detective Mulldorfer, that's hearsay. That's hearsay and it's being offered for the truth of the matter stated. Counsel is offering that hearsay statement to establish that there were multiple persons that went in and out of the Bronco. That's hearsay. And Detective Mulldorfer did attempt to run that down and she determined that that was not true. And she also determined I believe that Bob Jones had no basis in fact for making that statement as well. And in any event, that's clearly hearsay, we object to that and he shouldn't be allowed to go into it. As far as the impeachment of Dennis Fung is concerned, Dennis Fung did not tell Detective Mulldorfer that he just went to the Bronco on July 6 to refresh his recollection. That's not what he said. He said he went there to refresh his memory for Court, but he didn't say that that was the only reason. He never said that was the only reason. This is not--that statement is not in any way inconsistent with anything Dennis Fung said here on the witness stand.
In addition, on the issue of whether or not Mr. Fung removed anything from the Bronco on July 6, we agree that he told Mulldorfer that he did not remove anything on July 6, but he also told the jury that he did not. He told the jury that he only did a presumptive test, that he did not take any samples, that he did not remove any physical evidence. That is not inconsistent. There was no inconsistency there and counsel should be precluded from dragging that hearsay into the case. As far as the issue of the reasons for the investigation, counsel is going to ask the witness if she conducted an investigation of possible violation of OPG rules. Well, I think I have a right to go into what those violations were, what triggered that investigation. And what triggered that investigation is Mr. Meraz, an employee, a thief and someone who admitted to having lied when confronted with having removed things from the Defendant's Bronco. We should be allowed to go into that. They can't just ask these questions and then expect us not to go into the issues, to develop the issues and allow the jury to--
But let's assume you ask the question then on cross-examination what was the genesis of the investigation. It was the allegation that one of the employees, a John Meraz, removed items from the Bronco automobile; is that correct? Is that what the question and answer is likely to be and doesn't that pretty much cover it?
I don't think it pretty much covers it at all because I think we have to get down to specific issues, you know, and how they relate--
Theft of items from a car that's supposed to be held in some type of security. That's pretty clear, isn't it?
And can I interject this as well? Why is this even relevant? Why is this detective's investigation days, okay, days, many, many days well beyond July 6 let alone June 13 or June 14, why is this even relevant? Why are we wasting our time on this? This doesn't prove or disprove or establish any material fact that this jury needs to have before it to determine--
The whole point Mr. Scheck is trying to establish is that multiple persons and persons unknown had access to the Bronco and that it was in an unlocked state for a significant period of time. I think that's the point.
KEY QUOTEThat's all hearsay, your Honor. Mulldorfer wasn't there. She doesn't work there. The only way she would know that is if someone told her. And in fact, I don't think Mr. Scheck knows that. And what he's going to do is interject that notion into this trial by innuendo. There's no proof that multiple persons accessed that Bronco. That is beyond what Mr. Meraz has already told us.
All right. Well, do you concede--I'm assuming you're not conceding the inconsistency of any statement by Mr. Fung, but if it were an inconsistent statement, then Detective Mulldorfer you'll concede is competent to testify to any statements by Mr. Fung to her?
What concerns me about Mr. Darden's argument is that Detective Mulldorfer's opinions are based upon hear--upon statements from other persons, and is she competent to testify as to who had access to that--
Well, it seems to me, your Honor, that what she ascertained during the course of her investigation is that they had a system for logging in names.
Then if I use that analogy though, then Detective Lange is able to give his opinion as to who committed this homicide.
No. I think this is simply an investigation--she's going to testify that they ought to have a system in place, they had a system in place--
You want to trade? No. I'm concerned about the competence to testify that other people had access--
Then it's by inference. The point is is that she was able to ascertain that there is a system of logging that is there to be followed and it was not followed in this instance. Mr. Fung was not even logged in on this system and there's no dispute that he went to the vehicle twice during the course of this. And my point is simply, following up what the Court indicated, is I want to establish what the rules and procedures are for storage of these vehicles, what systems were in place, what systems were not followed in terms of logging people in and out to establish access of several people or possibly a multiplicity of people and that she had information that--that there were other people besides Fung, it was her responsibility to try to track them down and she could not. And he's free to establish by asking her who did you make inquiry with to try to find out who these people were and are you satisfied that you established it was no one. I don't object to him going into that in terms of the scope of the direct. My concern is--I don't even mind him asking her whether she was there as of one or two questions as the Court indicates is part of her investigation. She was investigating a few things. The rules, were the rules followed for storing the vehicle properly, and as part of that, whether or not a permittee, Mr. Meraz, had violated a rule by committing a theft. That was all part of this investigation.
Good. She told me something--I'm only going on what she said. And--but my point is simply this. I'm not going into the whole investigation of Meraz and everything else.
But let's get back to the more fundamental question though. She is an investigator who interviewed witnesses.
So you're saying she should be able to come in and give us opinions based upon hearsay.
Well, I think she's competent to come in, and it's nonhearsay testimony for her to establish, a, what the rules are, b, what systems were in place.
All right. Let's assume she's an expert in the area of OPG garages. So she can testify to the rules and regulations that are required. Let's assume--I take that as--I accept that. But whether or not those rules were followed, she only knows that on the basis of talking to other people, nothing that she witnessed or is competent to testify herself to.
Well, I don't think that--that--Fung wasn't recorded in. We know that the log of--she was able to ascertain that no log was kept.
All right. That's something she can testify to; did she go there, did she ask to see the log, was the log produced, there was no log.
Well, and the final thing--and the additional point and--the additional point is: "Did you ascertain whether or not there were individuals who were--who did go to that vehicle who were not logged in," whether there was information. "Did you attempt to investigate that?"
I'm only trying to get from her what she heard and what she did in terms of trying to--and I think it's--it's--
--admissible for the fact it was said. No. She was told that officers and detectives were seen going in and out of the vehicle. She then conducted an investigation to determine who. He's free to bring out what she did and didn't do. She went to Detective Vannatter. She spoke with him. As far as I understand, that's all she did. And that's--it came to her attention that there were unaccounted for people, which is a violation of the rules. That's within the purview of her investigation.
All right. You're going one leap too far here. You can put in that she's in charge of investigating OPG garages. She can testify to the rules and regulations. She can testify that she went to Viertel's to see what the logging process was. It's your representation that she's going to testify that there was no logging system in place?
That there was one in place, but it wasn't followed. In other words, there was nothing recorded on the logs.
Well, I have to ask her that specifically. But she--I'm going on her report and what she just told me.
No. This will go a lot quicker if I get to talk to one person at a time. Do you have the log?
I don't believe we have a log. I don't know whether there was a log or not. She indicated there was no logs in, one way or the other.
The last question I intend to ask her is, was she ever--was she in the Bronco, did she look in the console area and did she notice any blood.
All right. Detective Mulldorfer is here. Come on forward, detective. All right. Mr. Scheck, you want to ask Detective Mulldorfer what she had?
Detective Mulldorfer informs me that there was--they have forms for logging people in. There's a system set up if they would use it, but she ascertained that they didn't use it and they didn't log anybody in.
They have a--I believe they just have a--similar to that or a clipboard with paper with lines, the names, division, just real basic information. That is the way--there was no log.
And none were kept at the relevant time in question or for a specific time period, because I assume that once this was brought to their attention, they started a log.
At what point--detective, at what point did they start complying with the log requirement?
On August 29th is the first entry of their log that they now keep. August 29th, 1994.
I didn't--I asked--I just asked them if they had anything logged in for that vehicle, if they logged in any of the people that went in to look at the vehicle, and they said no, they didn't log anyone in relative to that vehicle.
All right. Detective, why don't you go ahead and have a seat. All right. Mr. Scheck, do you have any other comment?
Mr. Scheck, I think you can establish the point that no log was kept, but I don't think Detective Mulldorfer is the person who is going to be able to do that for you.
Because her--the basis of her information is what Bob Jones told her. But that's hearsay.
In other words, we'll take it a step and a witness at a time. I can certainly establish that she had a conversation without telling us the content with respect to who went in and out.
No. That she conducted an investigation as to who had access to the Bronco, sure, she can tell us that. That's the whole reason she's here. All right. As far as Detective Mulldorfer is concerned then, what I will allow is, who she is, what she does, what her responsibilities were regarding OPG garages, that there are rules and regulations that govern OPG garages, which includes keeping a log, and that she conducted an investigation over at Viertel's. I think she is--I think the Prosecution is entitled to bring out the fact that this investigation, the genesis of this was John Meraz and that situation and that during the course of this investigation--it's your representation that she actually looked in the Bronco?
All right. She can testify to what she saw or did not see there and she can testify to who she interviewed with regards to the procedures and she can testify to the statement by Mr. Fung.
That's hearsay. What somebody else told her about the log is hearsay. And if she didn't see the log and examine it herself--but Bob Jones is the person who has to come in and say that this log was kept in this manner or not kept in this manner, depending on what the answer might be.
That's neither here nor there at this point. Because then we're going to have to drag in the city attorney to tell us why they didn't charge Mr. Meraz and that's--
I mean, just the fact that she recommended a filing, we can handle that in two questions.
Your Honor, I don't intend to bring it out. If they think that's relevant, they can bring it on in their rebuttal case. That is extremely complicated and I think unfairly prejudicial. There--
Well, I will see--let's see how it goes in the context of what's elicited on direct.
Well, that's the whole reason for bringing this motion because I don't want to go into all that. I think it's a diversion from--
All right. But they are entitled to ask a few questions; what was the reason you were there to conduct this investigation, period.
Is that a violation of OPG procedure? Yes, it is. Thank you very much. Goodbye.
What he said to Detective Mulldorfer was that he went there just to refresh his memory for Court, he didn't remove anything from the vehicle. And I asked him during the course of questioning whether he removed anything for purposes of performing the presumptive test, which of course, he had to do, which he said yes.
There's no proof that multiple persons accessed that Bronco. That is beyond what Mr. Meraz has already told us.
The whole point Mr. Scheck is trying to establish is that multiple persons and persons unknown had access to the Bronco and that it was in an unlocked state for a significant period of time. I think that's the point.
But if I use that analogy though, then Detective Lange is able to give his opinion as to who committed this homicide.