Joint Appendix Volume II

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

NO. 81-5605

CLEAMTEE GARNER, et al. ,
Plaintiff-Appellant, 
vs.

MEMPHIS POLICE DEPARTMENT, et al.,
Defendant-Appellees.

Appeal from the United States District Court for the 
Western District of Tennessee 

Western Division

JOINT APPENDIX 
VOLUME II Pages 301-759

JACK GREENBERG 
JAMES M. NABRIT, III 
STEVEN L. WINTER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

WALTER L. BAILEY, JR.
Suite 901, Tenoke Building 
161 Jefferson Avenue 
Memphis, Tennessee 38103

Counsel for Plaintiff-Appellant



INDEX

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DOCKET ENTRIES ........................
COMPLAINT ..............................
MEMORANDUM OPINION of September 29, 1976
JUDGMENT of March 3 , 1980 ............. .
MOTION FOR RECONSIDERATION ............ .
MEMORANDUM IN SUPPORT OF MOTION FOR 

RECONSIDERATION .............. .
ORDER of May 29, 1980
LETTER TO HON. HARRY W. WELLFORD of May 

12, 1980 .........................
ORDER of July 8, 1981 ...........
JUDGMENT of July 8, 1981 ........
NOTICE OF APPEAL ................
TRIAL TRANSCRIPT of August 2, 1976 
PLAINTIFFS' OFFER OF PROOF.......

Part 1 
Part 2 
Part 3 
Part 4

Part 5

Part 6 
Part 7 
Part 8

Part 9;

Bracey Affidavit , 
Sherman Affidavit 
Fyfe Affidavit ...
Priliminary Report of Mr. 
C.H. Cole ..............
Deposition of Edward R. 
Fredrick .............
Deposition of Wyeth Chandler , 
Deposition of Winslow Chapman
Civic Crisis - Civic Challenge 
Police - Community Relations 
in Memphis ...................
Excerpt of Community concerns: 
Use of Deadly Force .........

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48

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765 
111 

787

798

819
875
916

120

1074

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Part 10: Compilation of Municipal
Deadly Force Policies .............

Part 11: New York City Police Department
Training Materials ................

Part 12: Raw Data Arrest by Memphis
Police Department 1963-1974 .......

Part 13: Incidents Memphis Use of Deadly
Force Against Property Crime Suspects 
and Boston Deadly Force Policy 
(Wiley Appendices) ................

Part 14: Excerts Trial Record Wiley v.
Memphis Police Department .........

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1108

1369

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1 EXCERPT OF TESTIMOI'fY
2 JOHN A. COLETTA.

•
3 having been duly svrarn̂  was c::amined and testified as follows:

• 4 D IR EC T EX.Um 'IATION

5 3Y MR. DAYS :

C' 6 Q. Would you state your full name for the record.

> 7 please?
8 A. John A. Coletta.

r 9 Q. And would you indicci:e your address for the
1 0 record?
1 1 A. 2 9 2  Barry Road, Memphis.
1 2 Q. Can you indicate by whom you're employed, Mr.

• 13 Cole tta?
14 A. Captain with the Mi.ir.phis Police Department,
15 presently in charge of the tra.ining bureau.
16 Q. What is your exact job classification at this
17 point?

V..- 18 A. Commander of training bureau.

- 19 Q. Within the rankings j.n the Memphis Police Department
2 0 where does the rank of Coininandrr stand?
2 1 A. Commander is a titlr- indicating responsibility. I
2 2 have the responsibility for the entire training bureau. It
23 encompasses three areas.
24 Q. Well, but for example, in the structure of the

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X ta.e U  t.e.e .u a c.icX o. Police, ie t.e.e
not?

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A.

Q.
A.

Yes .

And there le a Director of Public Safety? 
No.

°f the department
wtth a higher title than Chief of Police?
A.

Q.
A.
Q.
A.
Q.
the next rank?

No, not at present. There is hnf • 4-1re IS, but It's not filled.
And what title is that?
Director of Police .
Director of Police.- 
Yes, sir.

NO., belo. the level of Chief of Police, .hat ie

A.
Q.
A.
Q.
A.
Q.
A.

Deputy Chief.

And belo. Deputy Chief is .hat rank?
Inspector.

■ is »hat rank after that?
Captain.
Captain?

Richt, but either-o” conti no-or.-!-ngent upon responsibility
fs Job assign,„ent rather than r.uik indicating it.
^ Now, i-.’hat is your v-i i the department?

Captain Is my rank.

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does the ti. tie "ComiTiander'' come into play? 
That v;as the title rvC the person that is in charge 

and has the responsibility of the training bureau.
Well, does a Captain who is a Commcinder get paid 

more than a Captain v/ho is nĉ ' a Commander?
A- Not a bit.

Is that a policy that pleases you?
A. Yes, it does.

Q- In other words, yon don't mind the fact that
Captains v;ho are Commanders get paid the same salary as 
Captains v/ho are not Commanders?

 ̂1112-y mind a lot ol things, but I can't do anything
about it.

How long have you been a member of the Memphis 
Police Department?
A. 19 years.

^3.n you indicate scirvethiiig about your educational 
background before you joined the Police Department?

Prior to joining in 1957j I had a high school
diploma.

And have you had suny education subsequent to your 
joining the Police Department?

A* lesj I received a Bachelor of Arts Degree from
Memphis State j.n Police / dminis tration. I have also attended

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1 the National Academy which is a recognized police school con-
2 ducted by the FBI.
3 Q. And how long was'that course of study conducted by
4 the FBI?
5 A. Three months.
6 Q. • And can you indicate what the substance of the
7 course of study was? '
8 A. It was directed towards your individual respon-
9 sibility. They have options which we can take for subject
10 matter such as the same as a university^ and I elected courses 
n in Management and Contemporary Problems of Administrators and
12 Trainers, Research.
13 Q. Prior to your becoming a Commander of the training
14 bureau, what responsibility did you have with the department?
15 A. I was in charge of the firearms section of the
16 training bureau.
17 Q. Were you at the rank of Captain at that point?
18 A. Yes, I v/as. Well, I was Lieutenant and Captain. I
19 was promoted that year.
20 Q. All right, perhaps we could get a sense of your
21 movement up through the ranks Jn the Police Department. When
22 you joined the department, do I recall correctly,some 19 years
23 ago?
24 A. Yes, sir.

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Q.
A.
Q.
A.

Q.

You, were at what ran];?
Patrolman.

And hov/ long did you remain at that rank?
Seven years.

Ana after that sevci; year period, did you receive a 
higher rank in the department?

I promoted to Deteotli^e and then 
subsequently to Lieutenant, and i epent three years in the 
Detective Bureau.

Q- . And can you describe briefly the nature of your
responsibility v/ithin the bureau?

A- 1 «as an Investigator In the pa:m shop and junh
squad,

Q Could you explain and repeat, and once you have
explained what that is all about, exactly the term you used, 
what that responsibility was?

A- The responsibility k -.s to investigate any complaints
regarding thefts and to check the various pawn shops and 
scrap yards within the city to check for stolen merchandise, 
and also to receive their dally pawn report that would indicate 
what persons had oawned wluit m-.ichandiso, and to check fnose 
against the stolen lists, whatever.

9- Okay, could you repo.at what detail it was that you
had responsibility foi'? Did yo-t say —

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A.
Q.

I was an investigator. I did not 
have the responsibility for it'..

^ thought you said something to the effect of 
stop and jump or pawn shop, something along those lines?

Pawn shop.
The pawn shop, - ■

MR. KLEIIl: I really hate to
interrupt. I don't see the relevancy 
of this to the issuv: at hand. I'm 
going to have to object to it.

MR. DAYS: Well, Mr. Klein, I
was just doing that tor purposes of my 
own record. I simplv dian't hear what 
he said.

THE COURT; All right, I think 
he said’pawn and junk shop.

THE WITNE-8: Detail, yes.
(By Mr. Days) Pawn and junk, all right. After 

your three year stint in the Detective Bureau, did you assume 
other responsibilities?

my three vs.ars, I was transferred to the 
firearms section of the trainin-g bureau and I was there until 
approximately October of last year when I assumed full 
responsibility ior the entire braining bureau.

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A H  rigtitj noWj frorf\ what y6ai* to what year wsrs 
you in charge of the firing range?

A* I was assigned there from I966 until I975. I
assumed command of that section approximately I970.
Q’ All rightj between i960 and 1970j what were the
nature of your duties at the firing range?

Primarily administrative and instructive duties.
Could you be more r-pccific, Mr. Coletta?

A- There is quite a number of items of inventory at
the range, weapons, tactical gear, et cetera, and it's our 
responsibility to keep up with them, to issue them, to 
instruct in the use of those various items of equipment and 
also, of course, the weapons themselves.

Now, during that process between or during that- 
period, between I966 and 1970, were you charged with instruct­
ing members of the Police Department in the use of firearms?

■ Yes, I did soi.ne instructing also.
Q- . How was it that you oossessed qualifications to
instruct other members of the department in the use of fire­
arms?

Well, I have initially taken it upon my own to 
investigate the various avenues that are open to bettering 
myself as far as ,70b opportunities were concerned, and I 
took it upon myseli to delve into the finer aspects of

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firearins instruction^ and tc also research, the ramifications 
surrounding firearms themseJ.ves^ which is a very, very wide 
field.

Q- All right, but during the period I966 to 1970, did
you receive any specialized course of instruction with respect 
to the use of firearms either within the department or else­
where?

A- Yes, v;ithin the department, certainly.
Q* And what was the nature of that type of training
that you received?

A* Of course, it was primarily a firearms instructor
course which was designed to equip a person teaching that 
particular type of subject, to be able to teach it better.
Q. And who taught you?
A. The person who was in charge at
Q. And who was that person?
A. Captain Earl Clark.
Q. Captain Clark?
A. Uh huh.
Q. In 1970 you, I assume, took the
from Mr. Clark?
A. Yes, sir.

And betv/een the period I970 and I975 while you were 
in charge of the range, did vou receive any specialized

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instruction with respect to the use of firearms or the 
instruction in the use of firearms?
A. Yes, I did.

Q* Can you indicate the nature of that instr’uction?
A. I attended the National Police Firearms Instructors'
School which is held annually at Camp Perry, Ohio, and I also 
attended the Firearms Instructors' School conducted at the 
State Training Academy at Donclson, Tennessee.
Q. And hov; long a course of study was that?
A. One week each, I believe. In addition, of course,
I have attended many seminars and workshops and things of 
this nature that are also relented.
Q- During the period v/hen you were in charge of the
firing range, 1970 to 1975  ̂ vn\a v;as your direct superior, in 
the department?

A- The Commander of the training bureau who was —
well, I would have to think because it's been quite a number 
of them.

Q- V/ell, it's not necessary if you don't remember the
name to recall the specific individual, but you reported to 
the commanding officer of the I'raining bureau?
A- Commander of the tr-’.iiiing bureau, yes.
Q* And to v;hcm did the Commander of the training bureau
report, if you !mow?

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The Deputy Chief of Administrative Services.
right. Now, at the time that you were in charge 

of the firing range, were you given instructions by the 
Commander in charge of the training bureau with respect to 
what type of instruction you r-hould provide to the members of 
the department?

Well, certainly we woul.d have meetings concerning 
it, but really the Commander of the training bureau didn't 
know as much about it as I did, because I had made it a point 
to learn that particular topic.

Well, what was the nabure of the mandate, if you 
will, that you received from your superior with respect to 
how you went about conducting firearms training for officers 
of the department?

A* objective was to qualify people in the use of
the revolver and the shotgun. That was our primary objective. 
In the course of that instruction the question might arise 
upon when it would be tactically feasible to use a firearm, 
when it would be, according to department policy and according 
to law, justified to use firearms, but this v/as to reinforce 
the legal subjects which were bo.ught in the academic section 
of the Academy itself.

Q* You just used the borm "Academy” and we were talking.
iT I recall coircctly, abouu the firing range. Are they, in

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1 fact, the same entity —
2 A. (Interposing) They are the same bureau. They are
3 separate sections.
4 Q. All right, but before we get to that, I want to ask
5 you whether it v/ould be a fair characterization of your
6 authority when you were in charge of the firing range of the
7. department, that you were essentially delegated by your
8 superiors the responsibility for determining what would be
9 the appropriate type of firearms training for members of the
10 Memphis Police Department?
11 A. Yes, more or less.
12 Q. Why did you conclude by saying, "More or less"?
13 A. You're never an autliority because every subject is
14 dictated not only by what has been or by precedent, but also
15 by contemporary problems of what is and also by projected
16 what may be. A lot of policies changed and a lot of proce-
17 dures were changed because of changing times amd changing
18 orders which 'would be issued from time to time, and because
19 of the legal ramifications thab also v/ere changing pretty.
20 rapidly through this period of time.
21 Q. Mr. Coletta, is it fair to say that on a day-to-day
22 basis you had decision making authority with respect to
23 training at the firing range?
24 A. More or 3.ess, yes.

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be{sinhin{̂  to foel that "more or less" is just 
a habit that you have in responding to questions or did. you  

mean something —

A- (Interposing) I'm not absolute —
Q- (Interposing) I soo. , ,
A- (Continuing) -- if that is what you mean.
Q* I see. Now, I would like to turn to the whole
question of the training academy as distinguished from the

range. Could you mak£ clear for the record hov/ those 
two entities differed, if, in fact, they did differ?
A- Yes, sir. The training academy is charged with
the classroom responsibility. The firing range is charged 
with the practical responsibility of teaching firearms 
instruction. The Academy does not teach firearms. The range 
section teaches the firearms.

All right. In your capacity as head of the firing 
range, v;hat responsibilities did you have with respect to the 
Police Academy in which I assume recruits to the Police 
Department receive training?
A. To the recruits?
Q- Yes.
A* Well, naturally I would work in liason, in close
liason with the Academy to be -aware of what they were teach- 
ing, but my dii'ect responoii'illty was to the Commander of the

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training bureau who' had the overall —  who was charged with 
the overall operation. It wao his responsibility to 
coordinate.

Q* Okay, v/as the Commander of the training bureau in
charge not only of the firing; range but of the Academy 
itself?
A. Yes, sir.

Q- And v;as there a perr.on below the Commander of the
training bureau at your level v;ho v/as, in fact, the direct 
supervisor of the Academy?
A. Yes, sir, there war.
Q- And was that person at the level of Captain?
A. It's fluctuated. At one time,, yes.
Q* Well, did you have any line authority to spealc of
in terms of what types of training would be included at the 
Academy for police recruits?
A- Irrell, I would imagine line authority —  if you
would explain —

(Interposing) All :aght, by line authority I mean 
that you would have the power to say to the person in charge 
of the Academy, you must include the following procedures 
within the training program for this group of recruits.
A. No, .sir.
Q- vrould you have thi\i'. authority?

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A.
Q.
A.
Q.

No, sir.
Did you have —
(Interposing) I would recommend. I wouldn't tell.- 
Were you generally successful in getting your 

recommendations approved?
A. Fairly successful, I would say.

Do you recall any major respects in which your 
recommendations viere not entertained and acted upon favorably 
by your superior?

Well, not offhand, really. I can remember incidents 
where maybe the change was not implemented within a specific 
time span that I thought maybe it should have been.

Did you participate i.n an Academy training program 
for recruits in I972?
A. Yes, I'm sure I did.

And do you have any recollection of whether you also 
were involved in a training program for recruits in 1973?
A. Yes, sir.

Q- And v;hat was the nabiire of your responsibility in
1972 and '73 with respect to the training program for the 
Academy?

A* My primary responsibility?
Q- Yes, sir.

A- Was to teach pe-jpl ' to fire revolvers and shotguns.

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structure of the course of tr?.ining that you would provide 
with respect to the use of 'firearms? What were the blocks of 
instruction that you provided?

A. Well, of coursej vie would try to provide a program
based upon chronological order in the learning process, start 
at the base and work up. Initially, we would orientate the 
people to just exactly what tliey would be subjected to. We 
would teach them the safety s.snects surrounding the use, 
surrounding the handling, surrounding the care and cleaning 
of firearms. We would instruct in the nature of the firearm 
itself, the names of the various parts, the technical 
aspects of it. We would use training aids to illustrate 
these various points and atteiapted to get the student to be 
able to, once he walked on the line, to be safe and to be 
able to at least understand the basic rudiments.
Q- Now, was the content of this training program a
reflection, to the best of your understanding, of the 
departmental policy with respect to what officers should Icnow 
about the use of firearms and what types of firearms they 
should be fainil.iar with in terras of their police work?
A. Yes, sir, but not in its entirety because when you
talk about officers knowing their firearms and how to use 
them, you're also speaking .'.bout legal aspects which is

Q- Could you in generalized fashion describe the

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taught in the Academy section by a lawyer.

Q- VJhat do you know about the so-called legal aspects
of the training as that area might relate to the use of 
firearms?

Well, of coursej as it's written now, Tennessee 
State Law is the governing factor. Now, that is law.
Q* All right, but what I'm asking you is were you a
participant at any point in wl'at you characterize as legal 
discussions or legal instruction with respect to the use of 
firearms?
A. Yes.

Q- Can you describe the nature of your participation
in that process?

During the course of marksmanship questions would 
arise, when to shoot, when nob to shoot, should you do this, 
should^ you do î hat, and certainly we would attemot to answer 
questions that we were knowledgeable about, regarding those, 
whether it be departmental policy, whether it be State Law, 
and we would attempt to counso.l and guide the student into 
a realm whereby he v/ouldn't take the v/rong impression fx'om 
there.

Also, we would talk about the moral aspects of 
firearms use, the right and t'ne wrong of it.
Q- Was there anything in the department manuals or

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regulations that addressed il-,self to the moral aspects of the 
use of lethal forceV
A* I don' t thinlc so .

Well, how did this moral instruction come about in 
terms of the use of firearms'-

Generally in a questj.on and answer period a dis­
cussion would follow.

Q. During the period, Mr. Coletta, between I970 and
1975j did you have any involv:i!cnt in questions relating to the 
type of weapon or type of ammunition that the department 
should issue to its line officers?
A- Yes, sir.

./vnu can you describ' ttic nature of your involviuent?
Well, I had initially been involved in it maybe as 

a matter of curiosity or maybe because I thought it was my 
responsibility to make certain that I was aware of what the 
technical aspects of ammunition and v;eapons are and what would 
be best suited for a police cfficer.

ft
In addition, the Tac t.ics end Evaluation Board had 

requested a study when the Un:‘.on raised the issue that they 
wanted to use a larger hand gun, and this particular Board 
requested a study that we lool: at what we were using and make 
a recommendation as to what particular type of ammunition that 
v/e would recommend, 'which 'w« d;M.

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Now, V7hat v;as the name of that Board that yoa just 
referred to?

I J'̂ st —  I don't recall its name. Tactics and 
Evaluation, or something of that nature.

And was that Board comprised of persons within the 
Police Department?
A. Yes.

Can you identify bv rank, if you v:ill, who was 
involved in that particular Board? Was the Chief of Police 
involved?

A* The Chairman, I thlnlc, was Chief Inspector Jack
Holt.

Well, let me put i'. this way, did that Board 
reflect a policy making entity within the Police Department?
A- They do not have the power to set policy, I don't
think. I think what they did was make their recommendations 
to the then Director.

, All right. And di;i you, in fact, conduct any 
investigations into the use oi; various ammunition and v/eaponry 
at the request of the Board tl̂ at you mentioned?
A.
Q.

A.
Q.

Yes, we did.
And when was this done?
I don't rccaJ-l e:c.?.ctly, somev;here around 1973, '74 
Was it prior to Cci'ober of 1973?



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A- I don't recall.

indicate what weaponry the Police Department
was using prior to that request that you conduct a study?
A* The same that we are using now. The medium Ten
Smith Vlesson j-\- heavy barrel revolver.

what type of ammunition were you using prior to
* *

the conducting of this study? t ■. . > •

bought —  the period of time from I970 until 
now, we had used hollow point ammunition of various malces 
due to the City's purchasing policy until we definitely 
established one round. And it's just like choosing an 
automobile. They make all brands.

MK.DAYS: Your Honor, this
really concludes my Introduction.

THE COURT: Let's resume at
9:15 in the morning.

(Whereupon, Court was adjourned 
at 4:55 o'clock p.m., until 9:15, August 3,
1976.)

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MORNING SESSION ---- ------------
AUGUST 3. 1976

THE COURT: Are v/e ready to proceed,
gentlemen, with the testimony of Captain 
Coletta?

MR. DAYS: Your Honor, we were
trying to determine whether another one 
of our witnesses was present. We thought 
we might take him before continuing with 
Captain Coletta, but he *s not present.

THE COURT: All right. You may
proceed,

* * » H »

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1 A. COLETTA,
resumed the stand and testified further as follows:
DIRECT EXAMINATION 
BY MR. DAYS:_______  ^

Captain Coletta, directing your attention 
to the training program and the Academy in the use 
of firearms. First, I would like to ask you what 
the applicable standards are in the state of 
Tennessee, in the City of Memphis under department 
regulations with respect to the use of firearms, 
if you know?

A* Yes, sir. The city requires, the police
department requires —

Q* (Interrupting) Could you start, if I
may Interrupt, could you start with the state 
standards first, if you would.
A. • '• I don’t know if there are any state
standards for recruits per se. However, at a 
recent meeting it was determined that every officer 
shall qualify under his fire department program at 
least annually.

Q- Perhaps you misunderstood my question.
Let me restate it more carefully in hopes that you 
will understand.

Is there not a state statute that controls

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1 Ithe circumstances which police officers may
use lethal force?
A.
Q.

Yes, there is.
Are you familiar with that standard?

A.. Yes,sir.
Q- Would you state your familiarity with that?
A. I believe it--is section 40-808, I'm not
certain of that, but it authorizes a law enforcement 
Officer to use deadly force after all other means, 
reasonable means, have been exhausted in the 
apprehension of a felon-.
Q. Now, there are also departmental regulations
with respect to the resort of lethal force by police 
officers?
A.
Q.

Yes, sir, there are.
V/hat is the nature of that regulation?

A. It is more restrictive than state law.
Again following the guidelines of the state law, 
after exhausting all means of apprehension, and it 
eliminates some felonies, such as embezzlement, et 
cetera, primarily the 'felonies in which deadly force 
are authorized or crimes against persons, murdering, 
burglaries.
Q. Now, as a person Involved in training
programs for recruits-, did you have occasion to go

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over with recruits the requirements of the laws and 
the regulations that you Just described?

 ̂ discuss them from time to time, but
that primarily was given to them during their legal 
phase of instructions, probably by a guest Instructor, 
and I imagine it was our legal advisor at that time.

And would you be present at those lectures 
by the legal advisor?-

No, sir, I would not.
Q Have you ever had any hand in preparing 
a fire arms manual for the Memphis Police Department? 
A« Yes, I have.

‘5- Can you indicate the nature of your
participation in such an effort?

A* Cn many occasions we were asked what do we
teach, and in an effort to clarify this and provide
guidelines, or as to what we taught, we prepared the,
prepared the manual that encompassed at that time
all of the subject matter that we did teach.

And when you refer to "at that time" can
you Indicate what time you are referring to?
A V• Yes, sir, when the manual was instituted
I believe around 1972 v-’’

manual would reflect what was being 
taught to recruits as of 1972, is that right, at the

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Academy?

A. Actually it would reflect what had been
taught before also, to a certain extent.
Q* Do you have a-copy of that manual with
you?
A . No, sir, I don’t .

Mr. Coletta, let me show you this document 
and ask you whether this is the manual to which you 
were Just referring?
A. Yes, sir, this appears to be it.
Q* And is this the manual that you were
responsible for preparing?
A. Yes, sir.

Now, I ask you whether you recall any 
suggestion in this manual of the legal requirements 
Controlling the use by Memphis Police officers of 
lethal force?

A* Policies and procedures were instituted
and placed in the front portion of the manual.
I don't recall at this time Just exactly what 
policies are there.

Let me direct your attention to page 3  ̂

of this document, chapter 5 , and ask you whether 
that refreshes your recollection as to whether or 
not there was Included in the manual any discussion

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of the legal standard controlling the use of lethal 
force by police officers?

Yes, during discussion of liabilities 
and tact on the applicable use of weapons, which 
is the chapter, we did discuss legal ramifications 
surrounding the use of firearms.

When you say ”we", does that indicate that 
you personally engaged in such discussion with 
recruits?

 ̂*• could have been any one on a range
staff. I don't recall who gave the lecture.

Did you, on occasion, give a lecture with 
respect to this particular subject matter?
A. Yes, I did.

you indicate the nature of the 
lecture that: .you gave on this particular question of 
the use of lethal force by police officers?

Well, of course, we wouldattempt to 
provide the officers with guidelines as far as what 
he could and could not do. We would cite cases 
which have occurred elsewhere showing and 
demonstrating to them what these court cases said, 
what the action of the officer was and what the 
result was. We would speak of ethical reaction 
from the community.

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mQ- What do yoij^'mean by ’’ethical reaction fro
the community”?
A. What the community thought that the ethics
of the police department should be in the use of 
deadly force and how, if we succeed, what their 
expectations were. We felt that there would be more 
restrictive laws and that particular time it was 
discussed at length I think on a number of occasions 
concerning these various things. We would also 
speak of the moral dilemma that the officers will 
be confronted with.
Q. • What do you mean ’’moral dilemma”?
A. What that persons, that officer could live
with his actions. If he v;as wrong we have had 
occasion to see where officers have been subjected 
to psychiatric examination. If he was wrong we felt 
.that it would'.work on him, perhaps not nov;, but per­
haps later on' in his life and we emphasized the 
point that the officers must be right, that he must 
follow the law and that he must be able to Justify 
his action.
Q. And by ’’Justify" what exactly do you mean?
A. Justify it in every way.
Q. I ’m asking for a specific, since you are
engaged in instructing recruits?

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1 s^lsfied under the Police Departmenf: 
policy. He must be able to justify it under the 
state law, he must be able to justify it in his own 
mind so he can live with it.

the course of academy instruction in 
the use of firearms between, let’s say, the years 
1972 and 1973 up to the end of 1973, did you 
employ any films, that is movies, to aid in the 
instruction of recruits in the aid of lethal force?

we employed one to help and try to 
develop the officers in the judgment of his process.
*5- What film was that?

’’Shoot, Don't Shoot".
Were you requested to bring that film to

court?

28.

A.

Q-
A.
Q.

Yes , ,sir.
Do you have' that film?
Yes, sir. '
Are you in a position to project that film 

for tHe benefit of the court?
sir, it would require a few minutes ' 

to set the projector and film up.
MR. DAYS; Could we have a brief 

recess for the purpose of setting up this 
film?

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1 THE c ij/ lR T :  Y e s ,  s i r ,  but I would
hope that we can go ahead and conclude 
the examination of this witness, unless 
you have some' examination in respect to 
the film, and then if possible conclude 
the cross examination, unless cross 
examination relates to the film, and 
then go ahead and get to the film rather 
than interrupt at this point.

MR. DAYS: Yes, Your Honor, I really
do have questions that are directed toward 
the content of the film.

THE COURT: All right, sir. I»m
sorry that the film equipment and so 
forth was not set up. If you will 
advise us when you are ready. We will 
take a recess.

(Recess.)
(By Mr. Days) Captain Coletta, you were 

asked to screen the film "Shoot or Don't Shoot".
Is that film ready?
A. Yes, sir.
*3* Would you start running it, please?

(Thereupon, the film began at 
9:^5 a.m. and concluded at 10 :08.)

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YjMR. DAiJ/6 : Your Honor, I would like

to have that film marked and moved 
into evidence if counsel has no 
objection.

MR. KLEIN: No, Your Honor, I have
no objection.

THE COURT: All right, sir. Let
it be marked with the ultimate right 
either to make a copy or to return 
after it has fulfilled whatever use the 
record would specify.

THE CLERK: The next number is
16 .

(Whereupon, the said film was 
accordingly marked Trial Exhibit 16 and

* . . .  J-.

received in evidence.)
THE COURT: All right, sir.

Q- (By Mr. Days) Now, Mr. Coletta, in the
film "Shoot, Don’t Shoot", there is a discussion, 
is there not, of three criteria that an officer 
should look to in determining when to fire a weapon 
at another person, is that correct?
A . Correct.
Q. Identifying whether a person who is armed
has the ability to injure the officer, whether there

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an opportunity toAnjura the officer, whetherin
fact the officer is in jeopardy, whether there is
a chance, the ability and opportunity will be

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realized in some fashion, is that correct?
A. That's correct.

Is it ’̂air to say that this film is 
directed toward the queatlon of when police 
®^^lcers should shoot to protect themselves?
A- Yes, sir, as well as other times.
‘5* Is there a discussion in the film of

whole question to shoot fleeing felons, is 
there not?
A.
Q.

Yes, sir, there is.
And the film.says generally that the 

police officers have the right to use lethal force 
to apprehend fleeing felons?
A . Yes .

Is it not true in the case that in the 
film that all of the fleeing felons were armed, the 
man running through the field, the gun in the hand, 
the fireman, the right to shoot a fleeing felon, 
there is a situation where the man Jumped out of the 
automobile and ran toward the corner and pulled his 
gun, that is the fleeing felon situation, and then 
there is a man with the satchel in the open field and

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he had a, I don't kncj^ what the weapon was, but he 
had a gun in his.possession, isn't that correct?
A. Yes, sir, and there were several more
scenes where the man that preceded the man coming 
out behind a row of buildings, he was not armed, 
and the last scene, I believe those two were not 
armed either. Yes, for the most part they were 
armed.
• Does it specifically say under those

circumstances that l^.^was clear that a felony had 
been committed?

Yes, in some of the cases I think it was 
self explanatory.
Q- I ’m trying to get your understanding of
what the film was communicating to you and bn the 
recruits that saw this film. In the situation where 
the two men were comipg out of the building there 
was no indication tha.t the unarmed man running out 
of the building was a fleeing felon, was there, and 
the last scene with the officers holding his 
badge out, there was no indication that those men 
running away had committed a felony?
A. No.
Q- They also said if there is a slightest
doubt the officer should not shoot?

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A . Yes. J

Q- You should be absolutely sure there is
a felony committed before a firearm is used?
A . Yes .

Q- Now, do you have any doubt that this film
was shown to recruits during 1972 and 1973 at the 
academy?

A. I don't know exactly when. I don't believe
that there is any question about when it was shown.
Q* Now, did you show any films that related
to the use of lethal force to apprehend fleeing 
felons that were unarmed?
A. I don't know of any in existence.
Q- So your answer is that you did not show
such a film?

3 3

A. No.
Q- Did you engage in any discussions with the
recruits about the use of firearms to apprehend flee­
ing felons that were unarmed?
A . * I sure did. '

Did you indicate generally the nature of 
discussions that you had with the recruits, what 
types of standards did you indicate to them that 
they should follow in shooting unarmed felons?
A. Of course, the first thing I would do is to

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1 find out what they k|^w about it because they had 
understanding when they came to the firearms portion 
of it, their training, they had understanding, their 
legal training. I would find out Just exactly what 
knowledge they have, and I would try to clarify 
points of doubt that they may bring up.
Q- In other words, they would have gone through

. the discussion of what state law required and what 
the department of regulations required?
^ • Yes, sir.

‘All right. Now, am I correct in thinking 
that under state law and the police department 
regulations there is a requirement that officers 
exhaust all alternative non-lethal means in —
A* Yes, sir, exhaust all means that are present
there that you can exhaust.
Q* All right. .. Now, did you show any films
to recruits about what non-lethal alternatives 
might be available to them in a situation where a 
person was fleeing from the commission of a felony 
that was unarmed?
A. Yes, sir, we discussed it.

Did you show any films?
A . No films.
Q. But you say that you discussed it. Can

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2
you give a general 
discussion?

iicatlon of the nature of your

A. Yes, sir, that if you don't catch him
immediately, more than'likely he will escape and 
then the alternative is to put out radio calls, what­
ever, and attempt to apprehend him that way.
Q. Well, are you saying that if a fleeing
felon escapes, then the police officers should 
contact other policemen and try to apprehend the 
fleeing felon by getting reinforcements, is that 
right?
A. Certainly.
. But did you discuss what constitutes

reasonable alternatives, non-lethal alternatives?
A, Yes, sir. There really are none
generally if you don't catch them and then 
generally that is thepolnt that I'm trying to 
make, that they will have a very difficult time in 
catching them. Most of the fleeing felons are 
driven by some motivation, I don't know exactly 
what, that really drives them to perhaps run 
faster or perhaps do things that they normally 
couldn't do.
Q. Well; are you saying that, in fact, in
most situations there are no reasonable non-lethal

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alternatives that a ^ ^ I L c e  officer can rely upon 
when a person, who is unarmed, is fleeing from a 
felony?
A. No, sir, you- -asked me what my discussion
was .
Q. I'm trying to find out what your particular
position is with respect to the existence of 
reasonable alternatives to the use of fleeing force, 
if there are reasonable alternatives, and, if so, 
what they are and to what extent are these alterna­
tives communicated to-recruits? Start with the first 
one. .7.
A. The first one is to run and catch him.
Q. First, wait a minute, do you think they
are reasonable alternatives?
A. No, sir, I don't think running and
catching him is reasonable alternative.
Q . Why not?
A. Because I don't think, in the majority of
the- cases it can be reasonably done.
•5. Are there any alternatives to running?
A. When someone runs from you, the only
alternative you may have would be on the front end 
to possibly, if manpower is available, employ a 
different set of tactics.

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All right .1̂  So you think that running 
probably is not .a very effective alternative.

You have suggested that maybe heading this 
person off might be an- alternative?
A* Certainly you may do so.

D l d v o  -3 ,J°U educate your recruits that running 
after a fleeing felon that was unarmed was probably 
an unreasonable alternative to the use of lethal 
force?

A* I don't think I projected it as an
unreasonable alternative.

tell the recruits they had to
exhaust all reasonable alternatives before they
use their weapons?
A . Ye^ sir, absolutely, and they were also 

their law session Instructions.
you discuss with them techniques that ' 

would employ alternates to the use of lethal force?
A . Yes,sir.

• And what were the nature of those police 
techniques?

Well, of course, as all contingents of 
catching or being within the same area as the 
suspect --
Q • All right.

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1 A. Once you haL^e decided what your course of
action would be, and once you have deployed yourself 
accordingly, for example, your partner to the front 
of the office and you to the rear of the. office or 
whatever the situation, utilizing the covered hand, 
once you met armed resistance, once you have adopted 
a particular course of action, then you must carry 
it through until some act changes that course of 
action- Now, you can give a thousand instances, and 
 ̂ venture to say that those thousand instances woul^n’ 
occur the way in which you say in the next three 
years.
Q. That is true of this film?
A.
Q.

Absolutely.
That film can’t show all the situations

that a policeman encounters?
A. Certainly not. Certainly it would
provide guidelines of some of the reasonable 
alternatives that you are talking about.
Q. All right. So I'm asking you what efforts
that you made to establish guidelines for the use 
of lethal force when people were fleeing from the 
commission of felonies and were unarmed, what are 
the standards?
A. That is wh??t I say. One alternate is

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running, another altejjnate Is heading them off, 
another alternate is shouting at them to stop.

' Q.i Youare telling —
\

MR. KLEI-N: Your Honor, I don’t
think h e ’s letting the witness finish, 
and number two, I think he ’s cross 
examining his ov/n witness. I object 
to that because h e ’s using legal 
questions..

MR. DAYS: I would like to
clarify that for opposing counsel and 
the court. Captain Coletta is called 
as a hostile witness and/or adverse 
witness under Rule 6ll of the Federal 
Rules of Evidence and under that 
rule I am permitted, as I read the 
rule, to examine as though it were 
cross examination. I think it is 
fair to say that Mr. Coletta is a 
witness identified with an adverse 
party in the sense that he is employed 
by one of the defendants in this 
case .

THE COURT: Well, I will
overrule the objection to the use of

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leading question in treating the 
• witness as representing the adverse 
party in the.proceeding. I will 
ask that if* the witness feels he has 
not Deen able to complete a response 
that he advise us so that his response 
will be completed before the next 
question.

Q* (By Mr. Days) Let me apologize to the
witness and to the court if I have been unduly

}

Interruptlve in terms of your responding to my 
^’̂ ^stions. I certainly want you to answer as fully 
as you feel is necessary.

I was asking you at an earlier stage how 
you went about communicating to recruits what the 
guidelines should be in terms of the use of lethal 
force in apprehending felons who are unarmed?
A. The way I construe that, Mr. Days, and I
can respond this way, the lecture method, talking, 
the discussion method, that I presume is v/hat you 
are asking. I really don't understand.
Q* All right. Let me try again. You are in
^he police academy and you have a group of recruits 
before you. And let's assume that the question is 
the use of lethal force to apprehend fleeing felons.

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IIn that context did have, as a part of your
presentation, a discussion of techniques for 
apprehending unarmed fleeing felons?

Pei’ se, yes, generally. But specifically 
I did not delve into peculiarities because this is 
a legal subject and should have been handled in 
depth by the legal instructor who provided them 
that instruction at the academy.

Q- Let's presume that the legal Instructor
says that Tennessee state law says, gentlemen, 
i*ecruits and gentlemen, women I guess are recruits 
at this point, you may use lethal force to apprehend 
fleeing felons, but before doing that you must exhaust 
all reasonable legal alternatives. All right. And 
the legal advisor also tells the recruits that under 
the Memphis Police Department regulations, state 
law, is restricted to a certain extent and that fewer 
felonies are regarded'as justifying the use of lethal 
force by officers, but that under both state law and 
under police department regulations there is this 
requirement of exhausting of non-lethal alternatives. 
All right. That is the predicate.
A. O.K.
Q* Then you have the police recruits before
you and the question arises of you on behalf of one

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1 of the recruits, Capl^ln Coletta, we know what the 
legal advisor told us about reasonable non-lethal 
alternatives. What are they, what do we do in terms 
of police in regard to-tactlcs to carry out that 
requirement of exhausting non-lethal alternates.
That is not a legal question?
A . No.
Q. That is a tactical question?
A . Yes .
Q. How do you go about communicating an
answer to that particular question?
A. Well, Mr. Days, the first thing I said
before, to approach the scene properly, to plan to 
develop their course of action prior to arriving on 
the scene, to devise, if it is a two man car, who 
will go where so that one will be aware of the other, 
where he will be, what his actions may be; and once 
they have decided upon their plan of action to 
approach the particular location contingent upon 
where it is located, what its physical structure 
and lighting is, whether it is daytime, nighttime, 
or whatever, and in approaching to be aware of 
anything because nothing is routine. Anything could 
happen, to approach it with caution, particularly 
a felony type call and then once they are on the

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scene to apprehend, first try to cover the exits, but 
if, for example, someone should escape, to do their 
utmost to apprehend or .^capture without using 
deadly force, to run after him, possibly that they 
can t catch him, to shout at him, to halt, if possible 
to shout at his partner to head him off, as you 
suggested, to utilize any means at their disposal 
t that particular time to apprehend that subject.

If they are close enough, certainly they could 
resort to the use of a night stick possibly, but I 
don’t know, but in some cases that non-lethal _

Mr. Coletta, in the police manual that we 
discussed earlier, is there not a section that relates 
to procedures, police officers should use in certain 
situations ylth respect to the use of lethal force?
A. There is a section on tactics in there.

All right, could you find that section in
there?
A. Page 41, specific tactics.

»

Would it refresh your recollection if I 
directed your attention to page 39. Isn't that 
also .a place where tactics are discussed?

Yes, it is.'
So there is a discussion earlier than 

Page 4l with respect to tactics?

342  ̂ 443



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sir, there is.
I'sre you involved prenen

the manual on tactics? * section of

'̂ ss, I was.

And how many pages in the' 
devoted to thi manual are

""" ’““ ‘i°n or tactics?
I'm not certain.

«eU, could you loo, end try to r r 
recollection? ®-^resh your

nn^page 38 it eis
deals then also ousses it, but it ^

P^se to „itn bullet err e
-nd potential or projectiles on f  "“‘^"^nsss
tPsslric tactics Picked ""
i heiieve. "  Page t8.

'• is there, a discussion or tactic

tactics With use of n  <^i"cusslo
. firearms on page•̂ t goes Into r»rh ^ then« -i-iiieo cover T+. jIt doesn 'tail a

nrear.s. -^th tactic.
Officer. -  a police

0-K. There-.Is a discussion of t
38 to page .hat?,:

A. 2,5_
Q.

I3 there any discussion m  that^ in that section on
. 444



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tactics ?
A. 46.
Q. What techniques police officers should

use in apprehending fleeing felons that are unarmed? 
A. I don't recall, I would have to look. I'm
sure —
Q . Well, would you look now and try to 
refresh your recollection?
A. Under the specific section of tactics,
it has it here that the tactics that a person can 
commit, it doesn't make any specific distinction 
over unarmed or armed, but it can be employed in 
either way.
Q. Does it say anything about non-lethal
alternative tactics for apprehending'fleeing felons? 
A. Not per se,' no, sir.
Q. Does it say' other than per se in that? V
A. It says the unknown, the unexpected in
dealing with situations where police do not have 
positive information or initiated from minor actions, 
minor Infractions, disorderly conduct, family 
disputes
Q . That, is talking about non --
A. It is talking about tactics, that is what
this section covers, tactics.

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Q. Is there airjy specific mention to the best
of your knowledge in that manual of what non-lethal 
alternate should be employed by an officer before 
resorting to lethal force?
A. No, sir, per se, no, sir.
Q .  Well, you have used the term per se, several

times.
A. That means explicitly in the way that I

use it.
Q .  All right. What role does a police
officer’s discretion play based upon your experience 
in the Memphis Police Department and your role of 
a teacher of recruits with respect to the use of leth 
force; what role does discretion play in the 
decision of an officer to use lethal force to 
apprehend a fleeing felon who is unarmed?
A. I would say it plays a major part.
Q. And why would you say that?
A. Judgment, discretion, term it what you
may,*lt is a very difficult subject to teach, and 
I ’m not certain that you can even teach it. I ’m 
not certain that you, at all thatyou can teach a 
man Judgment. It evolves from maturity, from 
experience, from a number of factors over which you 
may have no control.

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Q- Isn’t the extent to which Judgment is
exercised is dependent^ upon what standards a person 
^s provided?

A. Certainly that, is part of the experience.'
Well, let's assume that we have an officer 

who does not have a great deal of experience as a 
policeman, that is, does not have many years of 
service. Let’s say we take a person who is several 
months out of the academy, several months on the force, 
to what extent is the judgment of that officer in 
terms of the use of lethal force against unarmed

eelng felons circumscribed by some type of standards, 
certainly circumscribed hy standards and circumscribed 
by state law?

A- In 1973j if my memory serves me right, we
had no policy regarding the policy of deadly force.
We were strictly governed by state law. I believe 
deadly force policy was instituted in February of 
1974.

Let me direct your attention to a document
and ask you whether you can Identify it?

*. '

MR. KLEIN: May I inquire what
that ip.,?

MR. DAYS: I'm sorry, let me show
it to counsel before you look at it.

2  i n 41:7



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Q.
. !> ■ : 48.

(By Mr. Days) Can you identify that
• . document, ^Mr.'•• Coletta?

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" had .my attention diverted to'̂ fire-"̂ ';̂
arms review board ,_I »̂m sorry, I guess that' is where 
I was thinking February of ’7I1.

. ; Based on^yo^ur observing this , d o c u m e n t d o  ."'t
■ ^ '  'V  ■ . . -•'}• f- \ '•  . t»  t  ‘■ ' '  • i - - .  -■ ^1. . .  y '} ' ’  * ' •

r_-5; .you have;any_ reason^to change the testimony‘’-that* "■ ^
' ■ ' ■ ' . ■  ‘ • ■ . »  - r l i t  ■ ’ . 'v  .̂‘>.'•'1

you just gave? .V':'.'
■ i  • ■ ' .*■ . ' ■ '

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No, sir, not one iota. Not one iota.

' ^nd;,^pur^^^stimony is that _,there were, no 
’ departmental regulations with respect to' the ' use of 

lethal force?
A.

in mind the establishment of the firearm review ■’
• board, I believe, and I believe I said,, if .my memory '

. • • . ‘v’.- •• ; • ‘ r.'r ^ VI J

■ serves me correctly will, .apologize "no ,'y this.tis’.' 
.wrong, it is dated 1972, which concerns the :use of■ . :  ̂.N,n:it-’,.'; . . • .-r-
firearms. ■.-•■■ ; , -  y

, *. And is it a policy that also, articulates
, . the 'fact that there has to be an exhaustion' of ' > ;V ■.• ̂ P;* ■ V r  ̂ --'i
. non-lethal alternatiyps before using lethal force? •'

No. No, I^.thought I clarified that' I had

Yes ,. it. is,. •'
< ‘S'?.;; ( C.'':/*

;; A.

- .^P^'arpvengaged, or: you were engaged,
.  f  -*5

were you not, Mr. Coletta, as head of the firing ■
.range in teaching recruits how to use firearms?

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A.

Q.
Yes, sir • y
And did that training involve teaching them

■•1-.
.: , how to shoot at'..human- beings?

*'•...' -i' jT "  7- -  A ,

■■■ • ^ - ? ■-. -.V• • . ■■■- . ■ •,.- ■' ■ r '••; Primarily -.our: obj ective ...isi to :shoot-:;-'.:-.'nH----n.'-.
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■ ■•'■ S  • l i  • * , • . '  ••*

accurately regardless?;of what the target, and not 
primarily teaching them departmental policy or the

• • • . -  ‘ . v  . . .  ■ , - > • •  .f*
/-.legal, aspects surrounding it. ; Our primary-objactive 
was 'teaching marksmanship i

terms of.-teaching marksmanship, did you 
use targets? '
A.,;/', ■ Yes ,;.we -dl44̂//."‘'

.  >■ <■ *
And did any,i;Of: those targets .that'you'-;' 

used have conformities that were parallel to the 
conformities of the human body? ’ : '

/•^v. -v' ■■■ Many of;'them-do. , ŷ-/ . :

. Q. ■:•• And->in . termsjvof the _use_ of thatr target 
/ w h a t : j w ere y o u' t r yin g. ;/t p t e a c h ;t h e. r e c r u 1 1 s '■ t ,o ■ d o /■ i h-̂  
terms of shooting that-/target'that represented • a

■■■* '■ " "'v r * ,"w. ;• ,human figure?

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A.
Q.
A.

.Q-’'
P  ■ ■= =A';
Q.

To hit it. ■ v ' ■ -V
To hit' any particular part of the target?w. ' ' . . . .■ <i r. • . J' .*■ '  •

Yes,. sir, certain mass .
Certain-center-mass?V-:--.r::4 V  I '  - V  «■ . .  . •Yes,̂ 'sir::;- -Vf:.;? * .  » •' V • •

•***■> ■ 

• ■•'■ i"’* • 'V.
If one were considering a human body as •

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opposed to the target^ where would the center mass of 
the body be?

A- Somewhere around the sternum, I'm sure.
Q- I'm not a doctor, and If you could use a
more simple vernacular of the body.

This area between the chest and the
stomach.
Q.
A.
Q.

Between the chest and the stomach?
Yes, sir.

And can you indicate why your goal was
instruct recruits to shoot that particular portion 

of the target?
A . Yes, sir.

Would you,please?
Because of the fact of the mastery of a 

hand gun is the most difficult to teach and to grasp. 
Proficiency with a hand gun is far' more difficult 
than obtaining proficiency with a shotgun or a rifle, 
and it is due to the physiological characteristics 
of the*person who must support the gun, and any human 
being having to support the weapon at arm's length 
is more unsteady than one supported by the shoulder 
and by the hand, so handguns are the most difficult 
to master. In attempting to master them, most common 
errors that are committed with the handgun are either

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1 Shooting high or dippiJEng the front sight and shooting 
low, or Jerking the trigger and Jerking it off to the 
left at what we call 7:00 o'clock position off of 
the target or anticipating the shot and bucking into 
it and/or pushing it up to the 1:00 or 2:00 o'clock 
position, all of which the person who is not familiar 
with the particular terminology may call flinching.
Q* Thank you. What does that have to do with
usingthe center mass as the area recruits should 
learn to shoot at and hit?
A. It allows them that should they make an
error, which are common, that still they might hit 
their target and may Incapacitate or stop that person 
°r target or whatever, if you want to relate to that 
person, may stop that person from performing the 
Illegal act, but certainly in marksmanship it would 
Indicate to them that that is the greatest area and 
best area to aim at to hit an area on the target.
Q. Let's assume for purposes of hypothesis
at this point, a recruit could be taught to shoot 
at parts of the body other than the center mass to 
which you have made reference.
A. I would not —
Q. Let me finish the question.
A . Excuse me.

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I: 
1/ 52.

Formulation, if you would, or could shoot 
the arm portion or the hand, would you, based upon 
your knowledge of Memphis Police Department policy 
and your own policies with respect to instructions
of recruits, would you teach that type of marksman­
ship?
A No, sir, I would not.
Q* And why wouldn’t you?
A. Because I think it is an impossibility.
There is other factors __

Would you entertain my hypothesis for a
while?

Yes, sir, I will and be glad to throw a 
little of my own in there if you don't mind.

. Let's take mine first and then I will be 
glad to entertain yours.
A. All right, sir.

Q* My hypothesis, you, in fact, Mr. Coletta,
as a skilled marksman,, are a person familiar with the 
use of the teaching of. firearms, could teach recruits 
to shoot arms and leg areas other than what you refer 
to as the center mass?

A- ' Are you saying that I could.
could, that is a hypothesis, and the 

question is if that were possible would you do so,

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........... . ......  ............  53.
! j

would you instruct recruits in that respect?
A. No, this would require qualification. It
would require qualifying. Certainly I would, 
certainly I, however, number one, we are bound by 
a number of variables under which we operate. One 
is a time factor. I think as I said before that it 
is possible to teach anyone within the time specified 
that we have to train recruits, and,, in fact, is 
in my experience, it may be impossible to teach 
anyone to hit that particular target every particular 
time when you throw the other variables that come 
into play, and I guess you are applying this to the 
police work, so I throw it in. In addition we are 
bound by budgetary requirements. Now, I'm certain 
that the budgetary requirements are not the concern 
of this court, but it is my concern, and when you 
asked me would I teach, then I must say certainly 
I'm bound by the budgetary requirements, and it is 
a very real problem 'for me, as a training 
administrator, we are bound by the quality of the 
students that we get, the quality and the aptitude 
that he possesses on the front end, so with all 
of these variables brought into play, for that 
reason I say that it' is impossible toteach a 
recruit at this time to be a marksman to the extent

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i t l n  ’s arm, a leg or any extremity
5 4 .

that he could hit a 
of the body.
Q* O.K. Well, let's take a situation where a
person is armed and either confronting the officer or 
trying to flee. Isn't it true that the extent to which 
an officer can hit the center mass, that is that 
mid portion of the body, the greater the likelihood 
that the person who is unarmed will not shoot the 
officer as opposed to, for example, shooting a 
person, who is armed,.in the leg because his hand 
would still be free and he might shoot the officer, 
is that fair? Is that not fair?
A. Would you repeat that again. Maybe I
didn't follow the gist of it.
Q. If an officer is confronted with a suspect
who is armed, and let's assume that the suspect is
either pointed toward the officer or running away,
but has a weapon, and for all Intents and purposes
and to the knowledge of the officer, he'sable to,

*well, meets all of those requirements in the film, 
the ability and the opportunity and the Jeopardy 
factors there.
A. All right, sir.
Q. Is it not correctthat an officer who shoots
that center mass will- better able -- will better

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I 'f 55.
insure that h e ’s not &<^ing to get shot by that 
person who is armed as. opposed to if he shot the 
person in the arms or hand or leg or some other place? 
A. I can't predict that.
Q. • Why can’t you predict that?
A. Because of the variables Involved and the
effect of bullets on live tissue.
Q. Is it your assumption that a person, if a
person were shot in the leg as opposed to being shot 
in the stomach, that there wouldn’t be any expectancy 
that in the situation^where the person is shot in the 
leg that person might;be able to return the fire, 
whereas if the person.is shot in this mid portion 
and the person would be incapacitated to the extent 
that the weapon might_^not be fired?
A. No, sir, I don’t buy that at all.

Then why?
I ’m trying to find —
I ’m sorry .•j ;

It doesn’t matter where the person is shot 
generally, specifically, yes, but generally, but the 
matter, what you shot, you know, there are a lot of 
variables, what you shot him with, the caliber, the 
projectile, et cetera, et cetera. Presuming all things 
to be equal, he shot him In the chest, the probability

Q.
A.

Q.
A.

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Mi 56.
*of him becoming, I ii^glne what you say is neutralized 

rather than incapacitated, because he *s incapacitated 
if you knock his leg out from under him.
Q. By neutralized, let me understand your
terminology, does that mean that the persons will not 
be able to return fire?
A, He is immediately stopped from any further
action.
Q,
A.

Including fire?
Any action.

Q. And incapacitation in your terminology
would be a less drastic impact upon the person than 
neutralization?
A. Yes, it would be. Now, the things, and
this evolves down again to the bullet effect on 
people and it is not a predictable factor balllstician 
cannot predict'-what is going to happen. I think it 
is more than psychological than anything. Just my 
own viewpoint that if a person is shot that fact 
must register on his brain in order for him to 
immediately stop whatever act he is performing.
Q. All right. Novf, based upon your experience
^^d your knowledge in’the field, can one predict the 
extent to which a wound in one area of the body will 
have a more neutralizing effect than a wound in

355 45G



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A.
Q

another part of the bojdy?
Yes, sir, you can.
And can you indicate the nature of that 

progressive neutralizing effect in terms of areas of 
the body?
A. Yes, sir, I will try to. If you were to
strike a person in the head, for example, and it 
strikes the central nervousness, the brain, the 
control, then my guess, of course, is then you would 
neutralize him faster.
Q All right.
A. In the chest portion, I don't know, I'm
not a medical doctor.
Q.
A.

All right.
I can relate what I have seen from

experience.
Q.' By'chest, do you mean from the base of
the neck down to the rib cage?
A. The stomach.
Q.
A.
Q.
A.

The bottom of the ribcage?
Yes, sir.
All right.
I don't really know, I'm not a doctor.

from the stomach, again I don't really know. All I 
can relate are my experiences on what I have read

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and what I have seen.
Q. And what have you concluded from that
exercise?
A. I have concluded that there Is no projectile
that is in the hands of police at this time that will 
effectively neutralize a person or stop him instantane­
ously from performing another act.
Q. But if you will indulge me, I believe the
question was, what are the relatively neutralizing 
effects based upon, whether a projectile hits various 
parts of the body, and we had gone from the head down 
to the chest area to the stomach. Is it clear that 
that mid portion will probably cause a person to be 
more neutralized by a projectile than if that person 
were hit in the chest area?

A.
Q. ■ ' 
A

If he were hit where?
In the chest area.
In the chest he v/ould be more neutral?

I couldn’t say, yes. It depends on what it strikes. 
It depends on the velocity of the projectile. It 
depends on a lot of things.
'3. All right. Well, why do you teach the
recruits to shoot at the central mass, if, in fact," 
it is possible that shooting a person in the leg 
might have a more neutralizing effect?

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1 A. It has greater room for error. The probabill

A.
Q.

of hitting that area when you hold center mass.
Q* O.K. So it is the bigger target, is that
correct?
A- Yes.

Are you concerned with neutralizing people? 
I sure am.
And is ityour concern to neutralize 

people even when they are unarmed and pose no threat 
to officers?

A* You know, a police officer is sv.’orn to
uphold the law, that may sound trite and cliche, but 
it isn’t, that is his duty, but that is what he is 
sworn to do. He must enforce the law by whatever 
reasonable means that are at his disposal, whatever 
he'is allowed to do, whatever the law dictates'that ’’’* ' ■ •  ̂4 • . . . .
he should dp, whatever‘policy that the law allows 
him to, it is his duty to apprehend the person 
certainly, and we know and we perform acts every day 
which may, to us as an individual, be distasteful, 
it is our duty, therefore, we must perform it.
Q* I'm sure there is no disagreement here in
the court with the point that you Just made, Mr. 
Coletta.

DAYS: Your Honor, at this point

ty

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I'm concer^d with moving into another 
area of inquiry and I was informed by 
my co-counsel, Mr. Bailey, that he had 
a witness In'the court —  is he still 
present? Who would appreciate being 
allowed to testify at this point. I 
think it is a logical break in my 
examination, and if counsel has no 
strenuous objection I ask the court's 
Indulgence.

THE COURT: All right, sir. We
will take a recess and then we will 
hear from -- is your other witness an 
extended witness?

MR. BAILEY: No, sir, his
testimony will follow the same trend 
of Chief Dan Jones.

THE COURT: All right. We will
take a recess. Do you wish to be heard 
in that regard, Mr. Klein?

MR. KLEIN: No, Your Honor, I'm
going to ask them probably to 
accommodate me at one time or another, 
and this presents no problem.

THE COURT; You may step down, sir,

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We will a brief recess.

(Recess.)
THE COURT: You may call your next

witness. ... -

MR. DAYS: I would like to call
Mr. Barksdale.

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A.

Q.
A.
Q.
A.

EUGENE L. BARKSDALE,
having first been duly sworn, was examined and
testified as follows:
DIRECT EXAMINATION 
BY MR. DAYS:______ _

‘5* Would you state your full name for the
record, please.

Eugene L. Barksdale.
And do you reside In Memphis?
Yes, sir, I do.
Are you presently employed?
I am on a leave of absence from the '

Memphis Police'Department.

And prior to your taking leave of absence, 
what capacity did you have at the Memphis Police 
Department?

A« I'm an Inspector. At the time that I
took my leave of absence I was Inspector of the 
personal crimes bureau.

Can you give some indication of the nature 
of your responsibilities as a commander of that 
division?

A* Right, I had the administrative duty and
responsibility and command responsibility of all 
detectives assigned to homicide, assault, sex crimes.

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1 robbery and the criine scene bureau.

I o n s  have you been on the Memphis 
Police Department force?
A. 2 6 years.

been employed by anyone other 
than the Memphis Police Department?
A* No, sir, I have not.

ib Is fair to say that your entire 
life as a police officer has been spent on the 
Memphis Police Force?
A* Yes, sir. It Is.

What Is your educational background, Mr.
Barksdale?

School graduate. I have approximately 
three years of college. I ’m a graduate of the FBI 
academy, graduate of the Air War College and several 
police administrative schools and seminars and 
so forth.

You mentioned the FBI academy, can you
describe the nature of the training that you received 
there?

Twelve years training program conducted 
by the FBI which Includes all facets of police work, 
federal law, court decisions and things of that nature.

your capacity as Inspector, which

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Other officials in the department were superior to 
you?

Anything above the rank of Inspector, 
chief Inspector, deputy chief and chief and director 
of police.

So there are four categories above you.
Is that right?

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Q.
A.

Q.
A.

Yes, sir.

And how many levels below?

Captain, lieutenant, sergeant and patrolman 
So four below?

might add detective and there Is a rank
of detective.

Q* Is the position of commander of a division
an administrative capacity?

It Is commander and administrative, you 
have the command responsibility of supervision.
Q* So that Involves direct supervision of

officers In dealing with the problems In the 
area that you mentioned?

I deal primarily with the captains In 
charge of the various bureaus, but it Is my total 
responsibilities to see.that the duties are 
carried out effectively and efficiently.

I see. In your performance and experience.

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1 as a police officer here In Memphis, have you arrived 
at any opinions of what standards control- good 
police work In the apprehension of fleeing felons?

^ liave always been of the opinion and 
the opinion that you should never use a 

firearm to apprehend a felon or suspect unless It 
Is absolutely necessary for the apprehension of 
that suspect.

Now, In the articulation of that standard, 
do you believe that there Is any variation In the 
standard where we have a situation where a fleeing 
feXon Is armed as opposeci to a situation where 
a fleeing felon Is unarmed?

A* 0^ course, It Is difficult, I know, at
times to determine If a suspect Is armed or

I think that there Is a differentiation 
there. If you are positively certain beyond a 
reasonable doubt that the defendant Is not armed,
I think you have a different situation than you 
would If you knew that the defendant was armed.

Can you describe In more detail the nature 
distinction that you see In your capacity 

as an official?

Well, If a person Is unarmed, and you know

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1 that he is unarmed, you are not in fear of your 
life in an attempt to apprehend and your harming 
an innocent bystander as opposed to if he is armed. 
If you know that the suspect is armed, you approach 
him more cautiously and use a little discretion as 
to how you are going to apprehend.

MR. DAYS; Your Honor, I would 
like to apologize to the Court for 
getting in to these details to 
qualify Inspector Barksdale as an 
expert in the area of police 
procedure.

THE COURT: You may proceed.
If there is any objection to 
proceeding on that basis?

MR. KLEIN: I want to know
; - ■ j specifically what he’s going to
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get into. Of course, I can ask 
questions on cross examination 
about what his qualifications are 
in that particular area. I think 
I know where he is leading but 
^ ’ra going to wait until he gets 
there.

THE COURT; I take it that there

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Is no objection to you proceeding..
MR. KLEIN: Pine, that is

Perhaps the basis —
MR. KLEIN: I ’m not objecting

yet because what he has asked him,
I think he can probably ask. I 
can’t object until I know what the 
other questions are.

THE COURT: You are not waiving
any objections, Mr. Klein, I ’m 
simply stating, and it is apparent 
that there is ,no objection to proceeding 
along this line of Inquiry. You may 
proceed.

Q. (By Mr. Days) Mr. Barksdale, I was asking
you whether you felt that there was a distinction 
between the standards of good police work and 
apprehending a fleeing felon between a situation 
where a fleeing felon was known to be armed and a 
situation where a fleeing felon was known to be 
unarmed, and I believe you said that you felt that 
there was a distinction. V/ould you indicate to the 
Court what you feel that distinction is?
A. Well, I thought I said that if a
person, if you know that a person is unarmed, that

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 ̂ you can approach him without being as cautious
2 you can be a little more open about you approaching
3 that individual. As far as openness, running, or
 ̂ whatever the case may be, without a fear of being
3 shot as opposed to the person who had a gun or
6 weapon, you would approach more cautiously, you
7 wouldn’t run quite as fast or take cover or something
8 like that to keep from being fired upon.
9 Q. All right. Mr. Barksdale, I would
'0 like to direct your attention to Exhibit 6 in the
n record and ask you your opinion as an expert with
12 respect to whether resorting to lethal force under
13 the circumstances that I ’m going to describe was
14 reasonable based on your knowledge and experience.
15 Exhibit 6 is a --
16 MR. KLEIN: May I move closer,
17 Your Honor.
18 THE COURT: Yes, sir.
19 Q. (By Mr. Days) This is a scale model
20 of Vollentlne here in the City of Memphis and
21 its surrounding area. On the southwest back of
22 the house there is a- fence. Can you see that?
23 A . Yes, sir.
24 . Q. Running in a southward direction, and
25 that fence is determined to be approximately three

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feet high. It runs in, without Interruption, to

r 2 another fence. You see that fence?

• 3 A. Yes, sir.
4 Q. Which has been Identified as being
5 between five and a half and six feet high. As you
6 can see that ladder fence runs completely across
7 the back of this yard without Interruption terminating
8 at the east boundary of that property, which Is also
9 fenced In, Is that correct?
10 A. Yes, sir.
11 And there Is also an outbuilding at the
12 southeast back of this property at 638 Vollentine.

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13 The situation Is set at approximately 11:00 in the

\ 14 evening and -police have been notified that a prowler
15 Inside is at 739 Vollentine. Two officers reached
16 the scene of the accident, one officer moves along
17 the west side of the house moving In a southwardly
18 direction, one officer moves on the east side.
19 also In a southwardly direction. As the officer
20 reaches a portion of the house close to the southwest
21 corner of the house, but west of this three foot
22 fence, the officer with his flashlight picks up an
23 individual, after that Individual has run from the
24 . back of the house to this six foot or five and a

•
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it has been established that this fence Is one of 
a pointed variety at the top. It Is not rounded,
but pointed.- The officer using a cell light flashllgh

}shines his light on the Individual at the base of the 
fence and that Individual Is In a crouching or 
stooping position with the hands on the fence. The 
officer can see that the person Is unarmed and can 
make certain things out about the size of the 
Individual, so It Is Just that the Individual was 
certainly shorter than six feet and approximately 
a hundred and thirty pounds. The officer on the 
west side of the house yells to the Individual to 
halt, police, or something to that effect. The 
person at the fence stops and looks at the officer.
The officer on the south side of, southwest corner 
then yells to the partner on the southeast corner, 
he’s on the fence, go get him, and repeats that 
Instruction. The officer to the east does not 
move Immediately toward the area where the suspect 
Is located. At the point of giving the second 
command to his partner, that Is Indicating where 
the Individual was located, the officer on the 
west side sees this Individual begin to climb 
the fence or spring over the fence and has reached 
at least the point where his waist level Is at the.

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1 is at the top of this cyclone fence, and at that 
point the officer fires his weapon, hitting the 
individual in the head. The body then drops across 
the fence partially with the torso area and the arms 
and the head hanging on the south side of the cyclone 
fence, with the legs and feet hanging on the north 
side of that fence.

Given those set of circumstances and 
the fact that prior to shooting his weapon the 
officer, who was six-four and stated that he could 
step over this three foot fence, but did not do so 
before firing, assume that that is also part of the 
record, based upon your experience and your training 
as a police officer, would you say that this police 
officer who fired the shot acted as a reasonable 
officer under the circumstances in resorting to 
lethal force?

MR. KLEIN: Objection, Your
Honor.

THE WITNESS: Sir, may I ask
a question.

MR. KLEIN: Your Honor, the
objection is the same that I made 
prior to Mr. Jones responding to a 
similar type question or question that

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I think was propounded to Mr. Jones, 
had a few different facts in it, 
but again it is for the same reason.
I think that he*s called upon to 
ask what your flonor is ultimately 
asked to decide, I object on that 
basis and also.object on the basis 
that he's asked to assume certain 
facts, but not all of the facts 
which pertain in this particular 
situation. .Therefore, I don't 
think that he can accurately give 
an answer.

THE COURT: I will make the
same ruling as I did previously.
He may ask and the response may be 
given in making this ruling. I»m 
not ruling ultimately as to whether 
or not the question and the response 
is or is not material and relevant 
under all of the facts and circumstances 
here. He may ask and the witness may 
respond to that extent and for the 
purpose of permitting the record to 
show that it is overruled at that time.

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Q* (By Mj., Days) Do you recall my question,
Mr. Barksdale?

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A.
Honor.

Yes, sir. May I ask a question. Your

THE COURT: Yes, sir, you may.
THE WITNESS: Why didn't he

get a response from his partner when 
he told him that there Is the man, 
go get him?

MR. KLEIN: I'm sorry, what was
your question?

THE WITNESS: Why did his partner
not respond when the officer told him 
that there he Is, go get him. That 
is good police procedure, I mean, you 
•hold a suspect at bay, so to speak,
and then your partner approaches him

>and frisks him, puts the cuffs on 
him and takes him Into custody.

Q. (By Mr. Days) There Is nothing In the
record to explain that particular situation, Mr. 
Barksdale, so could you answer the question without 
that particular fact having been clarified?
A. May I ask another question.
Q. Certainly.

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1 A. How did he know that the prisoner was not
armed, that the defendant was not armed?

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Q. His testimony was that, well, we are really
dealing with an assumption and the assumption based 
upon the hypothetical that I gave you was that the 
officer knew that the person was not armed. And 
for your purpose In responding to the question you 
can rely upon that.
A. O.K. First of all, I would like to make
a statement that for good police procedure, and 
we are, that Is what we are talking about, good 
sound principles Is that ’we, the number one 
policeman who had the gun on the suspect told his 
partner to go get him. His partner should have 
dOne It, and had he reacted to that order or command 
or request, this situation would not have happened.

All right. Being as he did not respond,
I think the officer who shot the suspect had a 
decision to make In his own mind, and he elected 
to shoot the Individual. Possibly he should have 
stepped over the fence and made an attempt to 
apprehend the suspect because of that short distance 
and his height and agility. In all probability he 
could have apprehended the subject without having 
to shoot him, but there again that Is a matte r of

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1 a decision that he made at that particular time, but 
I think probably good practice would have dictated 
that he made an effort to step over the fence.
Q. Would you have gone over the fence and made
an attempt?
A. I probably would.
Q. Assuming that the officer felt that he
could not reach the suspect before the suspect 
climbed over the fence, would it have been proper 
police procedure for the police officer to get as 
close to the fence as possible before firing his 
weapon?
A. I think there, again —

MR. KLgiN; Your Honor, excuse 
me. I'm making a continuing objection,

■ I want that;understood for the record.
' "‘THE COURT: All right, it will
■ be a continuing objection.

A. Again, I think that is a personal decision
for that police officer to make. At that particular 
time he did not want the defendant to get away, 
so he took whatever action that he deemed necessary 
at that particular time.
Q. Would you have made an effort to get as
close to the fence --

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A. If I were going to shoot him I would have
shot him from where I stood.

MR. KLEIN: I*m sorry, I didn’t
understand.

A. (Continuing) If I was going to shoot the
man I would have shot him from right there.
Q. But your testimony is that you would have
^ade an attempt to run over the fence?
A. I probably would have under the circumstance!
Now, there again, that is an individual decision to 
make.
Q. Well, based updn your knowledge of proper
police procedures, would an officer have been expected 
to run over to that fence?
A. I think he should have tried to apprehend
him.
Q. Mr. Barksdale, suppose the situation were
such that the officer on the west side did not, 
in fact, see his partner at the southeast corner at 
the time that the individual at the fence had halted 
at the command of this officer on the west side, under 
those circumstances, that is where the officer on 
the west side did not see his partner and did not 
know his whereabouts, would it have been appropriate 
under those circumstances for the officer to make an

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attempt to run after the Individual?
A. I think he would have been a little more

cautious and I think he would have been less apt 
to run after him if his partner was not —  I would 
like to ask another question, if I may.

All right.
A. Did he see his partner there or did his
partner respond by voice communication or in any 
way so that he would know that his partner was there? 
Q. Let's assume two situations. One is a
situation where he saw his partner and the other is 
a situation where he did 'not see his partner and did 
not hear his partner, do those different circumstances 
change your approach?
A. Yes, sir, I think so. If you know that
your partner is there and you know all good police 
procedure works on a partner relationship to take 
care of each other. And if he knew that his partner 
was there and that for some reason his partner did 
not respond, that is one thing, but if he didn't 
see' his partner and was not sure that he was there, 
so then that would present another situation. If his 
P®-rtner was there he would probably be less apt 
to shoot«the Individual than if his partner was not 
there. I think he would be more prone to shoot him

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If his partner was not there, I think, if I'm making 
myself clear, because you work on a partnership 
concept.
Q. Mr. Barksdale, how certain do you think
an officer should be that he could not apprehend 
a fleeing unarmed felon using non-lethal means before 
he resorts to lethal means?
A. There again, you know, that is a matter
of a personal opinion as to what he is thinking at 
that particular time because he is under a lot of 
stress and that adrenalin is running and you are 
straining to do everythl’ng possible to apprehend 
an individual without resorting to violence, but 
It is an individual decision to make that particular 
time based on the training and the Job knowledge 
that you possess, and that is where the individual 
thought comes in.
Q. WeU, should an officer be fairly certain
that he can capture the fleeing felon or reasonably 
certain or merely absolutely certain, what standard? 
A. If he is sure that he couldn't apprehend
that subject, and it is a fleeing felon, then under 
the state law then that is his Job. Now, if he 
is sure-that he could apprehend and knows beyond 
a reasonable doubt that the individual is not armed.

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1 then I think he should use whatever means at his 
disposal to apprehend without the shooting.
Q, What about something In between where the
officer knows the felon Is unarmed and is not certain 
that he can catch him but thinks that the likelihood. 
Is that he cannot catch him?
A. I think he should make the effort to
apprehend him without firing a shot.-

MR. DAYS: We have no further
questions.

THE COURT: O.K. You may examine.
MR. KLEIfT: I would like to examine

with the same understanding that I
examined Mr. Jones.

THE COURT: You are examining
without waiving your objection.

CROSS EXAMINATION 
BY MR. KLEIN:

Q. Sir, you said you were on a leave of
absence?
A. Yes, sir.
Q. I think it is because you are involved
in a political campaign at this time?
A. Yes, sir, I am, yes, sir.
Q. I don’t mean to be prying. I assume that

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1 if you are unsuccessful that you Intend to go 
back to the police force?
A. September 1st, yes, sir.
Q. Are you familiar vdth the Academy, the
training academy?
A. Yes, sir, I am.
Q, You are familiar with who heads that up?
A. Captain Coletta, yes, sir.

Have you been through that academy
yourself?
A. - Yes, sir.
Q. Are you familiar with the training program
out there in regard to the lethal force and so forth? 
A. I haven't been to the academy, approximately
we go through the annual, prpbably due to go through 
my retraining section probably in the next three 
months.
Q. They do give Instructions on the use of
lethal force?
A. Yes, sir.
Q. As well as tactical and legal instructions,
is that correct?
A. Yes, sir.
Q. That school is, or is it in your opinion
a school?

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A.
Q.

Q.

The finest in the country.
The finest In the country?

MR. DAYS; I object to this line 
of Inquiry, It goes beyond the extent 
of direct examination.

THE COURT; Here again, I rule If 
he wants to examine beyond the area 
he makes the witness his witness and 
he may proceed on that basis.
(By Mr. Klein) You say It Is the finest

320 .

In the country?
A
Q.

say It? 
A.
Q.

Yes, sir.
You firmly believe that, sir, or you wouldn'-^: 

Yes, sir.
Also you mentioned that you have been to

the FBI academy?

A. Yes, sir.
Q. And do the principles that they teach
here at the Academy coincide with the principles that' 
are taught at the FBI Academy?
A. Yes, sir.
Q. And I think Captain Coletta Is In charge
of It?
A. Yes, sir.

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Q. He Is an able man. Isn't he, sir?
A. Without a doubt. In fact, he, too. Just
returned from the FBI Academy where he graduated.
Q. I will call you Inspector, If that Is all
right, I guess that would be a proper title to use? 
A. Yes, sir.

. Inspector, you were asked to assume a lot 
of facts which existed at a particular time, and 
then asked to give your opinion, what you thought 
good police practice would be under those particular 
set of facts. Is that correct, sir?

Yes, sir.
Q. Now, Inspector, did you know how far In
distance the police officer was from the suspect at 
the time of the shooting?
A, No, sir, not really, but I Just could tell
from the direction.
Q. Would that make any difference to you If •
you didn't know how far he was, the distance?
A. It would determine whether or not you
could possibly make —  resort to using the firearm, 
the distance Involved and the subject unarmed.
Q. What about the area behind the fence that
the suspect was climbing over at the time, and by 
that I mean whether the area was dense with brush

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1 or at least it had certain cover and whether or not 
there was a means of escape once the suspect gets 
over the fence? By that I mean, means of escape, 
an avenue by which he could get away?
A.
Q.

It not?

That would make a difference.
That Is a fact to be considered, too, is

A.
Q.

■ Yes, slr..̂-
It Is true, also. If an officer was placed 

In a situation at a time such as this, the given 
hypothetical question, that he’s got to make split 
second Judgment?
A. Yes, sir.
Q. We are talking about fractions of second?
A. Yes, sir.
Q. What he does based on his training and
everything at hand?
A. That's what I said, the individual officer
at that particular time and circumstance, that 
dictates his actions.
Q. All right. And what one officer may do
In a particular situation, and obvious, too, say, 
another officer may not do that?
A. Yes, sir.
Q. Well, who is to say what is right and what

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is wrong in a situation such as that?
A. Standard training and practices and things
that he has been schooled in in the academy dictates 
his conduct, but at the same time it is an individual 
decision to make at that particular time and he may 
be on the department ten years or may never be faced 
with a situation like that, so you can’t say, you 
can’t drill or instill in a person to make an Instant 
decision based on a particular situation at a 
particular time, but you do the best you can when 
they are in the academy to bring hypothetical questions 
or points that a person may face from time to time 
and instill in them the actions that they should take 
at that particular time.

■ All right, sir. The lighting has something
to do with the situation such as the hypothetical that 
was proposed to you by Mr. Days?

Yes, sir.
Q. And again, assuming the lighting is not
particularly good, that is, most of the light which 
is available at the time is coming from the flashlight 
used by the officer, although there may have been 
a porch light turned on next door which gave some 
lighting toward the back door area of the property, 
but not much lighting on the fence area, and assume

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1 further there was virtually no lighting In the 
area behind the fence, that would make a difference, 

too, wouldn’t It?
A. Yes, sir.
Q. It would be fair to say, would It not, that
If the officer is sure or reasonably sure In his 
mind that a felony had been committed and the man 
Is fleeing and he is concerned or he thinks that 
this individual is about to get away, that he would 
be Justified under state law and Memphis Police 
procedures to use his firearm, would he not?
A. Yes, in his ov/n mind he knew he couldn’t
apprehend without firing his.
Q. And he would be Justified in doing that?
A. In his own mind.
Q, That is what you have to --
A. That’s right, at that particular time.
Q, You get a lot —  wouldn’t say you get a
lot, but it may be a situation where he ’s a clearcut 
case, he might be a few feet away and no place for 
the individual to go and may make a move to the 
right or left and the officer may fire his gun and 
may be a situation totally unjustified, but taking 
this hypothetical situation, wouldn’t you agree, 
sir, that this is one of those situations where there

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' Is no clearcut answer to It?
2 A. If in his own mind he did not think that
3 he could apprehend him without firing a shot.
4 Q, All right, sir. Assume further. Inspector,
5 the officer, and if I may point to this model which .
6 has been marked exhibit 6, has come around the west
7 side of the house and he is not right at the fence,
8 but he is back from the fence, and then he sees
9 the subject on the fence, and I might say, let's
10 assume that he is, I think Mr. Days was pointing
11 approximately in this area, but let's assume that
12 he was a little further east, more toward the
13 corner where this little outhouse is located, and
14 then the officer yells and tells him to halt, and
15 he haltsnomentarily, say he's in a stooping position
16 with his hands on the.fence, and then the officer
17 says something to his partner, who he assumes is
18 coming around the other side of the house to get
19 him, and then the officer takes a couple of steps
20 toward the fence, the fence which is represented
21 here which is about a three foot chicken wire
22 fence, and then the suspect begins to spring and
23 is halfway over the fence. After the officer has
24 taken a couple of steps toward the chicken wire
25 fence, but has not had a chance to Jump over or

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1 Step over or whatever is necessary, again would he 
have been Justified in using his firearm under those 
circumstances ?
A. At that particular time I would say that
he was of the opinion that he could not Jump that 
fence and go that distance and apprehend that 
individual before he got over the fence and made 
his escape.

But I would like to ask a question again, 
as a commander I want to know where that number two 
man was, why didn’t he respond and help his partner, 
you know, because I think —  if that one individual 
had the opportunity to come around this side of 
the fence and get to the fence, it looks to me like 
his partner could have gone that short distance 
to where the individual was or at least to the 
corner of'the house-, where he could have seen him.
Q* Now,.let’s ,assume, I can’t answer your
question completely, I'm not trying to evade you, 
but I can only ask you to assume a couple of 
situations.
A. Yes, sir.
Q. Let’s assume that the partner was coming
down this side of the house but had not quite reached
it, reached the end —  the corner of the house. And

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that the partner over here, who has the firearm 
and who ultimately uses It, does call to his partner, 
but the partner —  say this police officer on the 
west side, assume he is coming around, knows his 
partner is in the vicinity, calls to him and knows 
ultimately he will be on the scene and there is no 
response, and he takes his couple of steps toward 
the fence and at this point the suspect is beginning 
to leap or jump over the fence to the point where 
his midsection is straddling the top of the fence, 
is the police officer Justified to prevent, if in 
his opinion that he didn't feel that he had the 
time to Jump the three foot fence, run the distance 
Involved between the three foot fence and the six 
foot fence, to prevent the individual from getting 
away by apprehending him without shooting him, if 
in his opinion he was Justified? Inother words, 
what --
A. That is police practice.
Q. That is police practice. In other words,
what you are saying —  I think you have been consisten 
throughout. What you are saying, if I am correct, 
it is up to the officer Involved and in his opinion 
whether he thinks he has time to apprehend him before 
he gets away?

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1 A. Yes, sir.
Q. Would It be a factor, sir, if the officer
involved felt like once he got over the fence that 
he was, if I may use the phrase, long-gone?
A. I would say so.

You would say that he would be Justified 
in using his firearm?
A. If in his opinion —  as a commander I would
still like to know where that number two man was, that 
is incidental, but still if that partner may have 
responded a little faster, this whole thing possible 
could have been prevented.
Q. It goes without saying, if the suspect had
stopped v/hen told to halt .and not move, it could 
have been prevented, also?
A . Yes, sir.•

MR. DAYS: Just a couple of
redirect —

MR. KLEIN: Excuse me, I may
have —

MR. DAYS: I*m sorry.
MR. KLEIN: I have nothing further.
THECOURT: You may proceed, Mr.

' Day s . '•

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2

REDIRECT EXAMINATION 
BY MR. DAYS:

Q. Mr. Barksdale, in trying to arrive at
your view as to what would be reasonable under the 
circumstances of the hypothetical that you were 
given, would it affect your judgment to know that 
the fleeing felon was trying to climb a cyclone 
metal fence as opposed to some other type of 
fence, would that make a difference In terms of 
whether you would think the action was reasonable 
or unreasonable?

What was the physical —  the defendant, 
height and so forth, I know that doesn't have a lot 
to do with It.
Q. Well, let's assume that the defendant
was between, not the defendant but the fleeing 
felon was 5-3 and 55, and the fence is a cyclone 
fence with the pointed on the top variety, would that 
make a difference In your evaluating the reasonableness 
of using lethal force?
A. Possibly what chance he stood of getting
over the fence, how agile the officer, whether he 
could get over that fence, the distance between 
that fence and the defendant.
Q. I'm directing your attention to the

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characteristics of the fence, a cyclone with a
pointed top?

It would be difficult to get over.
Q* How would the fact that It Is a cyclone
fence and pointed affect your Judgment as to whether 
shooting was reasonable, can you Indicate that?
A. Well, of course, it Is at night and
It Is dark, apparently he has his flashlight. If 
I ’m correct, on the defendant. It would possibly 
be hard In his mind, the officer’s mind to 
determine whether or not that was that type fence.
Q. Whether It was pointed at the top or
not?
A. That’s right.
Q. But would the height of the fence make
a difference?
A. If It Is a six foot fence and he is
five foot two it would be difficult for him to scale 
the fence especially If you had the metal wire 
points sticking up.

MR. DAYS: I have no further
questions.

THE COURT; Anything further?
RECROSS EXAMINATION 
BY MR. KLEIN;

Q. Again, of course, you are asking the

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Officer to determine a lot of things in a split 
second, aren't you?
A.
Q.

A.

Yes, sir, I realize that.
And that is a factor, too, is it not?
Yes, sir.

MRi KLEIN: That's all.
THE COURT: You may step down.
THE WITNESS: Am I through. Your

Honor?
THE COURT; Any reason why Inspector 

Barksdale may not be excused?
MR. DAYS:’ No.

(Witness excused.)
THE COURT: If you will recall

Captain Coletta.

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1 JOH]^ k . COLETTA, 
resumed the stand and testified further as 

follows:
DIRECT EXAMINATION 
BY MR. DAYS:_______

THE COURT: You remain under oath,
of course. Captain Coletta.

Proceed, Mr. Days.
MR. DAYS; Yes, Your Honor.

Q. (By Mr. Days) Mr. Coletta, in your
capacity as the head.rof the firing range between 
1970 and 1975 , were you involved in questions 
relating to the type of handguns and ammunition to 
be used by the police departments?
A. Yes, sir.

Can you indicate whether your knowledge
as to the type of handgun the police department 
required its line officer to use prior to 1970?

A. Yes, sir.
Q. • And what was that?
A. A Smith & Wesson or a Colt.

Q <1.

Q.
A.

Q.

And what caliber?
.38 Special caliber.
Now'* also^prior to 1970 are you aware what

type of ammunition line officers were required to

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use in their weaponsj^

A. Yes, sir.
Q. Could you Indicate what that was?
A. The standard*until about '69 or '70 was
a 158 grain lead or luballoy round-nose projectile, 
.38 Special projectile.
Q. For the purpose of the record and for
the assistance of the court, could ypvi, in lay terms, 
as best as you can, describe what that particular 
projectile looks like, that is, define why it is 
Called a 158 grain, what that represents, the 
luballoy, and .the caliber, for example, could you do 
that?
A. • Yes, sir, the caliber pertains to the
diameter of the bore. Actually a .38 Special is 
not 38/lOOths of an inch but rather it is 35/lOOths 
of an inch, but it is a bit smaller, but it is 
termed a .38 Special and it is designed to fit 
that particular type of weapon. The configuration 
of th-e cartridge Itself, of course, is standard for 
the case and the base of it, but the bullet 
configuration is round-nose and the construction of 
the bullet is of a luballoy. When I say luballoy, 
that is all a'luballoy projectile but be coated 
with some type of copper gilding to protect the

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lead itself to keep from rubbing and disfiguring 
so easy,

You used the terms bullet and projectile, 
are they synonymous?

Yes, sir, bullet and projectile, but not 
synonymous with the whole cartridge.

Could you distinguish between the bullet 
and the projectile on.the one hand and the 
cartridge on the other?

•̂ * Yes, sir. The cartridge is composed
of four basic parts: the case, the primer, the powder
and the projectile or,the bullet.
Q-
A.
Q.
A.

The case, the primer —
The powder.
The powder and the projectile?
And the projectile.
So that when you refer to it being a 

luballoy or lead projectile, you are referring to 
that portion of the cartridge that actually leaves 
the gun, is that right?
A. Yes, sir.

‘3- And when you say luballoy, it is that
lead portion, the projectile that is coated with some 
other alloy, is that correct?
A- Yes, sir, that’s right.

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Q. • What about IjB̂ he 158 grain, what does that
represent?
A. Well, if the court please, every alloy
weight is 7,000 gram weight to the pound, the weight 
of the projectile is 158 grains in relation to the 
alloy weight.
Q. Do various types of bullets vary in terms
of weight and weight in grains?
A. Yes, sir, they do.
Q. And they vary in terms of the characteris­
tics of the projectile?
A. Yes, sir, they can.
Q. And they vary in terms of the caliber?
A. Yes, sir, they can.
Q. Now, after 1970 do you have any knowledge
of whether there was any change in the handgun that 
officers were required to use, let us say between 
1970 and 1972?
A. Somewhere along that period of time the
type of grain remained the same and the style remains 
the same, but I must qualify that and say that there 
have been some new models constructed of different 
materials, stainless steel, for example, an officer 

now carry those, also, but the type is the same. 
Q. Well, vfhat about a change in the ammunition

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required for use by line officers between that 
1970-'72 period?

Initially a change was made around '69 or
1

'70. I don't remember exactly when going from the 
standard round-nose, after police officers experienced 
incidents of shooting people and them not stopping or 
them performing anaggressive act toward them, and 
the need locally, as well as I think nationally, 
indicated that this was indeed the case and something 
had to be done that would better protect the 
officer and yet insure that citizen’s safety was 
taken care of, so the hollow-point bullet was 
adopted by the police department along that period 
of time. Now, Just like a Ford automobile has many 
models, ammunition is the same, and during that time 
we may have used two or three different types, but 
primarily they were all of the same type hollow-point 
bullets.

*5- Were they all of the same weight in
grains?
A . No, sir.

Well,, you used prior to or earlier a
158 grain?
A . y 3 s , s 11*.

give a general indication of what

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1 weight in grains cha9aoterlze the ammunition used 
between 1970 and '72 or around that?

Super Vel, which Is an ammunition company, 
came out with a new high velocity round and it caused 
I think, manufacturers to really look hard at their 
particular products. Super Vel utilized the 110 

•grain bullet and it was a half-jacketed or.semi- 
jacketed type projectile. Now, they made them 
primarily in a soft-point, not a hollow-point, the 
manufacturers looked into it, I guess it got them 
to looking at their own product. Smith & Wesson 
developed a hundred and ten grain semi-jacketed 
hollow-point and soft-point. We used and adopted the 
Smith & Wesson 110 grain semi-jacketed hollow-point.

All right. Now, in terms of the 
characterization semi-jacketed, was the bullet that 
you adopted after this, change from the 158 grain 
luballoy Winchester different in terms of the 
character of the jacket from that earlier cartridge, 
that is the 158 grain luballoy Winchester?
A- You are asking me if the 158 grain
construction of the projectile is different from 
what we did --•
Q . Yes, sir.

A* The semi-jacket is a copper jacket that

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surrounds the lead portion of the projectile, and 
the reason for that being is that you can develop 
more velocity and the jacket protects the lead from 
melting by the powder gases, and, therefore, it is 
stabilized in flight and is accurate.
Q- All right. So the 110 grain had a
projectile that had a partial jacket on it, is that 
right? > '
A. Yes, sir.
Q* And the 158 grain luballoy did not have
that type of jacket on the projectile?
A. That's correct.
Q Now, what is the distinction between the 
prior cartridge and the 110 grain in terms of the 
nose, what is the difference between a round—nose 
and a hollow-nose in terms of the use of these 
particular types of cartridges?
A- Well, of course, the configureation on a
round nose is as stated, it is round. The conflgura' 
tlon on hollow-points is generally a blunt-nose with 
a small hole in the center of it.
Q* And what, if you know, is the purpose of
this hole in the center of that hollow-nose 
projectile?
A. To produce controlled expansion.

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Q. Could youjestate that in. If you would.
in perhaps more,vernacular terminology, that is, 
what is it supposed to do in flight or upon hitting 
an object that the round nose is not supposed to do? 

Of course, you Just asked a very broad
question.

Well, I understand perhaps it is a broad 
question, but- perhaps I could put it in this 
context, if .you will, Mr. Coletta, why was it, if 
you know, that the department went from a round-nose 
to a hollow-nose in terms of the calib'er?

better stop perpetuators of crimes, 
function does the configuration 

of the nose of the projectile have upon the objective 
that you Just described?

A. Configuration of the nose, there are a
number of factors that must come into play, configura­
tion of the nose is one, configuration of the nose 
tends to allow that projectile to expand upon its 
normal diameter, whereas if it were the old round-nose 
type, unless it struck bone or some solid object,
generally it would not expand beyond its original 
"diameter.

expansion, let me see if I understand you. 
Is it fair to say that a projectile is a round object

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that It Is circular

Cylindrical and circular and round, yes, 
sir. . ■

-Q.. . When a projectile like that expands, what,
in Tact, are you describing?

^hat development are you explaining in
<7 *

terms of the change of,that cylinder or that circular.'iZ.:
body to some other form? - '• • • ■

becomes more blunt-nosed perhaps.
Upon striking an object it will flatten out more 
easily. ;7"— C

that particular characteristic is not 
generally associated with round-nose projectiles, is 
that right?

extent as it does with the others, 
yes, sir, that’s correct.

Now, were you at any point between 1972 and 
1975 asked to conduct any studies with respect to 
whether the police department should'alter either the 
weapon that they used..,or the handgun used or the 
ammunition used by line■offleers?

Yes, sir, I’was.

you indicate the circumstances
surrounding your being,asked to conduct that particular 
study?

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A. The police union raised the question of
J

the round that we were,using, the round of the 
j cartridge ..that. .we -wene using at that time as being ■ 
i 4 inadequate, ■"’t'hat- .^theirdfield ̂ experiences ’ had’S^'‘'i-'̂ ;̂i- 
* demonstrated ,to them that it would not stoo aV',̂ " .
person. We undertook ..initially upon ourselves at 
'the range to conduct i-̂ , the staff and the tactical.̂ .,
. ; and' equipment board,' I^think it was tactical . and
^valuation board yesterday, it is tactical and ' 4'̂
equipment board became aware of it and as a matter of 
fact it was an item.of^.negotiation in the union.
contract. At any ra.te.; this is why'it came about** **"* • . . .  . • •

tactical and equipment board requested that- they 
be involved in the study, and, yes, we did make such 
a study. ; ... ., . r-- ‘ •
• ' » ' •*'*  ̂ *»** " • ;i

Q. : . Can you indicate generally what, types; of .
considerations you- used in trying to determine'- . J. '- .
- whether there should be. a change in the..type,o f ' 
handgun or the . type o.f... ammunition as compared to.-- 
what the department wâ p then using at that time, which 
was, if I recall;.your.-testimony correctly, it/is
110 grain semi-jacketed hollow-nose bullet Smith &

, . ' * . ■ ■ ■ ; . 
Wesson? .̂'.v ...
.  . ..  :  ; ■  . y  . :  . : -  ■ . - V ' ; ; ' . -  - ; /  ■ v *

'A. ■ - Yes ,-ssir, that ’ s correct,- The.':f actors ' that
go into it, number one,., I guess you would have to ■

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Separate the.ammunition from the gun, but really It ' 
•''Is Inner-rel^ed, but'^we will-'separate : it • and' i ■/ : ' ' : i >• ■ '■ - /•■.• , c-'
: weapon.
••q :
A.

Yes,, sir.

We must consider, number one, the availabili 
We must consider, the .budgetary factors .V-' We must 
. coinslder the trainability of v'that ̂ particular';gun
due to the recoil that it produces. How it would 
affect the student due to the muzzle flash, how it 
would affect thê  stud.ent, we^ must, .therefore ,‘ take 'S.-r

vA,:/. ■ ‘ -0
into account the configuration of the gun ' it self...... .... .. -
We must worry about public opinion, because that, ’ 
too, is a factor.

Q- Excuse'■ me ,■ if I may interrupt ^ a t / t h i s '
_ point without —  what^dq you mean by. publlc/.opinion . 
".being" a factor?.:-
■‘a • • : .•■•-■; ' ■ ;■■/ ■ ■■;' . Wel.l.,,-,certainly anythlng -that;^the,pqlice''-’"/"-• •:  ̂ Vv'^/- ■
department, does is under scrutiny from the public , "
the mqdla and certainly adverse publicity itself
is a deterent.to morale, deterent to ; efficient■ . . ' C ' ■ -VA ., 'Y
operation and certainly the police department m u s t ' 
.{jO .-an extent, .listen,J:,o what the people have-.to - i: '.. ‘

, . say . .

So you are’■ concerned about public reaction 'Q

to it?

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Q.
A. i'

Yes, s i r .  J

sir. What other consideration? 
■' -Those are the major ones. Those, I think,

are it probably. I can’t recall Just offhand.

conduct tests of various types
of ammunition?
A.
Q.
A.

A.

Yes, sir.

To reach a conclusion on this point?
Yes, sir, I did.

And what types of tests did you perform?
We performed accuracy tests. We performed 

.penetration tests. We performed cavitation tests, 
as I call them, it is really for our purposes not 
relevant in that demonstrating how much effect a 
particular projectile would have, but it does at 
least give you an idea.

*5- Let me backtrack, if I can just briefly to
get a better sense of what you mean by the various 
tests that you did. You mentioned that you tested 
for accuracy.
A • Yes, sir.

indicate in a step by step fashion 
how you went about testing for accuracy?

Of course, as 1 said the handgun 
Is the most difficult gun to master. Therefore, we

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want a particular roiiĵ 'd that will hold a tight group 
on consecutive shots. Consistency is what we are 
looking for to‘make certain that the group or the

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i^umber of shots all strike as close together as 
possible. Now, no man can hold a gun absolutely 
still. No one can. So we utilized what we call 
a rest, and the rest Is attached to a solid object.
In the case it was a very heavy cleaning bench 
constructed of four by four, a very heavy structure. 
Into the rest we strapped a gun, two different kinds 
of guns, one a fixed breach gun, where there is no

■. i ;
gap between the cartridge, the barrel and the muzzle, 
^nd then we inserted a revolver in which there is a 
gap between the cylinder and the barrel and we 
determined that the ammunition that we —  well, I 
was speaking of accuracy. All of these things have 
to do with accuracy. We determined that the 110 
grain have a —
Q. (Interrupting) Well, if I may, again
without necessarily cutting off what you are going 
to say subsequently, but can I ask you where the 
projectiles from those guns were actually fired?
A. They were zeroed in or we adjusted the
mechanisms so they were fired into a bullet trap, 
into a mechanism designed for that purpose, a slope

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sheet that would caus'^ the hullet to deflect and
to spin In a cylinder in the particular type of trap 
until it lost its energy and fell into a tray. We 
were shooting it at paper.
Q. At paper?
A. At paper attached to this bullet trap.
Q. Getting to the question of penetration,
how did you conduct tests with respect to penetration? 
A. In two ways, first it has been an approved
method to line up pine boards and space them one 
inch apart. .We devised a rack whereby we could do 
that a ndwe fired at a distance of ten feet to the 
pine boards and contingent upon how many pine boards 
would give us the penetration, would give us an 
indication of how much the penetration factor of that 
particular round was. Then in addition we fired 
.it into a clay block and the clay block measured 
something five by seven or eighteen Inches, I don’t 
remember, to see if that particular round would stay 
within the clay block or exit or whatever.
Q. Now, getting to the question of testing
for cavitatlonal effect —
A. 
Q. 
A .

Yes, sir.
Hov/ was that done?
Well, again, as I say, we fired into the

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1 clay and when the. projectile struck the clay It would 
cause the projectile to perform in such a manner so 
as to create a cavity. The cavity in the clay, of 
course, would remain there and it would be visualized 
so that we could photograph it afterwards.
Q* All right. ■ Now, I understand why you
would be Interested in having a projectile that 
was most accurate, and I understand why you would 
have perhaps -- I don't understand why you would 
have a projectile in terms of penetration.
A. Yes., sir.

Q* ‘ And I don't understand why you would be
concerned with levels of cavitation. Could you 
explain your concern with penetration and cavitation 
in terms of evaluation of various types of 
ammunition?
A. Yes, sir, they are both inner-related.
I could not shoot into the clay to try and 
determine penetration without cavitation, that is 
our prime concern of -it, our prime concern with 
penetration is so that a projectile can expend all 

energy within an object structure and not 
go on down through the streets, to put it in the 
vernacular, not going down through the streets and 
hitting some innocent person and not having energy

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left where It can rlc^het and hit come Innocent 
person. In other words, we were looking to see if 
that particular round would stay within a specific 
area that possibly we could determine as to being a 
type of target that we would shoot at. If you relate 
it to human beings, certainly we were thinking about 
that during the test.
Q. In terms of penetration you talked about
the pine board test.
A . Yes.
Q. Given various types of ammunition and the
fact that this ammunition and the projectiles from 
that ammunition went through various pine boards, 
what would you conclude as between a projectile that 
went through four pine boards as opposed to going 
through six pine boards?
A, We would have better knowledge and be
^®tter equipped to tell the officer that if a fram 
house were his background what the possibility could 
be and it may be a situation where he should not 
discharge his firearm. If it were a good penetrator 
that did not deform upon impact, that maintained its 
shape, size, and continued to punch through, it 
possibly could Injure someone inside the house. As 
a matter of fact, there are court cases on file where

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this indeed did happi 
Q* I ’m sure there are. What about the
cavltational effect,what is it that you were trying 
to determine with respect to the impact of these 
projectiles upon the clay blocks? •
A. That a particular round would indeed
expend its energy within a specific area. The 
physical characteristics of a projectile in that it, 
I ’m trying to put it as simple, and sometimes it 
gets very difficult, in that when it strikes an 

. object it happens to expend its energy before it 
is inert. If:it expends its energy within a 
certain space of time and produces all of its energy, 
that projectile is doing work and it is finished 
and it wouldn’t go any further. The cavitation 
indicates the amount of v/ork that that particular 

. projectile is performing and would be a good 
indicator.that it is expending its energy very 
rapidly and will, therefore, lose the probability 

. Of going elsewhere.
Q. All right. So the larger the cavity the
greater the energy expended in that clay block?
A. Generally, yes .
Q. Is that fair to say?
A. Generally, yes. To a point.

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Q. Well, what that point if you wanted to -
A. To a point where you get a, a super round,
you know, you might say, which would possibly 
detonate or explode on impact, which there are known 
within the police field,'the police service.
Q. Well, does the velocity at which a
projectile leaves the muzzle of the gun have any 
significance in terms of selecting one type of 
ammunition over the other?
A. Yes, sir, velocity is very significant.
Q- What is the significance of it.
A. In producing energy the speed of any object
is a factor. And, for example, a sledge hammer, the 
harder you can swing a sledge hammer the more work 
that it is going to do. The projectile, the faster 
that you can push it the more work it can do.
However, you are limited, by the characteristics of 
the object which holds it to discharge it, because 
this is, as this powder burns it produces pressure 
and the pressure can, per square inch, can reach 
unreasonable bounds, and when that happens, of course, 
the gun would blow up.
Q. Did you measure for the velocity, the
muzzle velocity of projectiles in your studies?
A. Instrumental velocities.

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Could you Indicate what that Is?
' ie sy sir, we used a chronograph, which 

is an electronic device that measures speed, and 
the chronograph was placed ten feet from the muzzle 
of the gun. The chronograph Is designed with 
two sensors spaced two feet apart, the center 
portion of that space was ten feet from the muzzle 
of the gun, therefore, it was at that particular
point that the velocity of the particular round was 
measured.

indeed measured this instrumental 
velocity for all the pieces of ammunition that you 
studied, is that right?

, i

A.
Of them.

Yes, I'm pretty sure we measured every one

a consequence of the study that 
you conducted, did you make any recommendations to 
the department in terms of whether the present 
ammunition, that is the 110 grain semi-jacketed 
hollow-point, should be replaced by another type 
of ammunition?

Yes, sir, I did. I think you have a copy 
of that report I wrote. I don't recall it exactly.. 
However, I do remember making a recommendation. I 
think I said something' about the . 5, and I think I

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i Isaid something about ^lUrther tests, and I think I 

said something about the acquisition of different and 

more varied types of weapons so we could conduct 
further tests. I think' I said something about the 
Remington 75 grain hollow jacket, and 125 grain 
semi-jacketed hollow-point is what we adopted.

Q. Do you recall Including the 125 grain
semi-jacketed hollow-point Remington as an acceptable 
ammunition?
A . Yes, sir.
Q. And is it your testimony that, in fact, the
department did adopt the 125 grain semi-jacketed 
hollow-point as the official ammunition for the 
department?

A. Yes, sir.
Q. For line officers?
A. Yes, sir, fo.r line officers.
Q. And was that ammunition in use on October
3rd, of 197^ to your knowledge?
A. • I believe it was.
Q.
A

And what is the basis for your belief? 
These tests were conducted in '73, if I'm 

not mistaken, June and.August, and it was adopted 
immediately thereafter.
Q- Nov.', Mr. Colstta-, in the course of

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1 i j 82.
conducting your various studies, did you conduct a
study of the accuracy, penetration and cavitational
effect of the 158 grain luballoy projectile?
A • Yes, sir, we did.

And that was the one that was used prior
to 1970?
A. Yes, sir.

And did you conduct a series of similar
V

tests on the 110 grain semi-jacketed hollow-point 
Smith & Wesson?
A. Yes, sir, we did.

And that was the one that was in use at the 
time that these studies were initiated, is that right? 
A- Yes, sir. And another reason, if I might
add, why we conducted the test was due to a glaring 
difference in velocity measurement between what the 
factor published and what we were actually getting.
Q* All right. So as you said earlier, one
of the things that you did was this instrumental 
velocity calibration testing?
A. Yes, sir.

Q- And, of course, you conducted a series of
tests with respect to the ammunition which was 
ultimately adopted, v:hich was a 125 grain semi-j acketed 
hollow-nose Remington, is that right?

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A. Yes, sir. j

'5- Now, do you have any recollection of the
relationship between the instrumental velocities of 
the three projectiles that I just discussed, that is, 
the Instrumental velocity of the 158 grain as 
compared to the instrumental velocity of the 110 
grain as compared to .the velocity of the 125 grain, 
do you remember generally?
A . Yes, sir.
Q- The conclusions that you reached based
upon that type of examination in the study?
A. Yes, sir.

Q- Do you recall whether the 158 grain had
a lower or higher instrumental velocity than the 
110 grain?
A. Lower. -

That is the lower, the 158 grain was a 
lower projectile? .r, '
A. Yes, sir.
Q. • Than’the 110 grain?
A. Yes, sir.

Q. . And do you recall whether the velocity of
the 110. grain was higher or lower than the velocity 
of the 125 grain? ,, ,
A. Lower.

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So that thi 110 had a lower velocity thanQ.
the 125?

A • Yes, sir.

And consequently the 125 grain had the 
higliest instrumental velocity of the three ammunitions? 
A* Of those mentioned, yes, sir.

MR. DAYS: I would like this
document marked for identification 
Exhibit number --

THE CLERK: 17 for identification.
(Whereupon, the said document 

erred to above was accordingly 
marked trial exhibit 17 for 
identification.)
(By Mr. Days) Mr. Coletta,let me show you 

Exhibit 17 for identification and ask you whether you 
can, whether you recognize that document?
A* Yes, sir, this appears to be the report
that I submitted to the inspector of the training 
bureau regarding the test and the request of the 
tactical and the equipment board.

your estimation, an accurate 
copy of that document?
A- -’Yes, sir, it seems to be.
*5* All of the pages are there?

Q

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A. It seems be there
MR. DAYS: I would like to introduce

this. Your Honor.

THE COURT; Let it be introduced 
as Exhibit 17.

(Whereupon, the said document 
referred to above was accordingly 
marked trial exhibit 17 and received 
in evidence.)

Q* (By Mr. Days) Directing your attention to
Exhibit 17, Mr. Coletta, does this document reflect 
anything about the exact Instrumental velocities of 
the three cartridges that we were discussing earlier? 
Is there any indication of what you found to be the 
Instrumental velocity of the 158 grain luballoy
cartridge?
A • Yes —  no, it is a lead hollow-point —
yes, average velocity was 872 feet per second.

872 feet per second?
A. Yes, sir.

Was there any variation in that velocity? 
Yes, sir, that is plus or minus, I don't 

;know exactly what the plus or minus is, I don’t 
have it recorded here.

Q- It is not recorded, the plus or minus in

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the velocity? y

A. Yes, sir. I'm sorry, 27 feet per second
variable, yes. It Is.
*5. Is there any* Indication of the Instrumental
velocity of the 110 grain semi-jacketed hollow-point? 
A. It should be. I don't know if I included
that, I would have to read it to see.

Yeah.
Q. What does that report indicate?
A. Yes, it is, 1,050 feet per second with a
97 feet per second variable.

Is there any indication of the instrumental 
velocity of. the 125 grain semi-jacketed hollow-point 
Remington?

A. Yes, sir, 1,^25 feet per second with a
variable of 62 feet per second.

Q. 1,^25 feet per second?
A. Yes, sir. • I must point, also, from this
fixed breach weapon, and that is not from a 
revolver, and that is a great difference in 
measuring velocity.
Q. 1,^25 feet per second plus or minus what?
A . 62 .
Q. Well, you just made the point about the

I  •

difference between having the weapon fixed and its

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position in the hands of a person, is that what you 
are saying? ^

A. No, sir. I ’m not saying that.
What is the distinction that you just made? 

A. When I'm talking about a fixed breach,
I'm talking about a weapon where the cartridge is 
Inserted into the chamber in which the barrel is an 
extension of one Integral part, whereas with the 
revolver that is not the case.
Q You didn’t make that distinction —

THE COURT: I'm going to Interrupt
you at this point. Gentlemen, we will 
be taking a longer recess in this case, 
and that is why I have tried to go as 
long as possible. I have two hearings 
that I have scheduled at 1:00 and

near 1:30 as I can. Those will be short 
hearings, but it Is necessary that I have 
those hearings before I get away from 
town I hope this week. One is a school 
matter and another is a county court 
reapportionment matter, so we will stand 
adjourned in this case until 2:15. ■

MR. BAILEY: Your Honor, I have a
dilemma tomorrow in reference to the late

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1 Lt. Lee's funeral at 2:00. I don't 
know whether that dilemma can be 
resolved apparently —

THE COURT: Well, how long do
gentlemen feel, can you give me 

any estimate as to how much more time 
is to be involved?

MR. DAYS: Well, we have one
more witness after Captain Coletta 
and then there will be a question, 
of course, of cross examination of 
this witness and the other witness.

THE COURT: What I will plan to
^o, Mr. Bailey, in any event,- I will 
plan to start early tomorrow morning 
and perhaps go as late as we can to 
ac-commodate that problem and perhaps 
to try and avoid it if we can, but 
we will stand adjourned not until 
2:15 in this matter, and until 1:00 
as far as the Court is concerned. 

(Lunch recess.)

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1 AFTERNOON SESSION 
August 3, 1976

THE COURT: Gentlemen, I'm sorry
to have delayed you all this long of 
time and I apologize that there has 
been this delay. Captain Coletta, if 
you will resume the s t a n d p l e a s e .

You may proceed, Mr. Days.

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! •>
JOjjJl A. COLETTA,

resumed the stand and testified further as follows
DIRECT EXAMINATION 
BY MR. DAYS:

Q* Mr. Coletta, I believe at the time we

recessed in this case you were discussing the 
distinction between instrumental velocity from a 
close breached situation as compared to a revolver 
situation. Can you explain the nature of the 
distinction that you were attempting to draw?
A. Yes, sir. In a revolver there is a gap
between the cylinder and the barrel and powder 
gases escapes there. There are not as much pressures 
exerted against the bullet.
Q- Would the relationship among various
type of projectiles remain pretty much the same, 
that, is, when we were, talking about the closed 
breach situation I believe you testified that your 
examinations found that the 158 grain was slower 
than the 110 grain?
A. No difference in relationship, no, sir.
Q. And the 110 grain was slower than the
125, and so that relationship remains the same?
A. Remains the same.
Q. All right. Nov/, does kinetic energy, or

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1
; ! 91.

does velocity have dir.J role in terras of the level of
kinetic energy in ballistics?
A. Yes, sir.
Q. Could you explain what that relationship

is?
A. Energy is produced by the mass times the
velocity squared. Now, actually velbclty will 
gradually parallel mass energy, where velocity will 
double.
Q. Kinetic energy, mass times the velocity
squared over two, is .that correct?
A. Over two, that's correct.
Q. Does the amount of kinetic energy have
anything to do with the cavltatlonal effect that is 
caused by a particular type of ammunition?
A. .Velocity —
Q. No, kinetic energy?
A. Yes. Does velocity have anything to do
with the kinetic energy?
Q. • O.K. Let's try it this way, all things,
being equal, would a projectile of a high velocity 
have greater kinetic energy than a projectile of a 
lower velocity?
A. Yes.
Q. And if, in fact, there are, there were a

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1 difference in kinetic^nerpy, would it be possible to 
predict something about the resultant cavitational 
Effect, that is, would a projectile that had produced 
a higher kinetic energy' have a greater cavitational 
effect than a projectile that had produced a higher 
kinetic energy have a greater cavitational effect 
than a projectile that had a lower kinetic energy?
A. Yes, it would, and I don't know just to
what point, but at a point I would think that the 
velocity is Increased enough, of course, it would 
just merely push it right on through whatever and 
cause relatively comparatively speaking —
Q. But up to a point kinetic energy, the
differences in the kinetic energy would result in 
difference in cavitational effect, is that right?

. A. Yes, sir, I would think so.
■ ' ' I believe you indicated that you used a

I

type of clay as a medium to which you fired the 
ammunitions that you were testing, is that right?
A. . Yes, sir.
Q. Can you Indicate why clay was used as
opposed to some other type of medium?
A. It is easily available and can mold it
into the required dimensions that we wished to see, 
and because of the fact that it would retain the

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1
J 93

flight path of a projectile, therefore, we could
photograph It.
Q. I see. In terms of your study of the
effects of these various types of ammunition, can 
you Indicate what you found with respect to the 
158 grain projectile In terms of accuracy, penetration 
and cavitation?
A. Accuracy was not as good. Penetration
was excessive and cavitation was not as good.
Q. Directing your attention to Exhibit 17,
does that Indicate specifically what your findings 
were In those three categories, considering the 158 
grain?

A. Well, here It was stated that a critique
of the Information contained was held at which time 
the floor was opened to questions and discussions 
and really the conclusion was brought forth during 
that period of time.
Q. But does the report seventeen. Exhibit 17
ij^dlcate In a quantitative sense what the findings 
were, that Is, you talked about accuracy firing Into 
a piece of paper, what did the test with respect to 
the 158 grain show In terms of the pattern on the 
piece of paper?
A- It held approximately one and a half Inch

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group as far as accuracy.
Q. What does that mean, you have a radius more
or less of one and a half inches?
A. You measure t'he extreme holes from centers
to center.
Q . And, so, in firing that particular
projectile several times you came up with a spread 
of one and a half Inches?
A. Yes, sir, generally it was a five shot
group, that was the norm that we used.
Q. I see. Now, with respect to the penetration
test, using thQ boards, what was your quantitative 
finding for the 158 grain bullet? How many boards 
did it go through?
A. ; It penetrated six and dented the seventh 
three-quarters of an inch pine boards .
Q. Now, directing your attention to your
findings on the 110 grain bullet, what was the 
accuracy of that particular projectile?
A. • One inch group.
Q. So the spread in that case was one inch
from hole to hole, is that right?
A. Yes,sir. ’

What about penetration in terms of the
board?

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19

20 

21 
22

23

24

25

A.
six.

Penetratioijythrou{2;h five, indented number
. 1

Q. So it went completely through five and
dented a sixth board? -
A.
Q.

Yes, sir.
Returning briefly to the 158 grain, was 

there any finding about the cavitation created by 
that particular projectile?
A. The bullet penetrated about three inches
before causing any cavity, and then it began
wandering through the clay, changing directions

\

and traveling out through the play to the, and to 
the range floor.
Q. So it went right through the block
ultimately?
A. Ultimately, yes.
Q. All right. ■ Did you determine anything
about cavltational effect of the 110 grain bullet?
A. Yes, sir. It penetrated eight inches,
expanded, the vertical measurement is approximately, 
leaving approximately a four inch cavity.
Evidently the energy was released very early due 
to the wide portion of the cavitation at the pointV *

of entry.
Q. All right. Now, let me get something clear

52u



o

c

n

2
3
4
5
6 
7 
3 
9

10

11

12

13
14

15
16
17
18
19
20 

21 

22

23
24
25

1 in terms of a compari|j;'on between a 158 and a 110.
I believe you said in the cavitation of the 158 it 
went in for three inches and then created some type 
of cavity?
A. A small type of cavity, yes, sir.
Q. And the 110 went in for nine inches and
then created a cavity?

tt:A . No, sir.
Q. All right. Would you help me out with
that.
A. It created the cavity upon entering at
the- point of entry, the cavity was approximately 
four inches and penetrated on nine inches into the 
clay.

And with respect to the 125 grain projectile 
what was the accuracy on that?
A. A five-eighth inch group.

As compared to the one inch under the 110 
grain and a one and a half inch under the 158?
A . , Yes, sir.

Q. So what about penetration of the 125 grain?
A. Through seven and indented the eighth
three-quarter of an inch pine board.

And what about the cavitational effect?Q

A. Four and a ha].f inch cavity in the clay and

42G
52;



o

3
4
5

6
7
8 
9

10

11
12

13
14
15
16
17
18
19
20 

21 

22

23
24
25

1
2

i 97I
penetration of thirti/en inches.
Q. So it went thirteen inches as compared to
nine inches of the 1.10, is that right?
A . Yes, sir. .

MR. DAYS: Your Honor, I would
like to ask the witness, if I could, 
to show some slides of these tests 
of the three projectiles at this 
point, if the Court wouldn't have 
any objection.

THE COURT: All right, sir,
are you prepared to do that now?

THE WITNESS: Yes, sir. Your
Honor, I can do that, plug it right

tup.
Q. (By Mr. Days) Mr. Coletta, I would
like for you to demonstrate the slides. Well, 
excuse me, perhaps I ought to preface this by 
asking you whether slides were made of the studies 
that you made with respect to accuracy, penetration 
and cavitation?
A. Yes, sir.
Q. And do you have those present here in
the courtroom?

VA . Y e s , s i r .

4-27 523



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13
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; 16
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1̂7 
18 ,
19
20 

21 
22

23
24
25

I wouldylike to ask you, If you would, 
to screen the slides'^Indicating the findings on 
■accuracy and 
158 . grain

* 7 . '  •'•'■  '  S!<'

A. I would have' to, excuse me. ’.This is the '
entrance into the clay^ Winchester and Hunt 158

and penetration and cavitation or the •.
first /:’■ if-you''could?' / -'J r v • ■  >' 4 '  U t
■ ■ ■ : ■ . V . >'■ ;. ,Vi. ̂  T.' f- r. ■■•»• •. _

grain, lead luballoy : p'roJ ectlie *'• ' * ’ .“.s'" ‘«• ' ‘ . '< f' • »V •.' ' • .

/fWbaJtû '51 Ide.,'-num er ,1s that 
A.‘ ■ This'is slide number 14. :

All right. .

'•"A. . .This is the, penetration, we-.may ' have ^■''44''4"^' ■ ' • ' . ' •  ̂ ■ :• /
. damaged the claŷ ;ia little bit in cutting''it'.ln''two/; 
Cutting it in half, but primarily this shows the 
tracks that the projectile followed around the 
exhibit through 18 Inches of clay and : lodgeddown 
range, ,.. " f
v> - ; ■. V •' ■• : k :.. -Q -. And 'that! isj^number 
^ V i- . Thai, is : numb'er . 15 .

And number'is is the accuracy test ’which 
shows ‘the inch 
grain.
Q* Yes, all right. Would you. show the
slides that

a1. *!•.■

ch and a-half igroup, that is the , 158 , . ’

. ■ > . / V *  *,

demonstrate-your findings with
, • v . • . ; ........ . . ^ *•'' y ,t •<\ . • .. '4  ̂, *./. . . ••: ,• \  •

respect to the 110 grain? • • ■ - • * '■'••"'v’v.V

fi, 1’ -

'•‘i!

•yv

A. n S110, this is slide number 2, it shows the

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6
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22

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entry. Slide number^ shows the cavitation, penetra­
tion, and slide number  ̂ shows the accuracy,

\ All'";̂ ight ..'•- Would you >'show.̂ the ; slides thatVj& 
•£>efleet your-:findings‘ an' the .125‘ gra’in^bullet?.^''^'”̂!!̂^̂: 

Slide number’ 5 shows the entry^ slide ’’ .A.
O .

number :6 - shows the cavitation and penetration, and

Q. ;

'Sir? ■

What slide was that?. U '»
5, 6-and 7 . ‘

» - V w , / ,

MR. DA.YS: Your Honor, ‘I.Jwould like
to move to enter slides l4, 15,' I6, ’
2, 3, and 5, 6 and 7 into evidence.

..J s»’ •

THE COURT: Without objection let". '’ .’
them be^introduced . ■ • ' .f"’. ‘  ̂■> . ’i-V̂ . •' i* ■ *-•JV V .•*. '• . • . . V>.

. ■ ■ ; MR., ‘. KLEIN : Your Honor,y i- would .•• ;'* ' •* * *'» • s'**.’ ' '' •* ' '■  ̂ '' • *, V 1*-**- • ■ V  ̂̂  ^ ^ %n • ,* • . •*. i"< ‘ '■ . ■'■i ** *■'*.•■•■>»■'•.*' i.' . ̂‘ - ‘ 7 f •.%• '
obj.ect as .to .the relevancy . ; have,.-an ’’-̂’V-/;'
idea,’but I'm not quite sure/what-the 
basis of the';intreduction of• these :■ • . V ■ '/aipf V
slides, is, and I question whether they ■- ' ‘ *V'’ * % : ' ..’L̂ ' ’ • '
are material or relevant to this 
hearing. •
'■//../'f-THE;; COURT

*.V ' 4.' V -'.•-I •' .

ti 7 1:7 Mr .'/ Days .;■
MR. DAYS: Your Honor, as our

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pretrial sufcmlssion indicates, one 
of the asselrtions that we are making^

..is • that ..;the'.'Meinphis Police Department- '■-■ ••• -.: .... . .■■-v;, •
,r‘> :: has.iprovided-*its officers: with'-v;

ammunition'^jf greater and greater ■ ’
capacity to-injure citizens, and that

 ̂ 'i ' • f. .» I '  ̂  ̂  ̂  ̂ ,, 1 • V 1 •• "
■»U under circumstances where a person’„is V

► t-

V •• ,*./

Tunarined and-ifleeing , from the . commission -/ 
of a-felony^ the extent to which this ' 
increase in :fire power, if you will, 
represents^*cruel and unusual punishment '

' or excess'- force is-an issue that only- : 
this court can determine. We assert 
that in a context where the police 

. department'-^is. essentially saying to 
'the.-:off icers^ we are giving you.; more v/ -Nv:/
'' and: more powerful' ammunition 'without 
•-'any ! effort to ■ also indicate , the need " ̂ 
to exhaust'-alternatlves before using : ; V
ammunition-of .this type of wounding

• • * . .  .  ' ■capacity'. or-‘damaglng capacity, injuring'y.:'/ 
. capacity," creates a situation where the .'V’ 
death^of Eugene Garner or • perhaps ̂ other- "w. 

■people'in similar. circumstances I s  

predictable and that is essentially

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102

/'it .  ̂ ■ ' •

officers wi/th certain types of 
ammunition,'; then those departments 
should,..pay.ithe consequences when>V;. ,' ■ 
injury--result s beyond the, levels o f f ; - .,/■'> 
-What- we, think would be acceptable

■■'■ }. ■ 
•S V

standards. 1.
•1' ;

i.« i’. '0 , UtiiV * il

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•• ■*' •.•,»■• •

'■ .rr::̂ L̂et;:nie;Adepo sit for thecourt ’ s s
■h r r ■■ ■ 7
"consideration.-SI situation .where
Memphis Police Department decided''

■ r

that it was.going to supply its 
... police officers with bazookas - '

' : ; i • , , >. • ••One- -would,'; I. suppose, ...conplude: ."that; /qa;:
a bazooka -would be very effective
to stop one-who was trying to
shoot'the Co'f fleer and certainly .’it; ■' 'I'f- •' ' ' . .;- - ; '• - *
‘wouldC'Stopl-atpersonVwho wasry.ing::,)/V-..-

•* . ' * i' ̂ "V*to -flee ̂’frora , the commission , of;, a
felony .’'̂ -i'-Ihsubmit .to .the court in .our ;- - . - '. ' , v'*' ''. .' .- ", .?•; . ■-■'.' •■*-■' .* ... r ’■ *•’ 'J'*";*' »•' j '•• ■ * ,' j
law thereols a standard qf expectation ;. .V- 
of* civilized conduct by all governmental- , 
of f loials-:under our constItution,' 'and .7
one of the'-'-questlons before this court 
is whether-cthe process that thls'l;;;;....-',!"!,..'.'.- 
record'-reflects that the Memphis-'^Pollce 1 
Department"has gone through, which is

■ :'432' ; ;f; 5 3 3  ;■

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one that sjjuares with the expectation
that I have Just made reference to,

.̂̂SQ.., it * is an‘.̂ is sue ■ before.. this court, '"' ■■■•;.;•■ V. • ...:y .
■‘•■■.^hd^-while.tthe specific issue., has>’hot.-;';;>/-w.'■ 

.been resolved to my knowledge, there ■ 
certainly :.is an adequate body of .

j - : i .̂ * * ’■'••j- .. _ •••• v .,,..vv- ; • .
•■law'^thatyd^vises ,the; -standard,.-1o.•■

.v/ V ■ *ydetermine,4;What constitutes■ excessive ,>
.. ' • ' * * • * <

force, what constitutes,if you will, ;'■.
the-use ofucertaln types of force,

. . the;.use ofrdertaln, types' of punishing
Implementspthat go .beyond the -vstandardsy-^x^V;
that a country, such as ours, has a
right to expect.

I'take it then that 
-- .,'• ; ItVlS: yqupAtheory ..that if -the^cit^-;V-^y!• V• '' .■ v“' . ; v

elects'to use the-powerful- ammunition,
, •''.'-i • • '• • * - . ■ ? . •  -T. k-1. .■• ••5.̂ '' • -fc '  ̂ • V ' irV ,4».

. that;-thatb.should affect the.'law and ̂ theV;- 
exercise of-..reasonable Judgm.ent;on the
part .of the officers as to whether he

»» • , *is going... to-.; use it or not-or he Is.'going 
. to :.use it as absolutely the last

'4 ■'.%

.resort after .‘the other man has :-flred ’■- W  ■- ,T*»'- .
it at 'hlm?if,i‘ 

MR. DAYS I think that is

’ 'v.;

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longer look>- to the expectation that 
this fleeing felon will be arrested

and if conyicted, sentenced to 
prison and required to serve his

' 's A- *̂ ■ . -*
-i-W. -■ :;■;;;>

sentence., :..Now, this ^Is. a'̂ Tery.̂ ’-
rough;'area'jln wlch we'are- dealing; A

" ■ ; * : - . , .. ' ■ ' ' * ■ ’ . • y-fi
We are completely aware of that,
Your Honor,^but we suggested’to the;
Court;; that ,t;he line of inquiry ̂ that^'^^'^A: A

. - . .  . • • « • • ! . • » ■ *  \  ̂ . - *  . <  / .«  . .  ... • ,  .. ••••

' , is being; engaged in now and the
very gravlment of this suit is one ’ 
that cannot^be Ignored by a society 
that ;liyes_ according to a constitution 

;■' and ,has , within its content principles .' V-' .A-;’ 
■•'■Of due process,and^ fairness• and a

:  *  • .  i  ■ * / ♦ - . . I . * *  ‘i -1

:■ rejection of what are ■ ref erred to'as'^cM^ 
a Cp^^ji and’ unusual means of ' punishment. ' v 

..THE, COURT: Well, I'm going to 1'-
oyerrul.e the objection. r/retain

-x*- .'.V.' ■ ' ■• V * • i'-' - . • •• . -

some. reservations ‘about this area as’.' ■
, being- an-"appropriate area - for. the -A:?:': 
'.•‘Cpurtii but’..certainly, the plalnt 1 ff•••‘•''•fe-. 
is entitled, to present all of.the

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proof.- and evidence In support of the 
plaintiff’s theory that the defendantI '•V - ' V • *-•

" V  . oi^/:^nreasonably and ■
violation ô f the deceased’s rights, 
so I ’m going to overrule the* '.•.♦.** ' ' ' 'i': ■ ■ y. ■ ■* r .  -y T i*
obj ection .would , want plaintiff’s- 
Counsel •■•to_̂ _larlfy ■ with the- witness ,''-'v ‘■:'j' 
if we. are going into this area. 
to give me about a three statement
sumraarlzatioA of what,'it Is, what'••the %

difference is. between the various ■■''■ ’ 
types of ammunition that were con-

■ . . . ✓  i j  V.

®1 4®rsd and ,the ammunition that was

.velocity and'all.
Sst .some Import about it -

' '■■ >■' ■ -  ̂
but .I,jfould.^llke to know in'siraple'^f^

• ' " ■’ ■ ■' . ■ •• '■ ' - *Xi' ' :’C-''■'ii’•.■ terras .what does one do in respect to '
what another one does not do. '

MR. DAYS: That is what I was ■ •‘-s-,'
K *• ■ . *  c j .  ‘ V • •.« M  U  - . *■  t . •/•'• • • ..» . . J ■ ' * . '  •••• ■■ ■ ■ . ; ■ ■  . ■ ■' ■ ' . -Y

'■ . 'turning to,. Your Honor, and without 'X X '

In any, way showing disrespect for ■ ''' ’' .
» » i'. r ..r  ̂ rt ' • ■ • ’,'*■ ' ! * * *' ̂ ' ' * '* ''

.:■ ' the c ( ^ u ^ - ^ r e  completely awarej.pf'̂ '̂rV-.̂ V;̂ ’'̂^
•' ■ the difficultjTj of the Issues .that.'are';

presented in this case and would be

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l i

107
surprised xf any reasonable court 
didn't have difficulties in

‘j r i confronting ;:thls issue and.
• , '• ir;dr.v’* •■ ■  ̂ •'■•X' ~ V • J7* ** - *.'.V .*’**̂agonizing' over; what ' should-^’be • the 

appropriate standard to resolve the
- £a "

contentions that we are making.
Q. : (Bŷ .Mr..' Days) ' Mr. Coletta, we. have
talked about the studies that you have done,'"and we'lC^
have talked about the findings that you made with

. r; V
respect to accuracy and penetration and cavitation ^

• •■ ■' .''att: ' ■ *"’
.> . of three proj ectlles,.;'; Now, what I, want ‘ to 'know • is','_

it is correct, is it not, that'your responsibility''V 
in conducting this study was to come up with 
animunltlon that would _̂ be acceptable to -the police 
officers in the Memphis Police Department,' is that 

', right? '' V ^

•" A. Por^thelr own' safety and .welfare and
 ̂ for the safety;and welfare of the p u b l i c .yes';".sir'.’

1 Co.
■ ■ All right. Now, looking at these three ' 

'̂ cartridges, What' would you say was the dif f erence
••••«“ • *.*>•■ •. -• i

in the significance of accuracy that you discussed'W’t'..■ ■ •' ■■ ■' '• ■■ '■ h-. ... ..
between one and a half inches in the '158 and five- '

 ̂  ̂ '••' ’• ■ 
eighths of an ' Inchy-f* believe, in .the"' 12.5 what■■ .'A ■ '■S"'"’ ; » . ' . ■ .■ 1 ■■. : •, , .-'T'',- .'i-', ■ .■ 1 -̂ vi- 'inc; ■ ■ w .
the practical difference? How does that.^ , 
differential go toward the question of which type

437

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: ■ if ......  .' Xv- : 108X:
• Iof projectile would h j j best for police officers in ■'

. Memphis? . • ' - \ ’ •; ''■■
Well, 'Of ,course , when we are,'talking.;vabout'̂'• 

.•. these particular rounds- we are talking about ; handgun -.v. 
ammunition. . Now, you,can't compare it to the .'M ’’
bazookas or anything-else or rifles because that's 

■ on the upper limit ofythe spectrum/that^i.s/'on theT^f^’V ’ 
■'. highJ.yelocItyThese  ̂ 'are lower velocity /  they' ;are'!5̂ /̂' 
on the lower limit’o f ’the spectrum and fired from. -i- ■
the hand, a weapon contained in the hand. ■■ :Any degree 
of accuracy that'is attainable by one.'up'here because !' 
of'.the suppor t ’ that,rit;'has , because of the/''5^/"^^x- 
configuration Of the/gun is not applicable ' ' ■
necessarily to the one here where the support is 
the arm-.- Therefore, {'the one with the support.vwith'.-{t 
the arm we feel.,shq.uld' be out of a rest 'at. least 

•■'be., contained.vat.;25 yards, at̂  leas^t • have..'a{'round .a/-///^ 
half .to a one 'inch group, anything more; than .that ' T . v 
we feel that an officer would not feel competent'/n'’ 
being .able to hit what- he shoots at because of the ’ 
fact. that I'm sure that once this particular*.' ' /  ' 
ammunition is issued that the. results either are .■ ' ' ■.

-fc - .  ■ '/ made known ; to.l.everybody . and ,.that the report would//'.•. .X- -y./ '
get out, well j ’ such/and ■ such is : Inaccurate . .■• I' .don 
know what analogy you' can make between shooting, a

.. 438 '

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1 0 9

projectile or cartridge or whatever, shooting it from 
a bench rest*, from a strapped down device and then 

, making'that analpgy to a man’s arm. There is no
analogy. . This 'is.'rmerelj to .illustrate . the'.difference
between the rounds to show the properties of'one . ',■ • • -/er -• ■
Particular round versus the other particular round.
Q. Well,- but you were concerned■ about-r'*---

.  ̂ ■■ 'r ■
" .improying;.the abillty.'^pf the police officers :;to. .
being accurate, weren’t you? -

A. Absolutely, we are constantly concerned
with.that. ■
Q ■ /. Well, ray question again is - what;dld-:these.^.icv*
studies tell you about the likelihood that a Memphis
Police Officer, shooting .at what you referred to as 
the .center mass, • is going to be more accurate- using 

, the 158 than using the 125?
A /■

, 7 Tt*> u - '

V. ■- I will say'-this, that'I>don.^t;knowwhether...v-
, it has any bearing at all on .the officer’s opinion

~ ' ''-j‘ ■' 3 ■  *' • .- i.. ;S'**, ■ r- . ' • ; ‘
■' or on the officer’s ability, too, because , it- is ' not

: n.C ' ■.  ̂ V', ,. ■
contingent upon ammunition. When it is that'.close
it. is contingent upon^his training and .his ability.", .V-r-i: : -'..line '
Q, -All-right. Let’s get to the area of

.'•penetration. -What practical significance- is there - I-

. ’ ■ ‘ *' *■ *V •'./4''* • * . * “ ' • , •.
■•'. between'^ the fact’'■'that the 153':penetrated.-.slx-'-.T.. S■ ' ' v\ ...yi-.r S- ■ ■ . , ■ ' ■ •;' " v -■;•

boards and dented the'seventh as opposed to the 125,

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which penetrated sevejt and dented eight boards?
A. All right. We are firing into an inert
.Object and firing ,into. living'tissue, ifJ'such •.a-.-.l” 
.thing ■ could be-‘done,:‘wljlch, of,, .course ,.;it' is..;.out̂ ;:"Uc%' 
of'̂ 'the question to even think about..
Q* I would hope so.

.we know.;from past .experiences'.that <’■.'■V 
ll^^^S tissue reacts, differently and I ’m sure .that 
Dr. Francisco can clarify really how, I really can't.
I m no expert in that area, but I do know that it 
reacts differently and I do^know this from case" 
experience that ..the 158 grain .has penetrated/’.many,'•■ 
many times. I would have a book which will document 
specific cases that throughout the country that the 
158 grain has . penetrated, has not. stopped or -W -

neutralized the'.; adversary, and, therefore , .in .:many'-: '■•••v
. instances has : resulted, in death to, police, of ficers ' 
and in other.;instances.''has resulted ,in.' ricoc.hets ’‘-'s ’

■ ■ ■' ■ ' ^ _ . v ’ •
and resulted in the shots hitting, innocent people.
Q* All right. ':But does your study indicate ..

‘that, can you .determine from your results that a •
158 penetrates only sixirboards and a 125 penetrates /,? -,.

' ’ • ' . ' ' • ■ ‘‘ 
seven, and yet ?you:'would-conclude that" the 158 '̂ 'VO;. vV-'.?'

:  .  ■ ■  . ■ • . . . .  . V . . . . .  .  _ . .

probably penetrates . more than ‘a 125, does' that': follow ?!*•
from your results? • 0 =

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A. Yes, sir, ^  does. It sure does, because
of the cavltational effect and because of the fact —  

Q.. :7'i' . Walt','.'wait,, if I may^ —

answer.
Q.

A.

.. ' .. . .  .. ‘ ,;. 
■ V ■ . ■ V■ . Well,".you asked me,' I was ̂ .'trying -.to

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’■ -• •■■ ■■ ■ '■•.>,■.v'-.̂ -7;''̂:

All right. Continue your answer.
I think a significant difference in • ■■ .-

in .'-. .i‘- r:.-
- ‘ t v * ’,  w i *•; • V*.

■ . penetration in pine..boards and penetration in.’. 
clay, I think there is a significant difference 
between the two.
Q. All right. ., I was going to ̂ get- to that,

■ Mr.. Coletta, but I'm,trying to get some sense of " 
what particular types of tests. You did reflectd’
about the ability of these various types of 
ammunitions to lncre.ase the ability of Memphis :

. police officers to protect themselves and tq..,.;- ./
> protect the general Jpubllc? . ^

Yes, 'sir. .* l / , .

So M  refer once again to the test
through the- pine board and I ask you what does 
that reflect.' in'practical terms and in terms;\of.

. the objective of your study in the first place?■c.e
7;'A.;. .All r i g h t s i r . Inthe'flrst place it

r - s  ....■’ >... ^ ____ \ wui‘ ',f\ I
-...• .. . . . .  • .̂5 . .. ■ - • . ■7 -' , ■■

- -. would tell, us ‘̂ and .,giye us the ' capability of ' being.V.-W .. • ’ 'i-s '-iU' •■■ . ; ■ •, V
able to project to some extent that it will Indeed

. .

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■ (penetrate this much irjlterlal and that the background 
should be a factor when a police officer shoots his
weapon. ■•'.If there ' is a,'frame house behind’ hlm,--l'or};?;s 

..•̂ .example, if he ’s not vc.o'nfident in ,his-. ability • of'r- 
being able to hit what h e ’s shooting at, then he ' 
should know what the effect of a missed shot would

. ■ ■• O.M-
>. be. .: .;

*.,: *. ..y\_ ■'■' ■ - • .

v:. i r' ■ ; : •■ All;-..rightrV Go right -. ahead ,\T.!.ra "sorry . ■ \
A. I ’m also aL^a,ve of tests that have been ' •r -.';'
conducted through telephone books, through' car doors,

' through glass I ■ think •that possibly :,the' best''answer;t;: . •’■■•• ' ■ ■ ' O' - ■ .■•. *-■-■•• r •: 'j.';;; j.* ■ ■. ' ■- ■.,■■: ■•■ :: ' •■ • “  ̂ \-- -isvto the fact-r,to.build a data bank;.where all; of  ̂

the information can be gathered and once all of 
^hg information is gathered to make conclusions 
■frora.it. , This ;̂ is. a field that requires really, ^

/. sophisticated ..equipment to test ammunition and -.test 
- it^^properly ’..t. have that .kind of--technology'--.;-}*;;?̂ ^̂
.within the Memphis v'-Pollce Department. ,;̂ We'have.-;,to

« • ** C ■ * • ' ■ * ■ "'i ’ >* -y. * i'4-f •».« ' V .. ’ **•*•’
.■  ,  ..  , . v ^

accept manufacturer’s.statements about their. , ; ""
V ammunition. In many , cases we found. :them wrong, so . ; ;■
X " ’. V ' .. X  "  ̂ ' 'in some areas we have,;.tested what we- could ourselves,>' 
and these particular tests are not the sole . ■

■ deciding authority.''-of..;why we declded;'to :'adopt • this .. ■■ ■ -. >■ ' ' ' • . • „ . ’.j-•<?■! . '' ■'! •■••'-■.■r' •'•>.'•,•I ■ ‘ ■.'f'■-i-j’'’
ammunition.''' It is'a factor. ' . ..-v:-i'" ' s',.7"''v
■Q. Well, did you indicate in any way to your

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determine’ whf»t*ho>,
- -  ..pe. r  -  - p . e . .

^es, sir.

^s that J.n wrlf-fnrr -»^ S in some place?
I have on many o c rsc -toccasions durlno-

== a matter of fact, here It i==Pt=lcr
® aald Where we

soussed and whatever i dla
thwK ’ = = the findingsthat we founH°Phd from Otudlee that we havewe nave conduct^^n

questionnaires, not studi- ’ “ ddles actually, but
Questionnaires fT»/̂

rrom other agencies, what they have 
'̂ Ohe and why and whatever.
Q

All right. Let's get to tw 
Effect. Now the “^'^itatlonal

-''itatlonal effect, as shown
by your studies ck snown‘'tuxes, shows that- -»■(-,
m o w  threehches and wandered aroundaround and fell cut at somepoint?

^es, sir.
110 Wf»n1- -r

cavltatl ” ” ‘̂ ^eated a four inch

cavifa+--!tn «aj.i Inch^^atlon. All rlehf- mright. Now, what sienin^o al7 r\ f  ♦-u ° Icance does“1-̂  o i that havA -f-ww j
-■ in terms of a.aln

.objectives of makin * "
® P°ti = e Officers

re protected and thev can nr̂  ♦-• can protect citizens?

544
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A. We feel th a A a orojectlle that will strike
an object, a human being, v/hatever, strike a target 
and particularly if it is a human being, because that 
is-what we are talking about here today, and if it 
is, we want one, that number one, the officer would 
be justified, of course, and make certain that the 
law is adhered to. And, secondly, that the 
projectile will stop or neutralize that person 
from any aggressive action or from continuing a 
felonious act that he may be engaged without, one, 
endangering the officer, and, secondly, without 
any danger to Innocent people by over penetration, 
by ricochet and even considering the officer's 
ability by misses.

But you used clay, did you not, to 
determine cavitation?

A. * That is the only medium that I had and 
there is no relationship of clay to living tissue. 
There is no relationship at all, that does not have 
the resiliency, does not have the elasticity.
There is no relation. All I merely did there was 
to demonstrate the difference of one type of 
projectlie to. another type of projectile. The 
context here was that the union wanted to go to a 
4l magnum. I did not shov/ those slides. They would

5 4 H



115

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Just be just as dramatic as some of the others in 
comparing it to the 158 grain. It would be Just as 
dramatic in comparing 'the .̂ 1̂ Magnum to the 125 graln. 
Q* Did you engage --
A* i'ni not finished yet, Mr. Days.
Or I could fire the, a 3.06 into clay and literally, 
'̂ hat you mights call, and what a lot of people might 
call, would blow it apart. That is not true. The 
projectile does not explode. It has to be Ignited 
or detonated to explode. This is merely one factor, 
and all I'm trying to do with the clay is to 
demonstrate the difference between one type with 
^^other type.

Well, did you engage in a useless experiment 
in the terms of firing bullets into clay if they don’t 
have any relationship to the human body?

 ̂ have, and there may be a lot of other
people who have done the same thing over the time, 
but certainly as we are all aware of and not trying 
to be facetious about it, but certainly how else, 
how can we draw relationship, we certainly can’t use 
people. Cadavers have been used in firearm studies. 
There is no relationship because of the living 
tissue.
Q Did you have an opportunity to discuss with

445 54G



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• ■!
the Memphis police o^M■ice^s the cavitational effect 
of these various types of ammunition?
A. Did I what now?

'  t
Q. Have an opportunity to discuss or an
occasion to discuss with the Memphis Police 
Department officials or officers the differences in 
cavitational effect amonp: these different types of 
ammunition?
A. Yesj sir, I think I said before the
tactics and equipment board requested and we did 
discuss it and I think it is written here in the 
report.
Q. Well, did you tell the officer that the
125 grain Remington'would protect them if they were 
confronted with an armed suspect or they wanted to 
apprehend somebody because it causes a great big 
hole in clay, is that what you told them?
A. No, sir, I ’m not about to tell them and
I'm not about to tell them that particular round 
will,stop somebody Instantaneously.
Q. Are you familiar with the term of the
hydrostatic effect, Mr. Coletta? 

jA.- Yes, sir.
Q. And vrould you define that particular
term?

54-7



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A. . As I unders'^nd It it is the reaction of
living tissue from the entry of a projectile.
Q. And are you able to say anything about the
hydrostatic effect of the three types of ammunition 
that we are talking about, that is the 158 as 
‘Compared to the 125 and 110?
A. According to my understanding of it I would
say that the 125 produces a greater hydrostatic effect 
because as demonstrated in the cavitation, the 
cavity, and that is what I was really kind of looking 
for in clay as to what, we might expect and possibly 
we could make an analogy there.
Q. Well, you said that you are familiar with
writings in this area. Do you have any knowledge, 
based upon your consideration of the literature in 
this area as to whether it has been reported that the 
158 has a less, a hydrostatic effect that is less 
than the hydrostatic effect of a 110 or a 125?
A. That particular terminology I don't know.
I know'a lot of sports writers have used the term, 
but that doesn't make it correct.
Q. .. All right. Let's use some more common
terminology. Have you been able to reach any 
cornel us ions about the ability of these various types 
of ammunition to wound a human being?

d 4 / 543



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A. Yes, I thir^ I have, and —
Q. And what conclusions have you reached?

r

A, WEll, as I say, I'm not a medical expert,
but through observation and through the studies that 
I have looked at that have been conducted by 
supposedly authorities, I think my conclusions are 
that based scientific: fact, the mass, the speed and 
where it strikes a person is contingent upon what 
type of wound in relation to a wounding or killing 
or whatever.
*5* All right. Let me pose this to you,
suppose that we had the three types of ammunition that 
you have been discussing and these projectiles hit 
a. person in the exact same area.
A . Yes .
Q. Would you be able to, based upon your
experience and your reading of the literature, to 
•indicate whatVwould be the expectation, the 
expectation of relative wounding that these types 
of wounding would cause?
A. From the literature that I have read,
I believe that the, of those three, that the 125 
'grain would have a greater wounding capacity, but 
It would also have a greater stopping ability and 
It would thereby meet the objectives of safety to

‘l i S
545



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the officer and it ^^uld also meet the objective 
of safety to innocent people.

All rlght..^ By stopping power, what 
exactly do you mean? •

^ person immediately from performing 
any other aggressive action or any other action.

Well, how is that stopping power manifested 
In terms of the human body based upon your 
readings?

^ doctor again, but based upon what 
I have read, evidently the central nervous system 
has much to do with it. The psychological set that 

has, if he has a predetermined set pattern 
or set plan or set action, then he is going to carry- 
that out unless h e ’s physiologically unable to.
Well, I make an analogy to deer hunting, which I 
 ̂have^.done a _lot of, and I make an analogy to shooting 
game, I think'.lt is valid because they are living 
animals and I have literally shot the heart plumb 
out of a deer, but yet. the deer ran ninety paces 
and then I apply to that my work to police officers. 
What if a man is confronted with a suspect, what will 
instantaneously stop that person from being able to 
deliver aggressive action, and I find it, I 'don't 
know Of anything that *111, that a police officer has

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within his capabillt;^-fes because of the fact that it 
takes mass and velocity and where you strike him, and 
in the area of weaponry, I don’t know what it is.
*3* Are you familiar with the terminology, the
relative Incapacitation index?
A- I ’m familiar with the terminology, yes,
sir. '

Couldjou define that particular phrase?
A- I believe that is a scale that was
instituted by the law- enforcement standards pro gram 
in the study that they produced police handgun 
ammunition and the relative incapacitation index 
is where a particular'proJectile stands on a scale 
of its ability to Incapacitate an individual.
Q- Would that be pretty much what you were

..Referring to as stopping power? ...
A* • •'‘;Ies,: sir.- - ̂
‘3* • . Do you have-any knowledge of where the
projectiles stand relative to one another in 
terms *of their relative incapacitation index?
A. I have read'the report.
Q« Do you recall what that report indicated
about whether a.158 had a higher relative 
incapacitation index than a 110?

1 believe the !5B was lower.

i



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Q.

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So it had aylower incapacltiation index?
Lower. • '̂

'•; / : What about.’the relationship.'between.;’ a.. 110
‘and a, 158 in. terms . of .^Incapacitation'

■’'V.* ■ *’ • ' '■ ■*'**■• *•’ •''
Again, now,'-it 'depends on the brand and . , 

we haven’t even mentioned brand here, because brands 
, differ,, too. ’.We.-are Just speaking' generally.
'.Q» No,.,, excuse'me , Mr. .Coletta,. by "using .the .•f--.V;
■■•■'-■■ V P'.- ■ p-. ;p -T.-

shorthand term 110 all'along, let me make clear, . ,‘x 
for the purpose of the record and for your purposes ■•.;

•: > • 'J
... that I ’m referring to\the 158 Winchester.' ' '■’p'' -'’

A. A l l  ■ right ,‘;'.sir . : P■y Si.'.-  ̂ •■ VA'i' '̂'r r̂
And I ’m referring to the 110 Smith & Wesson.- 
All right,'sir.

Q.
A

1,0,, • ..... ..And X;’m referring to . the 12 5 .Remington .
AiPoes ̂ that,,help,;,you?. ■̂ •:. .p
■ • ‘A  ! Yes.,-pi.it 'does .. Thank, you.-.:V .'■■'-p-xZrt'

, < THE COURT: Counsel,; I.*.m: sorry
. ■'•j ' I ;y-'to interrupt' you gentlemen,'! know

.. . . . .  ^ . i  ■

that Mr. Bailey has a problem on • 
tomorrow afternoon. I don’t know 
how much longer Captain Coletta is 
going to be"on the stand. As I 
recall we started with him on 
yesterda,y Afternoon. I may be

DUi...

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mistaken about that, but we have had

122.

some.:.interruption during the;, course
it. i ■> '1 ■--i...

of . the .' day  ̂Can you givei'.me'-some \
••• ■ ■ ■ ; f’.oo 'C'iiUe''. .
estimate about how much longer? •'••• -

MR. DAYS: I would say a half
hour . ■■ ■ . . • ;.. . ... . .

t̂O
■ :-ftlTHE. -COURT: All right .'■•.•:;We'’wlli;v"-’-

adjourn until 9.*00 tomorrow morning' '‘;V.V ' ,

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14
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and I presume that we will not be 
finished byI 2 : 00 tomorrow afternoon.

............... ->* .-v:*
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MR. . BAILEY : 'Your Honorwith_!;̂ -̂ ...;.''>:H
the Court’s permission and M r . Day s " '.•
can continue to proceed in my absence.

.-5' h ' - —,He and I both are just as equally-..-^--'...
’ V;;.‘familiar with the case . . ■.vwr̂ .M- v‘- A _.. *, •* ; •Wy/.'-' *y*'

r^^-THE'COURT: ^iVwill' do ̂ thi s;-in /
' . . ...•̂., any ̂ ^eyent , will try. to proceed .'at''“;

9 : 00 ■ tomorrow morning as^far• as . we A;'''’-^/-^
 ̂ can go for a late hour so you will

■-..•■• be . able , to be here _ for ; a longer
period of time before proceeding, .in -.

- the. afterno_on to accommodate..’you as '...v
' . -f, -■ •• ■■ ..‘.'•f'. ■--..r.-.r-'V:V ■ ' ' ''®uch<:as_;we-<possibly.,:can *-in that

, * *• ’* ••'«*.' • ,* '**respect, and I certainly understand
your situation and you certainly■may

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Unbe excused'jLn that unexpected development.
And we wiltistand adjourned then until

. • j  . « • , • * • ’• •• •• -'■■ ,.. . • .-• f  ,., • .*■ . -.J'yv. •- -•■■ r I ‘ .

9 : OC.-̂ rtomorr-o-w morning and-we will resume.- v
■ *• '.  * j  ■ * A '** '*.'*''■at..that t i m e . I ' m  .sorry; that> we., have ■ had^^k, 

interruptions in this case that none 
Of you were any way responsible for and

. ‘  ̂ fiV <

■ - _ . ' ■ . -  1 2 3 -  "

•w- ;* C-* ‘
> I'niv',sorry.-to .have .delayed'you and .:the.i '-̂ v'̂ -̂

. ' witnesses' in . that regard.:i!:^We?>-wiaiHs.tand V':^
adjourned then until 9:00 tomorrow 'V :■:
morning
‘. •. , . —'• - ; i -  ; .v . ’ . • . - . v̂S''̂ y
■ 'y •'..'.•'.•(Whereupon, court;- adjourned until 

9:00-<a-.m., ,iWednesday ,XvAugust 'Mth,- 1976 .

* * *  ̂ *
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V/ITNESS 
JOHN A. COLETTA 

DR. J. T. FRANCISCO

I J i D E X

DIRECT CROSS R/D R/C
132 163 208

225 245 265 266

NUMBER

18-A through 18-I
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20 

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e x h i b i t s
• - K *

IDENTIFICATION

128  

149 

179 
207 
256 
26l

EVIDENCE

128 
150 

179

256

355
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1 2 6

Mdĵ yNING SESSION
AUGUST 4, 1976

THE COURT: Gentlemen, I think I
can promise you a less interrupted day 
today. I»m sorry you all were delayed 
on yesterday and we are ready to 
proceed, if you are.

MR. DAYS: Yes, we are.
THE COURT: I take it that it

is satisfactory, Mr. Days, in 
accordance with what Mr. Bailey 
advised us .yesterday that you will 
be proceeding in his absence.

MR. DAYS: That's correct.
Your Honor, before I proceed 

with the examination of Mr. Coletta
' I

I would like to make clear on the 
record the fact that the slides that 
were shown yesterday are to be 
Introduced into evidence I believe, 
as collective exhibit 18.

THE COURT: Let one be marked,
I believe you referred to a slide 
number, let each one of those be

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1
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127
marked with a letter slide number, 

l4vculd be collective exhibit 18-A 
or whatever.

MR. DAYS:’ I can suggest that 
now, I would suggest that slide 
number 14 be marked as Exhibit l8-A, 
slide 15 as Exhibit l8-B, slide 16 
as Exhibit 18-C, slide 2 as Exhibit 
18-D, slide 3 as Exhibit 18-E, slide 
4 as Exhibit 18-F, slide 5 as exhibit 
18-G, slide.,6 as Exhibit l8-H and 
slide 7 as Exhibit 18-I.

THE COURT: All right, sir.
Let them be so introduced subject to 
and noting the objection of the 
defendant with regard to the 

Introduction of these items for the 
reasons stated by the defendant and 
the Court at that time on yesterday 
Indicated that the defendant's 
objection would be overruled for the 
reasons that the plaintiff asserted 

a part of, its theory with 
respect to the action of the defendant's 
officer and with regard to the defendant

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12b

with regard] to oolicy.
J

(Whereupon^ the said slides 

referred to above were accordingly 
marked Trial- Exhibit 18-A through 
I respectively and received in 
evidence.)

MR. KLEIN: Your Honor,
excuse me, may I make one other 
reference.

THE COURT: Yes, sir.

MR. KLEIN: With regard to
\

the-movie itself I think it was made 

an exhibit to the testimony and 
Captain Coletta asked me whether or 

not that had to remain here or 
whether he could take it back with 
him. I don't think Mr. Days has 
any objection to Captain Coletta 
taking it back v;ith him with the 
understanding that it has been made 
an exhibit and will be in his 
custody.

THE COURT: Is that agreeable

provided that it will be available 
for vfhatever purpose as a part of

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the record as and when needed? i y
MR. DAYS: Your Honor, we have

no objection to Captain Coletta 
taking the ril.in. It Is our 
understanding that he wishes to 
continue Its use In a training 
program, and, of course, we have no 
objection to that.

THE COURT: All right, sir.
My suggestion would be that 
counsel on either side, with Captain 
Coletta having possession of It, 
note, I*ve forgotten the commercial 
procedures of that, but perhaps 
the cover Indicate that In the event 
that despite, any reasonable best 
efforts that something were to haopen 
that a replacement. If necessary, 
could be obtained or a copy could 

obtained.
MR. DAYS: Yes, sir, that

certainly would be a wise Idea.
THE COURT: I ’m now becoming

a little more conversant about films 
and copies of films after hearing

458 559



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about nine j^eeks about film and 
copies .of film and bootlegs and so 
on and so on. I make that suggestion 
for purposes-of the record. I don't 
believe that we will have any problem 
about bootlegs of this particular 
film.

MR. DAYS: Your Honor, I'm not
a lawyer practicing generally in 
Memphis, but I can say to the Court 
that I'm well aware of how the Court 
came to an understanding perhaps of 
a question of films and a copy 
thereof.

THE COURT: It is a rather sore
subject right now, Mr. Days.

MR. DAYS: I won't belabor it.
THE COURT: Mr. Klein being

similarly Involved with another 
matter will understand the context 
of the Court ' s statement because I 
believe he represents another 
defendant in another matter in which 
recent developments have raised some 
concern to the court and prosecution.

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1 JOHN 'A. COLETTA,
J

resumed the stand and testified further as 
follows:
DIRECT EXAMINATION 
BY MR. DAYS:_______  ' '

Q. Mr. Coletta, yesterday when we recessed
I believe we were discussing a concept called 
relative incapacitation index, and you expressed a 
familiarity with that particular phraseology and 
index. Could you again for the record, indicate 
what you understand that index to reflect?
A. Yes, sir. Well, the index reflects the
ranking or order of various projectiles according 
to this particular study by the law enforcement 
standards program that attempts to rate various 
type of ammunition. However, I must say again this 
morning that any study is subject to criticism, ig 
subject to be tested for its validity. That the 
table in and of itself is nothing but a group of 
numbers, that it must be explained that it must 
be discussed, the premise is brought forth for that 
to have any value or significance whatsoever and 
then the significance of the validity of the study 
can then again be questioned.
Q. Ts this the.document to which you have been

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referring? Is this it]
1 3 3

£/le study that you and I have been 
referring to at this point?
A. Yes, this appears to be it, yes.
Q- And*it was-done by what organization?• • M • *
A. . Law Enforcement Standards Laboratory,
National Bureau of Standards under a grant I think 
from the LEAA Law Enforcement Assistance Administra­
tion.
Q. Now, do you recall the premise upon
which this particular study was conducted?
For example, was it a study to determine the 
relative incapacitation index in terms of shooting 
a person under any condition, or was it designed to 
demonstrate this relative incapacitation index with 
respect to certain confrontations between police and 
private citizens?

THE WITNESS: Your Honor, if
I may, I have made notes of that 
study, personal notes regarding 

• that study.- May I use them?
THE COURT: Yes, sir, if there

^s no objection.
MR. DAYS: V/ould you like to

use the study Itself?
A. I would rather use my notes.

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134.

Q.

MR. DA^: All right. I have no
obJ action to it.

THE COURT: Either counsel is
entitled with-regard to the testimony 
of the witness to view any notes upon 
which may assist his testimony.
With that understanding you may proceed.
(By Mr. Days) Captain Coletta, do I 

understand your notes are designed to refresh your 
recollection, that you have a present recollection of 
what the study contained?

Yes, sir.

*5* And it doesn’t represent your recollection
of the particular study, that is, you don’t have 
any present recollection of what the study contains?
A- I have a recollection, but it is not as
in depth because this.is a very technical matter.
Q* Yes, so I have learned.
A* And this will refresh my memory on the
various assertions, premises and whatever.

All right. Getting back to my question.
Do you recall what the context was for this particular 
study, was it designed,to determine the effectiveness 
of certain types of ammunition, if a police officer 
was shooting a sub,j ect .'under, or was there a certain

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circumstances under wl^ich a police officer would 
confront a subject that would serve as a basis for 
this study?
A. As I .’understand it it was designed to
determine three points. The penetration of a 
projectile. The ricochet potential of a projectile. 
And also the Incapacitation probability of a 
projectile. Those three points is what I understand 
the study addressed itself to.

Let me direct your attention to page 4 
of this study and let me show it to your counsel 
before I do that.

I want to direct your attention to page 
4 of this study, this LEAA study beginning with the 
paragraph, the incapacitation criteria on down and 
I would like for you to read that to yourself and 
have you indicate whether that refreshes your 
recollection with respect to the subject question 
that I posed to you earlier?
A. . Yes, it does refresh my memory, yes, and 
it does address the fact, just as I said, it does 
address the fact of incapacitation.
Q. But incapacitation under what set of
circumstances?
A. linder a self defense type of circumstance

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* I 136,
where an armed assailant is confronting a law enforce­
ment officer and attacks the officer, and, therefore, 
the officer must administer a swift incapacitating 
injury to the assailant -in order to save his own 
life.

Is it fair to say that this study is not 
concerned with the question of what should be the,
°r what would be the appropriate relative incapacita­
tion index if the situation did not involve an 
armed subject confronting a police officer?i: ,
A. This study does not address that, no.

t .

Q. All right. Do you recall whether the
study Includes any overall ranking of various 
types of ammunition with respect to their ability

incapacitate, that is, their relative incapacltatich 
index? ,

^es, sir, table one is a ranking of such,
Q. What about a ranking in terms of general
classification of ammunitions; is there any 
indication, for example, whether hollow-nose 
ammunition has a higher overall ability to 
incapacitate than round-nosed ammunition?

I think it addresses that. Yes, sir, I 
think it states --
Q. And in address Int; that, what do you

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recall the studies i:
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vlnfc reached?

reached the conclusion that contingent 
upon its variables and the variables were the 
crux of the m a t t e r s t h e  variables that they set 
out, the bullet, mass, the shape, the shooter 
accuracy, the danger to bystanders, the test 
vehicle itself, the ordnance gelatin was used to 
control atmosphere, a computer man, which is a 
subjective Judgment of a group of medical experts 
on what will occur if the shot is placed at this 
particular point, et cetera, et cetera. It addresses 
its many variables and, yes, sir, it does address 
that fact.

you recall the ranking of hollow­
nosed ammunition in terms of its ability to 
incapacitate as compared to the round-nose ammunition' 

Specifically, t̂ o. Generally, it is 
higher in its ability to, according to the table one.

Let me direct your attention to another 
section in this report and ask you whether it 
Refreshes your recollection in this respect. Address 
your attention to page 8 at the top, figure 2 shows 
that, and have you read that and have you indicated 
whether that refreshes your recollection as to this 
matter of relative ranking by a general type of

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ammunition? J

Tfa'

A. Yes, sir, figure 2 shows it over a wide
range of velocity. The ranking in order of 
decreasing, or —  which is relative incapacitation 
index, rated hollow-point. Jacketed hollow-point, 
semi-wad cutter, E-Jacketed soft-point, F-lead 
round-nose, G-full metal Jacket.

So the list■runs from A down to what
letter?
A.
Q.
A.
Q.
A

G.
And A is the hollow-point? 
Is the lead hollow-point. 
The lead hollow-point?
Yes, sir.
And the round-nosed type of ammunition is 

at what letter in the ranking?
A. P.
Q. F, so it is. next to the bottom?
A. Yes, sir, sixth on the list.
Q. Now, do you recall in the context of

*

this study whether there v;as any ranking given to 
the three types of ammunition that we have been 
discussing in your testimony, namely the 158 
Winchester, 158 grain\;Wlnche3ter, the 110 grain 
Smith & Wesson and the 1?5 grain Remington cartridge.

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do you recall the rahRlnpr?
A. Yes, sir, it is ranked, the 125 grain
Remington, I believe, is number 26, out of a ranking 
of some 1^2 listings.
Q. And where does the 110 stand?
A. The 110 is 6 9 th.
Q. And what about the 158?
A. And the 158 is 105th.
Q. And so the 125 grain is, what did you
say, 2 6 th out of 142?
A . Y es, s i r.
Q. And these are commercially available
types of ammunition?
A. Yes, sir, well, commercially available.
I noticed there is a Glaser round in here, I don't 
know if it is commercially available.
Q. All right. I v;ant to get to the Glaser
somewhat later on, if I may.
A. All right, sir.
Q. . Now, do you recall in terms of the
ranks what the studies suggest in terms of the 
acceptable levels in the terms of the relative 
incapacitation that would be necessary in crder for 
a police officer confronted face to face with 
an armed subject to be able to deliver a blow,

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a wound to the poten ■ŷ al a
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assailant. If I may use 
a vernacular phrase, to put that person out of action 
Immediately?
A. Yes, sir.
Q* * Do you remember that?
A. Yes, sir.
Q* And what does your study recommend?
A. The study says that the minimum Is
approximately ten. However, It Is merely an 
estimate and deals merely with probabilities that 
there are no absolute and that this Is true with 
all biological measures of this type.
Q* All right. So the minimum Is ten. Is that

A.
Q.
A.

According to this.
According to this?
It Is suggested that their, I think It makes 

it clear that they don’t know, it is just a suggested 
minimum.

Q* No, I didn’t mean to communicate to the
court or put Into, your mouth any thought that this 
study represented a definitive exposition of what 
type of ammunition under the circumstances would 
be absolutely perfect and do the job. I certainly 
don’t intend to have that communicated to the record.

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We do have this figure of relative

incapacitation index of ten, is that correct?
Yes, sir.

Q. Can you estimate, based upon your

recollection or the study that you have before you, 
what was the relative incapacitation index at the 

very highest point in the study, that is the highest 
ammunition on the list, what was the relative .—
A. .44 Magnum at 54.9 with a Jacketed
hollow-point 200 grain projectile.

So the highest relative incapacitation 
index on it was 55?

A. 54.9.
Q. 54.9.
A.
Q.

Yes, sir.
Where does the 55 grain Remington stand 

in terms of RII?
A. It is greater than 50 per cent, it is

25.5. "
25.5, so it is over 50 per cent of that 

highest point?
A. It is less than fifty per cent.

What about the 110 grain Smith & Wesson? 
A. 12.4. ''‘■

Q. 12.4, so we.go down approximately another

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fifty per cent, Is tlUtt rip-ht?
A.
Q.

stand?
A.

Yes, sir.
And where does the 158 grain Winchester

8.0.
Q* Can you describe something about the
ammunition that Is number one on the list?
A. Yes, sir. The .44 Magnum 200 grain
Jacketed hollow-point Speer, Speer manufactured 
projectile. It Is a slug of 44/lOOths of an inch 
in diameter. It weighs 200 grains, 7000 to a pound.
It has a Jacket on it, semi-jacket on it probably, 
wi'th an exposed lead nose v.'hich is hollow-pointed.
Q* Can you state the circumstances under
which that is used in the United States?
A. Generally it' would be used in hunting game,
that is the purpose of it, to hunt g a m e '
0 ' Now, based upon this particular study that
we have been discussing, do you think it would be
fair to say that if a type of ammunition that had
a relative incapacitation index above ten was used
to shoot an unarmed fleeing felon, that a wound
produced by a cartridge above that level of ten
would stop that person who was fleeing dead in his

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tracks, is that fair to say. stop him right at the

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point where the InJui^ occurs?
A . No, sir.
Q. Well, can you say anything about the
effect that a cartridge would have based upon the 
rankings that are given in the study?

Yes, sir, I could say a lot about It. As 
I say It Is Contingent upon the stated variables 
and In every variable, velocity, bullet, mass, 
shape. It says, number one, that deformation must 
occur, this is a controlled experiment, deformation 
must occur and that the point of aim and point of 
impact which overlapped vital organs must occur.
Q. All right. But is it fair to say that
all things being equal, assuming that one of these
cartridges, assuming that a person armed facing the

/
officers, or hit a person running away, if one of 
these cartridges hit such a person in the same 
place that was used for the purpose of conducting 
this study, would it have the effect you think of 
stopping that person cold, incapacitating, making 
it impossible for that person to run?
A. Once again it is contingent upon many
variables. I cannot definitely say that anything 
of this weight'''within the spectrum, the low spectrum 
on the scale of velocity, on the scale of projectiles

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1 because this Is on aj^ow end and I can't say that 
anything is an absolute guarantee that it will 
stop a person cold dead in his tracks.

Do I recallicorrectly that one of the 
concerns that the Memphis Police Officers express 
with respect to the ammunition that was then in
use around 1970-1972, was the concern over potential 
ricochet? •
A. Yes, sir.

Do you recall whether this particular 
study contains any particular information about the 
ricochet effect of the types of Information that was 
tested in this study?

' f e s , sir, it did address the situation.

recall what conclusion that the 
study reached in that regard?

■̂ *  ̂ believe that It said that the heavier
the bullet the slower ithat it moves, the greater 
the ricochet potential. I believe it said that the 
higher velocity type of ammunition with a greater 
RII has a less ricochet potential, it states here on 
page 9, the hazard and also that the ricochet 
decreases as the franglblllty of it.

. What’.,does franglblllty mean, it is a
lovely word, but I don;'t know what it means.

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A.
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That is thej^roperties of the bullet.
construction Itself, the properties that It has of 
being able to- expand In a controlled manner and it 
may even mention here-some of the things that he 
says here, I wonder what’ it means, too, but It 
also may mean fragmentation to a certain extent,
I don’t know.
Q. Do you recall any reference to a safety
slug?
A. Yes, sir, I do.
Q. Is there any reference to a safety slug
in terms of the issue"of ricocheting effect?
A. It said I think, yes, with the exception
of the Glaser safety slug, all handgun bullets 
studied pose a serious ricochet hazard to bystanders.
Q. What is the Glaser safety slug, do you
^now?
A. It is a round loaded to an extremely highi

velocity, therefore, it has extremely high pressures 
and loaded with a projectile that actually is a 
mass of small shotgun’type shot that is bound together 
with some Teflon coating. I don’t know the construct lo|n.I j .
As I understand it that is about it.
Q. Under what circumstances is it generally
used here in the United States?

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A.
used. 
Q.

I really dbn't know that it Is even being

I see .
Mr. Coletta,.^am I correct in recalling 

that in your earlier testimony we discussed the 
whole question of the relationship between kinetic 
energy produced by a particular projectile and the 
cavitational effect that would be caused by that 
projectile relative to the release of kinetic 
energy?
A. Yes.
Q. Are you familiar with the person named
Vincent DeMayo?

T have read his works.
Q. You have read his works. Can you identify
who he is?
A. I believe he ’s an MD and is at Southwestern
Institute of Forensic Science in Dallas, Texas. ‘

%

Q. And if I suggested to you that h e ’s also
the chief medical examiner for Dallas County, would 
that be close to correct?
A . 
Q.

Yes .
^^es that refresh your recollection as 

to what his present capacity is?
A. I don’t know vfhat his present capacity is

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I understand that he
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Southwestern Institute of Forensic Science.

Would you say that he's regarded as an 
expert in the field of'ballistics and wound
ballistics?
A T would say he has quite a bit of knowledge,
yes, sir.

Q* Has he written extensively^in this area?
A. It depends on what you mean by extensively.
He's written in this area.
Q- Would you say he's written a number of
articles in this area?
A . Yes, sir .
Q* Let me hand you a document and see if you
recognize it.
A* Yes, sir, I do recognize it.
Q* Are you familiar with that article?
A. Again I have read it, yes, sir.
Q* Do you recall whether it contains any
indication as to the relative kinetic energy released 
by certain projectiles that we have been discussing.
A* Yes, sir, it does address that.

Does'the study Indicate anything about 
the kinetic energy that v;as found to have been 
released by the 158 grain Winchester?

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A.

Q.
A.

Yes, sir, is.

And what does It indicate?
It indicates that 72 foot pounds, plus 

or minus five, kinetic -energy loss.
*3* 72 foot pounds?

Yes, sir.
Q ̂

Does it indicate anything about the 
125 grain Remington cartridge?

Yes, sir, it does.
What does it indicate?

A- It Indicates 237 foot pounds plus or
minus eight.

Two hundred and what?
28.
Foot pounds?
Yes, sir,

So would I be remembering my arithmetic 
correctly if i said that that study reflects that 
the kinetic energy released by the 125 grain
Reraingt.on is over three times that of the 158 

Winchester?

Approximately, yes, sir.

MR. DAYS; I would like to have this 
document marked f'or_ identification.

THE COURT: All right, sir. Let

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A.

Q-
A.
Q.

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It be marksQ Exhibit number 19,
Mr. Clerk.

THE CLERK: Yes, sir.
(Whereupon, the said 

document referred to above was 
accordingly marked trial exhibit 19 
for identification.)

Q- (By Mr. Days) Mr. Coletta, I would like
to show you a document marked Exhibit 19 for 
identification and ask you whether you can identify 
it?

A. Yes, sir, this was the objective of the
ammunition study that we did within the police 
department at the time that that report was written 
Q* Did you prepare that particular document?
A. I did, I prepared it. Yes, sir, I did.
Q* Can you indicate whether it was prepared
before or after the study was conducted?
A. As I remember this was before, this is
what we were looking for.
Q. I see. And this represents to your
knowledge an accurate copy of that document?
A . Yes , sir.

MR. DAY.S: I would like to Introduce
this into evidence. Your Honor.

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THEi^OURT: Let it be introduced
without objecbion.

MR. KLEIN: Your Honor, the

objection"! have Is the same that I 
made to the slides before. I think 
this Whole line of testimony Is
Immaterial, Irrelevant —

t h e c o u r t : All right, sir.
 ̂« 1 1  note the objection of the 

defendant and it may be Introduced.
(Whereupon, the said document 

referred to above was accordingly
marked Trial Exhibit 19 and received 
in evidence.)

(fly Mr.- Days) Mr. Ooletta, earlier we 
had a discussion about the definition of a term 

"hydrostatic Shot".' Does this document assist you
in any way 1„ understanding what the definition of 
hydrostatic shock is?

’ Yes, sir.

what does it indicate?
It indicates that It Is defined as the

hhlllty to stop a criminal Immediately from what
he's doing, that Is what Is written here.

So If a person were trying to shoot a

Q.

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police officer, hydrqjj/tatlc shockwould mean that that 
person could not continue to shoot the police officer 
is that correct?
A. That's correct.
*3* And if a person were running away from a
police officer, that would mean that the person would 
no longer be able to run away, is that right?
A . Right.

You have, if I read correctly on this
document, a reference to expansion effect. Can you 
indicate what that document says in the terms of 
the objectivity of the study with respect to 
expansion effect?
A . Yes, sir.
Q* What does it state?

1^ says: "Close relationship to 'shocking
power' — r” or hydrostatic shock —  ”— defined as 
producing sufficient trauma. Some bullets due to 
their shape and the hard consistency of construction 
will bore a straight hole through a person,, doing 
damage in some areas, but usually with too great 
penetration and too little "shocking power".
It does not deter the person immediately from his 
obj ective."

So you were concerned about the relationship

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'i^ct ant
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between expansion effect and hydrostatic shock or 
shocking power, is that right?
A. Yes, sir.
Q. Mr. Coletta, we have been talking about
ballistics as if it were one field of endeavor, one 
type of specialty. Am I correct in thinking that the 
field of ballistics is broken down into sub-categories 
A . Yes, sir, it is.
Q. And do you know what those sub-categories
are?
A. Well, there could be internal ballistics,
external ballistics, terminal ballistics.
Q. Could you indicate, if you will, how
those sub-categories are distinguished from each 
other?
A. Interior ballistics would be the actions
that transpire from the time that a cartridge is 
first in a handgun until the time that it emerges 
from the bore or the muzzle of the gun.
Q. Did you say,interior or internal?
A. Internal.
Q And what about external ballistics?
A. That would C9ver the time that the bullet
emerges from the bore or muzzle of the gun until 
it strikes some object.

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Q.
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And you referred to wound, or did you
mention terminal ballistics?
A* Terminal ballistics.

What is terminal ballistics?
A ' ' •That would deal with the, the object it
^trikes, kinetic energy.

*5* Is that synonymous with wound ballistics?
I think it is taken in that concept, more 

or less, yes, sir.

would you define yourarea of expertise 
given those two sub-categories of ballistics?

Moreso in internal and external rather 
than terminal.

All right. So your field of inquiry and 
study has been in the area of Internal and external 
ballistics?

it has been in that area, but I have 
been concerned with the terminal ballistics also 
due to the nature of my work.

. Yes, sir. Nov/, the course of carrying 
out your responsibilities as head of the firing 
range, and I believe now as commander in charge of 
the training division, have you come across any 
discussions of the Hague convention of I899 as it 
^slS'tes to ammunition used by police departments?

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you* H ” .'our Honor, ir„
eolng to Ob,feet to t M t  r .
» o » t h e H  ^ dun-t know

• invention hat got any

-^eyanoy u  haa aaoapea .e,
that respect tP®ct I object to It.

WR. DAyS: May I^  ^ respond to that,^our Honor?

THE c o h r t : yea,
WR. DAYS: Yq ,.t. „^our Honor, as I

Indicated, yesterday nnd̂ xuay, one of tĥ » -f« ̂ issues
that we submit precroni-presented by this
litigation 1 Vi-uwu is tne extont- a.extent to which
^®^tain type*? nr

Of ammunition repreaent 
-acceptable levela m  the te'rma of

r ;  » ' • • « . . .
•^«ings, and as i r e f .erred yesterday
- e  Court's attention to the uCO the whole
^^®®tiOn of t" h a 1

^  locking Of the
oonsclence of the Court the e  ̂ '*’0 extent to

certain t.ypea of m jupy i„fai,ted
u -  violate concepts of liberty and
-oreby vioiete the due process 
clause of ■vvik tt ^

- a  United States Constltu-
dlon- We subnt that thhat the discussion

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In Interna^onal law and the reaction 
of the. United States officials to 
certain standards that have been 
established in International law have 
some bearing upon the consideration 
by this court of whether the ammunition 
that we have been discussing goes 
beyond the bounds of acceptability in 
terms of the standards that have been 
established under the constitution, 
an d we submit that is relevant. We, 
by no means, intended to suggest to 
the court that the court's consideration 
and decision on some of these issues 
is controlled by the Hague convention 
or controlled necessarily by international 
law, whereby United States law, in 
reaction to .those standards, but it 
is a type of consideration that is 
certainly within the ambient of 
cons1derat ion t hat a court may 
appropriately take in a case of this 
nature.

• THE COURT: Assuming that you are
correct in your assertion that it has

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some bearir^ or may have some relevancy 
does a. convention of 1899 have 
pertinency or relevancy in point of 
time? Whap-^I'm asking really is what 
is the state of knowledge and 
understanding with regard to capability 
so-called wounding or lethal capability 
as of 77 years ago in the context of 
today, assuming that you are correct, 
otherwise gives me problem.

MR. DAYS; All right. Your Honor, 
we are prepared to brief the question 
of precisely the relation in time that 
you raised. We submit preliminarily 
at this stage that the standards that 
were established in 1899 have controlled 
the behavior of governments in 
international relations and have a 
present Impact upon the way that our 
government determines the type of 
ammunition, the types of wounds that 
would be appropriate even in warfare, 
and so thati.the standard in 1899 is 
one that is not, we submit, ehcased 
in rosin and of prehistoric nature.

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rbut one tĥ j/ has a continuing Impact 

upon the behavior oT nations and our 
own country, and, therefore, again the’ 
question that* is presented to the court 
is what weight to give to this particular 
area of relevancy, not whether it, in 
fact, pertains to the Issues that we 
have, been discussing and that are 
raised by this litigation.

THE COURT: Well, again, this is
a non-jury, situation. I would have a 
serious question in my mind in a Jury 
situation that this is sufficiently 
Pertinent or relevant or may or may 
not be misleading, but in a non-jury 
situation I will note the objection and 
again without ruling on the objection 
you may ask.'

MR. DAYS: Very good, thank you,
‘ Your Honor.

(By Mr. Days) My question, Mr. Coletta, 
is whether you had in your work and in your readings 
as an expert in ballistics come across any reference 
to the relationship of the Hague convention of 1899 
to various types of ammunition?

Q.

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1 A. Yes, I havl
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‘3- And can you indicate the nature of that
familiarity?
A Yes, sir,.it .was the proposal, and, of 
course, it is a political thing, and it was a 
proposal that, quote, dum-dum bullets, as defined 
at that particular time, point in time, which I 
don’t think they really knew what — and they 

certainly had no Inference made toward hollow-points 
because they did not know what a hollow-point bullet 

was, but there was an attempt to ban altered bullets, 
explosive type bullets by use of nations engaged 

in international warfare. However, Great Britain 
and the United States are not a signatory of those 
Conventions.

Q- All right. .Let me read to you from the
declaration 43.concerning expanding bullets signed 
at the Hague on July the 29th 1899 and let me read 
that particular provision to which I want to make 
reference —

MR. KLEIN: Your Honor, my objection
is a continuing one.

THE COURT: Yes, sir, it is.

(By Mr. Days) The undersigned of the 
Powers represented at the International Peace

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1 Conference at the H s j^ e  duly authorized by 
their 03vernment.in the declaration of St. Petersburg 
of the 29th of November and the 11th of December, 
1868, declare as follows: The contracting parties
agree to abstain from the use of bullets that 
expand or flatten easily in the human body. Bullet 
with a hard envelope that does not entirely cover 
the core or that is pierced with any significance, 
the present declaration is only binding for the 
contracting parties in the case of a war between 
two. or more of them. It shall cease to be binding 
from the time when, in a war between the contracting 
powers when one of the belligerents is Joined by 
a non-contracting power, ratified as soon as 
possible.

Now, is there any reference in that 
Particular declaration that I read, any reference 
to dum-dum bullets? n

A. Well, as I say, the United States did
not sign that document.
Q* I understand your point.
A. Now, the reference to dum-dum bullet was"
an issue at the Hague^convention, and where the name 
dum-dum came from actually, I don’t think it is 
really known . It is attributed to an arsenal in

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India which is more c
160

3^nversation. If you were to 
talk about the validity of it, I don’t know whether 
anything is stated, dum—dum bullet in that specific 
word, I don’t know. ,. *

there anything that I Just read to you 
that contains the phrase dum-dum bullet?
A* I don't believe I heard that.

Let me refer to something that I read.
Use of bullets that expand or flatten easily in the 

body. Would you say that the hollow-point 
bullets are the type'that expand or flatten easily 
in the human body?

A- I don’t think that they expand or flatten
easily. I think that is the whole thingj the point 
of the whole study. The validity is to be questioned 
because of that fact, number one.
*5. O.K. Does a hollow nose bullet expand or
^Latten more easily in- the human body than round — 

ammuntion?

A. • Theoretically, yes. In fact, I have my 
doubts. .

Q- But that would be the —  that doubt would
not be based upon any istudies that you have done, 
would it?

A* It would be.based upon observations of

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J

161
y police officers In thepeople who were shot 

city of Memphis.■
Is the semi-jacket bullet one that Is 

enclosed In a hard envelope that does not entirely 
cover the core?
A
Q

Seml-j acketed? 
^es .

A.
Q.

Yes,. It Is.
Now, have you served In the Armed Forces, 

^r. Coletta?
A. Yes, sir.

And in the.course of your service did you 
have any occaslonto use weaponry?
A. Yes, sir,
* I believe it was also indicated that you

attended the FBI training academy?
A . Yes, sir.
Q. Was there any discussion at that training
about the use of the army of various types of 
ammunition?
A. I don't know If there were any formal
studies. Certainly there v;ere --
Q. Have you gone to any formal discussions
with respect to bhe various types of weaponry and 
ammunition used by the army?

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A. Have I b e ^  to any formal discussions? 
Yes, sir.
No, sir.
Based upon.your experience and reading as

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a ballistics expert, do you have any knowledge of 
the types of handgun ammunition used by the United 
States Army?
A. , , Yes,. I do.

Do you know, based upon that background, 
whether the United States Army uses hollow-point 
ammunition?
A. No, they do not. However, they use
bazookas, mortars, recoilers blockbusters, bombs, 
atomic bombs. I don’t see the analogy, Mr. Days.

I'm not trying to draw an analogy here,
Mr. Coletta. I ’m Just; asking the question and ray 
question is, once again answered by your statements 
that the army does not use hollow-point ammunition 
in handguns, is that right?
A. * That’s correct, as far as I know.
Q. Do you have any knowledge of why the
army does not use expandlnr hollow-point ammunition 
in handguns?
A. I would assume that it was in an attempt
to more or less abide by the provisions that you have

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1 read. 
Q.
A.

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’'̂ hat provisions that I have read?
In the Hague Convention.

MR. DAYS*: We have no further
questionsof this witness.

THE COURT: All right, sir. You
may cross.

CROSS■EXAMINATION 
BY MR. KLEIN:

Q. Captain, did the Hague Convention outlaw
the use of atomic warfare, recoiler rifles, bazookas 
and mortars?
A. No, sir, it did not.
Q. You were referrlTig I think, in response
to a question by Mr. Days with regard to some 
comments, findings, research, et cetera, done by 
Dr. Vincent J . DeMayo, is that correct, sir?
A. Yes, sir.
Q* your knowledge has he written anything
relative to the use of hollow-point pistol ammunition 
and its effects?
A. Yes, he has.
Q. I'm going to hand you a bulletin from the,
well, it is from the PWC, which I believe is the 
Police Weaoons Center.

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1 A. Yes, sir.
Q- And ask you if you can identify this,
please, sir.

A* Y e s , sir, these are bulletins that are
produced by the International Association of Chiefs 
of Police.

Did you receive those or did you have 
access to that?
A. Y e s , s i r , I  do.
Q* Well, do you get it because you seek it
out, or does it automatically come to you?
A. We subscribe to it.
*5* All right. Now, is there an article
in that particular issue, the bulletin, by Dr. 
DeMayo relative to haiELow-roint ammunition?
A. Yes, there is.
Q* May I refer-^you to, I think the article,
begins on page 1 and it is continued over to page 
6, and I*m particularly interested in the paragraph 
that I ’m pointing to right now. Would you refer 
to that, please, sir, and .lust tell us what that —  

A- Yes, sir, it says, "there are a number of
myths about hollow-point pistol ammunition. These 
myths tend to impart a bad reputation to this type 
of ammunition. First it should be said that .38

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Special hollow-point i^ullets do not mutilate organs 
or destroy them any more than their solid-nosed,
all-lead counterparts. The wound in the skin, as

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well, as those,/'ln the internal organs, are the same
^n appearance for both types of ammunition. One
cannot examine the wounds in a body and say that the

j individual was shot with a hollow-point bullet
rather than a solid lead bullet. No organs are
reduced to "chopped meat" by a pistol bullet. The
second, often quoted myth is that hollow-point
bullets fragment or "blow up" in the body. This
is false. Fragments may break off a hollow-point
bullet if it strikes a’ bone, but this is also true of 

\solid lead bullets. To repeat, hollow-point pistol 
bullets do not fragment in the body."
Q* Do you know of your own knowledge. Captain
Coletta, whether or not other police departments 
throughout the country use hollow-point bullets as 
part of their ammunition?

Yes, sir, they do.
Q. What about the FBI?
A. Yes, sir, they do.

All right. You know this is of your 
own knowledge, is that correct?
^ . Yes, sir, I do.

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be true, based on whatQ. V/ould It H(^

Dr. DeMayo says and what your studies indicate to 
you, that really the determining factor about the 
^^raage that the bullet .does, whether it be hollow- 
point or whether it be a solid or round-nose is 
where it strikes or what part of the body it 
penetrates or strikes?.
A. Yes, sir, this is a critical significant
value where it strikes. It is. very significant.
Q. All right. You are saying this, based
upon your own observation as well as what you had
Sleaned from your studies on the subject?
A. Yes, sir.

Let me get right down to the basic 
question. You said that you made certain studies 
and you showed some slides to the court of what you 
made of relatively different types of ammunition?
A . Y e s , s i r .

I think you also said, did you not, this 
is predicated by some measure or at least inquiries 
or requests or even demands by the union of police 
officers because they were concerned about the 
stopping power, so to -.speak, of the ammunition that 
they were previously using which was the round-nose 
ammunition as opposed to the hollow-point, is that

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correct?

A. Yes, sir.
And you did conduct certain studies 

and did conduct certain tests, did you not?
Yes, sir.
Is that what prompted you to conduct these 

studies, there were concern by the police officers 
about the stopping power of the ammunition that 
they were using at the time?
A- Yes, sir, this is one of the significant
facts that prompted the study.

And you finally concluded that you 
would change ammunition or you recommended that the 
ammunition be changed. Is that correct?

Yes, sir.

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Q.
A.
Q.

Yours was only a recommendation?
Yes, sir. ■

Who had the_final say-so as to whether the 
ammunition would, in fact, be changed?

. *^hlef of police.
Chief of police. O.K. Do you know 

whether or not they took your study into considera­
tion in making that decision?
A. Yes, sir, I'm sure that they did.

’‘‘̂hy did you recommend the change. Captain?

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A. It followed> n incident where we had a 
police officer killed and I had read about other 
police officers being-killed throughout the nation 
^̂ ue to the .fact that the round-nose overpenetrated 
and did not stop an assailant from killing the 
officers. There are documented cases that are on 
file in a number of places, the AELE, Americans for 
Effective Law Enforcement have documented a number 
of cases. I know of in Memphis, as I said, a 
police officer was killed when he was confronted by 
a mental patient, I guess he was, and this person 
killed five citizens, and v/hen the police officers 
attempted to stop him the police officers shot him 
three times and yet he still delivered a fatal wound’ 
to the police officer. I can recall in around 1966 
another case where, at,Claybrook and Madison, I 
believe it was on the,lot of Ed’s Camera Shop, where 
a person, another mental case, evidently, had a knife 
and attacked a police officer and I think he was 
shot some numerous times, I forget how many, and yet 
it did not deter him. He later died, but it did not 
stop him fromattacklng. the officer with the knife.
This and similar cases throughout the nation that 
I have read and always it indicates that the round-nose, 
it just does not have-the capability of being able

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to stop, someone. UohJ  I'm certain that we are in 
no Utopia, and I'm certain that the, quote, ideal, 
absolute cannot be attained. What we are trying to 
do or what we tried to do with that study was to 
^Ind something that would Insure that our officers 
were protected. V/e owe them that responsibility, 
and that Innocent people on the streets would be 
®tter protected. I think we owe them that respon— 

j and any way that we can accomplish this 
within the bounds of reasonableness I think that we 
should.

Throughout my readings, which have dealt 
a number of articles, Joseph Ury, armament 

consultant, IPC project managment, he has a number of 
things to say, just as Vincent DeMayo, Charles Wilbur 
has something to say about it, he's a professor in 
the Department of Sociology and Anatomy and Pathology 
at Columbia University, Ervin K. Honor at the 
University of Indiana had something to say about it. 
The AEIiE publication has something to say about it, 
all of my readings have indicated the same things 
that certainly the round-none is not sufficient and 
that certainly the- hollow-point or expanding 
bullet does, in fact, create a greater stopping force. 
None of them would assert that it was Inhumane or

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that it was excessive|^ecause we are talking about 
the low end of the spectrurr^ on a ballistics scale. 
If we were to take into account the whole scale, 
take into account the whole, not a handgun, but a 
rifle, shoot a projectile 3300 feet per second and 
produces 130y foot, pounds of energy, which is far 
in excess of what police handguns are capable of 
delivering, so there are a number of factors and
also in all of these studies, and it has been my
observation that the point that must be addressed 
also is the fact that four points cannot be measured, 
while we can measure velocity, while we can measure 
kinetic energy, we can measuxe your possible 
cavitation, we cannot measure the mind with the 
intensity to hate or avenge, you cannot measure the 
ability of the mind to be anesthetized by alcohol 
or drugs or narcotics, we can't measure or register 
the fact on the man that he is Injured and most 
stop or may die, and we cannot measure the fact of 
the mind's drive to get away or to attack, to be 
frightened beyond the point of performing superhuman

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feats .
MR. DAYS: I observe that that

document he's been reading from, if 
he is in fact reading a statement from

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Q.

that partic^ar document, that document 
should be introduced into evidence.
If he's simply using it for purposes 
of refreshing his recollection we have 
no objection.

THE COURT: I will ask that
whatever is utilised be made available 
to counsel so that he may he advised 
and counsel may Inquire as to the 
basis of whether this is an independent 
statement or whatever in respect to 
these matters .
(By Mr. Klein) Captain, again when you

decided or made your recommendation as to what type
of ammunition should be used, this, of course, had
to be across the board', is that correct?
A. Yes, sir. '■

You couldn't■give one type of ammunition
to another set of officers, another type to another 

*set of officers, one might be apprehending fleeing 
felons and others might be in a different situation

MR. DAYS: Objection to the form,
I feel that it is leading. Your 
Honor.

THE COtfRT: T feel that the

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objection well taken, Mr. Klein, 
even though you are now examining, 
the Court rules that this is a 
defendant witness and despite the 
^act that he is called by adversary, 
as an adversary party witness, that 
you are notentitled to cross 
examine in the usual course.

MR. KLEIN: Your Honor is
declaring him to be a defendant 
witness?

THE COURT: Yes, sir, I ’m
ruling that in his- status as an 
inspector with the Memphis Police 
Department and the Memphis Police 
Department and the City of Memphis 
being defendants, that presumably, 
unless it were shown otherwise, and 
the court is not inferring by that 
categorization that the defendant 
is not in a position or posture as 
an expert in his area. I ’m simply 
ruling that by reason of his status 
with these defendants that you are 
not entitled to cross examine him in

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the usual cjj|ntext.
MR. KLEIN: Very well.
THE COURT: I'm not saying that

you can't examine him, Mr. Klein, I'm 
just saying that you can't cross 
examine him.

MR. KLEIN: Well, Your Honor,
again, all I can do is note my 
exception to Your Honor's ruling under 
the rules that is not technically 
needed, but I would take the position 
that he has been offered by the 
plaintiffs, and In so doing making 
him their witness, and I have the 
right to cross examine him in that 
context, but otherwise I wouldn't have 
done so, and if it is Your Honor's 
ruling I will not cross examine.

Q. (By Mr. Klein) Captain, the ammunition
that was issued, of course, was only one kind? 

Yes, sir.
Q. Is it feasible to issue more than one
kind of ammunition?
A. No, sir. As a matter of fact, inter­
changeability of the ammunition is a significant

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factor* We never knLw when a supply may be exhausted, 
and,'of course, it is a factor more than from 
usage, it is also a factor from budgetary consideration

I «

and whatever, and it is also a factor because of the 
fact that we are sure that whatever we select must 
be one that we are familiar with that we can at 
least have sufficient knowledge to know what we are 
talking about when we speak about it.
Q* All right, sir. Now, Captain, you were
talking about the milltar:/, and I think you mentioned 
the basic weapon that the military uses is the 
rifle, is that correct, sir?
A. Yes, sir.

And you made, I believe, a comparison of 
the type of projectile that is shot from a rifle 
as opposed to a pistol?
A. Yes, sir.

The handgun used by the military is what?
A. A .45 automatic.
Q- * All right. Now, it is not hollow-point, 
is it?
A. The ammunition is not.
Q* The ammunition is not. But how do you
compare that to, say, the .38 as far as velocity 
and Impact?

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1 A- Again baslcj/figures, the formula,
mass times velocity squared over two, basic formula 
would show and demonstrate that the heavier 
a projectile, with the 'velocity being the same, 
thatthe heavier projectile has more kinetic energy. 
Now, that is with the velocity being constant, and 
the military uses that heavy projectile, 230 grain 
full metal Jacket, to exert its superiority over 
the .38 special and which they did use around the 
1900*s. And the reason that they switched to the 
semi-automatic handgun, because of the fact that 
the tribemen in the Philipnines were performing 
feats, such as I have described, killing the soldiers 
and officers that were armed with the handgun and 
the .38 Specials would not stop them, so the 
military then had to test for new ammunition, had 
made a test to determine v/hat would be more suitable 
and feasible.. At that time hollow points, as we 
know them today, were not heard of. As a matter of 
fact. It wasn’t available, I don't think, until
1965.
Q* All right. What is the stopping power,
say, of the .45 as compared to the .38?
A. .. I t .is greater. I don’t know the exact 
figures.

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Q. Well, Is it.
176.

practical for the Memphis 
Police Departmeat to carry a .45 as opposed to a .38?

> sir, it;is not. I would consider it 
a hazard because of the fact that it is a semi­
automatic handgun, and there are a number of 
reasons why I could say that, because of the fact 
that it must be carried with a loaded round in the 
chamber, and in order to be easily available and 
ready for Instant use, the hammer must be cocked, 
because with a semi-automatic you must work the 
mechanism of the gun in order to strip a cartridge 
from a magazine,.which is loaded up into the stocks 
of it or the grips of a gun. The slide must strip 
it from there and place it into, the chamber for the 
first shot to be fired, so it would require a 
physical dexterity that under psychological stress 
of a confrontation I believe that a police officer 
may make a wrong move and thereby be injured as a 
result of it. In addition when we speak of safety 
with an automatic weapon, with a hammer being cocked 
and loaded round in the chamber, it has a 
mechanical safety device. Anything that is 
manufactured by.man is.subject to malfunction. If 
the.device should malfunction, and it has happened, 
then an accidental discharge could result.

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In the military I was
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attached to a guard unit. We 
had a number of accidental discharges, and I ’m certain 
that a certain of them, no matter how well their 
training, would occur among police officers, too.
Then, again the semi-automatic handgun relies upon 
its ammunition to function. If you were to have 
a misfire for some reason the cartridge did not go 
off, and this happens on occasion, too, the semi­
automatic would not function without again physically 
extracting that particular round and getting a 
fresh one into the chamber. However, with the 
revolver, by merely pulling the trigger the 
cylinder revolves and takes that one out of line 
and brings a fresh one up, so for those reasons 
I do not believe that semi-automatics would be 
feasible for police.

What about the accuracy with a .45 as 
opposed to a .38?
A. In order for reliability so the gun would
perform every time, the military uses or does not 
use any device or whatever to make the gun accurate 
per se. Now, When we are speaking of accuracy we 
are talking about Inches, and the military .45 
is very loosej as a matter of fact, which greatly 
affects its accuracy. Tb. has to be loose in order

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^  178. 
for reliahillty to be present.

Are you saying that It is not as accurate 
as the .38 as far as t'he man that Is carrying it 
and as liability?

/

A • Yes, sir.

Captain, getting to the training program 
at the, academy, I think you testified yesterday 
relative to your role at the training academy?
A . Yes, sir.

And do you recall whether or not you were ' 
out there during the 36th, I believe it would be 
the 36th session, which would run from July the 30th 
of »73 to August 3rd of -- well, beginning July 30th,
I think, running through September of *73?
A* Yes, sir, T was there.

. All right. I'm going to hand you this 
document and ask you if you can identify it?
A* Yes, sir, this is a curriculum. It
appears to be the curriculum that was used for that 
school.

you know whether or not officer Hymon 
> attended; the'36th session or not?
A* . Yes, sir, he did.
*3- V/hat was the whole curriculum that was
used during that particular session, was it not?

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Yes , sir.I
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Q- It shows the different hours, classes and
instructors, is that correct?
A. Yes, sir.
Q* Did you follow that curriculum?

As closely as nossible.
MR. KLEIN: Your Honor, I*m

going to move that that be made 
an exhibit to his testimony.

MR. DAYS: No objection. Your
Honor.

THE COURT: All right, let it
introduced.

THE CLERK: Number 20.
(Whereupon, the said document 

referred to above was accordingly 
marked Trial Exhibit 20 and received 
in evidence.)
(By Mr. Klein) Now, Captain, are you 

familiar with the firearms review board?
A Yes, sir, I am.

What is your understanding of the function 
of the firearms review board?
*A* it'was instituted to review those
cases wherein the officers discharges his weapon;

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to make recommendat1 s to the chief whether

180

disciplinary action should be taken or whether the 
officer was justified.
Q* All right. Do you know when this was
implemented.
A. I believe it was February of ' 7 H .

Q. February of ’7^?
A. Yes, sir.
Q- Now, does that mean in every case where
an officer used his weapon that he was subjected 
to the firearm review board and it would convene?
A. Yes, sir, every case, accidental discharge
on duty, off duty or whatever, except, of course, 
for hunting or target practice it did not include 
that.
Q* All right. Now, how deeply would the
board go into the matter when it would review it. 
Captain?
A. They would try to ascertain the fact to

«

see if the officer was justified, and that, of 
course, would require quite a number of inquiries. 
One of the 'range personnel is assigned the task of 
screening the scene of physically observing the 
scene to report to the board of the physical 
characteristics of the incident, locations, and then

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the board takes that (Ĵ nto consideration as well as 
the statement of the officer, as well as his testimony 
or when he appears before it.
Q. All right.. V. Does the officer himself
actually appear before the board?
A. Yes, sir, he does.
Q Do you know whether such a board convened
to study the situation involving officer Hymon in 
the shooting on October the 3rd of 197^ of Young 
Garner?

181.

A.
Q

•

A .

Yes, sir, it did.
Did you sit on that board?
Yes, sir, I did.

MR. DAYS: Your Honor, I would
object to this document as being 
self serving, since it was prepared 
by the defendant in this case. . '

THE COURT: Mr. Klein.
MR. KLEIN: If Your Honor

please, they have offered testimony, 
of course, over my objection from 
others, from others who have testified 
about the situation involved here 
whether the officer acted reasonably 
01’ not under the circumstances, and

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hypothetic^jL questions were posed to 
these men about the situation, and 
as I say the court, over my objection, 
and as I understand it, the court 
is actually reserving its ruling on 
that and did allovr them to testify.
Now, in this case we have a review 
of the police department of this 
shooting, as is their policy, and 
wherein they go into certain detail 
to determine what action, what happened 
and whether or not the action was 
justified, and that their determination, 
I haven’t asked Captain Coletta, I 
assume it was based upon the existing 
general order at that time, which was 
in effect, plus the state statute that ' 
was in effect, and their making a 
determination as to whether or not 
the officer’s action was justified.
I think they had the same right where 
these other experts, incidentally 
one of the other experts happens to 
be a member of the Memphis Police 
Department and he was allowed to

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testify, any so for the same reason 
I think that this gentleman can 
testify what; the board did when they 
went into more detail actually and 
made a full investigation of the 
matter in compljance with the 
department policy.

MR. DAYS: We would continue
our objection. Your Honor, unless 
Mr. Klein can establish exactly 

the format of the hearing, what 
was required, who testified, what 
types of evidence was available in 
order to —  and v/hether the persons 
on the board possessed any expertise 
with respect to the firearms under 
the circumstances.

THE COURT: I'm going to
sustain the objection at this time 
as to the report of any firearms 
review board. I will permit, if 
there is aproper predicate or a 
further predicate laid, reconsidera­
tion as to whether or not such a 
reoort should be admitted into

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evidence, i^will permit counsel to 
ask whether or not an investigation 
was conducted by the appropriate 
agency of the-police department and 
whether or not any disciplinary 
action was taken with regard to 
the defendant as a result of that 
investigation without going into the 
report itself, but at this time I 
will sustain the objection subject 
to any showing as to whether or not 
that has the category or should have 
the same category as any other 
expert testimony dealing with the 
hypothetlcals that have been 
presented previously.

MR. KLEIN: All right. Your
Honor. I would say this, I would 
offer Captain Coletta as an expert 
to the same extent that Inspector 
Barksdale was offered as an expert, 
to the same extent that Chief 
Jones with the Shelby County 
Sheriff's office was offered as 
as an eXpert.

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RT: Well, Mr. Klein,
I'm not ruling on that question.
These others were asked certain 
questions with respect to what they, 
to hypothetical situations as to 
whether they had gone out and 
actually reviev/ed the scene and 
other matters, so I will rule on 
your tender or your offer based 
upon whatever questions that you 
may ask the witness .

Q. (By Mr. Klein) All right. Captain, you
testified previously about your role at the 
training academy in respect to the firearms, is

that correct?
A. Yes, sir.
Q. You have been at the academy now

instructing for how long?
A. For ten years now.
Q .  . All right. And you have also, in
conjunction with the legal advisor, who I believe 
gives the legal instruction at the academy as 
per the program, you also instructed them on 
when to use firearms and when not to use firearms, 
is that correct?

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A- 'Yes, sir.

Your Job and part of your
duty, correct, sir?
A. Yes,sir.

right. Now, when this matter came 
to your —  let me ask you, when didthis matter first 
come to your attention?
A- The matter?

0̂ * officer Hyraon .
A. Hyraon —  immediately following the
occurrence of the incident a report is sent to me.

All right, is sent to you?
A- Yes, sir.
Q . All right. What is the nature of the 
report that is sent to you?

^ firearms use report. It outlines 
a significant number of items of data regarding the 
use of firearm's, weather conditions, lighting 
conditions, there are a number of things.

All right. About this particular incident, 
is that correct?

A* About every Incident.

particular this incident was also 
Included, is that correct?
A* Yes, sir.

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Q . All right. !^a s an investigation made of

the shooting by the police department?

A .
Q. 
A .

Q.
A.

Yes, it was.
Is that normal procedure?
Yes, it is.
Who makes that investigation?
Range staff, one of the persons at the 

range or myself, whoever Is available at that 
particular time.
Q. Do you remember 'whether you did it in
this particular incident or not?
A. I don't think I made the scene on this

one .
Q. All right. Then what other information
is available to you as a result of this incident? 
A. The statement that the officer makes,
of course, is available, and any data or reports 
which the police department may collect.
Q. All right. Is it routine that the
police department Itself, the homocide squad or 
assault bureau, crime scene bureau makes an 
investigation?: .
A. Yes, sir, that is their responsibility
to make crime investigation regarding the 
situation as it occurs.

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right. is that made available
to you?

A- Yes, sir. It is.

And it was made available to you in this 
Particular instance involving officer Hymon?
A • Yes, sir.

Did you review that information? 
sure I did as well as with the 

entire Firearms Review Board.

what was presented to the entire 
Firearms Review Board?

The fact that Officer Hymon received a 
call —  I don't remember all of the details . I 
don't remember --

MR. DAYS: Your Honor, objection,
if he doesn't recall the details I 
don't think it is for this witness to 
speculate.

MR. KLEIN: I'm not asking him
 ̂ about the details. I'm asking what 

was made available to him.
MR. BAILEY: In addition to that,

Your Honor, it is heresay because the 
person who appeared before the review 
board is not here subject to our cross

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1 examination and is outside the 
courtroom testimony.

THE COURT: I will sustain
the objection except to the extent 
that if you are asking the witness 
what is the procedure, what is the 
standard, what is the operating 
technique of the board, I will 
consider that , but I will sustain 
the objection to reciting what 
may have been the report or what 
may have been the substance of 
investigation by some other 
party^ To the extent that you are 
asking the witness what is the 
routine, -what is the procedure,
'^^at program, as it were, that such 
a' board followed, then you may ask 
in that regard.

Q. (By Mr. Klein) Let's continue with
that. I think you had gotten to the point of the 
investigation that was made as part of the procedure 
then the board itself, when you convened, what 

information is made avallaHe to the board?
A. All of the information that is

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available by the pol e department.
*3* That again is what?

A- The homocide report or whichever bureau
makes the investigation, The firearms uses report, 
the statement of the officer and then, of course, 
the appearance of the officer before the board.

■ All right. .'.Then the officer himself
appears, is that correct?
A. 
Q. 
A. 
Q. 
A .

Yes, sir.

Does anyone else appear before the board?
Other than the officer himself, no, sir.
All right. And who sits on the board?
It is composed of a group of police

officers. The exact composition is outlined by the
general order. I believe it must be seven patrolmen
that appear with so many years experience, a member
of the range staff, it designates who the s
chairman will be, i t ■designates a recorder who must
keep the records and it is outlined in that particular 

«
general order which I.don't have in front of me.

All right. 'And then you hear all of that 
and review all of that and you make your decision, 
is that correct, sir?̂ j,.
A . Yes, sir.

All right. And once you make your decision

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what da you do with M a t ?
A. The decision is sent forward to the
chief of police.
Q* All right. Now, in this case was any '
disciplinary action taken against officer Hymon?

MR. BAILEY: Your Honor, I know
your honor indicated that Mr. Klein 
may explore the area as to whether or 
not disciplinary action was taken.
We submit it is irrelevant and 
whether or not disciplinary action 
was taken by the witness to the City 
of Memphis, the point being that it 
has no relevancy on the evidence that 
has been produced in this hearing.
We don’t know what the evidence that 
was presented to the review board 
^P^^n which the city made its judgment 
as to what action would be taken, 
disciplinary action may be totally 
different from the evidence that has 
been produced during this trial, and 
for that reason we object.

THE COURT: I think the objection 
primarily goes to the weight, faith

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1 and credlt.;̂ X)f whether or not 
disciplinary action was taken, 
and I'm going to overrule the 
objection.

I have still not ruled that 
the report is admissible, but I 
will permit,the question that has 
been objected to as to whether or 
not disciplinary action was taken.

Q. (By Mr. Klein) Was any disciplinary
action taken?
A. Yes, sir. ■.
Q. If disciplinary action was taken,who
would be the one to administer that disciplinary 
action?
A. In this case the chief and director.
Q. Is that the person whom your report,
firearms review report is sent?
A. Yes, sir. .Of course if I may add, if
I'm in order, that all shooting cases are submitted 
to the Grand Jury, also.

MR. DAYS: I would object and
move to strike. Your Honor.

■ THE COURT: I will sustain the
ob.j ect ion-as not being responsive

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193

t o the qued^
THE WITNESS: I apologize.
MR. KLEIN: May I ask the

question?
THE COURT: I will ask the

witness not to respond until I 
have heard the question.

MR. KLEIN: Let me say this
in all candor to the court, I was 
going to get to bhat in my proof 
at one point. I know the answer was 
not responsive to a question, and 
if Your Honor tells me not to ask him 
I won’t ask him.

THE COURT: I ’m not saying --
you may askyhlm, I will ask the 
witness not to respond until I have 
heard from the plaintiff.

Q- (By Mr. Klein) All right. Was the
matter submitted to the Shelby County Grand Jury, 
Captain?

MR. DAYS: Objection, Your
^onor, I think It is clear that the 
witness is not,- he has no authority 
of v/hether a Grand Jury is convened

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'Uand the prc^ess whereby that is done.
THE COURT: Without ruling on

that objection, the question was asked, 
.whether or not the matter was presented 
to the grand jury. The witness may 
respond if he has personal knowledge, 
not as to what was done, but if he 
has personal knowledge he may respond 
to the question, was the matter 
presented to the Grand Jury.

MR. DAYS: If I may continue my
objection. Your Honor, to any line 
of questioning with respect to what 
was the practice in situations of 
this nature.

THE COURT: Again I*m Instructing
that the witness will respond in that 
respect as to whether or not he has 
knowledge as to v/hether or not the 
matter was or was not presented, not 
as a matter of practice and not as 
a matter of procedure. All right.
(By Mr. Klein) Do you have such knowledge. 

Captain Coletta?
Well, I don’t know how to answer that

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really. It must be,|ybecause that is policy. Now, 
I don't know how else, did I personally present —  

do I know the man that personally took It to the. 
grand jury —  no, I don’t.

MR. DAYS: I move to strike.
Your Honor.

'THE COURT: All right, sir,
I ’m going to sustain the objection 
Insofar as this v/itness Is concerned.
I understand that this witness has 
testified that as a matter of 
policy the matters are generally 
presented, but I'm sustaining the 
objection to any assumption or 
presumption by the witness or the 
court based on this witness's ‘ 
testimony with respect to grand 
Jury action.

MR. KLEIN: That is my problem.
Your Honor.

(By Mr. Klein) All right. Captain, let
me ask you this question. You say you reviewed
the reports, all the reports that were submitted In

• *
connection with this matter?
A . Yes, sir.

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A.
Q.

; ! 196
Q .  And that is part of your job as a member
of the review board, is that correct, sir?

Y e s , s i r .
All right. And assume we have the situation 

on October the 3rd, 197^ wherein officer Hymon is 
called to the scene or called to a scene, which 
the scene he's called to is 737 Vollentine, which 
is a house right next door and to the west of a 
house designated as 739 Vollentine. And assume 

that this exhibit 6, which has been introduced into 

evidence, is a scale model of the house and the 
backyard and the yard of the house behind it at 

739 Vollentine.
A. Yes, sir.
Q. All right. An officer gets to the scene

and he is told by a next door neighbor that they 
are breaking in the house, meaning 739 Vollentine.
He’s with a partner. And he goes back to his 
partper, who is in the car, tells his partner that 
there is a robbery or burglary in effect. He 
gets his flashlight and nroceeds down the west 
side of.the house. His partner moves his car from 
’the middle of’’the street up to the curb, radios 
in and gets out and proceeds around the east side 
of the house, that when the officer gets to a point

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1 which is Just beyond'L^he southwest corner of the 
house and at a point where he is a few feet east of 
a fence, a chickenwire fence, about three to three 
and a half feet high, he hears the back door slam, 
and he sees a person running out of the back door 
and heading for a back fence and this fence is the 
one I ’m indicating he-re on which is the .back fence 
on 739 Vollentine, a chain link fence approximately 
six and a half to —  five and a half to six feet 
high. The officer has a flashlight in one hand and 
his revolver in the other hand and when he sees the 
person fleeing or running out of the back of the 
house, he also notes that there is broken glass by 
a window which is on the back side of the house. He 
is on a call which indicates that it is a prowler 
in the house. He ’s been directed to the house by 
those people next door, which are the ones that 
made this initial call to the police, the people 
at the police department and at this time the subject 
or the person who comes out of the back door has 
gone to a point at the back fence, and this point 
is right at the corner of an out building, which 
would be the:;southeast corner of the out building.
The person is stopped and with his hands up on the 
fence, but he is In a stooping position or squatting

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1 position. The offlc^/ at that point seeing the person 
at the fence yells halt, police, or words to that 
effect and then yells over to the partner who is 
proceeding around the. east side of the house, too, • 
h e ’s on the fence, get him, or words to that effect, 
and the subject who was a.t the fence had momentarily 
stopped then begins to jump or spring over the 
fence. The officer then takes, he has his firearm 
in his left hand. He.then fires.

Now, you can also assume that officer 
is not familiar with^.the neighborhood —

MR. BAILEY: Your Honor, we
are going to object to that clearly.
That was not one of the bits of 
evidence that has been produced that 
he wasn't familiar with the 
neighborhood,. .

MR. KLEIN: In the deposition
that was read of Officer Hymon as 
part of their proof he indicated that 
he was in a ward which was not his 
regular ward.

THE COURT: Has that been
introduced to the court at this time 
^nd is it a part of the proof and

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evidence at-^this time, and 
assuming that the objection 
presently is based on what the 
proof and evidence has been • 
presented up to now, are you 
entitled to go beyond what the -- 
on any assumption based upon what 
the proof and evidence that has 
been introduced until this point, 
or are you entitled to present 
further assumptions which may not 
be in evidence at this time?

MR. KLEIN: Your Honor, I
think I*m entitled to present 
further assumptions that may not 
be in evidence, but that may be 
put in evidence, provided, of 
course that I later put them into 
evidence. Now, if his answer is 
based on something that is not 
in evidence now and is not later 
put into evidence, then I think 
the' objection may be, should be 
sustained, but T think I can put 
hypothetical Questions to this

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badjgd on facts that may be 
in the'record and additionally that 
may not yet be in the record, but 
may be introduced at a later time, 
provided, of course, that they are 
later Introduced, but I will say 
this for purposes of my question, 
if that is an objection I will 
withdraw that assumption --

MR. BAILEY: Your Honor, we
don't have a Jury, and for that 
reason I will v/ithdraw the objection.

THE COURT: All right, sir.
You may proceed,

Q. (By Mr. Klein) (Continuing) Further
assume that the officer did not knovr what was , 
behind the fence, that it to him appeared to be 
grass, brush and some growth and that it was dark 
in the area behind the fence. And as I point out, 
further assume that he did fire as the subject 
was vaulting over the fence after having previously

I

'told him to halt or to stop, and that he hit the 
Subject in the head and the subject is draped over 
the fence where he's’later removed. Now, my 
question to you, Captain, —  oh, one other assumption

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1 i s  d a r l ^ vthat the area is dark/with the exception of a light 
that had been turned on at the porch which is just 
adjacent to and west of the house at 739 Vollentine.

Now, based, usinp: those assumptions as 
the fact, based on your knowledge of what is taught 
at the academy and in your opinion as to what was 
reasonable under the circumstances, do you, in your 

• opinion, was that officer justified at that point 
in using his firearms?

MR. BAILEY: Your Honor —
THE COURT: Just a minute.
MR. BAILEY: It is not really

an obJec^iQj^ as it is a point of 
clarification. Mr. Klein prefaced 
his hypothesis with the observation 

■ that, the officer himself was familiar . 
with the case as information was 
supplied to him 1.3 a member of this 
review board, and, of course, that is 
material and element outside the 
record, and I just wanted to be sure 
that the officer in his opinion is 
not using information outside of the 
record as elements in terms of making 
his, in rendering his opinion.

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THE COI^T: T think the point of
2 clarification is appropriate, Mr.
3 Klein, that- you make it clear as to

whether or not the witness is 
responding based on the assumptions 
that you have specified or whether he 
is responding based on mixed assumptions 
or other matters that may have come to 
his attention, and I think that you 
should clarify that matter before the 
witness responds.

Q. (By Mr. Klein) All right, sir. I want you
to understand that I ’m asking you this as a 
hypothetical based on Just what I'm presenting to 
you this morning or Just now in this question and 
not based on what you-.knew previously or. the 

.,1information that you may have gained as a member of. I
the police department or in connection with your 
deliberations of the matter as a member of the 
firearms review board, do you understand that, sir?
A. Yes, sir, I do.
Q. All right. Now, my question was, in your
opinion was the officer Justified in using his , 
firearm under these circumstances?
A. Yes, sir, I' think he was.

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1 Q. All right, jjj/ir. Why do you say that?
A* T say that for the following reasons, that
number one, from what you posed he saw broken glass, 
he had information that' the house was being 
burglarized, he did see someone exit, emerge and 
exit in a fast manner or exit from the rear door, 
and I believe you said, ran across the yard and. 
crouched down by the fence acting as though he was

Jhiding or attempting to be concealed —
MR. DAYS; Objection, Your honor, 

that was not part of the hypothetical.
He said crouched over.

THE COURT: I will overrule the
objection. He may state the basis.

MR. DAYS; Your Honor, if I may 
continue just briefly.

"S.
-THECOURT: Yes, sir.
MR. DAYS: I think the hypothetical

described the position of the deceased 
• and did not characterize the motivation 

behind that particular position and 
I think the witness is adding on in 
that respects.and it is inappropriate.

THE COURT: I'm not, in overruling
your objection, I'm not overruling in

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! It^izafclcthe charact^-^izatlon of the assumption,
I*m overruling that the witness is 
explaining his answer and part of what 
the testimony*will be, whether the 
answer will be based upon the assumed 
question has been made or not, so I ’m 
overruling your objection. You may 
proceed.

Q. (By Mr. Klein) Go ahead.
A. The officer is physically barred from the
area by a fence so that he can't get to him. The 
officer has shouted to his partner for help, and 
evidently that help did not arrive. The officer 
saw that the subject was attempting to scale or 
vault the fence and that in the event that he should 
succeed then probably-he would escape and feel like 
that ‘if'he could s e e t h a t  in the light, which in 
a city you stated it was dark, but I know that in 
a city that light is reflected and that certainly 
if he'could observe, that he could observe the 
fact that the man was scaling the fence and 
attempting to escape, and that in my opinion, should 
he have been successful in scaling the fence, I 
don't think that the 'officer would ever, have caught 
him, so I think he was Justified for those reasons.

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A.
Q.
may

Well, is a. decision that an officer 
has to make in a- second or split second, would 
that be a fair characterization of the circumstances? 
A. Yes, sir, T think it would.

And is the officer called upon to use 
best judgment under those circumstances?

A. Yes, sir, that’s correct.
*3* Is that what h e ’s taught at the academy?

Yes, sir, it is.
Let me go on to another subject if I 

Well, I will talk about the —  are the 
P^ir^cipals which are taught at the police academy, 
are they consistent with what you have learned 
In your research, your study, your attending of 
various seminars, the FBI academy, are these 
principles which are taught here at the Memphis 
Academy similar to those that are taught elsewhere?

MR. DAYS: Objection, Your Honor,
to the leading nature of the question.

THE COURT: I will again, Mr.
Klein, ask you to phrase your questions 
in such a manner that an answer is not 
suggested in the form, and Inherent in 
that is that not to phrase a long 
question but is or is not that right.

I

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that the ^itnesa i„ .^ess In effect
respond in h-f c Own t#»T»mcj.. terras rather than
the answer be . •oe suggested. ■■-'

i,„ ,^ Just tryincT
-^'Pedlta the matter, if j , ,

Klein) Let m
Captain, t . * =

P « P  = lples that yce  ̂  ̂ theyou teach at i-h

»orae, there le , f ' =
Assume, tell PPh'tatlon for it j

’ <="11 -t What that 137 .
There is a body of i,

PhToroement of "°>'ledge among ia„
• Of course. „hat we t

— nt with-What is wlthl
Of icnowledge and that bod 

Peon developed by ^ •knowledge has
POO by numerous sources r 

from other law enr ^ ̂
Ohforcement agencies fn 

universities r ,.^  ’rrom police  ̂ .,-L-LCe, scientist^: t
or poiiee i, ’ ,^-essyou

In that.par-ticul ' " ®"^^catlonal j. vctruicular field nr
^Ody Of  ̂ otpertlse, and •

6>c cnat We tea^v, w. I
' =°P=fotent. Probably the I
t fo When we get mt' f̂ on.

Particulares and Dr•oref̂ ,___  ^cuiar

20.

from
ond brocedures and th t "^^“ PP^or

ony other agency. 5 3 l  ̂  ^̂ ary much

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Q. All right.
2 0 7

Was there anything inconsistent 
that you taught in regard to lethal force than that 
that you learned at the FBI academy?
A- No, sir, I don't know of any inconsistency
at all.

MR. KLEIN: Your Honor, with
^egard to the firearms review board 
findings, which Your Honoir said would 
not be admitted, I would like to have 
this marked for identification.

THE COURT: It may be marked for
identification only the next exhibit 
number 21.

(Whereupon, the said document 
referred to above was accordingly 
marked Trial Exhibit 21 for identifica­
tion.)

MR. KLEIN: That's all, Your’
Honor.

THE COURT: Anything further of
this witness?

MR. DAYS: Yes, Your Honor, a few
brief.questions.

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208

REDIRECT EXAMINATION 
BY MR. DAYS; ^

Q. Mr. Coletta/ In .your direct examination
we were discussing, were we not, the effect of 
kinetic energy insofar as certain types of wounding 
capacities involved?

Yes, sir.
Q- And we also talked about the relative
incapacitation index, is that right?
A . Yes, sir.
■Q.' ’ And I believe in the examination of you
by Mr. Klein you made some reference to the .45 
automatic weapon used by the Army?
A . Yes, sir.
Q. Can you tell me v/hat type cartridge is
used by the Army in the .45 automatic?
A. .45 ACP 230 grain metal case projectile.
Q. Is that produced by the Remington Company?
A. Produced by a number of companies,
Reming.ton which is one of them.
Q. Let me show you a document that you were
shown earlier, the article by Dr. DeMayo that I 
believe you said that you recognized and were 
familiar with?
A . Ye^ sir.

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1 Q. Does that indicate anything about the

n 2 kinetic energy of this 23D grain cartridge used by

3 the Army in a .45 automatic?

m 4 A. It indicatea the 230 grain metal jacket.

5 which the Army may have their own specifications.

6 I don’t know that, I don’t have that knowledge if

7 it does , 230 grain full metal jacket projectile.

8 Q. What is the kinetic energy?

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A. ^7o plus or minus l8, excuse me, 117.

f ' 10 Q. 117?
A. ■^es, sir.

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Q. ■ How does that compare to the kinetic
energy of the 158 grain?

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A. k 158 grain round-nose I assume that you

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are talking about?

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Q. That's right, the one that we were

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discuss ing earlier?

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A. That ' s right,72.

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Q.

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What is the 125 grain Remington?

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A . 2 3 9  .

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Q. So the Army .45 is about 117 kinetic

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energy there in foot pounds?

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A. That * s correct.

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Q. And the 125 Remington is 230 something?

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A . Yes, sir.

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Q .  A H  right. We v/ere also talking about
the LEAA study that was done on the wounding effect 
using a relative incapacitation index. Can you 
indicate, directing your attention to table 2, 
whether that Indicates anvthing about the relative 
incapacitation index of the same projectile that 
we were discussing, that is the 230 grain?
A. Yes, sir, bullet ID number 110 indicates
it is a .45 automatic 230 grain full jacket 
Remington projectile with an RII of 6.7.
Q. • ■ 6.7. Now, directing your attention to
the table 1, can you compare that RI index with a 
.45 230 grain with the T5B grain, for example, that 
we have been discussing?

Table 1 are you speaking of?
Q. Yes.
A. All right,* sir. Which projectile?
Q. The 158.
A. The 158 was 8.0.
Q. And the 110 was what?
A. And the 110 was 12.4.
Q. And the 125 vras what?

A. 25.5 .
Q. Mow, you indicated that you have been

in the Armv. Do you know of any reason why the

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1 demands of a handgur^^in the army would be different 
from the demands of a handgun used by domestic 
police officers?
A. Yes. I was 'in the army, I was in the
service. I was in the Marine Corps.
Q. Well, based upon that service and based
'^POn your readings and experience, do you know of 
any difference in terms of demands that would 
justify a difference in the type of handgun and 
the type of ammunition used by the army as compared 
with the handgun used by police on a firing range?
A. Yes, I would, fear differentiate the use.
Q. How would you r.o about explaining the
reason of that differentiation in terms of different 
use?
A. The standard issue weapon of the police
officer is the handgun. The standard issue weapon 
for a serviceman is his rifle.
Q. All right. Let’s take the situation where
the handgun has to be used by an army officer and 
a handgun that has to be used by a police officer, 
is there any difference in terms of the use of the 
handgun in warfare as compared to the use of aL 
handgun in a domestic setting?
A. In warfare a handgun is not primary, and

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I don't know whether i-4- how much it is even used
iJany more. I can't answer that question, saying that 

you are asking, and that is there a difference in 
the usage, I can't intelligently answer that .because, 
as 1 say, when I was in’the service the basic 
weapon which I was issued was a rifle and I was not 
. an officer and I was required to be proficient with 
^^at rifle, and a squad of men that was commanded, 
by a sergeant and three or four squads of men were 
commanded by an officer and each man with the 
squad, which consisted of some 36 to 48 men, were 
armed with rifles. ■

Captain Coletta, do you recall my conducting 
a deposition of you in Anril of this year?
A . Yes, sir , I do .
Q. Strike that, I think it was a little
later in June of this year.
A. A deposition early this year.
Q. Thank you for helping me formulate the

question.
Do you recall my asking you a similar 

questionabout the distinction between the demands 
upon a police officer as compared to demands made 
upon an Army officer in the use of a handgun?
A. I don't recall the exact context that

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we had it in. I cer^^lnly recall our conversation. 
Q- Do you recall being asked the following
question and giving the following answer.

MR. KLEIN: What page?
MR. DAYS: Page 71.

Q- (By Mr. Days) "Question. Do you have
any reason to .think that the requirements for 
ammunition in combat would be different from the 
requirements for ammunition in a police situation, 
in a domestic setting? That is, are the demands 
of a person using a handgun in the armed forces 
in warfare, different from the demands upon a 
police officer using a firearm in domestic peace 
^®eping?"

"Answer. The demands are totally 
different."

Do you remember that question and that
answer?
A. Yes, sir.
Q* * Do you recall this question and the 
following answer:

"Question. Could you describe the 
extent to which you understand those differences?"

"Answer. Yes. As I was taught when I 
was in the F-’anine Corps, the objective is to produce

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1 ^irepower, in any maneuvering operation produce 
firepower as a base, as a cover, as a screen to 
insure the safety of yo.ur men moving. In police, our 
objective is not to produce fire power. Our objective 

to stop or to neutralise one person without —  or 
maybe two or three, without endangering innocent 
people. Therefore,■ we, must be very selective, where

t

the army can shoot randomly. All they have to do 
is point and pull. We cannot do that. V/e must be 
selective . '*

Do you remember giving that answer?
I do. I will still stick to that, but that 

not the question that you asked me.
Q* Do you recallbeing asked this question:

''Question. Is there any difference in 
the extent to which ammunition used in v;arfare should 
wound as opposed to the requirements for wounding 
capacity in the police, lav,' enforcement situation?"

Do you recall that?
A. Mr., Days, you wei’e there allday. I
can't say, I'm certain that you asked .the question.
Q* All right. Let me see if you recall this
answer on page 72.

"Answer. Well, my understanding again 
in the military, the objective is to wound as many

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as you can, because J^or e'/ery casualty you produce, 
it requires two or three more men to take care of him, 
therefore, you are depleting the enemy's manpower.

 ̂ Our obj ect ive .is not t'o wound, and it's not to kill,
I might add, it's to ston them. It's that pure and 
simple. Now, you are referring to a handgun in the 

i and a handgun in the police, they are 
totally different. The basic weapon in the military 
is a rifle, not the hand;run. The handgun is the 
exception . "

Is that right?
I will still —  exactly what you read.

Q* That is your testimony?
■ • Yes, sir, I will agree to that now.

Now, in that testimony you make a 
distinction between wounding and killing on the 
one hand and stopping on the other. V/hat is the 
nature of the distinction, Mr. Coletta?
A. Well —

• MR. KLEIN: Your Honor, I'm
going to object. I think we are 
getting a little far afield now.
I conceded that T did ask him about • 
the military handgun, but we didn't 
ret into this area of testimony.

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It is Wcmethlng that wasn’t gone 

i"to, and ATthermore. i thing It 
irrelevant and m  addition to 

i^elng outside the realn of cross
examination.

MR. d a i s : May I he heard,
Your Honor.

t h e ,COURT; Yes. sir.
MR- DAYS; Your Honor. I 

think that what opposing counsel 
attempted to develop on his 
examination of the witness was 
something about the relationship 
>’«lween the use of a handgun' In 
‘he army and the requirements and

the use Of the .38 revolver In '
lomestlc situations, and all
trying to pursue, since that 
dletlnctlon was picked up fx-om
ty examination and carried over 
in Mr. Klein’s examination what
really are the dlffen, „ „ 3  that

the army using a handgun does not
use h o l l o w - D o l n f ^P.oints, does not use
weapons of the i g"e same kinetic energy

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1 and does no^ use weapons with the same 
type ,of relative incapacitation index, 
and I think that is within the scope 
of redirect.

THE COURT: Well, you may ask.
I*m not sure that the reading of the 
witness’s deposition is anything in­
consistent with what he has testified 
to, and the appropriate basis is to 
ask, if you want to ask, not read, 
if he says yes, that is what I ’m saying 
now and what I said then.

MR. DAYS: Your Honor, I think
w
that is certainly an appropriate rule 
and a rule that I ’m trying to abide by 
but I submit that the portion that I 
read from the denosition went into 
the wounding, the difference in ^
wounding requirements of the army 
as compared to domestic police 
officers, and that was not a part of 
Mr. Coletta’s resnonse to my question 
here in Court. It clearly was in his 
testimony but I suggest that the 
answer Fiven in the deposition was

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fuller a.n^ mci’e responsive to my
^^estion than the answer here.
«' *

THE COURT; Well, I will, for 
 ̂ purposes here, hoping that we are

not going into an extended 
discussion, the man has been on 

’ the stand for three days and that
we are not going extendedly and 
I will be more disposed, if I feel 
that we were roing further into 
areas that are unnecessary, to 
sustain the objection. I ’m going 
to overrule this one.

MR. DAYS: I ’m not going to
^sk any more questions about the 
army and the police department.

Q. (By Mr. Days) Mr. Coletta, you have
Indicated that one of the reasons for recommending 
a change in ammunition is the fact that police 
officers had been confronted here in Memphis with 
armed suspects and;shot them with a 158 grain 
and weren’t able to stop them and that was a 
Problem, wasn’t it?. .
A . Yes, sir.
Q. Was there anv indication of an unarmed

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fleeing felon that hgiti been able to escape after 
having been hit 'by a 158 rrain or a 110 grain?
A. We have,had -- now, specifically I don’t
know. . '
Q. Was that a problem that formed a basis
for your going into this study and suggesting a 
change in ammunition?.
A. Primarily, no. Our principal concern,
or course, was, as I said, safety to our officer 
and safety to the public and those factors which 
I mentioned.
Q. All right.. Now, you indicated in your
examination by Mr. Klein that to your knowledge in 
the case no disciplinary action was taken with 
respect to officer Hymon, is that correct?
A. Yes, sir. •
Q. Do you know-, whether the department has
ever disciplined an .officer for using firearms in 
apprehending an unarmed fleeing felon?
A. ‘ I don’t really know. I do know this,
if I may continue, that I do have knowledge of the 
police department dlsc;lpllnlng men for the use 
of firearms, but the’ speciflcs of it I don’t 
really know.
Q.  All right You w ere asked a hypothetical

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1 by Mr. Klein with res.l^ct to the exhibit 6 introduced 
into evidence, that scale model over there. Would it 
make a difference in your response as to whether the 
officer’s conduct was'reasonable if it were established 
^hat the officer felt it vrould be easy to climb over 
the fence down here to the southwest of this residence 
at 739 Vollentine, and if it could be established that 
that fence toward the back was, in fact, the type of 
fence that would be difficult to climb?
A. No, sir, it wouldn’t because if the
suspect succeeded in climbing the fence that you say 
is difficult to climb, then again it would indicate 
to me that the suspect would escape.
* Well, would it make any difference if it

were established that that fence in the back was a 
cyclone fence with a very sharp pointed tops to them?, 
A. In my observation, Mr. Days, I have seen
people scale ten foot fences and it seems to be no 
insurmountable obstacle to them. I don’t know what 
it is,‘ if it is fear to escape or whatever it is, 
with three strands of barb wire on the top, yes, sir.
Q. Given how much time, Mr. Coletta?
A. Well, generally I would be chasing them
and I couldn’t catch them.
Q. Have you ever shot a person that was fleeing

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1 that you couldn't catLh?
A. Yes, I did.
Q. Have you ever hit anybody?
A. No, no, sir, I hadn't.
Q. And could you Indicate the circumstance
of that particular incident when you shot at a person 

who was fleeing from you?
A. It was a burglary third of a grocery store
on Dunlap Street, and I dlsremember when. The rear 
was contained by fence. V/e received a call. This 
store had been burglarized before, it was a prime 
spot that evidently people like to burglarize. So 
we arrived on the scene and parked away from it, 
approached it, peeked in through the front window 
and sure enough saw them v;orking on the cash 
register, so I went to one side, ducked under the 
window and went to one side and they had erected a 
new fence with a shed on it, my partner went to the 
other side and the fence also was there. Evidently,
I tried to get up on the fence so I could get up on 
the shed so I could get to the back door, which I 
could see was broken into, which was smashed, and 
as I got, was trying to climb over I must have made 
noise because evidently they heard me, heard them 
shouting somebody is out there. I don't know, words

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1 i .1to that effect, anywa^ I v;as discovered. They 
emerged from the smashed door and proceeded to run 
diagonally away from where I was, and when I succeeded 
In getting upon.the top' of the little shed that was 
there adjacent to the fence, I shouted. Well, when 
they ran I shouted for my partner and I heard him,
I'm blocked by a fence. As I got on up I saw there 
is no other way that I could catch them and one 
subject who was running was still, with reflection of 
light, like I say, that I could see that I felt like 
I had a reasonable chance of hitting him, but I did 
not.

®-* Now, under the circumstances in order for
you to have captured that person without using your 
weapon, what would you have had to have done?

I would have-, had to have finished scaling.A.

the fence, climb up on the shed. Jump down from the 
shed, wasn't too high, I don't know, eight or ten 
feet, it was, you know, probably I would have stumbled 
when I*landed, I would have had to run, I would have 
had to have overcome him, the speed, you know, in 
running, and I couldn't do that, the speed at which 
he was running indicated to me that he was Just, would 
far outdistance me by the time that those events 
would transpire.

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Q. And how o i ^  were you when this incident
occurred, Mr. Coletta?
A. It was during the first seven years, I
was between the.age of 21 and 28.
Q. And the situatlonthat you just described,
Mr. Coletta, could you determine whether the 
suspects were armed or unarmed?

I have no idea. I know that they were 
working on the cash register with a device that 
appeared to be a crowbar or something of that 
nature.

MR. DAYS: I have no further
questions.

•THE COURT: All right, sir.
Anything further?

MR. KLEIN: No, Your Honor.
THE COURT: Mr. Coletta, I know

you will be sorry to leave us here 
after this period of time. I believe 

* you are excused .
THE WITNESS: Thank you. Your

Honor.
(Witness excused.)

THE coun-f; v/e will stand in
recess at this time.

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(Rec^rss . )
THE COURT: All right. You may

proceed with your next witness, Mr.
Days.

MR. DAYS; Your Honor, we would 
^Ike to call at this time Dr. Francisco, 
please.

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DR. U  T. FRANCISCO,
having first been duly sworn, was examined and
testified as follows:
DIRECT EXAMINATION 
BY MR. DAYS:_______

Q. Doctor, were you subpoenaed to appear in
court today?
A . Yes.
Q. Would you give, for the record, your
full name and address.
A. Jerry Thomas Francisco, Memphis, Tennessee.
Q. And would you indicate your present
employment?
A. Professor of pathology. State of Tennessee,
state medical examiner, state of Tennessee, County 
medical examiner of Shelby County.

i 1
Q. Dr. Francisco, would you indicate something
about your training and background for your
present position?

*A. I received my premedical education at
the Lambuth College and the University of Tennessee 
at Knoxville, M.D. degree from the University of 
Tennessee here at Memphis, one year of rotating 
Internshin at the City of Memphis Hospital, four 
years of pathology training at the Institute of

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Pathology In Memphis J ,:certi fled by the American 
Board of Pathology in the three specialties, the 
anatomy, forensic and ■chemical. - .

What is pathalogy. Dr. Francisco?
A. Pathology is the study of medicine that
concerns itself with causes of diseases, the items, 
agents and events that cause diseases and the 
ultimate outcome of this abnormality in a person ■ 
that either results in death or is associated with 
cure. More specifically the, it deals with the 
performing of autopsies, the interpretation of the 
results, the interpretation of effect as based upon 
autopsy study and the interpretation of laboratory 
Studies.
Q* Now, how does forensic pathology differ
from pathology?
A. Forensic pathology is that subspecialty
of pathology that concerns Itself with the more 
specific states of traumatic injuries, gunshot wounds, 
stab wounds, drownlngs, burns and things of that 
nature and their subsequent Interpretation in the 
judicial system.
Q. In terms of your professional work and

* ■ /  •your training, have you had occasion to study the : 
effect of gunshot v/ounds upon the human body?

ddO

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^ - Yes .

«■ Dr. Pranolsoc, were you Ir the oourtroon
during any,of.,t.he testimony of theprior witness,
Mr. Coletta?

Yes'.'" ■

«• Did you hear him describe the different
subcategories of ballistics?
A . Yes. ■■

«• He indicated, I believe, there are three
categories, internal, external and terminal or 
wound ballistics; did you hear k .. •  ̂ that subcategorization?
A • Yes .

Based upon your knowledge of the field 
Of ballistics, is that an accurate description of 
the subcategories?
• Yes .

df your particular area.
Of competence, would you say that you are qualified 
as an expert in any particular one or all of those
subcategories?
A • Yes .

Which one would that be?
Wound ballistics.

^^so synonymous with wound
ballistics ?

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A. That’s c o n ^ c t .

MR, DAYS; At this tims I would lilcs 
to proffer Dr. Francisco as an expert 
in forensic ..pat hology and wound 
ballistics.

THE COURT: Without objection you
may proceed.

MR. DAYS: Your Honor, for the
benefit of the court and for opposing 
counsel, before going into the areas 
upon which Dr. Francisco is going to 
testify as an expert in the area of 
Wound ballistics, I would like to 
dire-ct a line of questioning to him 
based upon certain personal knowledge 
that he has with respect to the facts 
of this incident .

THE COURT: You may proceed. The'
fact that he may be qualified does 
not preclude your examining on any 
other areas that he may have knowledge 
about pertaining to facts of this case.
(By Mr. Days) Dr. Francisco, directing 

your attention to October 3rd of 197^, did you have 
on or about that date to conduct an autopsy

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of a deceased by thewame of Edward Eugene Garner? 
A . Yes .
Q. And can you indicate the circumstances
surrounding your performance of that particular 
autopsy, that is, how was it that an autopsy was 
performed by you of this particular deceased?
A. Well, the death was reported to the
office of the county medical examiner relating a 
death that fell into the categories that are 
reported, I believe. The body was delivered to the 
laboratories of the medical examiner and at that 
time a post mortum examination was conducted at that 
time.
Q. Based upon the autopsy that you performed,
were you able to determine anything about the 
height and weight of the deceased Edward Garner?
A. Yes.
Q.
A.
Q.
A.

And what did your autppsy reveal? 
Height 64 Inches, weight 60 pounds 
Excuse me .
60 .

Q. Broken down into height in terms of
feet, how many feet would that be?
A. Five feet four Inches.
Q. And you indicated the weight to be 60

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pounds ?

A. Yes.

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'5* Now, Doctor, there has been testimony in
the record of the deceased Edward Garner’s weight 
being anywhere from 85 pounds to a hundred and 
thirty pounds. Are you convinced that the result 
that is reflected on that —— reflected as a result 
of your autopsy weight is an accurate one? . ’
A. No.
Q- Why do you say that?
A* Well, the weight of sixty pounds probably
represents a light weighing of the body. The body, 
at least based on the photographs, the weight of 
the organs and other factors is probably heavier 
than sixty pounds.

Q* Would you be able to suggest an outside
limit in terms of the welrht of this particular body?
A* The weight would be less than a hundred.

Were you able to determine anything about 
the overall body structure of this deceased as a 
result of the autopsy?
A . Yes .

And what did . you conclude?
A. This was a thin individual.

Is it part of your responsibility in conductir|g

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1 an autopsy to arrive|^t a conclusion as to the 
cause of the death of the individual?

Yes, sir.
Q.

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^nd did you reach such a conclusion in
this case?
A. Yes .
Q.
A

What did you determine?
That this was a gunshot wound to the head 

with a tearing of the brain.
Q- Based upon the examination that you did,
are you in a position- or are you in a position to 
determine the point of entry of the bullet into the 
head of the deceased?
A. Yes.
Q* What did you determine as a result of the
autopsy?

A. This was a gunshot wound that entered the
right side of the heard in the right parietal area 
of the head with the path of the bullet traveling 
up to«/ard.the back in the posterior part of the 
skull and brain.

All right. Now, I don’t know what the 
parietal area is, if you could describe it?
A. The parietal area is a bone on the side
of the skull. It is a bone that extends from Just

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the side up to the center partjust about the ear oiy  

of the head.

Q* Based upon your findings as to the entry
point of the projectile, are you able to draw any 
conclusion as to the position of the head in 
relationship to the location of the fire of the 
projectile?
A. In general terms, yes.
Q- And what would you be able to conclude?
A- Well, in general terms the head would be
almost at a right angle relative to the firing of 
the gun. In other words, the gun was not —  the 
back of the head was not facing the gun. The front 
of the head was not facing the gun, but the face was 
pointing more or less at a right angle to the line 
of fire.

Q* _ All right. Now, based upon your knowledge
of the structure of the human body and the various 
locations of portions of the body, based upon the 
position of the head with respect to the location of 
the fire of the projectile, can you draw any 
conclusions as to the possibility that the deceased 
could see the person firing the projectile?
A. Well, it would be possible through
peripheral vision, through the positioning of the

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head through perlpherj^l vision it might be possible 
to see the shooting.
*5* But that is not something that you could
state categorically, is it.

No, because that would depend upon the 
distance involved, the degree of lighting and several 
other factors.

All right. Now, there has, been testimony 
in the record. Dr. Francisco that the fence involved 
in this case, which the deceased was attempting to 
scale, had pointed prongs at the top, that is, it 
was a cyclone fence with sharp, not rounded tips, 
at the top. In the conduct of your autopsy of the 
body of Edward Eugene Garner, did you identify any 
marks on the hands or the body or on the torso of 
the body?
A. ■ Well, there was a scrape to the shoulder,
but there were no marks to the hands.

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area?
A.

And did you locate any marks in the torso

No .
Q. If such marks had been present would
^bey have been identified in the course of your 
conducting the autopsy?
A . Yes.-

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conduct any chemical analysi; 

from the course of theautopsy of the body?

23^

A

A.

Yes.

What types of analysis did you conduct? 
A blood alcohol determination.

*3- And did you arrive at any figure as to
the amount of alcohol in the blood of the deceased?
A.
Q.
A.

Yes .
What was that?

Zero point zero nine per cent or 91/lOOths
of one per cent.

you in a position to translate 
into the vernacular perhaps what this alcohol 
content means in the terms of the amount of alcohol 
that one would have to consume to produce that 
percentage of alcohol content?
A . . Yes .

And engaging in that translation what 
^ould you say that that reflects?

This would represent the equivalent of 
the alcohol content of roughly four beers present 

^he body at the time.

Based upon this alcohol content in the 
blood, are you able fo determine anything about 
the effect that this content might have on the

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!J:loning of thefunctioning: of the Individual?

A- Within'certain parameters, yes.
Within those parameters what would you be 

able to conclude?

Well, that this le'vel of alcohol would 
probably affect reaction time.

Dr. Francisco, I would like to direct 
your attention to the area of wound ballistics.

MR. DAYS: And, if Your Honor please,
D think it would be helpful to have a 
board on which Dr. Francisco could 
write.

THE COURT: Yes, sir. You may
approach if that would be easy and 
counsel and adversary may approach 
if that would be of assistance and you may 
proceed, Mr. Days.

(Dy Mr. Days) Dr. Francisco, you Indicated 
that you have a specialty in the area of wound 
^llistics . Can' you indicate generally the. C

process by which one is, as an expert in this field, 
would go about predicting the wounding capacity of 
certain types of projectiles?

Well, the features that are most significant 
producing the wounds, a formula in which the

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1 wound producing pote al l3 Indicated as W is equal 
to the total energy available in the projectile times, 
the reciprocal of time, the repetity with which this • 
energy is transferred from the projectile to the 
body, plus the factor of the reciprocal of area, 
meaning the smaller area over which this energy is 
transferred, the greater likelihood that a wound
w 111 Ke present, times a series of constants.
Well, they are really variables, actually, series 
of variables which include the elasticity of the 
tissue, the plasticity of the tissue Involved, 
hydrostatic forces that might be present and several
®ther factors that are present basically dealing

• ■:!;e •:
with the body anatomy, basically dealing with the 
type of material and the various organs that are 
present in the body. Now, this factor of energy 
is determined from, as Mr. Coletta said, the weight 
°r the mass of the projectile times theveloclty which 
is squared, so that this converts to foot pounds of 
energy and then this foot pounds of energy is then 
present in the formula which indicates the wound 
producing potential of any given force.

236

Q. All right. You can resume the stand.
Dr. Francisco.

THF COURT; V/ill you repeat once

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Q

A .
Q.

again what J th e  W figure represents 
on the- upper line.

THE WITNESS; That is wound 
producing potential.

MR. DAYS: Perhaps for the
record. Your Honor, the two formulas 
are W equals E times 1 over T times 
1 over A times K.
(By Mr. Days) And it was the K, was it 

not. Dr. Francisco, that represents the variables 
that you were discussing?

That ’ s correct.

And the lower formula having to do with 
kinetic is Ihe one that Mr. Coletta referred to,
E equals W, which is the weight, times the velocity 
squared over 2?
A- That’s correct.
• Now, if I remember correctly, Mr.

Coletta used the term E equals M as opposed to 
W, tim^s velocity squared over 2. Is there any 

^snce in the use of V/ as opposed to M?
Yes. W is weight, whereas M is mass, 

and mass and weight are not necessarily synonymous 
because there is the effect of gravity.

But the two'aprroaches to determining

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kinetic energy are el^entlally the same, are they 
not ?

^ • "̂ ât 's correct, yes.

Doctor,' there has been testimony in 
the record as to the capacity of several bullets 
that have been used by the Memphis Police Department. 
The first bullet, the 158 grain .38 caliber luballoy 
round Winchester cartridge was found by Mr. Coletta 
in terms of his interpretation to have a kinetic 
of 178 foot pounds per second with a plus or minus 
factor of 25 foot pounds. The .38 caliber special 
110 grain semi—Jacketed hollow—point was found to 
have a kinetic energy of 1,050 pounds per second 
plus or minus 97 foot pounds, and the .38 Special 
^aliber Remington 125 grain semi-jacketed hollow-point 
was found to have a kinetic energy of 1,^25 foot 
Pounds strike that, I'm sorry, I'm providing you 
with, I believe, incorrect information. Doctor,
I apologize for that, I wouldn't want you to be 
given .the wrong type of information.

According to Mr. Coletta's testimony,
•based upon his’ examination and his study of various 
projectiles, he found, that the 158 grain had an 
average velocity of 872 feet per second with a 
25 foot per second variable. And with respect to

238

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the .38 Special- caliber 110 grain projectile he 
found that it had a velocity of IO50 feet per second 
plus or minus 97, and/'ln terms of the .38 caliber

• I

special 125 grain Remington projectile there was
a velocity of 1425 feet per second plus or minus
62.

Now, Doctor, based upon Mr. Coletta's 
finding as to the velocities of these various bullets, 
are you in a position to determine or to indicate 
whether there would be any wounding differential 
among these three projectiles?

MR. KLEIN; Your Honor, I object 
• to the question. The reason I have 
.objection to this whole line of 
testimony with regard to the bullets 
and the effect is that they have 
no relevancy and furthermore I think 
h e ’s leading the witness and I guess 
that could be cured if he said assume 
certain facts, but he didn’t do that,

, . he has lead the witness, which I
also Object| to that as well.

THE COURT; Well, I ’m going 
to make the same ruling that I 
made previously on your objection

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1 that I ’m nc>c ruling at this point 
as to whether the objection is good 
or not good as to materiality and 
Relevancy but since it may be 
relevant and material that the 
question may be asked and the 
witness may respond. Counsel may 
wish to vary or amend the question 
to include thatassuming that those 
are the figures as a savings of 
time.

MR. DAYS: Perhaps this might
help on this particular point.
Your Honor.

Q* (By Mr. Days) Dr. Francisco, were you
in the courtroom when. Mr. Coletta testified about the 
results of his study of the velocities of various 
bullets?

240 .

A . 
Q. 
A.

Yes, sir.
And you heard that testimony? 
Yes.

Q. Now, based upon that information are
. . < « .•

you in a position to conclude anything about the 
comparative wounding capacities of these three 
bullets?

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A . Yes .
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what do you conclude, and. If you 
would, indicate the basis for reaching such a 
conclusion?

bullet that is identified as the 
125 grain would have a greater wounding producing 
potential because of the greater velocity that is 
present of that missile, being the 1425 feet per 
second plus or minus 62, and because the velocity 
has the more significant effect upon the total energy 
than the total weight.. The fact that the 125 is 
less than the 158 is balanced by the Increased 
velocity of the 125 giving i t  a greater available 
energy and thus a greater wounding producing potential 
than the 158. In terms of the 110 the 125 is greater 
in weight than the 110' and has a greater' velocity 
than the 110 and has a'Jgreater wounding potential

. .w’ . ^

therefore, the 125 has a greater wounding potential 
than the other two.

Now, does the fact that one bullet may 
be round-nose and another may be hollow-pointed play 
any role in' the determination of wound capacity based 
upon the formulas that you have described to the 
court?
A . Yes -

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Q nAnd can yoU^indlcate what effect that
242.

distinction would'have upon wounding capacity?
A. Well, the hollowpoint type bullet is
designed to be flattened upon Impact with a target.
Mow, if, in fact, the flattening occurs, then the 
area presented becomes greater than is true for the 
round-nose bullet, consequently there is more 
energy to be given up per unit time because of this 
greater surface area being presented, so consequently 
if the area does flatten, the area presented is 
greater for the greater potential energy and, therefore 
the greater potential wounding effect.
Q- The percentage of the projectile in terms
of being round or hollowcan come into terms in A in 
your formula of wounding capacity?
A. That's correct.
Q* Dr, Francisco, v/ere you in the courtroom
when Mr. Coletta discussed the cavltational effect 
that Wej;,e produced by these three projectiles?
A. * Yes, sir.
Q. Were you in the courtroom when slides were
screened of the cavltational effects?
A . Yes.
Q. And based upon your professlona3. expertise,
based upon the wounding capacity of certain types of

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Information, Mr. Cotltta's findings and the slides 
that he screened for the court present anything that 
Would he contrary to the expectation that you would 
have based on your analysis using these formulas.
A . No .

Doctor, I would like to read you 
^ Portion of a document as follows __

MR. KLEIN: Now, Your Honor, I'm
going to object unless I know what h e ’s 
reading from and what the purpose of 
this Is and whether Dr. Francisco Is 
familiar with it because just to
start off reading I have to object to 
that.

(By Mr, Days) Dr. Francisco, I'm going to 
read from a document entitled "Declaration Concerning 
Expanding Bullets" signed at the Hague 29th of „■ ' 
July, 1899, and read a section of that particular 
declaration. The contracting parties agree to —

MR. KLEIN: Objection again. Your
Honor.

THE COURT: O.K. The objection
is noted. The objection has previously ‘ 
been made with reference to and testimony 
concerning the Hague Convention of 1899^

Q

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1 and the C c n lrt reserved a final ruling 
on the materiality and relevancy, but 
under.the circumstances present noted 
that objection and permitted the 
question in prior response and the 
ruling will be the same.

* ■ N

MR. DAYS: As I was reading —
yes, Your Honor. -

Q. (By Mr. Days) The contracting parties
agree to abstain from the use of bullets that expand 
or flatten easily in-the human body, such as bullets 
”ith a hard nose that does not entirely cover the 
core or that is pierced with incisions.

Doctor, would you be able to say, based 
upon your professional training and background 
whether a hollOw-nose bullet is a bullet that would 
®^pand or flatten easily in the human body?
A . Yes .
Q. And what would your position be on that?

*

A. That this bullet has the capacity or
the tendency to flatten if it strikes an object 
of sufficient force to cause the flattening.

MR. .DAYS; No further questions.
Your Honor.

THE COUHT: You may examine, and

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245
In this iij^tance you may cross 
examine.

CROSS EXAMINATION 
BY MR. KLEIN:

Q. Dr. Francisco, are you familiar with
^r.J. Blaine Haold, who Is a member of the Board 
of Police and Fire Surgeons in Washington?
A . No. ■
Q. Let me ask you this question, do you
agree or disagree with the statement that the 
hollow-point bullet would produce no more injury 
or more severe injury, than that that would be 
expected by .standard ammunition?

MR*. BAILEY: Your Honor, I
. want to object to the form of the 
question. ....Mr. Klein has not indicated 
.who the author is or from what source 
he-ls reading and so that is the basis 
of my objection.

THE COURT: I think, that
objection .is well taken, Mr. Klein, 
not that you are prohibited or 
precluded from asking whether he 
agrees or disagrees, with some 
authority or some writing, but I

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think it sJ^uld be identified for the 
witness.
(By Mr. Klein) Pine. Let me hand you 

this, please, sir. It "is short and if you would Just 
look it over and then when you have had a chance to 
do that I will ask you to tell me what it is.
A. All right, sir. This appears to be an
^■rticle in the Washington Post.

246

Q. 
A . 
Q. 
A. 
Q.

Who is the article by?
The article is by J. Blaine Harold, MD. 

What is the date of that article? 
February 21st, 1975.
All right. And you have had a chance to 

read it over?
\ • *

A. ; Yes . .
Q. • • • And.. ;partlcularly with reference to the
part with regard to the effect or injury produced 
by a hollow-point bullet as opposed to standard 
ammunition?

MR. DAYS; I object to this.
Dr. Francisco says he does not
recognize this person. This is
not an original of the newspaper .
article. There is not reason to 

• . >•
think that the person writing that

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is so identified. I think it is the 
rankest type of inadmissible evidence.

MR. KLEIN: If I may respond.
THE COURT: Yes, sir, you may

i^espond.

MR. KLEIN: Your Honor, I»m not
asking him about its authenticity.
They wanted to know what it was and 
that is the reason that Your Honor 
say I have it identified. I»m just 
asking him to tell what the statements 
are as to the injury producing effect 
of hollow-point as opposed to the 
standard ammunition and whether or 
not he agrees or disagrees with that.

THE COURT: Mr. Klein',̂  you are
entitled to ,do that with a recognized 
authority under the New Federal Rules, 
which, in my judgment at least, have 
gone pretty far that anybody can come 
forward and present Ralph Nadar on 
such and such ajid whether or not 
somebody agrees or disagrees, but the 
objection here is that you are not 
presentlnp: some(;h I ng in the form of

247

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1 a treatises boolc or authoritative 
report of what purports to be an 
authoritative opinion or study, 
and, therefore, it is improper for 
this witness to be calle d upon to 
express an opinion. This would not 
preclude you from asking whether or 
not he agrees or disagrees with or 
whether he has an opinion on this 
matter, but I'm disposed to sustain 
the objection. In the absence of 
a more authoritative basis of 
presenting a presumed statement 
of someone who purports to be an 
®^pert or authority on this subject.

MR. KLEIN: Well, Your Honor,
You recall that is the way I 

started asking the question.
THE COURT: And the objection

is that the witness has stated .that 
he is not familiar with that 
gentleman.

MR. KLEIN: Then I left that
and I started asking him whether 
he agreed or disagreed about the

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article In my hand and I warreadlns!^ 
from It, but I wasn't reading in 

‘'^;'“n ? g ^ > ^ > ? a t b e n  or■' ••■•“, •• ■■■■■ V- - . Jr ■.■
 ̂ »^^°ld;:Orino.X;lit|;i9|;# i
la Whether or not he agreed with thatX'';"f ‘ 
proposition. •' ' • . . :■;, • ’.

: I', going th s ^ s t a ^ S i S l .;
. H  to the question as' p u t ■ & l
in the;fora put. ’ ' '

:MR. KLEIN; All r-f, .•-r. ^iSht, now. Your

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convention^,in . u ' ; r ; t h e s e X x t ^ e o S p r ^ «
matters Which the Court has permitted^* 
counsel f'Jr.the Plaintiff,to go \  -
into and ̂ ^^aln I think ;thissls"’j u s t X ' p X  V  

as relevant'as anything pertalnlng''to'

.;.f i 'THErgoy^T: I understand W u r  ®  ■ X P : '
position. Mr'. Klein, and the Court”
Is trying to make clear to you that

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©Xpert witness'*? <

; he,agrees;>or disagrees 
■expert^loplnion you have'̂ tĥ i-' Prerogative^-.'; • 

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that.you = have not presen^e^^o'-tMs^

''Itness any purportad authoritative

, fortr.';.i:i'
testen?Thls--d:^S^:-$i,lil

'> .r=̂  /%' r-no^ you;" Mr? 'Klein'"^ron3"’':''-^f
Inquiring or asking Into the area 
that someone else may,have, stated , .. ■ - n .
an -oplnlo^;or a a u g g e s t l o n / i ? m ' % : i | *

■ .al-Ply.;3ustalnlrig-:the:ohJact?fon^
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questlon; ;as^.put. V?' ^

(By Mr.^Kleln) A l l ' r i g h t ? 2 o K ' ^ o t ' ' ' ^ ^
this, question. 7

about the Injury producing effect "of'h i i " '  -< • .;•*. •.•■•:: ^ hollow-points"^^"-;
as opposed to the; standard .n,™,,.?; .a ̂ ' .V- ■ ^

i..; nose -ammunition?
■ .-:■ ■ ;‘‘'v
•"•■• •' ■■■' •' Mr /'

the form Of‘the question, your Honor.
• . . kv . . /
., . • 'A - f:0  / O ' - .

Q.

me

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. THE'Ct;^RT: I will overrule;
the objection. If the witness.
within.;. his:'realm

. :understands'^and can;'respond ;.tOTi,the';?I?-̂ ,
. • • • • • • ;  ■ .  ••»» • ^  •• • - . . • ' » *  V.' '^ »

question. 'Do you want to -elaborate
I ' - r r *  -  > • ..............

on the basis, of the objection to the
.  ̂ . . J .  ;

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form.':,pf;- tha^,.!^question?.
* . .^ ? A  '

ion? \
■ ; - ; 4  • : '  .  ‘1 ^ ' i f  v - i S - ^

: Yes-V^'Your -Honori'-r̂ v̂̂ '̂ "̂ '̂::*';?̂ ^
My examinat.ion of Dr. Francisco : .'; •/';•■
related to the techniques used

•. f  i  ' •. V . . ,  . -  •
• '■ * •■ . f  ^  • - .» • ' •• - V  ; .  ^  '*■ * ‘ ‘ V  :  *  ^  V « *

■ '-s background
i'V;\ ̂ U ■ > • if ■ '  '  ■’■■■ ' " ■ "  ■ ft'"*'-’ '-f'"'̂ "‘.-proJ>ecting' the wound eff ect/of '■ 

certain types of projectiles. I 
think it is demonstrated that he 

•,; was. relying .upon theoretical-.-approaches - ’■ >■
".̂ ;̂'.'to render:i;his, opinion .tô the";Court\y;'--\.:vî

;  . . - ■  1 > .  . ■ • ■  ' - t  ' ; ; ; ^ >  v

v-'s;̂ '̂'V-̂ '̂;-’-'^^:Now,4if;'MrA^.Klein 'wantsVto^^’go7’beyond̂ :*;-̂ '̂ î Ŝ ;;' 
' ■ ■ ■ *'V/'''r '.. : the ̂ theory^^^hen r',;.think, hej should so -

• •*»

indicate and clarify his question in 
that . respec.t. . . •• . , . ,

■ THE . COURT ; Well, perhaps the ';,• ''..........
-  -  7̂

C o u r t i n ’view of the fact that Dr .'.•■■ 
' v̂ - -..— ' -̂ "^-^.?f^ncisco-;has ̂ testified in- this

■•• Court ĉ n’̂nurnei’ous" occasions before;^
and the Court has some familiarity

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with his b^kground in that regard 
has assumed more than the record 
bears out the v/itness's experience 
in respect to the studying and 
examining the effect of these matters 
With that statement, in this context 
with the right of examination of 
further examination in that regard 
I'm going to still overrule the 
objection, that If the witness has 
knowledge and understands the 
import of the last question that he 
may respond recognizing that he may 
have gone beyond the area in which 
you sought to present this witness's 
testimony, and in so doing and if 
he goes beyond that he is making him 
his witness with your right to 
reexamine in light of the fact that
W A has been made the defendant's 
witness.

MR. DAYS: Yes, Your Honor,
I'm not objecting to Mr. Klein

» *

going into this area. I just 
objected to the form of the question.

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back,

I'm going to have to have the question

• Klein) All right. My question is, 
do you have an opinion as to the difference of the 
injury producing effect of a hollow-point bullet 
as opposed to standard ammunition or what we have 
Commonly referred to as the round-nose bullet?

MR. DAYS: I object to the
form, it is incumbent on him to 
indicate whether he is talking about 
whether Dr. Francisco is to state 
that he agrees with that formula 
and the conclusions that he reached 
using those theoretical approaches 

_ or whether-he is asking him does
his experience also support the 
theoretical analysis that he 
described on his direct examination.

THE COURT: Mr. Klein.
MR. KLEIN: I'm asking

^im a question if he can give me 
the answer I will assume he will 
do so. If he can't he can't and 
if he does I assume that he will
tell me what the basis of his answer

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1 is, whethe.
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A.

it is based on theory, 
based.on practice, experience, 
knowledge, reading of treatises 
or not. '

COURT: I ’m going to
overrule the objection.
Yes,- I have had some experience. I do 

have an opinion‘as to the difference between the 
wounding, in order to answer it I*m going to have 
to go back to the blackboard again.

THE COURT: You may do so.
(Continuing) The hollow-point bullet, 

by virtue of this capacity to expand, if in fact 
it does expand, produces a greater wound than a 
similar type bullet riot liavlng the capacity to 
expand. In my experience, or our experience, this 
bullet does not strike point—on because it doesn’t 
strike point-on it does not always flatten since 
it does not strike point-on and does not flatten 
the wounds that I have observed have been equal 
to the wounds observed by the non-hollow-point 
bullets and the reason, w!iat I mean by this point-on, 
a bullet in flight will have a tendency to undergo 
what is known as yaw, which is kind of a fishtailing 
effect, much as a car on the wet; pavement when

582 GS.



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1 the brakes are appllj/i, the bullet is not only 

rotatin?^ in its path and rioving part forward in its 
path, the back end of the bullet is rotating up and 
down in the path as the fishtailing car would be, 
therefore, the bullet shcijid strike the skin at 
this point indicated by tfiis line on the diagram 
so that the point is not perpendicular to the surface 
of the skin, this point does not flatten though and 
not flattening there is no greater injury 
produced than a round nose, consequently my 
experience has been that I can find no difference 
in the wounds seen with the hollow-point versus the 
round-point ammunition.

MR. DAYS: For the benefit of
the Court, i wonder if there would 
be any objection to Introducing 
that particular diagram into evidence.

THE COURT: The Court feels
that the suggestion is appropriate 
and should be marked by the Clerk 
as the next ^'exhibit number.

THE CLERK: Number 22.
I'HE COURT: The Court will

note that the exhibit has been 
referred to by this witness during

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V the course'
256

f direct examination 
previously and has also been referred 
to by the witness in the course of 
cross examination.

(Whereupon^ the said diagram 
referred to above was accordingly 
marked Trial Exhibit 22 and received 
in- evidence.)

■ THE COURT; Proceed.
Q. (By Mr. Klein) All right, sir. Dr.
Francisco, as far as the injury producing effect of 
any bullet, is it largely determined by where the 
bullet strikes the body?

In terms of the injury, yes.
Q- Now, why do you say that, what do you mean
by that?
A. Well, the wound and the Injury are not

:  -

necessarily the same. The wound is what we actually 
see to be present on the body, whereas the injury 
is the overall effect of the wounds plus other 
effects Involved, so the Injury of a bullet is 
where the bullet strikes, does it strike a vital 
organ, or does it strike a non-vital organ. If it 
strikes a vital organ the Injury is severe, and 
the reverse if it doesn't.

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Q. It makes
2 5 7

difference whether you are 
talking about hdllow-poini; or round nose ammunition, 
if you strike a vital organ is it going to make 
.any difference whether it is a hollow-point or 
standard ammunition?
A. All other things being equal, in other
words, obviously velocity will not produce the 
same degree of wound and thus not likely to 
produce the same degree of injury, rather than a 
high velocity.
Q. Are you familiar with Dr. Vincent
J. M. DeMayo?
A. Yes.
Q Were you in the courtroom when I asked
Mr. Coletta to read from a portion of an article 
in the PWC bulletin with regard to certain 
articles about the hollov;-polnt ammunition?
A . Yes .
Q. And I ’m going to hand you that again
so that you can look at it.

THE COURT: All right, sir.
You may express your objection.

MR. DAYS: I did not pose an
objection at the point that Mr. 
foletta testified with respect to

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this document because he received it 
and I assumed in the course of 
receiving certain bulletins I submit 
to the Court thet this particular 
bulletin does not fall into the 
category of the public domain and 
that is known by forensic pathologists 
and consequently open to all kinds 
of challenge and responses by experts 
in the field on the same Issues.

THE COURT: Well, I would
suggest that counsel pursue a further 
predicate in thut area in light of 
the objection be Tore the witness 
is called upon, if the witness is 

upon for a response.
(By Mr . Klein) Who is Dr. DeMayo, Doctor? 
Well, he is the Deputy Chief Medical 

Examiner in Dallas County affiliated with Southwestern 
University. I don’t think he ’s left.

Do you know him nersonally?
A. Yes.

Are you familiar with any of his works 
or any of his treatises or any of his papers dealing 
with ammunition and hollow-point ammunition?

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1 this document because he received it 
and I assumed in the course o f  

receiving certain bulletins I submit 
to the Court that this particular 
bulletin does nob fall into the 
category of the public domain and 
that is known by forensic pathologists 
and consequently open to all kinds 
of challenge and responses by experts 
in the field on the same issues.

THE COURT: Well, I would
suggest that counsel pursue a further 
predicate in that area in light of 
the objection be Tore the witness 
is called upon, if the witness is 
called upon for a response.
(By Mr. Klein) Who is Dr. DeMayo, Doctor? 
Well, he is the Deputy Chief Medical 

Examiner In Dallas County affiliated with Southwestern 
University. I don’t think he's left.

you know him oersonally?
A . Yes.

familiar with any of his works 
or any of hJs treatises or any of his papers dealing 
with ammunition and hollow-point ammunition?

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As opposed to the standard ammunition.

What'has he done, works of his that you are familiar 
. ;'!'ith? i : ' "

Well, I can’t cite you particular works 
that he has done. The entire institute at 
Southwestern has been concerned with gun .and 
wounds resulting therefrom. Most of his work has 
been in that area.

Q- But you have from time to time read,
studied or made yourself familiar with some of 
his works, is that correct?
A. Yes.

MR. KLEIN: Your Honor, I ask to
be allowed to proceed.

THE COURT: Do you wish to voir
dire the witness further in respect 
to your examination as far as the 
particular, I believe it was referred 
to as PWC bulletin?

Q* (By Mr. Klein) Are you familiar with
the PWC bulletin?
A. No, sir.
Q- Do ycii know whether he publishes in other
bulletins or not?

2 5 9

A. Yes , sir.

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JA- Well, the n^n publishes and whenever

someone publishes you end up publishing in whatever 
article will receive your publication if you think 
that you have something' to say, you know, a general 
statement in that regard.
Q* Have you read his works in other publications
A. Yes, sir. '
Q- What publications, for example?

The American Journal of Forensic Sciences, 
things called the American Journal of Police Science, 
those are the two journals.

Is it likely- that if he has articles 
in those he may have similar articles in other 
bulletins as well?

A* Well, you know, as I say, whatever publisher
will publish. Persons who write articles will
publish wherever the article will be published. •’

THE COURT: Do counsel for
the plaintiffs wish to voir dire
further in light of the objection?

VOIR DIRE EXAMINATION 
BY MR. DAYS:

260 .

Q. Dr. Francisco, may I see that document? 
Is the Police Weanons Center of the

International Association of Chiefs of Police a

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1 bulletin that is reco|yiized by people in your field 
as a source of authoritative articles on matters 
such asvfound ballistics?
A. I can only answer for myself. I ’m not
familiar with this here.
Q. Do you think that you would be familiar
with it if it did fit into the category of being 
an authoritative journal for people in your field?

I would think that I would be, yes.
MR. DAYS: No further quest ions.
THE COURT: I ’m going to

sustain the objection at this time,
•.H ' '  '  '

Mr. Klein.
MR'. KLEIN: Your Honor, I ’m

going to ask that this be made an 
exhibit for.identification.

THE COURT: You may mark it
for identification purposes.

(Whereupon, the said bulletin 
referred to above was accordingly 
marked Trial Exhibit 23 for 
identification.)

Q. (By Mr. Klein) May I see your —  is that
your autopsy report that you have there?
. Yer. .

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Q. 
A .
Q.
A.
Q.
A.
Q.

Did you pirrforrr: fche autopsy yourself? 
Yes .
Did anyone assist you?
Yes.
Who assisted you?
Dr. James Bell and Dr. Joseph Zepallo. 
So there were three of you who were

actually performing the autopsy?
A. That's correct.
Q* You were commenting on the alcohol content
earlier and did I understand you to indicate that 
that was probably, or that was more than the normal 
alcohol content that you v/ould, than you would 
expect in a normal person?
A . Yes .
Q* What would be the normal content or —
A- Well, theoretically zero and in practical
terms certainly less than .01.
Q. And .01 is what you found to be in
A. No, .09.
Q. Is that in any way correlated with the
system used by the Memphis Police Department in 
determining whether a person is under the Influence? 
A . Yes, s1r .
Q. Do you know vh'.at the standards of the

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Oe;ya.t.e., a.e .e,a.. to o. t.e

^-aKoff poi„t wit.

Is under the Influence? , • ••

Well, this.Is state law, thlsls predicated 
on stato law which establlshac that a level of
•10 Is the point of Intoxication.
Q.  ̂ ■

And this,level was what?
.09.

J'Jst ri^Tht below?
Well, it is .01 below, right.

«• Of course, you can't ascertain what the
source of the alcohol Is?
A* No.
Q. But presumabl-- it i<;-IS something that is
taken or ingested?

That 's correct

rnsslbly drinking a beer?
 ̂ °nly as an example,

not as an Indication that It was. In fact, the^
^®verage used.

^ Could it be whiskey?

Whiskey, wine, vodka, gi„, ,,, alcoholic
beverage.

«• You further indicated. Doctor, that
the wound to the head ,taO.'Entered from the right

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side, is that correct?

Yes.

And I belle VP -f ,
thah , “ ■ thatthat would further IhdUate that th '
was u,»w ‘hatwas used probably wa*; .,u a.ty «as. What would you say a rl=,h^ 
angle from the victim?

Esaentlally a right angle, yes. ' " 

^ c o n t r a s t  to the head helng. the hach

2614

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of t-ho K  ̂ ®

the head being toward the m„, ■,muzzle. In other words
it was Just a side —  ’
A.

That 's correc t .

could have been vnyou are not
Indicating whether if w-, n
or H, w “«hPOh^ higher than the weannnweapon or on a level with the
weapon, are you?
A.

tin, that Is correct?

And you mentioned also i thin, there were 
- m e  scraping on the body or abrasions?

a' , ^ ‘P the top Of the leftShoulder. J-exx:

All night. Do you know whether he —
,yp,u wouldn't know If he had olothlnr 
a'; • ; tiothlng on at the time?

At the-time the body arrived we have 
pants, socks and shoes.

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MR. All right. That's
all I have.

't h e COURT: Anything further?
MR. DAY'S: Yes, one question.

2 6 5

CROSS e x a m i n a t i o n  
BY MR. DAYS:

Q. Dr. Francisco, you made reference In
your cross examination by Mr. Klein to the concept 
of yaw. All things being equal, if a hollow-point 
bullet struck head-on as opposed to a round-nose 
bullet striking head-on, that is if the yaw were, 
in fact, minimal, could you indicate any conclusion 
about the difference of any between the wound 
that would be caused by the hollow-point bullet 
as opposed to a wound caused by the round-nose 
bullet? ;
A. Well, there would be a slightly greater ,
wound present if the bullet struck point-on. This 
degree of increased magnitude might not be measurable 
if one is to measure the two wounds, but the wound 
would be slightly greater because of the greater 
area in which the energy Is given out.
Q. In .adding to that, if one assumed that
the hoilow-nolnt bullet ;;ere traveling at a greater 
velocity than a round-nose bullet and struck head-on.

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what would you assunu^about the relationship between
the two wounds of those projectiles?
A. Well, the projectile traveling at the
greater velocity will produce the greater wound
because velocity is the single most Important factor
in determining wounds.

MR. DAYS: Thank you.
MR. KLEIN: Your Honor, this is

really in the nature of an omitted
question, if I may.

THE COURT: All right, sir.
RECROSS EXAMINATION 
BY MR. KLEIN:_______

Q. Dr. Francisco, did you testify before
a legislative committee hearing, I say recently,
 ̂ Suess within the last year?
A . Yes .

• And was it in connection with proposed
legislation to, what, outlaw the use of hollow-point 
bullet-s?
A . Yes .
Q. And what was the result of those committee
hearings?
A. I have no idea.

There was never- any change in the law, was

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there?
A.

sny, no 
Q.
A.

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Well, I'm not su r e_T'm ni not aware of

And Who called you to teatlfy,
WcLS ths P X r* n+• *T Tr «executive secretary of the

legislative counsel. It was qonowas some person in the
legislative counsel.

Did they ask you If you ^ad any 
recommendation one way or the other?

» o ,  they were Just asking for Information.
«• , Similar to the type of Information that
you gave here?
A- Yes.
Q .

Do you know whether other police
departments throughout the country use the hollow- 
point type bullets?

I do not know.
MR. KLEIN: That's all.

HR. DAYS: Mo further o.uestlons.
t h e COURT: Have you made any

Independent study on your own with
respect to the impact or severity of

 ̂wound .with regard to different types
ef ammunition by any of the police
authorities within your Jurisdiction?

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THE WITNl'.SS: No, only with t h e _
not that I would dignify with a title 
of study. It has been a study of the 
wounds that have been produced and the 
ammunition that was present as a 
case study as each case was examined.

t h e COURT: Well, have you formed
any opinion as to your experience with 
regard to the severity or noticeable 
severity of wound since the use of 

the Remington 125 seml-jacketed hollow- 
point type of ammunition?

t h e WITNESS: No, sir, I have ho
‘Conclusions from the result of those 
studies that I have done.

THE COURT: From the nature of
wound that was examined with 

respect .to this autopsy, could you or 
not be able to say that the type of 
bullet thatmight have been utilized 
would have had any bearing or any 
effect on the result or the effect of 
the pistol shot and the injury in 
t 1 s case?

Tim WITNESS: Well, Your Honor,
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for me to form conclusions based upon 
a, single case, single autopsy, is 

fraught with so many possibilities 
of error that I would be hesitant 
to give an opinion.

THE COURT: All right, sir.
Any further questions?

MR. DAYS: Non^ Your Honor.
MR. KLEIM: No, Your Honor.
THE COURT: Thank you.

(Witness excused.) .

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1

NUMBER
E X H I B I T S
IDENTIFICATION

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EVIDENCE
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26

586
652

586

652

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AFTERNOON SESSION 
AUGUST 4, 1976

THE COURT: Is the defendant ready
to advise us with respect to going 
forward, and are you gentlemen ready 
to' advise me with regard to the motion 
to .view?;

MR. KLEIN: Yes, sir.
MR. DAYS: I would like to make

one preliminary comment before we turn 
to that Issue. Mr. Bailey, my co*-counsel, 
asked the court's Indulgence with 
respect to the taking of Judicial 
notice with inspecting the scene.

Under Tennessee law, I would like 
to do that at this point, I'm quoting 
from page 515 of the 1975 accumulative 
supplement of the -Tennessee Code 
Annotated Volume 1. And on page 515 
is contained the mortality table 
showing the expectation of life at

I

various ages. And under the age 15, 
which I think has been established 
as the age of the deceased, the life 
expectancy Is 5^.95 years.

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THE COURT: Without having been
made a part of the record, as part of 
the plaintiff’s case, can you advise 

With regard to the defendant at 
this time, Mr. Klein?

MR. KLEIN: Your Honor, as I
understood the court’s ruling before 
the recess, 'Your Honor granted the 
motion as to the defendant Hubbard and 
granted the motion as to the defendant 
Chandler, granted the motion partially 
as to the clt^ of Memphis and the Memphis 
Police Department with regard to the 
hiring practices, but with regard to 
the other allegations relative to the 
city of Memphis and the Memphis Police 
Department and all of the allegations 
with respect to the defendant Hymon, 
the Court is reserving its ruling on 
that?

THE COURT: Correct, with the
right of the defendant to stand on 
your motion or to proceed without 
waiving it.

MR. KLEIN: In that case. Your

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1 Honor, we will go ahead and put on 
proof. Of course, again standing 
naturally standing on our motion 
for directed verdict that we have 
already made.

THE COURT: All right, sir.
You may proceed.

What about the motion to view?
MR. KLEIN: Your Honor made a

comment which I think is a good point 
with regard to, if the Court decides 
to vlewj; it should view in the night 
time and I don't know how closely 
we can simulate the circumstances 
or the lighting, but hopefully it 
could be done with the idea of doing 
it as closely to the situation as 
the facts have established that 
existed at that time.

I, frankly. Your Honor, as I 
say, I have researched the law. It 
is clearly within your Honor's 
discretion. I think the court has 
enough before it now to rule on 
the case without going out there,

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1 and really, that Is all that I have to 
say. Your Honor. I don’t vigorously 
oppose it, I can’t say that I ’m 
for It. I repeat, I think that the 
Court has enough before It now to 
pass .

MR. DAYS: I have a feeling that
I should rely on Mr. Klein's conversa­
tion with my co-counsel In the midst 
of discussing other things I overlooked 
getting' his definite position on It.
I think our position. In light of what 
the Court has said and Mr. Klein’s 
position, we would not press our 
motion for view In light of all of 
the evidence In the record at this 
time.

THE COURT: All right. I will
treat It and the court will make no 
plans to do that. If we do plan, I 
do not plan to be out there at the 
same time, In order for It to be a 
meaningful practical thing It should 
be after dark and I don’t suggest 
that there should be any effort to

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1 attempt to simulate anything but as 
conditions allegedly or purporte.dly 
were, but we simply have that 
opportunity with counsel present at 
the place after dark, but since neither 
side is pressing us on that point, we 
will make no present plans to do so 
until or unless we hear further from 
counsel to do that. All right. You 
may proceed.

MR. KLEIN: Your Honor, in view of
the Court’s ruling and as the Court has 
■indicated, not ruling at this time on 
the training procedures, the policies 
.of the police department with regard 
.to the use of lethal and non-lethal 
force^ ^and;the policy of the police

> i

department wherein they decided to use 
the hollow point bullet, I would like to 
call one witness out of turn. Ordinarily 
I would call Officer Hymon first, but 
I have General Hubbard here.

THE COURT: All right. I want
to make one other thlngclear. The Court, ' 
you are correct that the court is not

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1 ruling on the contentions with respect 
to training and with respect to-the 
use of certain types of ammunition 
to the extent, and if the plaintiff's 
Contention is that the defendants, 
or any of them, are in contravention 
of the plaintiff's rights, with regard 
to the following, the policies of the 
Tennessee Code Annotated 40-808, to 
the extent or if the plaintiffs are 
asserting a violation of the plaintiff's 
rights because of the defendant's 
enforcement of Tennessee Code Annotated 
ll0-808, but only to that extent that 
the Court would grant the defendant's 
motion as to that portion of the 
alleged cause of action that bears

t

upon that-, but as we understand it, the 
plaintiffs are not asserting to the 
Court that the defendants carry 
instructions per se. The defendants 
instruction that it provide the 
conditions of Tennessee Code Annotated 
40-808 are followed the use of lethal
force is lawful

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MR. DAYS: That's correct. Your
Honor, we are not charging the • 
constitutionality of the Tennessee 
statute insofar as lethal force may 
be used under certain circumstances.

THE COURT: I wanted to make
that other clarification that I 
understand that the plaintiffs were 
not raising that as a further 
contention because, if so, the 
court feels bound under the Ellington 
matter to follow the effect of that 
case but’we will proceed.

MR. KLEIN: All right. General
Hubbard. Your Honor, I'm calling 
him —

THE COURT: The Court is ruling
you may call him out of turn provided 
that any of the defendants who are 
present would be asked to step out 
when you call someone else out of 
order.

MR,.KLEIN: That is what I
wanted to find out. I will ask Officer 
Hymon to step out.

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JAY W. HUBBARD,
having first been duly sworn, was examined- and
testified as follows:
DIRECT EXAMINATION 
BY MR. KLEIN:

Q. State your name, please, sir?
A. Jay W. Hubbard.
Q. How do you spell your first name?
A. J-a-y.
Q. And you reside where, sir?
A, Currently In San Juan Capistrano, California
0. What Is your occupation?
A. Western regional manager for Guardsmark,
Incorporated.
Q. Al'l right, sir. Were you formerly the
director of police for the city of Memphis, Tennessee? 
A . I was.

MR. DAYS: Excuse me, may I ask
that the witness speak up, I have 
difficulty hearing.

THE COURT: If you will, please.
THE WITNESS: Yes.

Q. , , . (By Mr. Klein) And how long did you hold
the position as director?
A. Almost exactly two and a half years.

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1 Q* And when did you first take that position
and when did you terminate that position? '
A. The first of December '72, and I terminated
31 May *75.
Q. And prior to that time, what was your
occupation?
A. I retired on the 30th of November of *72
from 32 and a half years of active duty in the Marines 

What was the rank that you had attained 
at that time?
A. Brigadier general.
Q. At the time that you took over as director
of police, v;ha't was your understanding as to your 
Job duties or what x̂ as or what were you supposed to 
do in that capacity as you understood it at that time? 
A. My understanding was that the, everything
to do with the administration of the department, its 
funding, its organization, its ability to perform, 
its mission was my responsibility.

All right, sir. And as such as director 
did you have any supervision authority or did you 
oversee the training program of the Memphis Police 
Department of the new recruits as well as those 
who were on the force for a period of time?

Yes, the, maintaining the authorized

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1 compliment, assisting the city personnel department 
in securing, screening and finding the people that 
met our standards for initial entry into the 
academy, our curriculum there, the product of that 
curriculum, the future on a probationary status 
before they were'fully certified, all of these 
things I felt were my responsibility.
Q* All right, sir. And were you familiar with
the operation of the police training academy?
A, Certainly was.

^o you recall at that time when you 
first came in who was in charge of the academy?
A. Yes, at that time Inspector Barksdale.

All right. And who succeeded Inspector
Barksdale?
A. Then it was—

Do you recall?
A. Captain Craven.
Q. All right. And then after Captain Craven
was anyone after Captain Graven while you were 
director?
A* I would have to refer to my notes on that.
Q. What about Captain Coletta, do you know
whether he.had any connection with the —
A. Captain Coletta had been in the, was the

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range training officer and throughout all the period 
that I was in the director’s position.

There was an officer for a short period 
who commanded the academy and I ’m struggling for his 
^ame, I can’t recall it.
Q. Did you keep in close contact of what was
going on out at the training academy?'
A. Yes, we reviewed the curriculum before each
class. There were changes, we felt there was --

THE COURT: Excuse me, counsel.
MR. DAYS; Your Honor, I would 

like to object to the form of the 
question, for counsel to lead the 
witness in terms of choice or not,
I think suggests the answer to the 
questions, so I would object to this 
form of questioning.

THE COURT: Well, I will overrule
the objection to that particular 
question. I will ask that the counsel 
refrain from suggesting an answer in 
the form of the question as a general 
procedure.
(By Mr. Klein) Go ahead, sir.
My overview consisted of looking at the

Q.
A

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1 curriculum, making Inputs before we would start
the next class. We would have a, I would-be Involved
in at least one conference and then we would have
 ̂several others hoping that we would continue to
update and improve our curriculum. I caused some
weight to be shifted and emphasis here and there.
We tried to put more of the humanities into it.

We had some conflict in that we only had
so much time that we could keep a cadet in the
academy. In that process I was in and out and then
I would also speak on one or two occasions to the

«students. That was basically my relationship to the 
academy.
Q. All right, sir. Now, in relation to the
policies of the department relative to the use of 
deadly and non-deadly force, when you came into the 
department did you review the policies that were 
in effect, and, if so, were changes made.
A, I read the existing order which was publlshe
in January of ’72 I believe, signed by chief Price, 
and I did it with the department counsel, Mr, 
Krelsteln, and I needed to educate myself to see 
what the ground rules were in the department, and 
what the state required, what the city ordinances 
required, if anything. And I was satisfied that we

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had a legal directive. I also felt that it could 
be improved upon Just editorially, so I caused another, 
we went to work on a revision and found that we 
really didn’t vary that much from it as we originally 
had thought that we would because the first one was 
quite comprehensive, so I ’m sure if anyone compares 
the order that we came out with in February of ’7^ 
that he would find a great deal of similarity with 
the one that it replaced.
Q* So another order did come out, is that
correct, sir?

Yes.
And let me hand you this and ask you to 

Identify it. Can you identify that, sir?
.Yes, this is the order.
All right, sir. Is that over your

signature?
A. Yes, it is.

And it is dated when? _
A* It is dated 5 February 197^.
Q* Working on that order was any consideration
giving to the existing Tennessee law?
A* Yes, of course, the reasonableness feature
of Tennessee Code Annotated 40-808 was our real 
guidance, and that was where we derived our authority

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to prescribe the use of deadly force under certain 
conditions.

So that was really your predicate, so to 
speak, and you worked from that, is that correct?
A. Yes, that’s correct.

All right. Now, was there any thought 
to create a firearms review board?
A. The department didn't have one. They are
called various things. Again my process of 
education led me to look at other departments, 
particularly those who were in the forefront of 
innovation and upgrading the quality of their work, 
their professionalism. And my own experience in 
the military suggested to me that we needed to have 
a departmental system of crltiquelng our performance 
whenever we used deadly force, whether it resulted 
in a loss, loss of life, or wounding was not 
Important. The fact that it was used and should it 
have been in our professional Judgment, so that was 
one of our two standing boards that I created. The 
review board was and the tactical review board was 
the other.
Q. You made reference to looking to other
police departments to get ideas. Do you remember 
whether you -- do you rememberwhere you went, the

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A. Yes, I visited, I think I was most
Impressed by a full day with Chief Jerry Wilson in 
Washington, D.C., not only his personnel, his approach 
to the function of law enforcement officials, but 
what his department had accomplished. And it is 
a very disciplined environment, great sense of 
responsibility for everything they do. He gave me 
a whole set of their orders on everything, and I 
went through them in great detail. And their, firearms 

] weapons discharge review, I think they call it, was —  

I was impressed by that as well as other things.
Los Angeles was the other source of some reference.
Q. Did these other two cities have the firearms
review boards or something similar to that?
A. Yes, they have a review process, and in
some cases they suspend the officer temporarily 
until, in a case status, until the matter has been 
Investigated.
Q. Do you know whether they had anything
similar to your general order with regard to lethal 
and non-lethal force?
A. Yes, sir, their guidance is essentially
the fleeing felon concept, and, of course, in addition 
to the normal self defense to protect the life of

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1 another.
Q. Is the order that you promulgated or put
into effect similar to what the others were using.

If you recall?
Adoptually, yes, I wouldn't go any further- 

than that In comparing them,
Q, With regard to the firearms review board,
do you recall when you Implemented that?
A. The summer of '73 —  no, I'm sorry, the
board was activated In February of '73 —  February 

of '7^, I'm sorry.
»Q. Let me ask you If you can Identify this?

A, * Yes.
Q, All right. Is that a copy of the order?
A . Yes, It.Is .
Q. And what was the first purpose of the
firearms review board?
A. It was to critique professionally. It had
no punitive .power. It had no opportunity to 
render anything except as a professional evaulatlon 
In police terms as to whether or not a situation 
had been handled properly Involving the discharge 
of a firearm. That was the purpose to render an 
objective finding with the membership of the cross 
section of- qualified, presumably qualified membership

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Their opinion of whether in any individual instance 
the officer or officers had conducted themselves 
tactically and legally within our professional 
Intention.

MR. KLEIN: If Your Honor please,
I would move the introduction of both 
of these general orders as exhibits 
to this witness's testimony.

THE COURT: Let them be introduced.
THE CLERK: 2M and 25-
MR. DAYS: No objection.
(whereupon, the said items 

referred to above were accordingly 
marked Trial Exhibits 24 and 25 and 
received in evidence.

,Q.^ (By Mr. Klein) All right, sir. With
regard to the firearms review board, it does call
for the appointment, as you mentioned, certain 
individuals within the police department, is that 

correct?
A. The membership.

586 .

Q.
A.

Yes . 
Yes .

Q. All right. Who was responsible for
appointing those people who sat on the firearms

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review board?
A. I appointed the head of the firearms
review board and then we specified membership which 
Included —  it was by agreement either from the 
CIBor the uniform patrol division, there were only 
three people who were specified by Job title, and, 
therefore, almost by name, one, who is the legal 
advisor, who is to be of counsel to the proceeding, 
the other is the officer in charge of the firearms 
training, which was Captain Coletta, and the 
deputy chief for administrative services.

All right, sir'. Now, when the firearms 
review board met, would their conclusions be 
passed on to you for your review?
A. Yes, they came to me through the chief.
Q. And would you act upon it in any way?
A. Yea, I would. It was a simple format.
Again it was an in house board that we erected 
ourselves to critique our own performance, so it 
was an Informal report, which on call could be 
supplemented with more data, but basically it 
was a printed form briefing the elements of the 
findings of the incident, developing the findings 
with the signatures of the members and then there 
was a place where the chief and I by our own signature

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would indicate approval if we did approve.
Q. Were you authorized to take any action
in any case that Involved the use of firearms?
I ’m talking about disciplinary action.
A. Yes, that authority is Inherent in the
director of police and is totally exclusive of any 
boards or anything like that.
Q. All right, sir. What about referring
matters to the state attorney general for possible 
criminal action.
A. vTe.__I wrote to the attorney general
asking that ha —  we cooperatively insure that

gYgi*y case where a Memphis Police officer fires 
a weapon and strikes a subject that the attorney 
general assign an Investigation Immediately, our 
homicide squad would take it up in the normal 
sequence, but we asked the attorney general to 
formally structure our relationship, it was being 
done that way. However, we wanted to get it positively 
as a commitment so there would be no lack of 
understanding by the public, the press or the 
peak men of our department that this was required, 
and further that^ it always be presented to the 
Shelby County Grand Jury.
Q. Always be presented?

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A. Always, that was the request that I
presented to the attorney general and he responded 
i t h couple of questions. I replied to that and 

the system really was In effect.
MR. DAYS: Your Honor, I move to

strike his reference to anything that 
the attorney general may have said as 
being heresay.’

THE COURT: I will sustain that
objection to that part of his testimony 
which related to what actions that he 
took and the request that he made will 
stand.

(By Mr. Klein) All right, sir. When did 
that go Into effect, general?
A. It was actually In effect before I ever
raised the Issue to formalize It.

I have a piece of paper In my pocket with 
some key dates on It for memory purposes. I don't 
know If I'm permitted to do that.

MR. KLEIN: I would ask that
he do that.

THE COURT: Any objection?
MR.' DAYS: No objection.
THE COURT: You may proceed.

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1 A. The letter to the attorney general was
dated 11 February '75. Kis reply was 5 March and 
then I responded to that on 17 March, but It —  this 
was merely to confirm an existing procedure in 
writing.

MR. DAYS: Your Honor, I would
move to strike his testimony in 
its entirety with respect to formalizing 
this procedure, since any of these 
discussions occurred subsequent to 
any of, the eve;its that have happened 
in the case.

MR. KLEIN: May I respond?
The incident in the case was in 
February of '7^. Now, it could well be 
if we are talking about this specific 
instance, could have been referred to 
■the Federal Grand Jury sometime in 
'75 after the implementation. Also 
what he's saying is he was continuing 
to carry out a policy or procedure 
that was already in effect.

MR. DAYS: Your Honor, if I
understood his testimony, there was 
an arrangement made that formalized

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the Involvement of the attorney general's 
office from the time the Incident occurred 
until perhaps some presentation to the 
grand Jury. I assume that If the 
letter requesting this formalized 
arrangement was sent to the attorney 
general on February 11, 1975, there 
could not have been a formal arrangement 
for an attorney general’s staff person 
to be Involved In the outset of the 
Investigation of this matter, unless 
we assume from the outset of this 
matter that It would be several months 
after It occurred,

MR. KLEIN: Your Honor, I will
ask him one other question I think that 
may clarify the matter.

THE COURT: You may, sir, subject
to the continuing motion to strike.

Q. (By Mr. Klein) Do you know whether a
member of the attorney general’s office was called 
In prior to the time that you Implemented this 
program to Investigate matters where there was a 
shooting taking place?
A. In every Instance to my knowledge.

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1
KLEIN: Your Honor, again

I make the same response to his
objection, that is he was Just
carrying out a program that was
already in effect.

THE COURT: Well, I»m going to
sustain the objection with regard
to the testimony as to what may
have transpired in February of '75
or thereafter. You may ask him
as to other procedures that apply

*

at or about October the 3rd, 197^.
MR. KLEIN: I will ask that

question^ Your Honor.
Q. (By Hr. Klein) Directing your attention
to October 3, 197^, what procedures were in effect 
with regard to referring matters to the attorney 
state attorney general's office?
A. The homicide squad would be notified.
They in turn would notify their point of contact in 
the investigative staff of the attorney general's 
office. They in turn would dispatch an investigator 
to the scene just as fast as they could.
Q. And were matters at that time routinely
presented to the Shelby County Grand Jury?

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 ̂ A. Yes, t h e y  wsre.

2 Q. Al l  r i g h t .  Ar e  y o u  f a m i l i a r  w i t h  a

3 p a r t i c u l a r  inci-dent i n v o l v i n g  o f f i c e r  H y m o n ?

, A . • -■ I am. ,

5 Do y o u  k n o w  o f  y o u r  o w n  k n o w l e d g e  w h e t h e r

6 t h a t  m a t t e r  w a s  p r e s e n t e d  to th e  S h e l b y  C o u n t y

7 G r a n d  Ju r y ?

8 A. Yes.

9 Q, Do y o u  k n o w  th e  r e s u l t s  of t h e  S h e l b y

10 C o u n t y  G r a n d  J u r y ’s d e l i b e r a t i o n s  in t h a t  case?

n MR. DAYS: O b j e c t i o n ,  Y o u r

12 H o n o r ,  u n t i l  t h e  c o u n s e l  is a b l e  to

13 e l i c i t  f r o m  th e  w i t n e s s  th e  b a s i s

14 of hi s  p e r s o n a l  k n o w l e d g e .

1 5 T H E  COURT: I ’m  g o i n g  to o v e r r u l e

16 the o b j e c t i o n .  As I u n d e r s t a n d  t h e

1 7 q u e s t i o n  he a s k e d  h i m  to his p e r s o n a l

18 k n o w l e d g e  a n d  th e  w i t n e s s  r e s p o n d e d ,

19 yes.

2 0 Q. (By Mr. Kl e i n )  VJhat was the o u t c o m e  of

21 th e  g r a n d  j u r y  i n v e s t i g a t i o n ?

22 A. No t r u e  bill.

2 3 MR. KLEIN: Y o u r  H o n o r ,  I k n o w

2 4 we h a v e  b e e n  i n t o  t h i s  b e f o r e  a n d  it

2 5 m a y  be o b j e c t i o n a b l e .  I w i l l  t e l l  the

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Court What I*m going to ask first.
I would like to ask him what the. 
results of the firearms review 
board findings were in connection 
with Officer Hyraon, that will be my 
next question, so I say it preliminarily 
so —

MR. DAYS: Your Honor, at this
time I would like to make an objection 
to the inclusion of the results of 
the Grand Jury to the extent again 
there is no indication of what charges 
were presented to the grand Jury with 
regard to this matter, who appeared 
before the grand Jury or anything of 
that nature. There v:ould be a question 
certainly of its relevancy to the 
evidence that wasput before the Court 
already and that would be submitted 
to this court.

t h e COURT: I'm going to overrule
the objection. Again, I think that 
relates to the weight, faith and credit, 
there may be different standards, 
different witnesses, all sorts of

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variations, but I think that pertains 
to what extent that is weighed..
I think I will overrule the objection 
on the basis of relevancy.

MR. DAYS; Very good.
THE COURT: You may proceed in 

the other area and if counsel has 
objection to any of that line of 
inquiry, I*m sure that I will hear 
from him.

Q« (By Mr. Klein) All right. Did you review
the matter, the .firearms'review board findings in 
connection with officer Hymon?
A. I did-
Q« And what were the conclusions by the board?
A. The conclusion was that the use of
deadly force was Justified.
Q* All right, sir. Do you know whether any
action was taken against Officer Hymon as a result of 
the use of deadly force?

There was no punitive action. The customary 
relief from duties pending outcome of the 
investigation. Our officers sometimes think that is 
punitive, but it has no such purpose, there was no 
action taken.

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Q .  Is the officer relieved of duty
automatically, is that vihat you are saying?
A. Yes, it happens immediately, the senior
officer arriving on the scene is Instructed to 
preserve the scene, and the right agencies in to 
commence the investigation, get the officers 
started on their statement and to relieve them 
from normal duties pending.the outcome.
Q. All right, sir. Was he then later restored

to duty?
A. Yes, he was.
Q. Did you take dny action, disciplinary
action against Officer Hymon as a result of this 
incident?
A . ■ No ̂ I did not .
Q. Did you feel that it was necessary to
take any disciplinary action against Officer 
Hymon?
A. I hope I don’t sound facetious, I never
hesitated to take action when I thought it was 
warranted and I think my record probably reflects 
that I did not feel that it was Justified in the
case. 
Q.
A.

You didn’t feel what was justified? 
Any disciplinary action against the

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597.
1 officer.
2 Q. Now, General, with regard to the ammunition
3 that was used, or was used, I will confine my
4 questions to October of 197^ or thereabouts.
5 are you, are you familiar with the type of ammunition-
6 that was being used by the officers of the Memphis
7 Police Department?
8 A. I am.
9 Q. type of ammunition was being used?
10 A. The .38 Special Jacketed hollow point.
11 Q. All right, sir.-

' 12 A. 125 grain.
13 Q. All right, sir. Were you in your position
14 of director when change was made to use that

T5
t ■ * ■ > ■particular type of ammunition?

16 . A.
t

,, . I was .■ ! . ..

17 Q. : Tell lis {briefly, sir. If you would, what

18 was behind the change and what affected your

19 decision to the extent that you participated In

20 the decision to make the change?

21 A. One of the early tragedies during ray

22 tenure In the department was what they call the

23 Kansas Street Shootout.

24 I wish I could give the date. It was

25 In the spring of ’73. At that time, one of our

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1 police officers was confronted with a homicidal 
maniac who killed several people and ultimately 
killed the officer, David Clark. Officer Clark 
had struck the assailant several times and again 
I can't recollect how many, but It was sufficient 
to raise concern In the department about the 
adequacy of our sldearm. We by then,, had a tactics 
and equipment board, and I discussed the problem 
with them. At that time the union was raising a 
lot of -- raising the Issue very strongly, they 
suggested we should go to a .357 Magnum or nine 
millimeter, and I, as the administrator of the 
department, told them we wouldn't make any change 
until we evaluated the thing technically and 
tactically and that Is what our T&E board was for.
The problem was referred to them and they In turn

.  < > * • •

went to the best source In our department, our 
firearms training center where tests were conducted, 
recorded, the outcome, analysis were made and 
presented to the T4E board. The TiE board concluded 
that a change In the weapon was not Justified. It 
would entail a great deal of expense, among other 
things, that the .38 police Special was basically 
still accepted by most departments In the country 
that we should continue but use Improved ammunition

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 ̂ for stopping pov/er. Reference was made to the FBI
2 agents and other agents using this hollow point
3 round.
4 I did not Issue an order directing that
5 we change over to It, It was Just a natural
6 transition In equipment that we commenced, that
7 we felt was a solution to a problem, and we began
8 procurement of the Improved ammunition which has
9 some safety features to It that were most appealing.
10 It replaced the 158 grain roundnose round.
11 Q, Did you rely at all on Captain Coletta

12 In making your decision to change?
13 I relied on my own reaction to some
14 ^®^^lng that I did and his test and the Judgment
15 the TiE board. It was sort of a composite that
16 led me to conclude that this should be done, and
17 therefore, I approved the transition.
18 Q. This T&E board. Is this one of the two
1 9 new boards that you mentioned earlier?
20 Right, correct.
21 Q. That you put Into effect when you came

22 In?
23 A. That’s correct, to standing boards, that
24 Is correct. I ’m sorry, there were standing boards,
25 the merit review board, also.

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Q. What was the powers of that?
A. To hear appeals for departmental, to
Illustrate what would be equivalent to non-Judlclal 
punishment In the military usage and for correction 
of records, any kind of appeal to have something 
set straight or decide whether or not to commend 
someone. It was not binding, but It was helpful.
Q. On the other end of the spectrum, did you
have any policy of disciplining any members of the 
police department In any respect whatsoever, did you 
have any policy or anything that you did with regard 
to taking the necessary action against police 
officers where It was needed?
A. I probably created more than anyone else
created the union because of my policies, which 
were very vigorous and almost immediately upon my 
arrival I; put them in because I felt that they were 
needed, and the reaction was another try at unionizing 
which succeeded at that time.
Q. Why would you, would you explain Just
briefly why that caused the union to come Into being 
as with regard to your policy that you say you 
Implemented? ■ ■■ ‘:
A. When I became director I was faced with
two dilemmas: One was the finding of a selected

600.

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1 board, three local attorneys who had investigated 
some documentation called the lazy files and there 
were approximately 186 cases of misconduct alleged 
on the part of Memphis police officers ranging 
from misconduct to criminal misconduct, that was 
one of the things that was handed to me immediately. 
And the other, of course, was a little budget 
submission. We got to work on both of those very 
fast, and I relied heavily on Mr. Krelsteln, for 
example, to assist me In laying out a work schedule 
to get at the lazy files so that we could assure 
the public that they were not going to be Ignored, 
they were going to be investigated to the extent 
that you can do much about things that are two, 
three, four, five years old, but at least we could 
determine a pattern, it would be instructive for 
future dealings. This led to some statements by 
me regarding conduct, ethical conduct and public 
service and those kind of things, and I made some 
very strong statements about those who were not 
meeting the standards. I called some people in 
whom I knew to have been Involved in dishonest 
practices under the cloak of their voice who I 
could not do anything else about except tell that I 
knew and that I Intended to do something about it.

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that I could and that they were on notice, those 
kinds of things plus my public statements led the 
officers, many of them, absolutely with nothing to 
hide In their own performance, but they probably 
felt they needed some protection from someone who 
Was making so much noise about discipline, that Is 
what I think led to the success of the Union on 
^hat round.
Q. This Is all an effort on your part to
run an efficient organization?
A • To open the department up to the public,
which we Invited on every occasion.
Q. Were you' concerned about public opinion
as far as the conduct of the police department 
was concerned?

I was concerned about the public’s 
acceptance of our policies, yes, I think that Is 
the descriptive term that they understand why we 
had to do certain things, and the unpleasant things.
Q. Did you make any concerted effort to get
to the people or different groups within the 
community to explain your position?

I went to places In times that I was 
advised not to do to meet with people, hostile people. 
I had been shouted at and threatened and called all

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1 kinds of things, but we Just sort of took one day at 
a time and we began to hear some grudging admissions 
that we were beginning to open the police up. They 
weren't urging compliments on anyone, they would 
say we think you are trying.

MR. KLEIN; That's all.
MR. DAYS; We have no cross 

examination. Your Honor.
THE COURT: You may step down,

sir.
(Witness excused.)

THE COURT; ' You may call your 
next witness.

MR. KLEIN: Officer Hymon.

» » » » »

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1
W  w  ~ r  *

ELTON RICHARD HYMON ,

having first been duly sworn, was examined and

testified as follows:
DIRECT EXAMINATION
BY MR. KLEIN:

Q. State your name, please.

A. Elton Richard Hymon.

Q. Mr, Hymon, you are going to have to speak

out, please, sir.
How do you spell your last name?

A. H-y-m-o-n.

Q. How old are yo*u, please?

A. 27.
Q. 27?
A. Yes .
Q. And where do you reside?

A. 467 Shoffner.

Q. Is that in Memphis?
A. Memphis, Tennessee.
Q. And how long have you resided in Memphis ?

A. I have been in Memphis all my life.

Q. All your life.
A. Yes .

Q. Do you have family here?

A. Yes .

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1 Q.
A.
Q.
A.

And have they lived in Memphis —  

Yes .
For an extended period of time?
. Yes.

All right, sir. Where did you attend school, 
Officer Hymon?

A* ^  went to Jeter High School in Memphis,
Tennessee.

All right. And then did you go to college? 
Yes, I did.

Q. And where did you go to college?
A* I went to Tennessee State University in
Nashville, Tennessee.

All right. And did you graduate from 
Tennessee State?

Yes, I did.

Q* And what did you major in or what did you
get your degree in?

A* I majored in English and graduated with a
BS degree.
Q. A BS degree?
A. Yes.

Q* All right, sir. Upon leaving —  let me
ask you this, did you serve in the military?
A, No, I did not.

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2

Q. Upon leaving college, what Jobs did you
have leading up to your employment with the Memphis 
Police Department?
A. After leaving Tennessee State I was employed
I believe In October of that same year of 1970 with 
the Ft. Pillow State Farm In Ft. Pillow, Tennessee.
,Q* All right, sir. What type of work did you
do there?

I started off as a treatment service 
counselor for the residents at Ft. Pillow and later 
®levated to Institutional parole officer.
Q* What did you do as Institutional parole
officer, what was your Job?
A. As institutional parole officer I was
charged with preparing summaries of the individual 
residents that were to meet the parole board. I was 
to work, to prepare those summaries for the board 
on their behalf and if these Individuals were 
recommended for parole, then it was my Job to follow 
up with their recommendations by helping the resident 
to secure employment on the outside by trying to 
bring in people of the various types of businesses to 
orient them to the opportunity that they had once 
^hey were released.

All right, sir. Did you hold any other

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position at Ft. Pillow?
A. Treatment service counselor and .1 was
a member of the disciplinary board a while there.
Q. All right, sir. How long did you stay
at Ft. Pillow?
A. I stayed at Ft. Pillow two years and eight
months.

All right. And that would have you leaving 
there, when, sometime In 1972 or thereabouts?
A. I left there in '73, I believe.
Q. All right, , What did you do when you left
Ft. Pillow? '

I left Ft. Pillow and came to the Memphis 
Police Department.

Was there any particular reason why you 
left Ft. Pillow?
A. Yes, it was, first of all It was the
distance that I had to travel to Ft. Pillow being 
65 miles from the city limits, an exhausting and 
financial strain on me to have to go that far, so 
I sought another closer location to work, and I 
chose the Memphis Police Department.

Q. Any particular reason why you chose the
Memphis Police Department? Did you have any feelings 
about being a policeman one way or the other, or what

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1 made you decide to become an officer?
A. Well, I had —  I always really loved
law enforcement, and I guess being at Port Pillow
somewhat affected my decision, also, because
^®aiing with people who are law violators, as such, '
and that is always something that I wanted to do
in life, and I had the opportunity and I was
talked to by one of the members of the personnel
department for the city of Memphis. And he was
sort of explaining the Job to me and sort of
encouraged me to come.

* *
Q* Well, did it have anything to do with
salary, would you make any more money as a police 
officer initially?
A.- When I first started off I had weighed
that possibility to leave Fort Pillow and come to the 
Memphis Police Department, I would have taken a 
cut in salary. However, the salary raises or 
increments in the salary were such that if I were 
in Memphis, say, for a six month's period of time, 
then I would be making more than I would have been 
when I left Fort Pillow, so certainly the salary 
had a lot to do with it.

All right, sir. Do you remember approximate 
when you applied for a Job with the Memphis Police

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Department?
A. I think I applied at sometime about
November or December of *72 I believe, and I was 
accepted for the January class, I think It was the 
January class of *73, and I let my parents talk 
me out of going to that and decided to stay on at 
Port Pillow for about six more months, and I came to 
the Memphis Police Department In July of *73.
Q. Was there a class starting In July of *73?
A. Yes, sir, there was.
Q. Do you remember what session^ that was?
A. The 36th sessldn.
Q. And how long did that training session
last, do you recall?
A, It lasted eight weeks, I believe.
Q. All right. And did you go through the
whole training session, all the courses and 
receive all of the Instructions that was given?
A. Yes, I did.

All right. Did you receive Instructions 
^^Om Captain Coletta?
A. Yes, I did.
Q. And what particular phase of the police
work did you receive the Instructions from him?
A. I received Instructions from Captain

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610

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o

1 C o l e t t a  a n d  th e  us e  ol’ f i r e a r m s ,  s a f e t y ,  the f u n c t i o n

2 o f  t h e  f i r e a r m  i t s e l f ,  a n d  m o r e  s p e c i f i c a l l y  ho w

3 to e f f e c t i v e l y  —

4 Q. Wa s  t h e r e  any i n s t r u c t i o n  as to w h e n  y o u

5 c o u l d  or s h o u l d  or  w h e n  y o u  s h o u l d  n o t  use th e

6 f i r e a r m  or  l e t h a l  force?

7 A. We r e c e i v e d  t h a t  i n s t r u c t i o n ,  it w a s n ' t

8 d i r e c t l y f r o m  C a p t a i n  C o l e t t a ,  we  r e c e i v e d  some

9 ™ l n o r  r e f r e s h m e n t  t y p e s  t h r o u g h  him, b u t  that was

10 b a s i c a l l y  t h r o u g h  the l e g a l  a d v i s o r .

11 Q. Do y o u  k n o w  wh o  t h a t  was at t h a t  ti m e ?

12 A. T h a t  w a s  R o n a l d  K r e l s t e l n .

13 Q. Al l  ri g h t .  A n d  in th e  c o u r s e  o f  y o u r

14 t r a i n i n g I guess y o u  w e r e  g i v e n  c e r t a i n  p r o f i c i e n c y

15 ^ e s t s  w i t h  r e g a r d  to the u s e  o f  f i r e a r m s ,  is that

16 c o r r e c t ?

17 ■'a . Y e s , sir, we w e r e .

/
18 Q. An d  d i d  y o u  h a v e  to m e e t  c e r t a i n  s t a n d a r d s

19 b e f o r e  y o u  c o u l d  g r a d u a t e ?

20 A. • Yes, we  did.

21 Q. All r i g h t .  W e r e y o u  g i v e n  w r i t t e n  t e s t s

22 as w e l l as p e r f o r m i n g  p h y s i c a l  t y p e  t e s t s ?

23 A. In t h e  u s e  of t h e  f i r e a r m ?

24 Q. Y e s .
n 25 A. Yes, I b e l i e v e  we were.

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completed your training successfully?
A. Yes, I did.

All right. And after that what was your 
first Job assignment?
A. After completion I believe my first
Job assignment was —  I was assigned to the North 
Precinct, what is now the west precinct, 2^7 
Washington.
Q. And what was your duties, what type of work
were you doing?
A. I was in the squad car basically cruising
the area.

All right. Now, let me direct your 
attention to October 3, 197^, what were your duties 
at that particular time?
A. I v/as assigned to the squad car on the
3rd of October '7^ and was running car 128.
Q. All right. Were you assigned to a particular
section of Memphis?
A. Right.
®'* What was that, what general area are we., • i' ? ' •
talking about?
A. Generally we would call it, I guess. North­
east Memphis.

611.
Q. All right. Then, I take It that you

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2 739 Vollentine, was that in your area at that particular 
time?
A. No, it was not.
Q. Was it close to your area?
A. It was relatively close. It really wasn't
that close.
Q. I see. Let me ask you, up to that point,
I'm talking about up to October 3, 197^, had you ever 
had an occasion to use your firearm, other than 
I'm talking about, for practice purposes?
A. No, I had not.

you have to go back to the firing 
range periodically so they could check your proficiency 
in the use of the firearms?
A. Yes, we did.
Q. How often did you go, back?
A. They had a schedule to go by. We were, more
or less, demanded to go back once a year. However, 
we could select any time between that and go back on 
our own.

^nd what type of weapon did you have at 
that particular time, October 3 of '74?
A. A Smith & Wesson .38 Special revolver six
shot.

612.
Q .  A l l  r i g h t .  N o w ,  V o l l e n t l n e ,  a n d  s p e c i f i c a l l y

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Q, Did you own the revolver or was that
Issued by the police department?
A. That was police Issue.
Q. The ammunition that you were Issued, was
that also police Issued?

That was police issue.
Who was your partner on October 3, 197^?

A. Patrolman L.B. Wright.
Q. All right. And what was your duty hours
on October 3, *7^?
A. We were working from 4:00 to 12:00.
Q. Was that 4:00 £n the afternoon to 12:00
midnight?
A. Yes, it Is.

Q. And I take It that you came on duty at
4:00 that day?
A. Yes, sir.

And your particular duties were what at
that time?
A. My particular duties were to run ward 128.
Q. All right. Would you do that in a squad
car?
A. Yes, we were Just generally patrolling
the area, routine patrol.
Q. Do you recall getting a call with regard to

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an incident at 730 or 737 I believe, Voilentlne 
that particular evening?
A* I do.
Q, Tell me how you firstfbund out about it?
A. I was, first of all I was in the firehouse,
I believe at Chelsea and Stonewall, and my partner 
came in and told me that we had received a call of 
3- prowler inside 737 Voilentlne, and we proceeded 
from there to that location.
Q. All right. What did that indicate, you
say prowler, did the report Indicate that there was 
a prowler Inside a house,' is that the report that 
yo^ got?
A. V/e really didn’t know whether It was a
residence or business, but It did Indicate prowler 
inside.

And the given address?
737 Voilentlne. I didn’t receive the 

call. My partner may have been told that It was 
a residence.

Did he come and get you?
Right.
And what did you do next?

A.

Q.
A. We left that area and proceeded in the
direction of the call.

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how long it took you to get from where you were at 
the fire station to the residence?
A. Well, It took us a little longer than
usual. I think It was, may have been about eight 
or nine minutes because we got lost on the way 
going to the call.

I see. Was that because you weren't 
familiar with the area?
A. Right, you know, we thought the street
was one place and the street ended and we thought 
that It was the, we thought it was a bad number, 
so to speak, and we later discovered that It 
extended on the north side of Chelsea.

Who was driving?
My partner, Leslie Wright.

Q. All right. And then tell me what happened,
when you arrived at the, I take It that you went 
to 737 Vollentlne?
A. Yes, we did.

All right. Tell me what happened then?
When we arrived on the scene. If I recall 

correctly, we were going east down Vollantlneto 
approach 737 and we arrived on the scene and there 
was a lady standing out on the porch and pointing In

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Q .  A l l  r i g h t .  D o  y o u  k n o w  a p p r o x i m a t e l y

Q.
A.

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an eastwardly direction to the house next door, and 
she was mumbling something, but we could not hear 
what she was saying, so we were still In the car, 
both of us sitting In the car, so he asked her 
out loud, "What did you say?" She Just mumbled 
and made a motion toward the house next door.
Q. What would the house next door be?

\
A. 739. And since I couldn't understand
her, then I got out of the squad car and went up to 
the porch where she was and she pointed again and 
said, "Their breaking In next door."
Q. Now, what did she say?

She said, "They are breaking In nextA.
door." 
Q.
A.
Q.

That Is her words as best you recall?
Yes, It Is.
All right. And then what did you do?

What did your partner —  was he still In the police 
car?

Yes, he was still In the police car.
All right. What did you do then?
I went back to the squad car, told him 

what she had told me, that they were breaking In 
next door, they were breaking In, however she put 
It, I got my flashlight out of the car and proceeded

A
•

Q.
A.

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617the southwest corner of the house.

% 2 Q. All right. Did you give any Instructions

i
3 to your partner at that time?

i 4 A. I think I roughly recall telling him to
1

5 go around to the other side.
i

6 Q. All right. Let me ask you this about
f /■ , 7 Instructions. Is either one of* you or were either

8 one of you, soto speak. In charge at that time?
1 9 In other words, were you superior to Officer Wright

10 or Is he superior to you? What I'm getting at.
ij 11 were either one of you In command of the situation
1 12 at that time?

* 13 A. Generally the senior man was In command
1 14 and I was the senior man at that time.
[

15 Q. So you told Officer Wright to go around

1] . 16 to the other side of the house?
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j 17 A • Right.
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18 Q, All right. Then tell me exactly what
■ /

19 you did step by step?
i

20 A. After I told him that I proceeded toward

1 ■ 21 the southwest corner. I had my flashlight In
j

1 22 my hand. And sometime between the time that I

2 3 Sot there It was a rapid procedure, so I assume I

2 4 Immediately started drawing my service revolver

s
2 5 and I got to the southwest corner of the house, and

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when I got to the corner and looked around, then I 
heard the door, screen door open and slam and I 
saw a figure run across a streak of light that was 
there toward the south of that location. After I 
had seen that I shined, I started ray flashlight 
shining where I had seen him from the beginning In 
a circular motion to try and find him, and I picked 
up a young male on the fence or what appeared to be • 
a young male on the fence.
*3, All right. When you say a streak of light,
what was the lighting situation out there at that 
time 7
A. The lighting was very poor. I recall the
lady who gave us the directions from the beginning 
telling us that they were breaking In next door, 
somehow or another flicking on the porch light.
I absorbed most of that, the light, because most of ' 
That light was to the side of me. It was Just a ray 
of light going across the rear door. However, the 
back portion fenced In area on back was dark, I 
couldn’t see anything.
Q. When you say fenced area, therehas been
some reference to a chain link fence that ran across 
the back property line.
A. Right, the chain link fence.

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2 chain link fence?

A, No, I could not. ~ -
Q. Did you have any Idea at that time what was
beyond the chain link fence?
A. No, I did not.
Q* All right. You say that you finally
picked up this male on the. In the back by the fence. 
Is that what you —
A. Yes.
Q* All right. What part of the yard was he
In when you first plcked'hlm up?
A. He was In the southeast corner of the yard
over there an outer house.
Q. All right. If I may, let me refer to this
exhibit that Is marked Exhibit 6.

THE COURT: Counsel may approach.
MR. DAYS: Thank you. Your Honor.

Q. (By Mr. Klein) If you would take this
pointer. Officer Hymon, let me ask you this, does this 
simulate the location at 739 VollentIne?
A. I would think that is a reasonable
facsimile.
Q. Now, show us now which side of the house
that you came around when you left your car, when

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you say that you proceeded around the side of the 
house?
A. O.K. I came around at an angle to about
here.

All right. Now, that Is the, what corner 
of the house?
A. The southwest corner.
Q* All right. Was there a fence in front of
you, immediately in front of you?
A. Right, there was a fence about in the
area here that ran from the corner of the house to 
the chain link fence in the rear.
Q. All right. And how high would you say
that fence was?
A. ,1' would say it was from three and a half
to four feet high.
Q* All right. Now, show me where you said
the someone ran out of the back of the house?
I think you said that you heard a screen door slam 
first —  where were you approximately, if you remember, 
when you heard the screen door slam?
A. I was about in the area just adjacent to
this where I could see, you know, in a straight line 
almost in a straight line down in that direction.

You are pointing just about to the corner

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the house?
A. Right.
Q .  All right. Now, show me where you said
that the person running out of the back door went to 
the chain link fence and was by the fence when you 
put your spotlight or flashlight on him, is that what 
you said?
A. Right.
Q. Where at the fence was he when you put
your flashlight on him?
A. I was about in the area because he ran
at an angle here, and he got in the area somewhat 
close to the outer house and close to the corner 
of the outer house near the fence.
Q. . . You wouldbe talking about the southwest
corner?

' A . ^^Sht. ' '
Q. ' Of the outer house?
A. Right.
Q. All right. What did you do —  well, let
me ask you this, did you say anything at any point?
A. Yes, after I had picked him up with my
flashlight I immediately yelled, "police, halt.”
And after I had yelled,’’Police, halt,” I went to call 
to my partner, you know, a matter of seconds, I went

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to holler to my partner, "He’s on the fence." And 
my partner said, "What, he’s on the fence?" And

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by that time when I told him that I made a couple of 
steps this way In the direction and Just as I did 
^hat he started over the fence.
Q. When you say you made a couple of steps,
now, which direction are you —  show me where you 
were when you started to make It?
A* I was here and I made a couple of steps
In the direction toward the fence.
Q. Why were you making steps toward the
fence?

^ under. Initially under the Impression
that once I Identified and he stopped momentarily 
and looked at me, that he was going to stay there.
I didn’t want to necessarily gamble on my partner 
getting along, I made a couple of steps In his dlrectlc 
hoping In the'future to go over the fence and we were 
both going to apprehend him.

And then you say, well, tell me then what 
did he start to do as you made your couple of 
steps toward the, I will call It the chicken wire 
fence?
A. About the time that I made one foot In front
of the other, made the step up toward the fence and

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got even wi t h  the fence he s tarted over the fence 

In a leaping, I guess, real lea p i n g  notion.

Q. All right. Then what did you do next?

A. That Is w h e n  I fired one shot and he

fell and d r a p e d  across the fence.

All right. Let me ask you this question.

Why did you fire a shot at that time?

A. Well, first o f  all It was app a r e n t  to me

from the li t t l e  bit that I kn e w  about the a r e a  at\
the time that he was gal^Rg_^o get away because, 

n u m b e r  1, I co u l d n ' t  get to him. My p a r t n e r  then 

c ouldn't find where he was because, you know, he 

was late c o m i n g  around. He didn't k n o w  wh e r e  I was 

t a l k i n g  about. I c o uldn't get to hi m  b e c a u s e  of 

the fence here, I couldn't have J u m p e d  this fence 

and come up, c o n s e q u e n t l y  J u m p e d  this fence and 

caught h i m  be f o r e  he got away bec a u s e  he was alr e a d y  

up on the fence. Just one leap and he was alr e a d y  over 

the fence, and so there Is no way that I could have 

him.

Q. Now, was this all h a p p e n i n g  r a t h e r  quickly.

A. It was h a p p e n i n g  very quickly.

Q. All right. Now, after yo u  fired yo u r  shot,

what did you do?

6 2 3 .

A. Af t e r  I fired the shot I recall my p a r t n e r

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going to the fence area and saying that he was 
hit very bad, and I was stepping over the .fence 
and coming in that direction,
Q, You say ’’stepping over the fence” you are
talking about the chicken wire fence?
A. Right, the chicken wire fence.
Q, Did you have any difficulty getting over
the chicken wire fence?
A. No, I didn’t have any difficulty. The
fence was the size that I, you know, could step over 
it.
Q. Well did you khow at or immediately before
you shot what was Immediately on the other side of 
the chicken wire fence, and did you know what was 
in the yard or anything about the terrain in the 
yard between you and where he was on the fence?
A. I didn’t know what was Immediately what
was on the other side of the fence, I do recall 
seeing some other articles in the yard that would 
have been close to me, clothesline, clothes and 
tub and what have you, which would have closed me 
down to perhaps assure me of having not got, caught

Ihim, having to push these articles out of the way, 
and I surely wouldn’t have found him in the dark.
Q. Let me ask you this question, was there any

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1 question in your mind that you could not apprehend

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2 him on foot?

\1 3 Definitely so. Perhaps if the area behind
i 4 him had been light and I would have known the
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5 general area I would have, you know, I would have if
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6 I could have seen where he went at a later time, what
7 I'm saying from where I was I couldn't have gotten

i 8 to him and have got him without him getting away.
1 9 If there had been a big floodlight where I could
i 10 see —

1 n ^ The fact that you didn't know what was. on
\)1»! 12 the other side of the chalnllnk fence, did that

1 n
13 Influence you in any way at all about your decision?

■ J i 14 A. Definitely so.
j 15 Q. All right. Did you have any concern about
j 16 being able to get over the chalnllnk fence?
ii 17 A. Definitely so, because I could have easily
/*i 18 stepped over the chicken wire fence, but, you know.

ii 19 I had my flashlight in one hand and my pistol In
i<*f 20 the other hand and then we got the handcuffs and
i1 21 what have you on, which la not exactly light, and
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1 22 I would have had to somehow run and hold onto my
1
ii 23 flashlight and hold onto my pistol and somehow spring
4i 24 up and get on across the six and/or six and a half

i 25 foot. No doubt I would have fallen with all of that
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1 In my hand, and then after that I would have to 
try and find out where I was.
Q. How tall are you?

I’m 6-ll.
Q. Did you think that you would have any
difficulty, aside from the fact that you had a 
flashlight In your hand and a pistol In your hand, 
did you anticipate any difficulty In getting over the 
chalnllnk fence. Just climbing It without any 
handicap, such as a flashlight or pistol?
A. I think It would have been some kind of
problem. It is not exact'ly easy for a 6-^ man to go 
over a six. foot fence that way. It would have 
taken some effort.

What kind of footwear did you have no?
A. We had on what they call Jumper boots, they
are somewhat heavy boots.

Would there be any way that you can put 
your foot anyplace In a chain link fence where you 
can put your foot to help you get over the fence?
A. No, It would have had to have been strength,
flipped myself over the fence and then got up and 
tried to go from there. There Is no way to put 
anything, you know, as far as a stirrup to put your 
^o^t In.

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Q. Did you have any concern about the subject
being able to outrun you?

Yes, I did, because I have always got that 
concern, as a matter of fact, well, because of the 
fact he was young and no doubt the fact that he has 
a little more energy, and with me having to run with 
all of the equipment that I had I don't think I 
could have caught him.
Q. Let me ask you this, did you know what was
In the house at that time?
A. No, I had no Idea. The only thing that
I observed, I saw the garbage can under the window 
and the window broken, which indicated to me after 
the subject came out the door that he had been Inside, 
that something was wrong inside, whether there were 
people In the hours or what exactly had gone on Inside. 
Q. Do you know whether or not he had an
accomplice?

I had no Idea because I assume that he 
did because the lady said when she told us the dlreotlo 
that It was, "They were breaking Inside,” which Indlcat 
there might have been more than one.
Q. Did that present a problem for you as far
as going over the chicken wire fence and going 
Across the back yard In the same path where he had

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exited from the back door?
A. Well, it certainly did because, first of
all my partner didn’t exactly -W I think he had 
gotten to the corner of the house somewhat at the 
last minute or so, but he didn't exactly know what 
was going on and I would have had to have watched 
the subject that was on the fence, see ifmy partner 
was there and then watch the side at the same time
to see if there was somebody else in the house who
might have had a weapon or whatever. Basically 
somebody in the house who might come out later on, 
so I think I had my hands full really.
Q. In other words, what you say, you would
have left your backside exposed to somebody coming 
out of the house?
A, Right.
Q, Or somebody in the house who might have
had a weapon to shoot out —

MR. DAYS: I move to strike the
recharacterization of the witness's 
answer.

THE COURT: I sustain the objection
^o the recharacterization of a witness's 
response. Mr. Klein, as you know we can 
only take the proof and evidence from the

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1 witness, and counsel's recharacterizing 
It Is Improper.

Q. (By Mr. Klein) All right. After you got
to the subject, I think your partner got to the subject 
first. Is that correct?
A. Right.
Q, All right. What did you observe about the
subject?
A. Well, first of all where he was on the
fence. He was hanging across the fence about, right 
about In this general area hanging across the fence 
with his arms and chest 'area hanging across the 
fence and his feet hanging back on this side of the 
fence.
Q. All right. Let me go back onw to the time
where you first saw him. Did you know positively 
whether or not he was armed?
A. I really had no Idea as to whether he
was armed or not. I could only see one of his hands, 
and I wasn't really —  I wasn't really concentrating 
on It as such. I assumed he wasn't —  I figured, 
well. If he Is armed I'm standing out In the light and 
all of the light Is on me, the I assume he would 
have made some kind of attempt to defend himself, 
but I had no Idea whatvas In the hand or what he

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1 might have had on his person.
Q. Then after he was taken —  who took him

the fence?
A. My partner and I.
Q. And then what did you all do next?
A. We laid him down In the area and we saw —
we had seen where the wound was. We laid him down 
and I think.we took a handkerchief and tried to 
stop the blood. He had blood spewing from his 
head and we tried to exert direct pressure on 
the wound to stop the blood from running and then 
we called the ambulance,’ for an ambulance.
Q. How long did It take the ambulance to
arrive on the scene?
A, It took the ambulance something like
^hree minutes. If that long, they were very rapid.
Q. And what happened after that as far as
the subject was concerned?
A. He was —
Q. Was he taken away?
A. He was taken to one of the hospitals.
I believe It was John Gaston Hospital.

Did you remain on the scene?
A. Yes, I did.
Q. All right. And what happened after that as

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far as you were concerned?
A. Well, after we, we had noticed really
before then, they took him, but during the time that 
we took him down and laid him down and waiting on

ambulance we noticed there was a woman’s billfold 
there. After the ambulance took him off we left 
that laying there. Before the ambulance took him 
off we reconstructed the whole thing looking at 
where the blood area was, looking at all of the 
Johnson grass was blood, we made note to leave the 
purse where It was, check the rear door of the 
house and saw the footprints and glass broken out.
Q. You saw footprints, did you say?
A. We saw a footprint on the door Just about
the area of the knob where It seems as If somebody 
had attempted to kick the door In. The glass was 
broken out of the door, the screen was off on this 
side of the house.
Q. ^hen you say "this side", which side of
the house, east side or southeast side?
A. The screen was off and somebody attempted
to raise the window but with no success.
Q. All right. Did you go Inside the house?
A. I don’t remember If we went Inside then
or waited for crime scene. I think we might have

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waited for crime sceen to come before we went Inside 
the house.
Q. Did you go in after the crime scene?
A. We did,
Q. What is the crime scene, what is their
function?
A. The crime scene is a, usually one or two
police officers that come out and take pictures of 
the scene, take fingerprints, whatever necessary.
In other words, they process the scene area, the 
entire area, make measurements as to who was doing 
what, where each individual was standing at the 
time as close as possible.
Q. And did they Interrogate you?
A. I believe they did, yes.

• ^ . 1  '■ All right. Did anybody else come out,
any other investigative group cone out?
A. Yes, the homicide bureau came. We called
for the crime scene. We called for an ambulance, 
we called for a crime scene, homicide and a 
lieutenant. And they all made the scene, homicide 

I made the scene, crime scene and the lieutenant.•i
Q. All right. And you gave, cooperated,
I take it, with them and gave statements?
A . Yes, sir, I did.

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Was any action taken against you as a 
result of this shooting?

Yes, I was relieved of duty with pay, 
as Is customary, you know, In any type of action such 4s 
this, they relieve you of duty with pay pending the • 
Investigation. I think that was, to the best of 
my knowledge, that was about Friday. I was relieved 
of duty that Friday morning and I think I was back 
to work that Monday.

All right. Was any disciplinary action 
taken against you as a result of this shooting?
A* No, It wasn't. ’ I had to go before the
Firearm Review Board. We have a Firearms Review 
Board that revlev^s whenever an officer has to fire 
his weapon. I had to go before the Firearms Review 
Board and tell them basically the same thing that 
had happened out on the scene, and no action was 
taken. They found that I was Justified according 
to policy.

You know whether the matter was presented 
to the Shelby County Grand Jury?
A* Yes, It was presented to the Grand Jury
on a charge of murder and no true bill was returned.

All bright. Do you know who testified 
before the Shelby County Grand Jury?

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A.
Q.
A.

Well, I testified for one.
You did?
As far as I can remember. Let me see _

63^1

yes, I testified and I believe one of the officers 
In the homicide squad presented the case to them. 
*3* Now, since that time have you had an
occasion to use your firearm In the line of duty?

MR. DAYS: Objection, Your Honor,
as Irrelevant and immaterial.

THE COURT: What Is the
relevance and materiality, Mr. Klein, 
in matters that occurred subsequent?

MR. KLEIN: Well, Your Honor,
to the extent that there may be any 
contention that he Is prone to use 
his weapon too quickly In any situation.
I Just wanted that, that Is the reason 
that I'm asking the question.

THE COURT: I'm going to sustain
the question, there being no such 
contention apparent to the court at 
this time.
(By Mr. Klein) Officer, do you know what 

kind of clothing that the subject had on?
I don't exactly recall. I know he was

Q.

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fully clothed and I know he had on —  I believe he 
had on a Jacket other than his pants and shoes 
and sweater, I believe he had on a Jacket.

MR. KLEIN: That’s all.
THE COURT: We will take a recess

before the cross examination.
MR. KLEIN: Your Honor, how long

do you propose to go this afternoon?
THE COURT: Approximately 5:00,

depending on what the circumstances 
may be. How many more witnesses do 
you contemplate?

MR. KLEIN: I have got about
four. Your Honor. Well, I would hate 
to Interrupt one, I would like to 

, ■ ̂ get on and off this afternoon and I will,
I guess I will Just have to wait and 
see.

THE COURT: We will try to
accommodate you if we can do that.

(Recess.)
THE COURT: All right, sir, Mr.

Days.

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CROSS EXAMINATION 
BY MR. DAYS:

Q. Mr. Hymon, could you point again to
exhibit 6 and Indicate where you stopped when you 
first got to the back of the house at the southwest 
corner of 739 Vollentlne?

THE COURT: For the record, the
witness has been testifying In 
respect to his direct examination to 
the same Exhibit 6 that counsel has 
Just referred to. All right.

MR. DAYS:' V/ould there be any 
objection from counsel or the court 
^^vlng him mark that particular point?

Would you mark that with this 
pen and put your Initial next to it.

THE COURT No objection.

Q. (By Mr. Days) All right. Did you put.
Just put your mark over there and that will be 
A next to It.
A . Yes.

So that point Is the same point that 
you Initialed, Is that right?
A. Basically.
Q. , Basically the same position. All right.

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Now, when you reached that particular point were you 
able to see anything about the back of the-yard or 
to determine any thing about the back of the house?
A. In what respect.

The condition of the yard, the condition 
of the back of the house?

T could see the yard, the yard area, you 
know. It was directly In front of me, you know, 
the area right In my Immediate surrounding. I couldn't 
tell you what color the door was or anything of that 
nature.
Q* Is that the point where you were when you
heard the screen door slam?
A. Basically. Basically,

All right. Now, what. If anything, could
you see about the back portion of the house, that Is 
the condition of the back portion of the house?
A* Well, I could see the broken window that
was right there by me and the garbage can under the 
window. As I said, I could see the screen door.

Standing from the position that you marked, 
you could see a window that Is approximately 
directly but east from where you were standing Is 
that right? It Is the first window between you and 
the east side of the house. Is that correct?

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A. Not exactly, now, I wasn't standing along
the edge of the house. I was standing slightly 
south.
Q. You were, so you were standing then In
a position different from the one that you Just 
marked on the exhibit?
A. It was basically In the area here.
Q. Would you mark that, please, and perhaps
make an X Instead of a dot.

What I'm trying to determine. It this 
dot Or some otherpolnt other than —
A. I'm just saying It was close to the dot.
It wasn't In a direct line here. It was In an angle 
here where I could see, but I could not tell you 
inaybe w^ere the face of the door was.
Q. Would you be In a position to be able
to put an X on this exhibit that It Is perhaps 
different from the point that Is, from the dot that 
Is already there and Initialed?

Now, was there any light on In the house 
when you got to that point, Mr. Hymon?
A. When I got to what point?
Q* The point that you Just marked on the
exhibit.
A. I don't recall looking for a light. Roughly

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639.
I don't recall looking for a v, .light but roughly I
remember seeing some lights on tgnts on. I remember there was
a light on when I stopped outside i .oxue. i remember seeing
that. I don't know if it wasIt was the same light, you
know, that was reflecting that -̂h^ing that, the particular room.
If that Is what you mean.

You did notice there was some light 
co-lne fro» .Ithln the house, la that right?

1 noticed that before I got to that point.

!outh Of the southwest corner, were you able to see 
ony light coming from the back of the house?

I really don't remember seeing any.
1 understand there were some lights on Ij-j-gncs on, I assume
there may have been a ray or so of i,ay or so of light coming, but
I don't recall seeing any.

 ̂ recall you correctly m  that you
toatlfled that there was a portion broken out In the
dnor. some glass missing from the door 1„ the back 
° ^he house?

”lght.

So that there were light on inside, would
fair to assume that It would reflect through 

that broken window?

No, It wouldn't be because when we determined

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that the glass was broken we also determined that 
there was a curtain at the door.
Q. I see. But you do recall some light
reflecting from that particular area?
A. I recall that after the Incident is

6̂10.

over, yes
Now, I belive you testified on direct 

that you really couldn’t see what was behind or 
beyond this chain link fence that was on Exhibit 6, 
is that correct?
A. Right.
Q. You couldn’t s>ee what was back here
behind this cyclone fence?
A. At what point?
Q. - At the point where you were standing
south of the southwest corner of the house?
A. Before the shot?
Q • "̂ hat ’ 3 right.
A. No, I did not, I was not concentrating
°n that.

O.K. Well, if you didn’t know what was 
behind that particular fence, how was it that you 
determined that if this individual got over the 
fence he would most definitely escape your capture, 
your apprehension?

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A. Well, for one thing it was dark.
Q. Well, isn't It possible that there could
have been a ditch right on the other side of that 
fence into which the person would have fallen and 
you would have captured that person?
A. I would assume that that is possible.
Q, That is possible, isn't it?

Now, I believe you indicated that you 
gave statements to various entitles of Memphis 
Police Department with respect to the Incident which 
you were Involved, is that right?
A. Yes.
Q. Is that correct?
A. Yes.
Q. Did you on any occasion give a report which
was signed by you after you gave the statement?
A, I think I did.
Q. Well, let me show you a document and
ask you —

MR. KLEIN: Let me see it.
Q. (By Mr. Days) Let me show you this
document and ask you whether you can Identify it?

This seems to be a statement —  it seems 
to be a statement that I might have —  it was typed 
and I initialed it.

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6̂ 12.
Q. Let me direct your attention to the last
page and let me ask you If the document Is signed?
A. Yes.
Q. Is that your signature?
A. It seems to be.
Q. Do you have any doubt that that Is your
signature? i
A. Not particularly.
Q. All right. Now, I believe you testified
on direct that In addition to the chicken wire fence 
ihat was In the back of the yard, that there were 
other obstacles between 'you and the Individual,
Is that right?
A. Right.

And you mentioned something about a 
clothesline being there?
A. Right.
Q* Now, this statement that was given to the
Memphis Police Department, was It not, was given 
at what time In relationship to the time of the 
shooting, do you recall?
A. I don’t have any Idea, I don't know whether
It was given that night.
Q. It was given shortly thereafter, wasn’t It?
A. I assume so.

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643.
Q. Do you have any doubts, if you want to
look at this document —
A. I was looking at, I don't recall exactly
when It was given.

But It was shortly thereafter?
A. I would think so.
Q* Would you say that It was at a time when
circumstances of the shooting was fresh In your 
memory?
A. I would probably say they were fresh
and fuzzy due to the excitement.
Q. All right. Probably a fair comment.

Let me direct your attention to page 2 
Of this document a nd ask you whether there Is 
anything In your statement that reflects the fact 
that there was a clothesline In the back of the 
yard?

> It Is not.
Q. There Is no reference to It, Is there?
A. No, there Is not.
Q. All right. Now, after the Individual,
I assume we are taMng about Edward Eugene Garner, 
are we not?
A.
Q.

Yes .
Was shot by you, I believe you Indicated

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1 that you stepped over the fence, that Is the chicken 
wire fence and you went over to where the body was 
located, is that right?

Right.
Q. Do you have any estimation of howlong
it took you to move from where you were on the west 
side of the chicken fen?e over to the east side and 
to the cyclone fence?

No, I don’t. I imagine it was rather 
rapid because after the shot I really wasn't expecting 
necessarily to hit him. Because of it, after my 
partner told me he had been hit and bleeding badly 
from the head, I might have got stunned and stood 
there for Just a minute, I don’t know if I rushed 
immedlatley over there.

Once you started moving from the west 
side of the house over to the east and to the 
cyclone fence, how long do you think it took you?
A. Well, it didn’t take me that long. I
almost got my neck hung on the clothesline wire. It 
didn’t take me very long. Just a matter of ducking 
and moving around.
Q. All right. And I believe you testified
that at the time that you got to the back of the 
house you didn’t have any knowledge of v/hether there

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645.
was one person or several persons in the house. Is 
that right?
A. Well, from the indication, what the lady
gave, I assumed that it was more than one because 
she said, "they", and ”they'* means plural.
Q. Well, what are you taught, Mr. Hymon,in
terms ofproper police procedure if you think there 
is more than one person running from a house where 
a burglary has been committed and one person runs 
out to a houseand you, as an officer, are exposed 
to the back of the house and don't know whether anothej? 
personi is going to rush but of the house, or is It, 
is the procedure one of shooting at the first person 
who is trying to go out of the ydrd or not shooting 
at the first person or waiting until the second 
person exits before taking any action? What generally 
is the proper procedore, if you know?
A. Well, the procedure for me would be if I
thought there was more than one, to approach the 
°ne who I did see in a way where I could also, so 
if possible, see the openings of the house. In 
other words, I approach him cautiously.
Q. In other words, you would, if I understand
you correctly, make certain that you would not be in 
a position where you might be shot by someone running

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out of the house who happened to be armed?
A.
Q.
fence?
A

Or for him that, or him for that.matter. 
Or the person that was climbing over the

Right.
Q. Well, did you do that, did you feel that
under the circumstances that you were In a position 
whereby you wouldn’t open yourself up to this type 
of possible Insury by a second person, coming out of 
the house?

^®ll. Ideally I say that Is what I would 
do, but when you get In that moment of situation, I 
recall perhaps not, you know. Jumping and running 
over to him as I knew he wasn’t armed because I 
really didn’t know. I recall being a little 
cautious, I don’t know If I Just lingered and stood a- 
round waiting for somebody else to come out of the 
house. I dorlt recall doing that at all.
Q. I believe on direct you also testified
you really didn't know whether Garner was armed. Isn't 
that right? Isn’t that what you testified?
A . True.

^et me direct your attention again to a 
document that I showed you earlier and ask you whether 
In the course of this examination you were asked anything

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about whether you saw anything in Garner's hand, and. 
If so, does it Indicate what you answered?

Yes, it mentions that.
Does It Indicate whether you at that time 

stated that you saw something In his hands or did not 
see something in his hands?

Well, the statement asks did I observe 
anything in his hand. And I say, no, I did not. No 
I did not observe anything in his hand.

right. Do you recall being examined undu 
oath by me earlier this year, do you not?

^oughly, yes.
right. Do you recall being asked the

following question s and being asked the following _
giving the following answers, starting at page 97.

'• "Question. The chest area. Well, his 
chest wasn't toward you at this time, was it?

Answer, No, I guess his back would have 
been toward me at that time. It wasn't exactly 
toward me; his whole body was at an angle,"

Do you remember that?
Yes.
And the question, "His whole body was at 

an angle" meaning exactly what? Could you see part 
of his fact at the time that he was climbing over?

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"Answer. Just the side."

A.
Q.
face?

Is that correct?
Yes.
"Question. You could see the side of his

"Answer, ^es."
Is that correct?

A. Yes.
Q. "Question. Could you see part of his
chest?

"Answer. No. Hla chest would have 
been In front." Do you i*ecall giving that answer? 
A. Yes.
Q, "Question. Could you see his hands at
all times?

"Answer. I’m reasonably sure I could." 
"Do you remember giving that answer?

A. ,When I gave that statement I don't know
if I said hand or hands. I remember something 
about hand but I don't know If It was plural at 
the time that I gave the statement.
Q. I did ask you something about whetherjou
couid see his hand or hands?
A. Right.
Q, And your answer was, "I'm reasonably sure

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1 I could."
A.
Q.

Right.
You don’t really have any doubt, do you,

Mr. Hymon, that you could see Mr. Garner was unarmed 
at the time that you fired that weapon?
A. I ’m sorry, was that a question?
Q. Do you have any doubt at this time?
A• I don’t have any doubt at this time because
I have been through that, and I know, you know, 
once that we got over to him that we didn’t see 
^J^ythlng, but the fact Is that Is that when I was 
standing at that particular angle only one of his 
hands, as far as I can remember, was In view by him 
standing at an angle. It Is not likely that I 
could see both of his hands on the same stand, that
Is why I, I say I don’t know If I said hand or hands
at the time. I merely responded because I could 
see one of his hands and I stated that as far as 
I could see he didn’t have anything In that hand.
Q. So that your testimony Is that you could
certainly■see one hand but perhaps not see the 
other. Is that right?
A, Right.

" MR. DAYS: Just one second.
THE COURT: Yes, sir.

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Q. Dlrectlngyour attention to page 95 of
the deposiUon, do you recall being asked this question
and giving this answer, Mr. Hymon.

'•Did you Indicate anything to your 
Partner about whether this Individual was armed?”

And giving this answer;
"I don't recall us discussing that. I'm 

sure that the —  excuse me. I'm reasonably sure 
that the Individual was not armed, because had he beer 
armed, I assume that he would have attempted to 
show that by firing a weapon, or I assume that he 
would have thrown It down, or I assume that I would 
have seen It.”

Do you remember giving that answer?
A. I do.
Q. Do you remember being asked this question;

"Well, If you had had any questions about 
whether this person was armed, would It have been 
your responsibility to notify your partner of that 
fact?"

And do you recall this answer?
"Definitely.”
I do .
And do you recall this question on page

650 .

A.
Q. ; 
96.

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"And what vfould have been the normal way 
you would have gone about notifying your partner of 
the fact?

Do you remember that question?
A. I do.
Q. And do you remember giving this answer?

"Well, I would have —  the thing I would 
have said, I guess,.is that, "He has a weapon" 
or "He has a gun” and I would have taken more cover 
than what I had.”

Do you remember giving that answer?
A . Ido.
Q. Now, after Garner was shot I believe you
indicated that you and your partner went over and 
removed the body from the fence, is that correct?
A. Yes. '

And do you recall having any difficulty
in removing the body from the fence?

had minor difficulty because the wire 
sticking up on the top of the fence and I think 
generally probably some of his clothes got hung In 
the wire.

MR. DAYS: I have no further
questions.

THE COURT: Anything further of

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this witness?
e x a m i n a t i o n

BY MR. KLEIN:

Q.
A.
Q.
A.

Can you identify this, please, sir?
It seems to be a picture of the back yard 
Is that the backyard?
The backyard at the time of the shooting.

739 Vollentine I believe.
Q. Is that the way that it existed as you
recall it at that time?
A. As I recall it.

MR. KLEIN: All right. I*m going
to ask that be made an exhibit to his 
testimony.

THE COURT: Without objection let
it be Introduced.

THE CLERK: Number 26. .
MR., DAYS: No objection. Your Honor.
(Whereupon, the said photograph 

referred to above was accordingly marked 
Trial Exhibit 26 and received in evidence)
(By Mr. Klein) What does that depict. 

Officer Hymon?
A. It depicts a garbage can in the rear of
^he house under the window, washing machine, tub

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‘m 1 on some bo a r d  and stones, a ladder, a c l o t h esline.

: n 2 some clothes on the line, a house on the rear, the

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3 side.

}i1 4 Were all of those Items or most of those
}
i 5 Items that you m e n t i o n e d  b e t w e e n  you and where Mr.
j 6 “̂ arner was an d  his p o s i t i o n  by the fence?
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7 A. Yes, sir, they were.
i 8 MR. KLEIN: T h a t ’sail.
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9 THE COURT: A n y t h i n g  further?

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10 MR. DAYS: Let me take a look at
i•t1*

n the picture. If I may. Your Honor.

i■)
12 . THE COURT:’ All right. You may.
13 REC R O S S  E X A M I N A T I O N

i 14
BY MR. DAYS:

,
15 Q. D i r e c t i n g  your attention, Mr. Hymon, to

i 16 exhibit 26, there Is a metal pole that seems to be
\1 17 s t i c k i n g  up here next to the clot h e s l i n e .  Do you

j 18 kn o w  what that Is?

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19 A. It seems like It might be a rake.

t
f 20 Q. All right. Now, In r e l a t i o n s h i p  to the

21 point wh e r e  Garner was shot, can yo u  Ind i c a t e  w h e t h e r

i 22 there appears to be c l o t h e s l i n e  —  clothes o b s c u r i n g
]1 23 the area where Ga r n e r  was on the fence If you were
i •

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24 s t a n d i n g  w h e r e  you stated that you were standing?

25 A. No, there would not be any clothes o b s c u r i n g

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Q. All right. Can you tell from this
photograph whether the clothesline was as high 
as the cyclone fence, higher or lower than the 
cyclone fence? It Is hard to tell. Isn’t It?
A. It is because of the darkness In the area 

MR. DAYS: I have no further
questions.

THE COURT. 0̂14 may step down,
sir.

(Witness excused.)
THE COURT: You may call your

next v/ltness.

X « » « »

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655 .

m 1 VELTON J. ROGERS,

. n
2 having first been duly sworn, was examined and

1 3 testified as follows;
1

4 DIRECT EXAMINATIONi
5

BY MR. KLEIN:
i

6 Q. State your name, please.
A 7 A. ^elton J. Rogers.
} 8 Q.. Where do you live, Mr. Rogers?

9 A.- 3^64 Felton Road.
i 10 Q. Is that In Memphis?

j n A. Memphis.
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12 Q. What is your occupation, please. sir?
1
] 13 A. Probation officer.\ O) 14 Q. VJlth whom are you associated as a probation
1i 15 officer?

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16 A. Memphis and Shelby County Juvenile Court.

} . • 1 17 Q. Are you here today In answer to a
i / 18 subpoena of which I asked you to bring certain
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19 records with you?
1 20 A. Yes, sir.
- 21 Q. All right, and do you have those records
! 22 '*'lth you, please, sir?
1 23 A. Yea, sir.
]
i A . 24 Q. All right. And who do those records pertain

25 to, Mr. Rogers.
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A. Edward Eugene Garner.
Anybody else mentioned in any of your

records?

y J e l l , there Is, it Is a social family file.
'̂* right. When you say social family,
does It pertain to one family?
A. Yes, sir.

Which family would that be?
The Qarner family.

right. In addition to Edward Eugene 
Garner, does the file cover any matters concerning 
any other members of that family, and. If so, who 
are they?

Yes, sir. It has Larry Garner In the file 
and Curtis.

address Is shown for all of the Garner
children?
A. 928 Tully.

right. With regard to —  well, let me 
ask you this. Are you personally familiar with the 
Garner family?
A Y es, sir, Eugene —  Edward I am, but not 
the other boys.

right. Had you handled any matters 
Involving Edward Eugene Garner?

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A.

Q.

A . Yes, sir.

right. What matter did you handle 
personally involving Edward Eugene Garner?
 ̂ I handled a matter concerning burglary

back in really November of «71, and violation of 
°urfew that occurred in October »73 and a burglary 
^hat occurred July '7 1̂.
Q. July of *74?

Yes, sir.
All right. Tell us about the first 

burglary, what brought, what are the facts surrounding 
that or how.did it cime to your attention?

arrested as a result of he and 
several other younger boys, he was twelve at the 
time, going into the Porter Leath Home at 850 North 
Manassas. They placed a charge of burglary in the 
third degree against him. Seems like they went throug 
a window and went into the place. It wasn’t an | ' 
actual break-in as such, but it was an Illegal entry.

 ̂ you handle that matter? :
Yes, sir.

6 5 7 .

A.
Q. Who did you deal with in the family, do
you remember? 'i
A. Edward and his father, I ’m pretty sure. '

ahead, if you need to refer to something
6SB

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A. He and his father.
All right. What was the outcome, or 

disposition of that matter?
A. He was placed on probation.

All right. Was he placed In the custody 
of his parents?
A. Yes, sir.
Q* Any Instructions given with regard to or
^ny terms of probation?
A. Well, I was —  there should be. I can't
verify that because we have an auxiliary probation 
service and we refer this’ —  this ends my dealing 
with them once he's placed on probation. I make 
referral to the auxiliary service and they set the 
Instructions. We have the rules or form.

What did the-rule generally cover, times 
when curfews or limited activities anyway?

Yes, sir, they say a child shouldn't be, 
we leave blank the time and the supervising probation 
officer from the auxiliary services Is the one who 
sets the time and says that he shouldn't be out past 
whatever time they put In the blank without being 
with the parent or guardian or some responsible 
person whom the parent approves.
‘5* All right. What was the next, I think you

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mentioned curfew violation, la that correct?
A. Yes, air.

did that Involve?
A. Being out past midnight. It was a matter
for my understanding In talking to him where he had 
permission to work at a close-by like sundry store 
^"d while some Incident occurred there on the street 
and he went out to look at it and while the officers 
were there they saw that he was quite young and 
talked to him, and being out past midnight they 
issued him —  well, I guess they arrested him.
Q. All right. What was the dlsposltloi of that?
A. That was adjusted, non-Judlclal after
warning and counseling.
Q. All right. Was he again placed in the
custody of his parents?
A, Yes, sir, he was not at the time under
Supervision and we didn't, because he had served 
the first period of probation and we didn’t reactivate 
his probation.
Q. And what Is the next event that you have
recorded?

Burglary, second degree.
/';Q. Burglary second degree?
V. A. Yes, sir.

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1 Q.
A.
Q.

660.
What is the date of that?
Of June 30, 197^.
June 30, 197^. All right. What does that

Involve?
"̂ hat had to do with an Incident —  well, 

the parent brought this to the attention of the 
police officers. Seemingly he had gone Into a 
close neighbors home and obtained some money In a 
Jar, I think it was In a jar, and the family found 
out about It and called the police to rectify the 
matter. They didn't arrest him. At that time they 
Issued him a juvenile summons and he was later 
summoned into the court.
Q. All right. And what was the disposition
of that?
A. He was given a suspended sentence,
commitment as we call It, and placed on probation.

Well, what was the commitment. In other • 
words, how does the sentence read?
* When read the petition sustained committed

to the Tennessee Department of Corrections, 
commitment suspended and placed on probation.

All right. And what does that probation
mean.
Q. It means that he's to stay out of trouble

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1 and that he's to obey his parents, that he's to, 
whatever time the probation officer that supervises 
him in the home gives for him to be home, that he 
is to abide by that. Well, just —
Q. Do you know what time was given pursuant
to this probation as to what —
A. I sure wouldn't. I sure don't.
Q. When you say the probation officer in the
home, now, what do you mean by that?
A. Well, see, we have auxiliary or volunteer
service and they are the ones who provide this 
service. It is provisions in the home.
Q. They will provide or specify a time for
him to be in, is that correct?
A. Yes, sir.
Q. All right. Is there any comment on there
with regard to anything said by the father?
A. Well, yes, sir, I noted a comment wherein
the complaint before we went to court, the last 
complaint, we did talk about supervision, and at that 
time I think the father was quite concerned that the 
boy would get into this trouble and I guess with 
a stern type^feeling and attitude he felt that 
maybe commitment might have benefited the boy at 
that time. However, the court —  I recommended

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1 probation, and, of course, the court thought -- 
3aw fit to give —  may I see that?
A. Yes, sir.

MR. KLEIN: Excuse me Just one
minute. Your Honor.

THE COURT: Yes, sir.
MR. KLEIN: If I may approach

the witness.
THE COURT: Yes, sir.

(By Mr. Klein) Is this what you are 
talking about, sir, and If It Is I will ask you to 
read the recommendation. '
A. Yes, sir.

Read that. If you will.
A* ’’Recommendation: Probation supervision
Is recommended. However, the father leaves the 
Impression that the boy needs to be committed.”
That Is Just what I was talklngabout.
‘3* That Is your comment. Is that correct?
A. Yes .

All right. With regard to the other, you 
mentioned, I think, Larry Eugene Garner and Curtis 
Garner, what did you handle them for?
A* I didn't handle those now.

All right. What does the record show?
691

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1 Oh, assault and battery against Larry 
and truancy and reckless driving against Gurtls.
Q. Does this mean that these are all matters
that are handled by the Juvenile court?
A. Yes, sir, they were all handled, well,
administratively non-Judlclally.
Q. All right. In those Instances Is there
any contact made with the parent?
A. Yes, sir.
Q. And which parent was that contact made
with?
A. The record shows that the two contacts
were with Larry released to mother after counseling. 
I ’m not sure — . It doesn't exactly say In the case 
of Curtis.
’5. All right. Is there any comment in
connection with any of those matters where the 
father made some comment with regard to the concern 
about leaving them under the supervision of the 
mother?
A. Yes, I —  at one time In explaining In
my visiting and contact the reason for supervision 
for Edward at that time. The father explained that 
he was working at a 4:00 to 12:00 p.m. shift and at 
that time they weren't getting as good supervision

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as they could have been had he been home and that 
the mother was not able to provide the supervision 
that they needed at the time.

MR. KLEIN: That's all I have.
THE COURT: You may examine.
MR. DAYS: All right. Your

Honor.
CROSS EXAMINATION 
BY MR. DAYS;_____

Q. Mr. Rogers, I believe you indicated that
at the time that Edward Eugene Garner was brought 
to the attention of the Juvenile authorities for 
a curfew violation that he received a certain type 
of counseling, is that right?
A, Yes, sir.
Q. Would you Indicate briefly what the
nature of that counseling was?
A. Basically it is a warning, this was a little
‘̂ ^fferent from the normal violation of curfew.
Informal circumstances you Just find a kid out, but 
with the, after talking to him and with the parents 
and finding that there was Justification for him 
being there and that they had this set up where the 
owner of this place would deliver him hont̂  and 
seemingly he was under supervision, so we Just

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talked about it and made sure that it wouldn't happen 
any more. And we left, you know, we didn’t feel that 
punishment or any type of supervision probably was 
necessary at that time.
Q. Did you have occasion to discuss with
^^ward the circumstances of the first charge?
The burglary at North Manassas?
A. Yes, sir.
Q. And do you recall what he indicated or
^ased upon your discussion with Edward did you come 
to anyiconclusion about the circumstances surrounding 
this particular incident?
A. Ye^ sir. Now, Inreferrlng back to the note
I made that Everett stated that he, Michael Eason 
and Jeffery Beckton did break into the Porter Leath 
Home. They were playing in the yard and decided to 
go through a window. They ran when the police came. 
They had been into the building prior to on a prior 
^ate, this was basically what they told me.
Q. And do you know what the age of the other
boys' were at the time, were they older or younger?
A. They were fairly close the same age. One
of them seemed to be younger because I can remember 
making an adjustment in the case due to his age 
or something, about ten years old or something.

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1 Q. The burglary charge In June of 197^,
you Indicated that you talked to Mr. Garner and 
to Edward, and I believe you indlcatd that Mr.
Garner urged you to have his son committed to an
institution, is that right?
A. It wasn't necessarily urging. I think
it was Just a statement that of feeling, I think —

• • I ' ,

Q. But you, in fact, did not recommend that
he be committed, is that right?
A. That's right, yes, sir.
Q. And can you state why you didn't make that
recommendation?
A. Well, probation officers, we generally, I
guess, stretch the rule, I guess, in favor of the chll(jl 
And we seemingly make recommendations sometimes even 
for probation when the Judge doesn't agree with us, 
so we try to keep the child in the home if any way 
possible.
Q. Do you think that in your own mind that
the decision that you reached was an appropriate one?
A. I thought so at that time. Well, I felt
this way, that if it didn't work, well, you know, 
we would Just have to do it later.
Q. I see. Well, did you get any Impression
of Edward's home life and the role the parent played

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In the home from your discussions with him and his
father? What would you say that the home life was
like? I know that you Indicated that there was
some question about the mother providing adequate
supervision. Is that right, but what else do you know
about the family or conclude about the family?
A I felt that the circumstances, the 
father worked and being out of the home probably 
at a necessary hour, because of the hour. The day 
time hour the children are In school and when they 
are home they would need that strong supervision 
that the father could provide, and as Indicated, 
knowing that from the prior discussion that the mother

I

seemed that she didn’t have that control that the kid 
needed.

you know anything about whether Mrs. 
Garner was a sickly person or not?

sir, that was —  I didn’t get any 
deep details from it, but I got that Impression.

Aod can you Indicate, If you recall, how 
you got that Impression?
A* Well, first I think I got —

MR. KLEIN; If It Is being based 
on something somebody said. If It is 
something based on his knowledge I think

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that is all right.

THE COURT: I will ask at this
time at least that the witness respond 
on personal knowledge. You may Inquire 
Into the other If appropriate.

A. I didn’t have any personal knowledge, no
sir.
Q. Did you ever have an occasion to talk
to Mrs. Garner?
A. Yes, sir, I talked to her. She was present
at the last court hearing when we went to court.
Q. So she came to.'court with her son and
with her husband?

No, sir, her husband didn’t come at this 
one. He came to the conference and she came to the 
court hearing.
Q. I see. When was this hearing held?
A. August 26th.

And do you know what time It was held?
A. It was the morning —  well, here —  It
would have been at 10:00, 10:00 a.m.

MR. DAYS: Just one second. Your
Honor, I would like to look at the 
document that the witness has.

THE COURT: Yes, sir.

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MR. DA^S: The document with
respect to the other members of .the 
family.

Mr. Days) Mr. Rogers, with respect 
to the complaint against Larry Garner, does the 
record indicate anything about whether a determination 
of culpability was made or any determination whether 
Larry was guilty of the charges?
A. No, sir, it wouldn't, it doesn't indicate
that. In the first complaint it was a Juvenile 
summons which was Issued by the police officers. He 
^as not arrested, and I would assume that the officer 
that handled the case, based on some admission on 
the boy's part, adjusted non-Judicially feeling that 
it was not necessary for it to be presented to the 
court.

Does the record reflect whether the parents 
®f Larry Garner were involved in any meetings with 
Juvenile authorities about those incidents?
A. Meetings?

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Q. That's right.
Yes, sir, it reflects that the parents 

were present with the child at the time of the
conference.

MR, DAYS: All right. Thank you

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very much. No further questions.
THE COURT; Anything further?
MR, KLEIN: Just let me see your

report again real quickly, please, sir.
REDIRECT EXAMINATION 
BY MR. KLEIN:

Q* Sir, in thelast matter that you handled,
which was, I think you aald August the 26th of 1974, 
as far as Edward Eugene Garner is concerned, he 
was placed on probation?

Yes, sir.
^ow long does t'hat probation last?
That would have been a year of supervised

probation.
Does that mean on October 3, 1974?

A, On probation.
MR. KLEIN; Thank you, sir.

. HR. DA.YS: No further questions.
EXAMINATION BY 
THE COURT;

Q* Mr. Rogers, what, if anything, do you
recall about what is the, what is your impression 
about the physical size and appearance of Edward 
Eugene Garner now on the last occasion of the court 
hearing in August of ’74?

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A. Well, I would think that he was of normal
size for fifteen years old, not small and-then not 
overly large for his age. I thought he was probably 
normal size, yeah.

THE COURT: O.K. Anything
further?

MR. KLEIN: Nothing further.
MR. DAYS: NO, Your.Honor.
THE COURT: Thank you.

(Witness excused.)
THE COURT: You may or may not

able to conclude the testimony 
of the next witness.

MR. KLEIN: I will go ahead and
, Your Honor, and go as long as 

Your Honor wants me to.

» « k « X

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6 7 2

LESLIE BURTON WRIGHT,
having first been duly sworn, was examined and
testified as follows:
DIRECT EXAMINATION 
BY MR. KLEIN;

Q. State your name, please, sir.
A. Leslie B. Wright.
Q. How do you spell your last name?
A. v/-r-l-g-h-t.
Q. Where do you live, sir.
A. 1221 Abernathy.
Q. Is that In MemiJhls?

Yes, sir.
What Is your occupation?
A policeman with the Memphis Police 

Department.

Q.
A.

Q. How long have you been with the Memphis
Police Department?
A. Two years and ten months.
Q. All right, sir. Did you go through the
academy, the training academy for new officers?
A.
Q.
A.
Q.

Yes, sir.
Do you remember what session you went through 
The 37th.
The 37th session?

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A. Yes, sir.
i o

A Q. Were you with the police department on
i 3 October 3, 197^?/ 4 A. Yes, sir.

j 5 Q. All right. And were you on duty that
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7 A. Yes, sir.
\ 8 Q. And, if so, what hours were you on duty
* 9 that day?
1 10 A • I was working the i»:00 p.m. to 12:00
i\ 11 midnight.
ij 12 Q. All right, sir. And did you have a partner?
o 13 A. Yes, sir.

j 14 Q. And who was your partner?
!{i 15 A. E. R. Hymon.
11 16 Q. Is that the gentleman seated right here
1i 17 (indicating)?
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18 A. Yes, sir.
'\ 19 Q. All right, sir. Were you all assigned to)
1 20 a certain precinct at that time?
1 21 A. Yes, sir, we were.
i 22 Q. All right. V7hat was that?
1 23 A. That was the, then called the north

24 precinct.
25 Q. And what about wards, are you designated

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1 certain wards ?
2 A. We were assigned to a partIcular-ward that
3 night.
4 Q. All right. What Is a ward, Is that a
5 geographical —
6 A. Yeah, Just an Imaginary area with Imaginary
7 boundaries which you stay Inside and answer calls
8 In that ward.
9 Q. And were you all In a patrol car at that
10 time?
11 A. Yes, sir.
12 Q. Now, what‘ward were you In on that
13 evening?
14 A. ^̂ e were assigned to the ward designated
15 128 .
16 Q. 128, all right. Do you recall getting a
17 call with regard to a breakln at 737 Vollentlne
18 that evening?
19 A. Yes, sir. It was a prowler Inside call.
20 Q. And who received the call?
21 A. I did.
22 Q. Is that the way that It came over to you?
23 A. Yes, sir. It was put out by the dispatcher
24 as a prowler Inside.
25 Q. What did that Indicate to you?

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Indicated there was somebody who had 
broken Into a house at that location.
S', Do they, always designate the prowler or
do they ever say burglary or does It vary how It 
comes out over the wire?

Sometime-  ̂t- ^es it Is burglary in process, that 
la the only other designation that I have heard 
Of that.

any distinction. Is there 
any distinction as far as you are concerned as a 
prowler inside or burglary in progress?

'"a a prowler Inside means 
they have broken-Into a place where they are not 
supposed to be and that is a burglary offense.

Approximately what time did you receive
this call?
A. _ ,

I can t be sure of exactly the time. It
was about ten minutes before the hour of 11;00 at 
night.

Q- All right, sir. Not too long before you
were due to get off, go off duty?

^oald have been about an hour
before we got off.

Where were you when you received the
call?

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A. We were at the fire station. I*m not
sure which number it is. On Chelsea Just east of 
North Watkins.
Q. All right. And were you in the car or
was your partner in the car when you received it?
A. No, sir, he was in the flrestation.
Q. All right. And did you tell him that you
^ad received such a call?

Yes, sir. I did.
Q. All right. What did you all do then?
A. I was driving. We proceeded west on
Chelsea. And since this 'call was out of our area 
and we weren't familiar with the location, Vollentlne 
runs east and west south of Chelsea, so we went 
left, south on Watkins and hit Vollentlne and ran 
Vollentlne all the way to a dead end and it dead 
ended in the hundred block that was different from 
the 737 where we were going, so we had to go all the 

to North Thomas and then go North on Thomas to 
the other side, the North side of Chelsea to catch 
Vollentlne again where it ran east and west north 
of Chelsea. So we came in from the, from North 
Thomas, went east on in that particular, in the 
six and seven hundred blocks of Vollentlne there off 
Thomas, so we came eastbound on Vollentlne.

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Q. All right. Now, Is It accepted practice
for you to go outside of your ward?

'̂̂ ell, that Is a pretty busy area of town 
and when a car Is out of service In an area they 
usually send the next closest available car to 
answer calls In another ward, particularly If It 
la a more serious type call,and prowler Inside Is 
a fairly serious type call.
Q. Does the call come out to anyone on the
network or comes directly to a particular car?
A. At that time on the radio system we were
using, all of the cars running In the north precinct 
area would have heard the call, but we were the only 
ones who would have acknov/ledged It, and our call 
letters were 128, so It comes specifically for us 
to respond.
Q. Did you all acknowledge?
A . Yes.
Q. All right. Then you proceeded on, you
finally made It to Vollentlne?
A. Yes, sir.
Q. And where did you go then?
A. We stopped right In front of 737,
In front of the street and there was a female black, 
standing In front of that house, either on the

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1 por^h or on the ground. She was In her night —  

housecoat or nightgown, it wasn't normal -street 
wear, I remember, and she was pointing to the house 
"ext door which we found later was 739 Vollentine, 
and she was moving her mouth but both of us were 
inside the car, and, of course, the engine was 
running and couldn't hear anything. So my partner 
opened the door and got out and went over to her 
and she v;as still pointing and she wasn't saying 
anything. Finally, I was leaning over in the street 
like this trying to hear what she was saying through 
the open door. She said, "Somebody is breaking in 
there right now." And she is still pointing to 
739. So my partner comes back to the car and gets 
his flashlight and says, "Show us on the scene."
 ̂hadn't advised the dispatcher on the radio that 
we had arrived on the scene, which is the proper 
procedure that you are supposed to do, let him 
know that you have gotten to the scene. So he 
gets his flashlight, he says, "Show us on the scene" 

gets out of the car, actually Just leaned in 
and picked it up and went down toward the south 
°f 739 along the west side of that house, and I 
got on the mike and turned. Just turned the car into 
the curb to where it was almost, or almost in front

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Of 739 and advised the dispatcher once that we 
were on the scene and another transmission from 
some other car, so we didn’t acknowledge it, so I 
advised him again, ”128 at the scene.” And he 
acknowledged it, so I Just opened the door and 
sot my flashlight and I went around the northeast, 
to the northeast corner of the house, 739 —  

yeah, it is northeast, and I was shining my flashllgh 
and looking along the, it was the fence along the 
left side of it, it was a driveway, as I remember 
it was all concrete and I was looking along the 
fence to see if there were any breaks and down to 
an outbuilding there that was at the end of the 
fence, I thought it was a garage at first, but I 
later found out it was too small to be a garage.
And I heard the screen door slam, sounded like a 
screen, wooden screen door from the back of the 
house and I heard my partner yell, "Halt” and then 
there was a short pause, a couple of seconds, 
and 1 heard one shot. And at that time I ran to 
the back corner and there hadn’t been any verbal 
communication after the shot, I didn’t know whether 
someone had fired at my partner or he had fired 
at someone else. So I came around the corner of 
the house slowly shining my flashlight.

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680.
Q.
about?
A

Which corner of the house are you talking

Now, that is the southeast, that is the 
back corner.

All right. Let’s look at this. If you 
would, please, sir, and this has been marked Exhibit 
6, It has already been Introduced into evidence.
And ask you if you will Just assume that this is 
the house at 739 with the back yard, and what I'm 
pointing to now has been referred to as a chain link 
fence five and a half to six feet tall with the 
direction, the front of the house faces north, the 
•back of the house faces south, and if you would 
point out v/hlch side of the house that you went 
^°wn and where you were.when you heard the shot?
A‘ Let’s see. I pulled the car in here and
I got out of the door and I ran around, there is a 
picket fence that is r\ot shown. I ran around it,
•come down to right here, when the, when I heard the 
screen door slam and my partner yelled,"Halt”, and 
as soon as I heard that and my partner yelled, "Halt", 
I stopped momentarily and then I heard the shot and 
then I ran around, there is a window air conditioning 
unit that stuck out here, and I ran around it, come 
down to this corner right here and came around this

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1 corner slowly shining my flashlight in this direction. 
Q. ■you say "this direction", you are talking
about which —
A. That is going to be west, yeah, west over
in this direction to try and pick up my partner.
My partner had his flashlight out, too, and his 
pistol drawn, and I had my pistol drawn, and he 
pointed out with his flashlight and said that 
"He’s on the fence." And I swung my light along the 
fence here until I come to the subject who was draped 
over this chain link fence right here, right Just 
the edge of this small outbuilding. He was draped 
over, torso, arms and head draped over on the 
south side of this chain link fence and legs draped 
over the north side right in the bend of the body 
Just where the hips Join the abdomen, and there was 
a large volume of blood coming from the head of the

V

subject in a steady, stream about three quarters of 
inch in diameter. Really the most I had ever 

seen. And I was standing about here, and I took 
a couple of steps closer and I said, I said, I better 
go get an ambulance. And I believe my partner said, 
"Yeah, it looks like he's hurt pretty bad." He was 
moving toward the subject, so I ran back around the 
front of the house to the front of the car. We weren't

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carrying walkie-talkies at the time, and got to the 
radio and advised them that the subject had been 
shot and that we needed an ambulance and the other 
cars that were needed on the scene. There is a 
crime scene and homicide and a lieutenant be sent 
there. .My partner was, ray partner was taking the 
subject down from the fence at that time, and I 
started, and I started back from the car, and my 
partner met me right in here and asked me if I 
would call for all the cars, the cars again, and 
he had blood on his uniform. And I had forgotten 

crime scene. I hadn't asked for them, and he 
run down the list of cars that had I called, and I 
said no, I hadn't called the crime scene. So I 
went back to the car and he went back toward the 
back of the house, and I called for the crime scene 
and I got out and went back there and he had the 
subject roughly in here, as I can best remember, 
lying on the ground face-up. And there was still 
a large amount —  he was still bleeding, but he 
never moved or said anything or gave out with any 
kind of cry or any indication. At the time I 
assumed that he was, that he had been killed by the 
wound.
Q. All right, sir —

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MR. DAYS: I would move to
strike the assumption on the part of 
the witness.

THE COURT: I’m going to overrule
the objection. You may proceed.
(By Mr. Klein) All right, sir. Do you 

know, or were you, have you ever ascertained whether 
there was any blood over on the other side on the 
south side?
A. Yes, sir, after crime scene and homicide
^ad arrived they asked me to go with another officer 
around, there Is a corner house here, this house 
where we got the Initial call was here.
Q. That Is what number?’
■̂* 737 l3 where we had the original call to.
I went all the way around and come through their lot 
here. It Is a long thin lot and we came back here.
We were looking to see If anything was dropped on 
that side of the fence, but there was a large —
It Is a —  there were weeds and wild grass and there 
was a large amount of blood over there on that side 
where he, where It had Just fallen straight down from

I
the subject’s wound there on that side of the fence

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and there was blood, of course, over here where he 
was bleeding profusely when he was taken off and on

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the ground where he had been laid. So there was 
a large amount, a large quantltly of blood on the 
south side of the cyclone fence.
Q* All right. Then who all arrived onthe
scene, if you recall?
A. The fire department ambulance got there
first, as best I can recall, and then in the order, 
I’m not sure of, crime scene, homicide, another 
squad car, that's all I can be certain of.
Q. All right. Did you remain on the scene
for any length of time?

Yes, sir, we stayed around, I was there 
^nd both of us were there until the subject was 
transported and the crime scene was taking pictures 

all of the area and homicide, I had run back 
around to this house here where I believe her name 
was Daisy Statts, she lived at 737, she had been the 
lady that had pointed to the house when we first 
arrived. I ran back around there and found her and 
^sked her to remain available for homicide detectives 
and the lady —  there was another lady, I can't 
^emember her name, but she had witnessed something 
and she had told Mrs. Statts to call the police 
and she lived across the street. I'm not sure what 
her name was. Anyway, I told her to stand by to —

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685 .

I didn’t want themto get off without getting their 
names or at least telling them to stay there In the 
house. And my partner was taken Inside and shown 
the Interior of the house, although I never went 
inside, but we were there for a good length of time.. 
Q. All right. Did you see any broken glass
or any Indication that the house was broken Into?
A. Yes, sir, the back door was open. One
°f the panes of glass on the back door underneath 
the window guard was broken. There was a screen 

the east side of this house where I had come 
'̂ ŝ taken down, but there were window guards, there 
were window guards, as I remember, on all of the 
windows, and there was a garbage can right underneath 
this south bedroom window here.
Q, South toward which side?
A, South toward the west side. And that
wlndov; had been broken up, and I think that was the 
window that the entry had actually been gained Into 
the house. That Is about all that I can recall.
Q. All right.

THE COURT: I ’m going to .Interrupt
you at this point, Mr. Klein. I’m 
sorry. Officer Wright, but we v/111 
ask you to return to complete your

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1 testimony at 9:30 and we will stand 
adjourned until 9:30 tomorrow morning.

(Whereupon, court adjourned until 
9:30 a.m., August 5th, 1976.)

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LESLIE BURTON WRIGHT,
resumed the stand and testified further as follows:
DIRECT EXAMINATION 
BY MR. KLEIN:_____

Officer Wright, I think on yesterday you 
were, among other things, describing the scene out 
at 739 Vollentlne. Were you there when the 
crime scene squad arrived?
A. Yes, sir.

All right. Do you know whether or not 
they took any photographs?
A* Yes, sir, they’were taking a lot of
pictures.

Yoii did, of course, view the backyard of 
the house. Is that right?
A. Yes, sir.

li'm going to hand you what has been 
marked Exhibit 26 and ask If that depicts the 
backyard as you saw It that evening?

Yes, sir, that Is taken from the west side 
looking east across the backyard.

And Just briefly what does that picture 
shoWj any objects or —
A. Yes, sir. It shows a garbage can up
Against the house and what appears to be a metal

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1 washtub, an old model washing machine, clothesline 
with support poles, rugs and other Items hanging from 
the clothesline, small ladder up against the small 
out building.
Q* Were there a lot of things In the backyard-
there?
• Yes, sir. It was extremely cluttered.

MR. BAILEY: We object to Mr.
Klein leading the witness by saying
were there a lot of things out In1
the backyard.

’ . MR. KLEIN’: I withdraw the
question.

THE COURT: All right, sir.
Q* (By Mr. Klein) Officer, what was the
lighting situation out there that evening?

Do you mean In the backyard?
Q. Yes, sir.
• Backyard was extremely dark, very poor

lighting.
Do you know If there was any lighting 

behind the fence, the chain link fence?
A. To the south?
Q. Right. Which would be to the south,
correct, to the south?

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693.
I d o n ’t r e m e m b e r  any.

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Was d a r k e r  ba c k  the f u r t h e r  south that
} 3 you w e n t .

4
MR. KLEIN; All right, sir, t h a t ’s

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5 all I have. Your Honor.

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6 THE COURT: All right, sir, you
; V 7 may cross examine.
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8 CROSS E X A M I N A T I O N  
BY MR. DAYS;

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* 5 *  Mr. Wright, yo u  h a v e  in y o u r  ha n d  a

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n p h o t o g r a p h  that has b e e n ^ i d e n t i f i e d  as 26 I believe.

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12 and you d e s c r i b e d  what it ref l e c t s  and y o u  say you

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13 were there wh e n  the crime scene squad a r rived?
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14 A. Y e s .

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I 15 crime scene squad t a k i n g
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16 pi c t u r e s ?
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17 A. Yes, sir.

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18 you l^now what, if any, a s s i s t a n c e  the
ii 19 crime scene squad had in terms of a d d i t i o n a l
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20 l i g h t i n g  to take th e s e  pic t u r e s ?

i 21 As ne a r  as I can remember, they had

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22 flash a t t a c h m e n t s  on t h e i r  cameras. I d o n ’t r e m e m b e r
j 23 kind of f l o o d l i g h t s  or anything.

% 24 But th e r e  were flas h l i g h t s ?
25 A. A t t a c h m e n t s ,  yes, sir.

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1 Q. For the cameras taking the pictures. Would
2 you Indicate again for the record and mark on
3 exhibit 6 where you were when you heard the shot?
4 A. Yes .
5 Q. Would you take this pen and mark it on
6 exhibit 6 and put your initials next to it?
7 A. Right here.
8 Q. All right. So you were at the northeast
9 corner of the house?
10 A. Yes, sir.
11 Q. And was it your testimony on direct that,
12 you heard your partner shout "Half' at that point?
13 A. The first thing that I remember hearing
14 was the screen door slam and then my partner yelled
15 "Half'.
16 Q. And you were at that same position when
17 you heard your partner yell "Halt"?
18 A. Yes, sir.
19 Q. I believe you indicated in your direct
20 testimony that there was no verbal communication
21 between you and your partner until after the shot.
22 is that correct?
23 A. Yes, sir, on my part.
24 Q. And I believe you testified that your
25 partner at some point indicated that he's on the

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A.
Q.
A.
Q.

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Yes, sir.
Did that occur before or after the shot? 
After the shot.
Now, when you got to the back of the

house after the shot, were you able to see your 
partner?
A. Yeq sir, after shining the flashlight.
Q. Did you see your partner after you got
back there move from his position to where the 
^Ody was located?
A. I didn't see him move. He was standing
still asP I remember when I came back to the yard 
and he said he's on the fence and indicated with his 
flashlight the direction, and as I was scanning 
toward the fence and caught sight of the body and 
moved toward the subject, my partner must have been 
moving as I was doing that because I didn't actually 
see him move, no.

you estimate how long it took your 
partner to get from where he was to the location of 
the body? Just try to give your best estimate?
A. Three or four seconds.
Q. All right. Did you have any Involvement
of taking the body off the fence?
A , No, sir.

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MR. DAYS: No further questions.
Your Honor.

the COURT: Anything further of
this witness?

MR. KLEIN: No, sir, I have
nothing further.

THE COURT: You may step down,
sir.

(Witness excused.)
THE COURT: You may call your

next witness.
MR. KLEIN; Sgt, Wheeler.

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P. J. VJHEELER,
having first been duly sworn, was examined and
testified as follows:
DIRECT EXAMINATION 
BY MR. KLEIN:

Q.
A.
Q.
A.
Q.
A.
Q.

State your name, please^ sir,
P. J. Wheeler.
And you are employed by whom, sir?
Memphis Police Department.
And what Is your rank, please?
It Is sergeant.
And how long have you been with the Memphis 

Police Department?
A. Be 14 years this coming October.
Q. O.K. Are you assigned to any particular
department or division?

the homicide division.
Q. And how long have you been assigned to
the homicide division?
A. A little over three years now.
Q. All right. Back on October 3» 197^, were
you assigned to the homicide division?
A . Yes, sir, I was.
Q. All right, 'sir. Are you familiar with
the Incident that Involved a shooting out at 739

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1 Vollentlne on that day?
air, I am.

Q- What role did you play In that, please air?
A. More or less as the coordinator of the case
The case had been assigned to me to be written up 
for disposition on It.
Q. Is It customary that a situation like
this be assigned to' the homicide squad?
A. Yes,sir, It Is.
Q* Why, because the homicide actually
occurred?

Yes, sir.
this a routine, when I say ”routlne”

Is It standard that you do this In every homicide 
case?

Yes, sir. It Is.
Does It make any difference whether It

Involves the police officer?
A. No, sir. It la all handled Just —
Q* Did you actually go to the scene that
evening?
A. Yes,sir, I did.
Q» All right. And did you have an occasion
to talk to the father of the deceased, Mr. Clinton 
T. Garner?

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A . I did, sir.

Q. When did you talk to him?
A. It was later the following morning, I don't
remeniber the exact time. It would be possibly around 
1:00 a.m., 1:30, somewhere In that area.

What was the purpose of your going to
see him?

To make positive of the Identification of 
the victim.

Where did you see him, sergeant?
A. At his home at 928 Tully.
Q* All right, sir. And you say you did have
a conversation with him?
A. Yes, sir, I had a brief conversation.
Q. What was that conversation?

We were attempting to make positive 
Identification of the victim. We had received a 
scrap of paper from the victim's clothing with the 
name of Edward Garner on It, and we had checked our 
files and also the Juvenile court files and had come 
up with the name, I believe of Eugene Edward Garner 
or Edward Eugene Garner at that address, and we had 
gone to that location to have someone accompany us 
to the morgue and act as a corpus witness for positive 
Identification.

724 S2G



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Q.
A.
Q.
A.

Did you ask Mr. Garner to go with you?
I did, sir.
And what was his response?
Mr. Garner refused to accompany us to the 

morgue, stating that he would prefer thathis other 
son Curtis accompany us, indicating to us that he 
felt that there was no doubt that the person was 
his son.

MR. BAILEY. Excuse me. Is 
he saying what the witness said 
or is he trying to Interpret the 
witness's reaction?

THE COURT: I would suggest to
counsel that he ask the witness, in 
view of the question, for clarification 
as to whether the witness is purporting 
to recite what may have been stated 
by Mr. Garner or whether he is purporting 
to give an impression.

Q* (By Mr. Klein) Do you remember what he
said to you, sir?
• No, sir, not exactly what he said. He

J ust —
Q* Well, then to an effect do you know what
he said —

7 0 0  .

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MR. BAILEY: What does to an
®^*fect -- I object, the witness, said 
he doesn’t know what Mr. Garner said 
and Mr. Klein I suppose is asking 
him for paraphrasing his version of 
what the witness said by saying to 
the effect, and I object to it.

THE COURT: We will treat the
objection this way, as to what the 
witness’s impression may have been, 
the objection may be well taken. If 
the witness 1^ recalling or trying 
to recall to the best of his recollection 
what was said, though it may or may not 
be verbatim, he may be asked but if 
^^1 that he has is a general impression,
I think the objection may be well taken 
in that regard.

Q. All right. Do you have a recollection
of what in substance was said?

Only one thing. He did state that he 
did not want to go —  he did want his son to go and 
that he had been expecting something of this nature 
to happen. As far as his exact words I can’t 
remember, but it .v:as to the effect that we have been

701.

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expecting something like this to have happened.
MR, KLEIN: That's all I have.
THE COURT: You may cross examine.

CROSS EXAMINATION 
BY MR. BAILEY: ' ’ '

Wheeler, you Investigated many homicide: 
since this one, have you not?

Yes, air. ‘
And I take It that your recollection actuall' 

Is a bit fuzzy as to what Mr. Garner said. Isn't It?
He was upset, Mr. Bailey, but, no, air, I 

° know to the effect that they had been expecting ' 
something like this to happen.

Well, he was In a state of shock when you '
I

told him —  I
\> I

Well, I don't say shock, but he was visibly

702.

upset.
Q.
A.

And he was crying?
Yes, sir, he was.

MR. BAILEY; I have no further 
questions.

THE COURT; Anything further? 
MR, KLEIN: No, sir.
THE COURT: You may step down.

(Witness excused.)

i ( 8 2 3



7 0 3

SGT. C. A. RUSSELL,
having first been duly sworn, was examined- and 
testified as follows:

i
4 DIRECT 

BY MR. EXAMINATION 
KLEIN: :

:j
• ‘1• ■ i

5
6 Q. State your name, please, sir?

J
K

7 A. Sgt. C. A. Russell.
1 8 Q. And where do you live, sir?
>1A■ ■?

9 A. In Shelby County, Memphis, Shelby County.
I 10 Q. All right. Your address?
i1■}.}

11 A. 4261 Zalo, Z-a-l-o.
j4
1

12 Q. And you are employed by whom?

i o 13 A. Memphis Police Department.
»1 14 Q'. And your rank Is?
■ iJ1 15 A. Sergeant.
]]41

16 Q. All right. How long have you been with the
1j< 17 Memphis Police Department?
11 18 A. ^7 years.

1 19 Q, 17 years?
i 20 A. Yes, sir.
\
A 21 Q. All right, sir. What Is your present
j■j 22 duty assignment?
•i :5 23 A. Crime scene squad.

24 Q. All right. And how long have you been with
■ "J 25 the crime scene squad?

728 Sou



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1 A. Eight years.
Q* Eight years. So you were with the crime
scene squad in October of 197^, is that right?
A. Yes, sir, I was.
Q* You have an occasion to go to Vollentine
Street on October the ^th of, October the 3rd of 
1974?
A. Yes, sir, I did.

All right. And where did you go to 
specifically on Vollentine?

739 Vollentine.
Q* All right. And how is it that you happened
to go out there?
A. We received a call.

All right. Is this customary or the
procedure in a situation such as this that you, that 
^he crime scene does go to the scene?
A. Yes, sir, we make all shootings.
Q* Would it necessarily be homicide or all
shootings or what dictates whether you go or not 
to the scene?

If a shot is fired and it doesn't strike 
anybody, we still have to maek the scene.
Q. REgardless, but any shooting you do go
to the scene, is that correct.

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'5* All right. What function do you serve
or what duties do you perforin when you get to the 
scene?
A. We take photographs, fingerprints, draw
rough sketches and take measurements and pick up
any evidence and mark It for later use.

And did you do this In this case?
A. Yes, sir, we did.
Q Tell us. If you would, step by step what 
you did at the scene?

got to the scene and we were advised 
that there had been a shooting. Patrolman Hymon 
had shot a burglar and that he had expired at the 
John Gaston Hospital.

All right. Then what Is the next thing 
that you do?
A* We start taking photographs.

All right. Now, what do you focus on any 
particular part of the scene?

^es, sir.
What do you do as far as taking the 

photographs?
A. We take photographs of everything Just as
It Is then.

- 83ti

7 0 5  .

A. Right.



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1 Q* All right, sir. Did you take photographs
of the back yard?
A. Yes, sir, we did.
Q. Did you take photographs of the Inside of
the house?
A. Yes, sir, we did.
Q. Did you take photographs of the fence?
A. Yes, sir, we did.

V/hen I say "fence” now was there a fence 
in the back of the house?

- Yes, sir, there was?
Q. All right, sir. I ’m going to hand you
a group of photographs and ask you if you can identify 
them.

MR. BAILEY: Your Honor, we have no
objection. We.would stipulate to the 
admission of these photographs with the 
understanding, of course, that they —  

that Sgt. Russell is not making an 
effort to testify to the arrangement 
of the various objects on the photographs 
prior to his getting on the scene and 
he Just, I suppose, took photographs 
of what he saw?

MR. KLEIN: Your Honor, again I

7 0 6 .

731 83,



4 707.
i 1 assume h e ’s g o i n g  to t e s t i f y  this Is

i r s  2 the way that It w a s w h e n  he a r r i v e d  on

the scene and this is what the p i c t u r e

i ^ dep i c t s  the scene as he saw It.

i 5 THE COURT: If cou n s e l  for the

: ^ p l a i n t i f f s  w i s h  to ask any q u e s t i o n s
' 71 or vo i r  dire t h e  wit n e s s  p r i o r  to the
K  8 i n t r o d u c t i o n  o f  any of the .photographs

i 91 you may do so.

■ 10
i

MR. BAILEY: May I vo i r  dire with

< a couple of que s t i o n s .  Yo u r  Honor?

1 12
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T H E  COURT! Yes, sir.

i /-^ VO I R  DI R E  E X A M I N A T I O N
1 O BY MR. BAILEY:
! 14!

15i1 Q. Sgt. Russell, yo u  d i d n ’t pl a c e  any of

! 16t these o bjects that are shown in the p h o t o g r a p h s .

i 17
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1 did you?

! 18] : 1^0» sir, I d i d n ’t.

■(
MR. B A I L E Y  : We have no o b j e c t i o n

! 20 . t o  the a d m i s s i o n  of them.

211 THE COURT: All right, sir. Let

i 22 the Items be p r o c e e d e d  with.

231 Q* (By Mr. Klein) Sgt. I ’m  go i n g  to ha n d

24i you these an d  ask you if you can I d e n t i f y  them.

i 25 You d o n ’t have to tell me what Is In each one of
}
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1 them. Just look and tell me If you can Identify 
all of those.

MR. BAILEY: We agreed to It —
Yes, sir, those are the photographs 

that I took.
Q. You took those photographs?
A. Yes, sir, I did.

MR. KLEIN: Your Honor, I’m going
to move the Introduction of these 
photographs.

THE COURT: Let them be Introduced
as a collective exhibit.

THE CLERK: Number 27.
(Whereupon, the said photographs 

referred to above were accordingly 
marked Trial Exhibits 27-A through 
27-R, and received In evidence.)

Q. (By Mr. Klein) Sergeant, I ’m going to
hand you one of these particular photographs and ask 
you If you can tell me what that depicts, sir?

MR. DAYS: Your Honor, If It
please the court, have those been 
submarked, also?

THE COURT: I think that Is appropriate
that they be marked 27-A, B, C, D and

7 0 8 .

733 833



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1

Q.
A.
Q.
A.
Q.

so forth so that a particular photograph, 
the record will reflect It and for 
purposes of examination or cross examlnatlor 
will reflect which particular scene or 
photograph is Involved.
(By Mr. Klein) Is that already marked?
Yes, sir, it is.
Let’s identify that by it's number.
Exhibit 27-A.
Tell me what that is, please, sir.
This is the coin purse dropped by the

7 0 9 .

A.
burglar —

MR. BAILEY; Your Honor, I'm 
going to object to that.

THE COURT: I will sustain the
objection.
(By Mr. Klein) All right. Again, you 

^®ren't there at the time of the shooting?
A. I was not.
Q. So all you know is what you saw when you
got there?
A. It was a coin purse.
Q. O.K. I would ask you not to speculate
or make any conjecture about how it got there, just 
tell me what it depicts, if you would, sir?

734 83 o



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A. A coin purae, sir.
where was that picture taken, was 

It the front, back, side or what part of the house?
A. It was at the back of a fence where he
was shot.

Now, let me ask you to do this, I*m going 
^o ask you to refer to what has been marked Exhibit 
6, this Is a previous exhibit. It has been Introduced 
Into evidence In this case, and this Is a scale 
model of the house at 739 Vollentlne.
A. Yea, sir.

And Just for ydur orientation this would 
be the front of the house?
A. Right.

Q* And this direction would be north, the
t̂ ack of the house south and this side, of course, 
east and thlg gi^e west? And this Is what has been 
referred to as a chain link fence of approximately 

and a half to six feet. This Is what has 
been referred to as a chicken wire fence of approximate 
three, three and a half feet.
A. Yes, sir.
Q* And this building has been referred to as
an out building.
Q. Yes.

710.

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Is a concrete block with a two by six
on top of It.

A concrete block. Where does It sit or 
where would you position It on the scale model?
A.
Q.
say?
A.
Q.
A.
Q.
A.
sleeve,

Right about there.
How far from the chain link fence would you 

About, not over a foot.
Not over a foot from the chain link fence? 
Yes, sir.
Now, what 1s 27-B, sir?

%

That is some blood shown on Patrolman Hymon's

MR. BAILEY; We object to this 
witness drawing a conclusion about how 
the blood got on his sleeve unless he 
observed it, and if he observed it 
he should state I saw how he got the 
blood on the sleeve.

THE COURT: Again, the objection
is appropriate that the witness will 
testify as to what he saw and observed 
and located and photographed unless 
he personally had some personal knowledge, 
not based on surmise.

r« < 1 f * 83.



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711.»
1 Q. All right. Now, if you could take your
2 pointer and show me where that picture was taken?
3 A. It was approximately right in that area
4 right there.
5 Q. All right. Now, can youdescrlbe on the
6 scale model and give the directions?
7 A. Where the coin purse was?
8 Q. Yes. How far from the back of the chain
9 link fence was it?

10 A. It was approximately four foot.
n Q. All right. And how far would it have been
12 from ^he southwest corner of the outbuilding?
13 A. About two foot.
14 • All right. And you say that was a

15 coin purse?

16 A. Yes, sir, it was.
17 Q. Did you examine the purse?

18 A. Yes, „slr, we did.

19 Q. Was there anything inside of the purse?

20 A. Yes, sir, it had identification from that

21 house that was broken into.

22 Q. Did it have any money or anything?

23 A. No, sip.

24 Q. All right. Let me ask you what else

25 is depicted in that picture right next to the fence?

737 83j



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1

A.
Q.

713.
Q, (By Mr. Klein) You understand that, don’t
you. Just what does that depict?

Blood on patrolman Hymon's sleeve.
All right. Let’s look at 27-C and what 

does that show?
That shows a squad car where It was parked 

when we got there, both doors were open.
Do you know whose squad car that was?

A. 128.
Q. Now, what does 27-D depict?
A. It Just shows a view of the squad car where
It was parked when we got there In front of the 
house.
Q. All right. And 27-E.

It shows a picket fence and the front of 
the house at 739 Vollentlne,
Q. 27-P.
A. This shows the east side of the house with
the outbuilding down through there.

All right. 27-Q?
A. This again shows a coin purse and the•
concrete block with a two by six on top of It and 
the clothesline.'
Q, All right. Is that the same concrete
block and the 2 x 6  that you referred to In a previous

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exhibit?
A. Yes, It Is.

In any of these did you see any blood on 
the ground or on any of the objects?

^es, sir, that 2 x 6  had spots of blood 
on It and they vrere more on the ground close by.
Q* All right, sir. Did you check the other
side of the fence, the south side of the fence?
A. No, sir, I did not.

All right. 27-H, what does that depict? 
This shows the house as we found It when 

we got there, ramsacked. '

714.

Q.
A.
Q.
house?
A.
Q.
A.

Do you remember which room thatwas? 
No, sir, I do not.
All right. That was taken Inside the

Yes, sir. It was.
All right. 27-1, what does that depict? 
This shows a bedroom, but I do not remember 

which bedroom, and It shows the shape the house was 
In when we got there,

27-J.
A. This shows the window that was broken out
and the curtains that were hanging, they were down.

Do you remember which window that was?

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A. Ye3, sir. It was on the southwest, I
mean on the west side of the house along about here 
Q. All right, sir. 27-K.
A. That shows a footprint in the middle of
the bed where whoever broke the window out climbed 
in.

You don't know that?
No.
All it shows —
Is the footprint.
27-L.

7 1 5 .

Q.
A
Q.
A.
Q.

A
Q,
A.

A. This shows the bedroom where the matress
was turned back and the condition of the house when 
we got there.

right. That is obviously a bedroom? 
Yes, that 1s a bedroom.
27-M.
'̂ his shows a chest of drawers that had 

^een pulled out and dumped in the floor.
All right. What room would that have

been?
A. I'm not sure. I believe it was a bedroom
but I'm not sure.
Q. All right. 27-N.

This was where Iwas told the shooting took

740 8 4 j



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1 place.
Q. All right. Who
A

• Patrolman Hymon.
Q. In other words.
that place and you took a picture of him at that 
spot?

Yes, sir,
Q. All right. 27-0.
A* This shows the coin purse and the concrete
block and the 2 x 6  with blood on it.

All right, sir. There is something else 
that runs, looks like it is white that is running 
•llS'SonS’lly across the photographs, do you know what 
that was?

No, sir, I do not.
And again that photograph in 27-0 is, 

where would that be on the —
A. It would be right about right there.
Q. 27-P.

This shows the blood or what appeared to
blood on the ground.

All right, sir. Is there someone holding
an object?
A. Yes, someone holding a light on it.
Q. All right. 27-Q.

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A. This shows the coin purse and what appears
to be blood stains back to the right of It, about three 
foot and also the concrete block and the 2 x 6  with 
blood on It.
Q* According to that picture, the 2 x 6  which
1s sitting on the concrete block, where Is It In 
eolation to the outbuilding?
A. It Is behind It.

All right. Point that out.
It would be right back up behind It with 

^^e end of It sticking out on this concrete block.
And again, how 'close would you say It 

was to this chain link fence?
It was approximately maybe a foot. A foot 

and a half, maybe two foot,
Q. And 27-R?
A. This shows the concrete block with the
2 X 6 on top of it and blood spots on top -of It.

MR, KLEIN: Would the court like
to see —

THE COURT: Yes, sir.
You may proceed.

(By Mr. Klein) All right, sir. I»m going 
to hand you what has been previously marked exhibit 
26 and ask you If you can Identify that, please, sir?

717.

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1 A. Yes, sir this Is the back porch of
739 Vollentlne.

MR, DAYS; Excuse me, what number 
Is that?

MR. KLEIN: 26, that'which has
been previously Introduced,

A. (Continuing) And also a garbage can and a
broken window, sitting under a broken window.
Q. That Is the backyard as you saw It when
you arrived?
A. Yes, sir. It Is,

■ %

I’m going to hand you three more that have 
not been marked yet and ask you If you can Identify 
those. Please, sir.
A. This Is the back door of 739 Vollentlne,
this Is a screen.

MR, KLEIN; Excuse me. Your Honor,
I’m sorry that I did this piecemeal, 
and I will Just make them part of the 
collective Exhibit 27.

THE COURT: All right. Do counsel
wish to be heard with respect to the 
Introduction of those Items?

MR. DAYS; We would like to take a 
look at them,

7 1 8 .

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1 MR. KLEIN: I Just handed them,
you can take a look at them again if 
you would like to.

MR. DAYS: We have no objection.
Honor.
THE COURT: All right, sir. Let

them be marked 27-S, T and —
THE CLERK : And U.
THE COURT: All right, sir.
(Whereupon, the said photographs 

referred to above were accordingly 
marked Trial Exhibit 27-S, 27-T and 
27-U and received In evidence.)
(By Mr. Klein) I*m going to hand you what 

has been marked 27-S and ask you to tell me what 
^^at Is, please?

That Is the rear door to 739 Vollentlne., 
right. Is there anything out of the 

ordinary or unusual about It?
had the glass broken out, but nobody 

could have reached In It.
All right. I hand you 27-T and ask you If 

you can Identify that, please, sir?
A. Yes, sir, this Is a screen that was off
of the west side —  east side of the house over here

7 1 9 .

Q.

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720 .
on this side of the house.
Q. Is that the way it was when you arrived?
A. Yes, sir, it is,

^nd 27-U, I will ask you what that is, 
please, sir?
A. That is a garbage can under a window with
window guards on it and. the next window up was 
broken out and a hoe laying there by It.

MR. KLEIN: All right, sir.
Your Honor —

THE COURT: Yes, sir-
MR.' KLEIN: That's all I have.

Your Honor.
THE COURT: 

examine.
You may cross

Cross e x a m i n a t i o n
BY MR. DAYS;

Q* Mr. Russell, could you indicate what type
of photographic equipment you used for the purpose of 
taking the exhibits that have been Introduced Into 
evidence?
A. 35 millimeter.
Q. And did you have any Illumination
equipment?
A. Yes, sir, flash power pack.

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1 Q. Could you describe essentially what a
power pack Is?
A T+** Is what makes the camera flash and you 
turn it on and off on the side.

Does It sit on top of the camera?
No, sir. It does not. It hangs on your

shoulder.
And how much power does the power pack 

contain In terms of voltage or energy or things along 
those lines?

 ̂ don’t know, sir.
Mr. Russell, directing your attention to 

Exhibit 27-S, what again does that show?
*̂ hat is the, that shows the rear door of 

729 Vollentlne and It Is cracked open.
It Is cracked open?

• ‘6,3* the door Is open with a crack In It 
and it has got the glass broke out of It.
Q. And now, was that door cracked open when
you arrived?
A. Yes, sir, it was.

And did you take that picture before you 
went Into the house?
A. Yes, sir, I did.
'5* Were you the first person to go Into the hous

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* 722.
i 1 A. That I know of, yea.

2 Q. And you didn't position the door In any
3 way?

i 4 A. No, sir, I did not.
i■i
i 5 Well, how far would you say that the
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6 crack was In the door?

\( 7 A. It Is approximately two or three Inches.
8 Q. Two or three Inches?

j 9 A. Tes, sir.

I

10 Q. So the door was open two or three Inches
i
i 11 when youtook that picture?
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i 12 A. Yes, sir.

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13 Q. Do you have any knowledge of whether anyone

I 14 else on the scene touched that door?
j 15 A • No, sir, I do not.
i
1 16 Q. 27-B —

1 17 MR. DAYS: Just one moment.
11 18 Your Honor.
\( 19 THE COURT; Yes, sir.
i11 20 Q. (By Mr. Days) Let me direct your attention
111 21 to Exhibit 27-B and ask you whether you can Identify
} 22 that?
1

23 A. Yes, J took the picture.
ti 24 Q. And what Is It a picture of again?

:# 25 A. It Is a picture with patrolman Hymon with
1
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747 ■ 8 ^ -   ̂ --- ■ --- -— —  -— . -------I.,;,..., _______________ ______ __  _ _ . _______ ______ _



1
723.

some blood on his sleeve.
2 r̂id can you indicate why that picture
3 was taken?

i
i 4 3lr, except that I was told to take

1 5 it.
j£ 6 Q. Who told you to take it?
1

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7 A. I don't remember, but the highest ranking

1 >.
i1 8 officer Is always In charge.
i 9 Q. Do you remember my examining you under
i< 10 oath earlier this year?
i1J 11 Yes, sir.
11! ■ 12 Do you remember being asked the following

i O
13 questions and giving the following answers?

1I11 14 Page l4.
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i-j 15 "Question. All right. Let me show you
it
i

16 Exhibit 8 and ask you what It Is designed to show.
111\1 17 "Answer. Blood on a shirt where he pulled
>*? 18 him back and got blood on It.
1/ 19 You remember being asked that question and
j 20 giving the answer that you Just read?
1i\i 21 A. Yes, sir, I do.

j 22 Was the piirpose of showing that on the
i ■ . 
1 23 officer, and that Is Just In case he didn’t die and

24 accused him of beating him or something, do you
; # 25 remember giving me that answer?

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A. Yes, sir, I do.
Q. Do you remember being asked on page 15
of the deposition:

"Question. Well, what would the blood 
on Hymon's shirt demonstrate and why would it rebut 
a claim of brutality Involved or some type of 
claim occurred?

"Answer. I don't know, sir.'"
"Do you remember giving that answer?

A. Yes, sir, I do.
Q. "Question. Who told you to take that
picture, if you recall? '

"Answer. It seems like it was Captain
Smith,"

Do you remember giving that answer?
A, Yes, sir,

MR. DAYS:- No further question,
THE COURT: Anything further?
MR, KLEIN; No, Sir, that is 

all I have.

EXAMINATION BY THE COURT;
Q. Sgt. Russell, do you recall being at the
scene that night yourself Independently?

• i ^  ^ .

/ A . Yes, sir, I do.
Q. What was the visibility in the backyard

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725 .
without the use of photographic equipment or 
otherwise?

It was extremely dark.
Did you examine or not examine the area 

to the south of the chain link fence inthe back?
A. No, air, I did not.

THE COURT: All right, sir. Any
other questions?

MR. DAYS; Could I have just a 
minute. Your Honor?

THE COURT: Yes, air.
MR. DAYS:' No further questions.
THE COURT; All right. You may 

step down, sir.
(Witness excused.)

MR. KLEIN; Your Honor, at this 
time I would like to read into the 
record the burglary statute of the 
state of Tennessee. The purpose for 
doing this is that there are three 
different burglary statutes that 
distinguish between burglary in the 
first degree, second degree and third 
degree, and Î would like to read it or 
at least make reference to the code

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section, I don't necessarily have 
to read the whole section in.

THE COURT: All right, sir. Unless
there is objection you may proceed.

MR. BAILEY: He may proceed.
MR. KLEIN: I have photocopies

of it and if there is no objection I 
will ask that it be Introduced.

MR. BAILEY: No objection.
THE COURT: Let it be Introduced.
THE CLERK: Exhibit number 28.
(Whereupon, the said item referred 

to above was accordingly marked Trial 
Exhibit 28, and received in evidence.)

MR. KLEIN: Your Honor, that concludes
our proof. I would like to make this 
"tatement for the record that I had 
under subpoena Daisy Bell Statts and 
Louvennia Anderson, she is the lady who 
lived in the house that was burglarized 
and Statt^s is the lady referred to 
previously. I did excuse both of them, 
advised counsel for the plaintiff that 
I was doing so in the event that they 
were calling them as their witnesses.

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727

They were under subpoena and were not
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2 used because I thought It would be
i• < 1 3 superfluous. I also had under subpoena
i!• i 4 Sgt. Powell and Captain Smith. I’m

\
5 not going to call them, I don't deem

jj 6 It necessary.
|iJi 7 I would like for the record to
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ii 3 note that their discovery depositions
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9 were taken by the plaintiff In this
j 10 cause.
j; 11 THE COURT: Is there any further
iJj
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12 proof or evidence to be adduced?
13 MR. BAILEY; Your Honor, we have

!}i\
14 a funeral bill In the amount of $913.95
15 and a cemetery bill In the amount of

!i
i • 16 $165.
i]

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17 MR. KLEIN; Your Honor, I have

• I'. ■ 18 to object to that coming In at this
1
i1 19 particular time. I don’t think that
]11 20 Is rebuttal, I think that Is proof In
1J\i 21 chief and furthermore I think there
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1 22 has to be established the reasonableness

i 23 of these bills, so for the record I
I 24 do have to make the objection.

i # 25 THE COURT: Vfell, let the Items

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1 be marked with the next exhibit number
as a composite exhibit, noting the objection
of the defendant.

THE'CLERK : 29-A and B, sir.
(Whereupon, the said bills referred 

to above were accordingly marked Trial 
Exhibit 29-A and 29-B and received In 
evidence.)

THE COURT: Any further proof to
be adduced by either, party?

MR. DAYS: None for the plaintiffs,
%Your Honor.

MR. KLEIN: None for the defendant.
THE COURT: Gentlemen, do you wish

to be heard at this time In argument?
MR. DAYS: We do not. Your Honor.
MR. KLEIN: Your Honor, may I

Inquire of the court If the court Is at 
liberty, does it Intend to rule at this 
time or ask us to submit anything further.
If It Is proper?

THE COURT: Normally, Mr. Klein,
the court would expect to ask the parties 
to submit a proposed statement of fact 
and conclusions to be submitted. Normally,

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729 .
also, I try to point out the particular 
area or areas that the court has some 
particular concern with In a non-jury 
case. I wouldn’t say In a case of this 
type, because I don't know that there 
Is any case of this type, but the court 
Is expecting to ask that each of you 
submit a proposition of fact and 
conclusion to be drawn with respect 
■to the proposition of fact. You have 
both submitted pretrial memoranda of 
points and authorities setting forth 
your position with regard to statement 
of facts and statements of the law.

Again, the matters that have been 
' submitted, 1 would afford you a twenty 
day period of time. If you wish, to 
augment or resubmit what has been set 
forth, either In the form of taking the 
position that It Is supported by the 
proof and evidence.

Now, In Indicating twenty days, 
gentlemen, that may or may not preclude 
access to a transcript here. That Is 
my normal procedure. The court has

754 85o



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730.

tried to take fairly detailed notes 
of the evidence as It has been adduced.
I am primarily concerned In this 
particular case with the facet of 
the case which Is unusual to the court, 
and that Is the weaponry, the ammunition 
aspect of the case. I think the facts 
have been fully developed by proof and 
evidence and counsel on either side, 
but there may be particular matters 
or partlcularMnformatlon In respect 
of discovery proof and evidence that 
would augment or be supplementary to 
the proof and evidence that was adduced 
In the case. And by that, I»m also 
referring to Interrogatory proof and 
evidence that was adduced. So I would 
expect you to submit within the 20 day 
period propositions of fact and 
conclusions with your being advised 
that the court has a particular concern 
In the area with the regard to the 
matters pertaining to the use of 
ammunition Involved. How that pertains, 
for example, to the defendants that are

755 857



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before the court. How that pertains to 
the city of Memphis, how that pertains 
to the defendant Memphis Police Department, 
how that pertains to the defendant E. R. 
Hymon in that particular aspect of the 
Case .

As I stated earlier In the course 
of t.hls proceeding, the court was not 
aware of any particular case authority 
that deals with that area of the law.
And I would expect that you would submit 
If you feel that there Is any additional 
authority In addition to what has been 
submitted on statements of law and 
propositions by the parties on each 
side, so I ’m not asking either side to 
start from scratch In presenting what 
you wish to present unless you wish to 
do that, because what has been 
submitted is of help to the court. I 
do feel that the background and the 
work that has been done In presenting 
the memoranda up to this time or the 
essential work and effort that Is 
Involved except as may be augmented by

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what counsel believe are the Important 
aspects from your viewpoints of . 
advocacy with regard to the particular 
development of facts here and conclusions 
that should be drawn from these facts 
on the evidence In this case.

MR. DAYS: Your Honor, would It
be possible to get an exact date for 
submission?

THE COURT: Yes, sir. It certainly
will. I would ask that you transmit, 
let us say, by'the 26th, that will give 
y°u three weeks.

MR. KLEIN: Again this would be
for facts and proposition of facts

and evidence?
THE COURT: Based on all the

proof and evidence.
MR. KLEIN: And Your Honor Indicated

that you had some concemabout the 
ammunition question. That, of course, 
would be Included In our proportion.

THE COURT: Yes, sir. I ’m making
that statement because I feel that 
each of you have certainly adequately

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presented the matters pertaining to 
the law on the factual aspect, which 
is unfortunately a more common aspect 
that this court and other courts have 
had to deal with, but this particular 
area is an area that I'm inviting 
your attention to for assistance to 
the court,

MR. KLEIN: Your Honor, there
is one other item that I would like 
to refer to and I would ask that it 
be Included in the part of my motion 
for a directed verdict. There is an 
allegation in the complaint, and it is 
set out on page 7 of the complaint that 
refers, well. It says that the wounding 
and killing of the deceased Garner by 
defendant Hymon occurred because the 
deceased was blaok.

That 1s to say that lethal force 
'^ould not have been resorted to under 
the circumstances had the deceased been 
white. In that regard the ceased was 
deprived of equal protection of the 
laws irrespective of the race as guaranteed

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by the fourth amendment of the United 
States Constitution and lU United 
States Code.1981. And I respectfully 
submit there la absolutely nothing 
In this record to Indicate anything 
of race or racial overtones, anything 
related to that.

THE COURT: Do the plaintiffs wish

to be heard?
MR. DAYS: We have no objection

to the court taking action, and I 
suggested It tb counsel for the 
defendant.

THE COURT: The court will
consider the Issue as presented In 
number 22 Is not before the court on 
the record.

Is there any other matters, 
gentlemen, that you wish to discuss 
before I hear from you then by the

26th?
MR. DAYS: No, Your Honor.
MR. KLEIN: Of course, we still

stand on the motion that we made.
the COURT: I understand that

7 5 H

73̂*

SGI