Joint Appendix Volume I

303 pages
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Date is approximate.
Impact area
- Criminal Justice
Topic
- Police Accountability
LDF Attorneys
Cooperating Attorneys
Organization
- LDF
Matter
- Garner v. Memphis Police Department
Case
- Garner v. Memphis Police Department
U.S. state
- Tennessee
Collection
- Case Files
Taxonomy
Identifier
- 6f5d43d6-35a8-f011-bbd3-000d3a53d084
Cite this item

Case Files, Garner Working Files. Joint Appendix Volume I, 1981. 6f5d43d6-35a8-f011-bbd3-000d3a53d084. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6320e43b-ff74-44c4-83d4-5b75142db204/joint-appendix-volume-i. Accessed February 12, 2026.

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INDEX

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 
Par t 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 .........

Page
1
6

22
47
48

50
53

54
55
63
64
65 

760 
765 
777 
787

798

819
875
916

120

1074

- 1 -



Page

Part 10 : Compilation of Municipal
Deadly Force Policies ............. 1108

Part 11: New York City Police Department 
Training Materials ................ 1369

Part 12 : Raw Data Arrest by Memphis
Police Department 1963-1974 ....... 1409

Part 13 : Incidents Memphis Use of Deadly 
Force Against Property Crime Suspects 
and Boston Deadly Force Policy 
(Wiley Appendices) ................ 1458

Part 14 : Excerts Trial Record Wiley v.
Memphis Police Department ......... 1477

- 11 -



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3-A-76

Order iUc.-ir.; g'-I.* to Le Oiled on Taujer's Oath 
Ccrrlaiht
locued Ou=ton£ a--.d handed attorney.
VarGhal'a retarn on simons for E. R. ;!jnton exec, u-il-7^.
Vars'nal's'reforn on conaons for Jac/ W. Huhbard exec. -;-l̂ -75.
••arshal's refarn on S'oraons for V,'yeth Chandler exec. U-11-7... ^
’•arshal's return on Sc t c .cs for !'.e=?his rolice Departmer.u exec. ---ll-,5.
r’.axahai's return cn furao.na for Me.tphis, City of, exec. 4-11-7^.
Ctifulation extendi.n,j time vithin vhich defendants raao’ nove or plead.

cn to Discios in Behalf of Eefendants 
yenrorandun in Support of Motion to Dismiss 
E.rten:icn cf Tine To Respond To Motion, plairtiff allowed 15 days id addition to 
those permitted i.nlocal R'ule 9 in vhich tc respo.nd to deft, motian to dismiss.
Copy Jui?e, Bailey, Greenher.;, .‘Hein and Shea.

Rlii'ntiff’s I'.enorand'un in Oipositicn To Motion to Disniss of Defendants, Memphis 
~ Roli'ce'separtnent, City of Memphis, Wyeth Chandler, Jay W. Hubbard and E. .R. Kymon. 
rt on ’'cticn to Dismiss - Defendants' motion to dismiss is overr'iled, reluota.ntly

^'•o th- ''ir.'cf Memphis and the Police Departme.nt on the "1331 j'urisdicational 
bas<”'. Copy handed Judge Wellfcrd a.nd railed ■■.'.slter Lee Eailey, Jr., Jach Cree.-.bern

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Arthur Shea .and Henry L. I-Heir.
A.-.sver of DefendiPts
Plaintiff's First Hecuest Fcr Producticn of Docu-ments. 
Plaintiff's Interrogatories, to deft. 'Wyeth Chandler. 
Ilaintiff's Interrogatories to deft. E. P. Hi’iscn.

/DL Plaintiff's Interrogatories to deft. Jay W. Hubbard 
r^otice to Tale Deposition of Cloa-rntree Car.ner

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Ictice to Taxs Deposition of Jay V,'. Mustard.
'r.sver cf Defendant, E. R. Hicscr. to .-Islntiff's interrogatories.
Answer to Plaintiff's First Interrogatories.
Defendant's response a.nd objection to Plai.ntiff's First Rec-jc-t for production of 
Dcc'utents.

'.rder cf Reference to .'-ivistrate: CH.7.', Ccpy ha-tded I'agistrate; espies mailed to 
A_-tu-_r Shea, Heru-y L. rHein, 'W-liter L D'.'urty Bailey ar.d Jach Greenberp fir.t.
.-.ts-.-er tc Plaintiff's First Pnterrcgatcries - of 3ef. Jay W . Hubbard; ThlT.-: 
plaintiff's .'hticn fcr Enlargement of Time •.:ithin 'v.'hich to Ccs-.plete Discovery 
::sti'cn*fcr A:. Cr-der Compelling More Complete Ans-.-ers to D.nterrogatcries Pursuant sc 
p2e StU V s ) a-tc (3) c’.R.C.P. - filed by plaintiff
Plaintiff's Metier, to Compel Preduction cf Documents .̂ -.ursuant to Rule 3‘' ( n / F.R.C.r 
Mcmcrar.d-u= of Points and Authorities in Suppert cf Plaintiff's .Motion to Compel
Production cf Decunents .Crci*r ro l's r r l-i^  ir.otl.on Cct c o r .p € l l ln c  ir.cre ccrr.p—c t s  ansv-'ers wO 
to '* i . '. t e r r c p a t c r le s  a-ma fo.'- p re d u ct io n  c f  coc'Uh.fents, copy  r.a-tded Jugs 
ir.el, yj.cLr., B a ile y  and G reenbert 
Qc^tiflcate pursuant to  Local Rule lG(c)
Report on reference concerning discovery -granting some parts of plaintiff^ 
motion and denying others (recommendations) - copies to Bailey, Greenberg, Shea 
and Klein
■ejection tc Musglstrate' s Report on Becerenov Por.cernir.r Discovery

- iefs.hav* objected to request fcr pro'iuctior. relating tc doc'um.e:'.ts relatin 
;o*l»t.hai fc.-ce; unless persuaded by pltf to cc.-.trary, Co"urt will limit the reques 
vithsut reo-i-ring production of all official invest!gaticr. reports, etc; defs. wil 
prcduce disciplinau-y proceedings instituted aralnst officers i;'.volved re lethal fc 
cepies to Messrs. Bailey, Greenberg, S'r.ea u Klein 
Mctice cf iepositicn of E. P. Hitson and 1. B. '.■.'right 
Motice of deposition of R. T. Montgemer;-, 'W G. Bell a.-,d C. A. Russell 
Hotice of depcoition cf T. H. Jmith. mad 3. L. Chambers
L’otice of dctoslticn of Custodia-n Recor-is rel.ati.n,7 to Citir.ens Com.plair.Es of

............................ ... ...... .... — — --------------------------------------------------------

2

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•VIL O O C K t T  C O N T I N U A T I O N  i H t E T

P L A l N T l f  f - . t F c N O A N T

D O C K E T  NO '

Cle.amtce lamer Nemchis Tolice Tent., et ni
P A u E  _ _ _ _  0 -  t'A j C J

D A T E  1 N B . 1 PROC££OlN»CS

i - lO - 'o  i <3~S I ::c* ice o;' Ir.cen'. cs ta /.e  le p o c itlo r . a:' •'. A. ColeCPa
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,7£ p , : -  i y.er.o, o f n o i n t s  a n d  a u t n o r i t i e s

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1 o 6  i :to iler, fo r C ntpection  o.nd View - by Garner

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' ’ -Z2-~ t : •<'// ; r-rociclor. cf George Z. Joriar.

Zs-pooitlon o:' ■'. J. WheI'icicr
T-TD.-e 1 7i-.o i Deposition i
7-22-Tb i Deposition -
7-22-76 ' -/-iTi Deposition i
7-22-~6 1 1 Ire-Discove

i V7l Depos 1 t'.cn
; "// De-csltion

5-f3-"6 1 '^V Dei* endants'

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£-3r-'’-3 I rialr.ni:':'* c Prcpoce^ rtr.iir.?;̂  o:' r*\c*. ir.i Cor.cluricr.n of Law
n5"/ Critr :r. y.otlona for Llr»?c*ed Vtriict - t.'.at ncoions for iirectei veroi:o as 
I toar
1

! 9-25-"6 |~”-3 i .7-:3o ”:?.. Juag=sr.c ir. :'ivor o:' aXl de:'-in'ixr.tj re.-.iered, copy to Bailey, i-reer.barg,I ' ;deln, 33 and dudga
, o V  d.dgzer.t on dectclon by th* Court - iiorJ.33ir.̂  case : CKJti, C2, copies to 

lialter salley, D'Arriiy Bailey, Cack Greenberg, .Art Shea and He.nry Klein 
lC-l:-T':i , TectiJtc.ny of Coletti, Dr. ."rancioco^c.n _^g.^,3 _i -57o(2 Vo ŝ.̂ )  ̂ Hli

yeth Chandler xtd Ca;/ Hubbard ane granted and case A-t 2-zt
idants; CnJlV, copies to Bailey, Grcenberg, Shea 1 ;'C1:Sir.
by the Cour* - mat the motions for dirscted verdi' 1 .A
Chanil-:-r ^̂ .d r:^tZ3^'d 'oe and ire granted and the ea.7 0
: iefen.lants; c:|-:. copies to attorr.oys of record

IC-S'-T'i ;;otice of Appeal - of plaintiff
12-->--6 i ^ ■ /  . Consent Crder Kxtcndi.-.g Tine - to 50 days fron 12-6-76 in -.ihich to perfect

' ' \ appeal; C;iCV, lynn Dudley; copies to Hailey, Creenbei-g, Shea and Klein
i-iC-te I r> J,'' Court reporter's Transcript of Trial - Six (6) volus:e3 - Orig. i Cler'.t's copy

Cn. T̂ITTED FZC'ED .’-'jAIlZD TO COUBT C? dJFZAlS - 7 vols of transcript fc of uhich 
uere trial'; 9 iepos

MAdfD.VTE .A.N'D OPINION' FP.OM COUBT OF .APPZ.ALS, C,VSE REVERSED A.VD REMiiXDED FOR 
FVRrrfER PROCEEDISCS .AS TO THE CITY OF ME.MPHIS. AFFIR-'ED AS TO INDIVIDU.MS. 
CERTIFIED RECORD ALSO ENCLOSED

8-13-79 ■ *ORDER (P.irtles Invited «/ln 40 days to submit memo as to whether further hearing
I'— ^ I f, trial necessary and/or whether questions n-ay be resolved on Che record with 

opportunity for submission of briefs & memo and argument) CHJtl; mailed .\ccys

1-17--’7 1 

7-19-79 K ?

9-11-79

9-17-79

Bailey i Bailey; Croenberg & Ralston; Klein; and Pierce

61 ..'dOTION FOR .UN E.KTENSION OF TINE ( Pitts move for additional 30 days to submit memo
■ called for in Order of 8-13-79) CHJW

62 'order (Pltf granted 20 days from today to respond to Court's .August 10 order)
I QUV, Bailey, 'winter. Shea and Klein.I
I D C - I I I A  lR«v.  1/751

3



7'“ ■-

C I V I L  D O C K E T  C O V T I N U A T I C S  S H E E T

"LAiNTif f 1 ----.NL-AM
nncKFTNr. 75-145CLEAMTEE GARNER MEMPHIS POLICE DEPARTMENT, et al

! 3PAGE ___OF ____ PAGES
P R O C E E D IN G S

9-21-79 1(63

10-10-79 < 

10-16-79.

io-:;-79
10-24-79

12-14-79

(64,

66
67

>1E>!0RA.VDUM SUBMITTED BY DETEKDA.NTS (Deft's position is that no further hearing 
6 trial necessary 4 that reoaining questions Involved may be resolved on the 
record) CHJW

PLTF'S MEMO IK SUPPORT OF NECESSITY FOR FU'RTHER HEARINGS CHJW

ORDER (As parties have taken opposing positions, oral hearing set 11-30-79,10 AM) 
CHJW. JIM 4 MARY; nailed Attys Bailey 4 Bailey; Winter; Shea and Klein

MOTION FOR CONTINUANCE (pltf noves for continuance of hearing set 11-30-79) CHJW

ORDER (Above motion GRANTED - hearing reset for 10 AM, Friday, 12-14-79) CHXW, 
JIM 4 MARY; nailed Bailey 4 Bailey: Winter; Shea; and Klein

MINUTES: HEARING ON QUESTION OF WHETHER FURTHER HE.-\RINC AND TRIAL NECESSARY:
Steven L. Winter 4 Walter Bailey for pltf; Henry Klein, Art Shea 4 Charles 
Holnes for defts. Crt gave attys 30 days to submit what specific proof may be 
needed to be introduced and 10 days to respond - T,\XEN U'N'DER ADVISEMENT AT THI! 
TIME

12-31-79 68 NOTICE OF APPEAR^iNCE OF COUNSEL (Steven L. Winter to also represent pltf) CHJW

1-15-80 69 MEMORANDUM (of pltf per hearing on 12-14-79: suggests he be allowed to formulat
4 tender offer of proof as to what would have been presented at trial; concurr
w/thls. pltf would submit a full brief on legal 4 factual issues in case 4 pit 
would REQUEST FULL ORAL ARGUMENT AFTER submission of above; pltf estimates thi 
will require until 7-1-80; if Crt requests, pltf will give updated estimate of 
time necessary after his last pre-trial on 2-11-80) CHJW

1-24-30 i;70' SLTPLEMENTAL ME-MORANDLU SUBMITTED BY DEFTS CHJW

PLTF'S RESPONSE TO SUTPELMENTAL MEMO SUBMITTED BY DEFTS

-24-30 i’70-w
2-7-80 (71/

3-3-30 : 0
1

3-3-80 ©
1

l-U-80 (3‘

CHJW

ORDER (Crt concludes further evidentiary proceedings inappropriate; pltf has no 
new "cause of action" as result of decision in Monell 4 is bound by previous 
Judgment holding City 4 Police Dept. DID NOT VIOLATE CONSTITUTION; Crt believe 
each specific questions posed on remand previously been addressed 4 answered i 
Crt's prior MEMO OPINION, but has carefully re-examined the record, its notes, 
4 circumstances of prior trial in light of remand and Monell; CRT CONCLUDES TH. 
JUDGMENT SHOULD ISSUE FOR DEFTS. INCLUDING CITi' 4 POLICE DEPT. IN LIGHT OF 
MONELL) CHJW. OB 4 JIM; nailed Attys bailey 4 Bailey; Winter; Shea 4 Klein

DEFTS; CASE DISMISSED) CHJW, OB 4 JIM; mailed Attys Bailey 4 Bailey; Winter; 
Shea; and Klein

3-11-80 (ji ‘ MOTION FOR RECONSIDERATION W/MEMO IN SUPPORT ATTACHED (of pltf) CHJW

m



OC WlAl«#». I ?»»
C I V J L  O O C K E T  C O N T I N U A T I O N  S H E E T

'CLZA-MTEE GARNER
;,'E“i:NOANT

'.'lEMPKIS POLICE DEPT., ET AL
SOCKET NO 7 5-145
P A G E  _ 4 _ C r ___ ^ ? A 3 £ - -

OATC N« P R O C E E D I N G S

14/29/80 "75.I ORDER - Judgement; for defendant: suspended pending further consider
ation in light of contention that plaintiff was not given full 
opportunity to brief & argue merits - plaintiff granted 45 days 
drom date of this order to submit further briefs h . memoranda on 
issues asserted to be "open" for proof - defendants allowed 20 days 
to respond after receipt of plaintiff's submission - CHJ, BAILEY, 
SHEA i KLEIN

16-5-30 MIN'nZS: Arty Vjltar Salley nppeared 6 aoved for extension of cine to file 
orlef - CRT JR-UNTED 10 DAYS .VDDITION'AL TO 4 5 DAYS ,U.RE.ADT GR.V;TED

r-6-24-30 ; '5'

6-21-80

7-30-90
7-3-31 79.

7-13-31 30.

3-7-31 31

M T I Z W U  (of Janes J. FYFE, Ph.D on behalf of plcf) CHJW 

P'-aINTIF?'S MEMORA.NDUM OF LAM M/IS ATTACHMENTS FURNISHED W/ORIGIMAL ONTY
(NOTE: NENO 6 ATTACHMENTS FILED IN SEPARATE FOLDERS -2)

DEFT'S RESPONSE TO PLTF'S MEN.O 1177 CHJW
ORDER - judgnenc Is renderedfor City of Menphis. Copy Judge, Bailey. Winter, 

Shea and Klein, Ctra. Dpty 6 03.

JLDCyENT ON DECISION BY THE COLTiT.- Copy Judge, Bailey-Bailey, Winter, Shea 
Klein and 03.

NOTICE OF APPE.U, - Copy Judge, Winter, Bailey, Shea, and Cc. Reporter and 
Cc. of Appeals.

3-7-31 

3-21-81,

MAILED TRANS.MISSI0N FOR.M TO COURT OF APPEALS - w/copy of docket sheet, notice 
of appeal, order dated 7-8-91 and Judgment dated 7-13-81.

MAILED CERTIFIED RECORD TO COURT OF APPEjVLS - 1 vol pleadings. Copy of docket 
Sheet mailed to Bailey Winter, Shea and Klein.



\

IN THE UNITED STATES DISTRICT COURI 
FOR THE WESTERN DISTRICT OF TE1D.'ES__ 

WESTERN DIVISION

j CLEAKTEE GARNER, father and next of 
: kin of EDWARD EUGENE GARNER, 
a deceased minor.

Plaintiff,

I MEMPHIS POLICE DEPARTMENT; CITY OF 
I MEMPHIS, Tennessee; VfYETH CHANDLER, 
|l Mayor of Memphis; JAY W. HUBBARD, 
j Director of Police of Memphis; and 
E.R, HYU-ION, Police Officer of the 
City of Memphis,

Defendants.

CIVIL ACTION 
No.

COMPLAINT

1- On October 3, 1974, Edward Euge.ne Garner, a 15 year old 
black citizen of the United States and of the State of Tennessee, 
residing in the City of Memphis, Shelby County, Tennessee, was 
shot and killed by an officer of the Memphis, Tennessee Police 
Department, At the time the officer shot and killed Garner, r.e 
was acting under color of the statutes, ordinances, regulations, 
customs and usages of the State of Tennessee, County of She],by, 
and City of Memphis.

JURISDICTION

2- This is an action for damages brought pursua.nt to 4 2 
U.S.C. §§ 1981, 19S3, 1935, 1986 and 1933 to redress the depriva
tion of the rights, privileges and immunities of Plaintiff's 
deceased son, Edward Eugene Garner, secured by the Fourth, Fifth, 
Sixth, Eighth and Fourteenth Amendments to the United States

! ' I ■,

B



r

,.i -

i!

Constitiution. Jurxsdictiion is conferred on this Court by 28 !
U.S.C. § 1343(3) and 23 U.S.C. § 1331. The matter in controversy . 
exceeds the sum or value of $10,000,00, exclusive of interests 
and costs. i

The shooting and hxlling of Edward Eugene Garner by a 
police officer of the City of Memphis also deprived the deceased ' 
of rights, privileges and immunities secured hi.m by the Constitu
tion and laws of the State of Tennessee. This actio.n, therefore, 
seeks damages for wrongful death and survival a.nd also with 
respect to violations of the deceased's state-conferred rights 
through exercise of this Court's pendant jurisdiction.

Parties

4. Plaintiff Cleamtee Garner is a.n adult black citizen of
the United States and the State of Tennessee, residing in Memphis, 
Shelby County, Tennessee. Plaintiff is father and next of kin of 
Edward Eugene Garner, deceased minor, who died on October 3, 1974 ‘ 
as a result of defendants' policies, practices, customs and '
usages complained of herein. At the tim.e of his death, Edward 
Eugene Garner, resided with plaintiff and was fifteen years old.
5. All of the individual defendants are citizens of the 
United States and the State of Ten.nessee, residing i.n Memphis, 
Shelby County, Tennessee. The defenda.nts are as follows:

(a) The Memphis Police Departm.ent is a department or 
agency of the City of Memphis and is charged by law wich the : 
law enforceme.nt responsibilities of the City of Memphis. The ' 
Departme.nt has a duty to operate in a lawful manner so as to 
preserve to the citizens of Memphis the rights, privileges 
and immunities guaranteed and secured to them by the 
Constitution and laws of the United States.
(b) The City of Memphis is a municipal corporation

- 2 -



V.

, .1

organized and existing under rhe laws of the State of i
i

Tennessee. The City, pursuant tO'law, operates the defendant 
Memphis Police Department, which the City has the dutv to ! 
operate in conform.ity with the Co.nstitution and laws of the 
United States. •

(c) Wyeth Chandler is Mayor of the City and, as such,
is the City's chief executive officer. . Defendant Chandler 
is respo.nsible for all policies and practices a.nd actions 
or omissions of the Department and its, members and has the 
duty to preserve to all citizens the rights, privileges and 
immu.nities secured by t'ne Constitution and laws of the 
United States. Prior to becoming Mayor, on January 1, 1972,  ̂
defendant Chandler was a member of the Memphis City Council, ■ 
the City's legislative body. j

(d) Jay W. Hubbard is and was, at all times relevant 
herein. Director of Police of Memphis. In that capacitv as 
chief executive officer of the Memphis Police Department, i 
he is responsible for establishi.ng general practices, pro
cedures and policies with respect to the operation of that 
Departm.ent. Pursuant to that authority he has promulgated 
regulations relating to the use of lethal force by Memphis 
offj-cers and has authorized the use of weaponry and amm.uni— '

I
tion by police officers both of which acts are complained of 
herei.n. Defendant Hubbard is sued individually a.nd in his 
official capacity with the Departm.ent.

(s) Defendant E.R. Kymon is sued individually and in
his official capacity. At all times relevant, he was an 
officer of the City of ."-lemphis Police Departm.e.nt. He is a 
citizen of the United States and of the State of Tennessee, 
residing in the City of Me.mphis.

- 3 -

iB
1 i



a





il

il

deceased in the bach of the head with a Remington 125 grain 
jacketed hollow-point bullet fro.t. his service revolver.
15. Edward Eugene Garner expired at the scene of the
snooting shortly after sustaining the gun-shot wound to the back 
of his head.

I 16. On information and belief, the deceased. Garner, was
! unarmed at the ti.te he was mortally wounded by defendant hy.ron.
17. _ In using his service revolver armed with "Du.ti-Dum" type 
bullets, defenda.nt E.R. Kymon k.new or should have k.nown that his 
apprehension of Edward Eugene Garner woulcJ be effected only at 
the cost of severely v;ounding, maiming or killing the fleeing 
youtn and 'would prevent, under normal circttastances,
Garner's bei.tg siioTected to the due process protections of being 
formally charged, tried by a court or jury, and, if guilty, 
punished by incarceration or probation. Defenda.nt E.R. Hyir.on 
k.new or should have k.no’wn, that his shooting of Garner would 
inflict s’um-mary capital punish.me.nt, a penalty which even a court 
of law could .not impose consonant with the Eighth and Fourteenth 
Amendments at the time the incident in questio.n occurred. i
18. The woundi.ng and killing of the deceased. Garner, by 
defendant, .Hymen, constituted a wanton, willful, malicious antyor' 
neglige.nt violation of the deceased's right not to be subjected ' 
to summary punishment a.nd death at the ha.nds of a law e.nforce- 
ment orficer, b’ut rather to be charged and tried before a court
of lav; and convicted, if guilty, for any crimes he allegedly 
committed as guaranteed by the Fifth, Six'th, and Fourteenth 
A.mendments to the United States Constinucion, specifically by 
the Due Process Clauses of the Fifth and Fourteenth Amendments.
19. The wounding and killing of the deceased. Garner, by 
defe.ndant, Kitnon, constituted a wanton, willful, m.alicious anchor 
negligent violation of the deceased's right not to be subjected

-  6  -

8
11.





Secoiid Claim for Relief

23. Plaintiff reasserts and realleges paragraphs 6 through 
22 above.

24. The wounding and hilling of the deceased. Garner, by
I defenda.nt, Kyr.on, in violation of the deceased's rights guaran
teed by the Fourth, Fifth, Sixth, Eighth and Fourteenth teendnients 
to the United States Constitution, was a direct and proximate 
result of the defendant, Memphis .°olice Department's hiring of 

j| defendant, Hymon, despite the fact that it knew or should have 
known that defendant, Kvmon, was unsuited to perform the duties 
of a law enforceme.nt officer and 'chat his employm.cnt in that 

|| capacity would result in his causing grievous bodily injury or 
j death to persons in the City of Memphis.
25. The wounding and killi.ng of the deceased. Garner, by
defendant, Hymon, in violation of the deceased's rights guaran
teed by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments 
to the U.nited States Constitution was a direct and proximate 
result of the defendant, Memphis Police Department's hiring 

! defendant, Hymon, as a law enforcement officer with the authority 
and capacity to cause grievous bodily injury to persons in the 
City of Memphis without providing him with adequate training in 
the use of weapons generally and in the proper use of non-lethal 
and lethal rorce in making apprehe.nsions.

26. The wounding and killing of the deceased. Garner, by
defendant, Hymon, in violation of the deceased's rights guaranteed 
by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendir.cnts to 
the United States Constitution was a direct and proximate result 
of the defendant, Memphis Police Department's hiring defendant, 
Hymon, as a law enforcement officer with the authority and capa- | 
city to cause death or grievous bodily harm to persons in the ;

-  8

10

13





Third CIai::i for Relief i

Plaintiff reasserts and realleges paragraphs 6 through
• ' ' . I

22 above.

The wounding and killing of the deceased. Garner, by i
defendant, Hyrr.on, in violation of the deceased's rights guaranteed 

the Fourth, Fiftn, Sixth, Eighth and Fourteenth Amendinents to 
the United States Constitution was a direct and proximate result 
of the defendant. Jay V7, Hubbard's hiring of defendant, Hymon,

tj
despite the fact that defendant, Hubbard, kn'SW or should hove

!j known that defendant, Hymon, was unsuited to perform the duties
I
j of a law enforcement officer and that his employment in that 
j| capacity v;ould result in his causing grievous bodily injurv or 
jj death to persons in the City of Memphis. '
[I
\\ The wounding and killing of the deceased, Garner, by :
defen*-*an«„, Hymon, in violation of the deceased's rights guaranteed
by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution was a direct result of defendant.
Jay W. Hubbard's hiring defendant, PIyr.cn, as a law enforcemenc

j officer with the authority and capacity to cause death or grievous
I bodily injury to persons in the City of Memphis without providing '
i him with adequate training in the use of weapons generally and in 
j I
j the proper use of non—lethal and lethal force in mâ -cing aopre—
1 hensions. 1

j 32. The wounding and l^illing of the deceased. Garner, by
j  defendant, Hymon, in violation of the deceased’s rights guaranteed
i
jby the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to
the United States Constitution was a direct and proximate result
of defendant. Jay W. Hubbard’s hiring defendant, Hymon, as a
enforcement officer with the authority and capacity to cause '
death or grievous bodily harm to persons i.n the City of Memphis 
i . ' :
! without providing him with adequate training in the use of weapons
i

-  10  -

12

15.





Fourth Clain for Relief

Plaintiff reasserts and realleges paragraphs 6 through
22 above.

36. The wounding and killing of the deceased. Garner, by
|j defendant, Hyroon, in violation or the deceased's rights guaran
teed by the Fourth, Fifth, Sixth, Eighth and Fourteenth An-.end- 

j ments wO the United States Constitution v/as a direct and proxirnate 
;j result of the defendant. City of Mem.phis' hiring of defendant 
I Hymon, despite the fact that defendant City' of Memphis knev/
jj or should have known that defendant, Kymo-n, was unsuited to
|l
ii perform the duties of a lavj e.nforcerr.e.nt officer and that his
li 1 • uIi employment xn that capacxty would result in his causing grievous
i'l
|| bodily injury or death to persons in the Citv of Me-mohis
i! ■ ■ ‘ 'Ii 37. The wounding and killing of the deceased. Garner bv
!i defendant, Hymon, in violation of the deceased's rights guaran
teed by the Fourth, Fifth, Sixth, Eighth and Fourteenth
! Amendments to the United States Constitution was a direct result
I
jj of defendant City of Mem.phis' hiring defendant Hymon as a law
i enforcement officer v/ith the authority and capacity to cause
j death or grievous bodily injury to persons in the City of Memphis 
without providing him with adequate training in the use of 
weapons generally and in tlie proper use of non-lethal force in 
making apprahensio.ns.

38. The wounding and killing of the deceased. Garner, by
defendant, Hymon, in viblatio.n of the deceased's rights guaran
teed by the Fourth, Fifth, Sixth, Eighth and Fourteenth 
Amendments to the United States Co.nstitutipn was a direct and 
proximate result of defendant. City of Memphis' hiring defendan'c 
Hymon as a law onforcem.ent officer with the authority a.nd

12 -

14
T7



capacity to causa death or grievous bodily harm to persons in 
the City of Memphis without providing him with adequate training 
in the use of weapons generally and in the proper use of non- 
lethal and lethal force in making apprehensions and. in reckless 
and negligent disregard for his lack of training, issuing him 
"Dum-Dum" type bullets for his use on duty, the use of which j could result only in death or grievous bodilv injurv.

I 39. • The wounding and killing of the deceased Garner, by
jj defendant, Hymon, in violation of the deceased's rights guaran-
ij teed by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amend-
H
Ij ments to the United States Constitution was a direct result of
[Ijj defendant City of Memphis' (a) providing authorization to officers
I such as defendant Hymon to shoot to nrevent the escane of nersop= ■ 
I ‘ ‘ '
I suspected to coimmitting certain non-violent felonies but who
I :
i pose no threat to the life or physical safety of the officer
I or of third persons and (b) arming such officers v;ith "Dum-Dum"
II typo bullets that assure that the alleaed felon will bei!;i

grievously
li wounded or killed instantly obviating any possibility that the
ii
suspect will be brought to justice in accordance with acceptc

I notions of due process. In so doing, the defendant. City of
jMemphis, authorized the imposition of summary punishment not
i
the apprehension of criminal suspects for disposition bv the 
legal process.

40. As a consequence of the reckless and neglige.nt conduct
of the defendant. City of .Memphis, as set forth in paragraphs 
j 36 to 39, the defendant Hymon resorted to the use of lethal 
force where non-lcthal force was appropriate, mortally woundijig 
the deceased. Garner.

13 -

15

1 V.'.:



Fifth Claim for Rolief •'

41. Plaintiff reasserts and realleges paragraphs 5 through 
22 above.

42. The wounding and killing of the deceased. Garner, by
ji defendant, Kymon, in violation of the deceased's rights guaran-jj teed by the Fourth, Fifth, Si.xth, Eighth and Fourteenth !•
|| Amenctoents to the Constitution was a direct and proximate result 
I of defendant Ivyeth Chandler's publicly c.xprcssed support for and 
jj approval of, as a member of the City Council and since becoming 
jj Mayor or tne City Cou.ncil, shooting by officers of the Me.mphis 
j Police Department to prevent the escape of persons suspected of 
I committing certain non-violent felonies but who pose no threat 
l| to the life or physical safety of the officer or of third persons 
I despite the fact that he knew or should have known that: (a) The ' 

Memphis Police Department was hiring persons as police officers ■
who wore unsuited to perform the duties of law enforcement '

i
officers and x>̂ hose hiring would result in their improperly causing 
grievous bodily injury or death to pcrcons in the City of .Memphis:' 
(b) The .Memphis Police Department was hiring persons as police 
officers with the authority and capacity to cause death or griev- ; 
ous bodily injury to persons in the City of Memphis without 
providi.ng them with adequate training in the use of weapons 
generally and in the proper use of non-lethal and lethal force 
in .making apprehensions; (c) The Memphis Police Departr.;ent was 
arming police officers with "Dum-Dum" type bullets, the use of 
whicn could result only in death or grievous bodily injury, there
by preventing any disposition of an alleged felon in accordance 
v/iuli sccGDtGci notions of due process,

43. In publicly supporting the shooting by police officers
of the Memphis Police Department to prevent the escape of persons

- 14 -

16

~am n





and reasonable hospital, medical, funeral expenses and exoenses  ̂
of administration necessitated by reason of injuries causing '

ideath to the deceased. Garner. j
O '

48. Plaintiff also requests that this Court grant declaratory'
relief pursuant to 28 U.S.C. §§ 2201 and 2202 declaring that the I
use of "Du.Ti-Du.m'' type bullets by .'Memphis Police officers to j

i
apprehend parsons fleeing from the alleged commissio.n of non- ;
violent felonies who pose no threat to the life or physical j
safety to officers or of third persons violates the Fourth,
Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitu
tion and federal laws enacted pursuant to^those Amendments.

i
49. Plaintiff respectfully requests that costs and counsel
fees be awarded and that such other, further and additional '
relief as may appear to the Court to be just and equitable be '

granted.
j

Respectfully submitted,! Dated:

VJAL'FER LEE BAILEY, JR. 
D'AR.MY HAILEY 
Suite 901, Tenoke Building 
161 Jefferson -Ave.nue 
Memphis, Tennessee 38103
JACK GREENBERG 
CliARLES STEPHEN RALSTON 
DREV; S. D.AYS, III 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiff

16 -

21
IS



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 
__________WESTERN DIVISION________

CLEAMTEE GARNER, father and 
next of kin of Eugene 
Garner, a deceased minor.

Plaintiff,
V.

MEMPHIS POLICE DEPARTMENT, 
et al..

Defendants.

NO. C-75-145

MEMORANDUM OPINION

This is a civil rights action filed in April, 1975, 
by Cleamtee Garner to recover for the shooting death of his 
son, Edward Eugene Garner, on October 3, 1974. Named as 
defendants were the Memphis Police Department, the City of 
Memphis, Tennessee; Wyeth Chandler, Mayor of Memphis; and E. R. 
Hymon, Police Officer of the City of Memphis. Defendant Hymon 
was sued for having fired the shot that caused Garner's death; 
the other defendants were sued on the grounds that their 
failure to exercise due care in the hiring, training and 
supervision of defendant Hymon made them responsible for 
Gamer’s death.

Jurisdiction was founded upon 28 U.S.C. §§ 1343(3) 
and 1331, since plaintiff alleged that the death of his son 
worked a deprivation of rights accorded Edward Eugene Garner 
by the Constitution and laws of the United States. Plaintiff 
cited specifically in this regard the Fourth Amendment right to 
be free of unreasonable seizure of the body, the Fifth

150



Amendment right to due process of law, the Sixth Amendment right
to a jury trial and the Eighth Amendment right to be spared
cruel and unusual punishment, all such rights incorporated into
the due process clause of the Fourteenth Amendment and made
applicable to the States. 42 U.S.C. §§ 1981, 1983, 1985, 1986
and 1988 were also alleged to have been violated in respect to
the cause of action asserted. A pendent claim against the same
defendants under the Tennessee Constitution and laws was also
alleged with respect to violation of rights and duties created

1/by Tenn. Code Ann. § 40-808.
By order of August 18, 1975, this Court ruled that 

no cause of action could lie against the Memphis Police 
Department, or the City of Memphis under 42 D.S.C. § 1983 and 
28 U.S.C. § 1343(3) since they were not "persons" within the 
meaning of that statute. City of Kenosha v. Bruno, 412 U.S. 507 
(1973) and Monroe v. Pape, 365 U.S. 167 (1961). Jurisdiction of 
the Court over these defendants was found to have been invoked, 
however, under 28 U.S.C. § 1331. Bivens v. Six Unknown Named 
Agents, 403 U.S. 388 (1971).

FINDINGS OF FACT
1. On the evening of October 3, 1974, Edward Eugene 

Garner broke into the Lidell Anderson home at 739 Vollintine,



nearby Ward 128 manned by defendant Hymon and Patrolman Leslie 
Wright was directed to proceed to 737 Vollintine on the prowler 
call. Upon arriving at 737 Vollintine, the Memphis Police 
officers saw Statts standing on her porch pointing to the house 
next door. Defendant Hymon questioned her about the situation 
and was advised of the next door break-in; in fact, Mrs. Statts 
said, “they are breaking in" (emphasis added). Hymon then 
returned to the squad car, grabbed his flashlight, advised his 
partner what was happening, and then proceeded south along the 
west side of the house at 739 Vollintine, which faced north.

2. Patrolman Wright then moved the squad car to the 
curb, called the Police dispatcher to advise they were on the 
scene, picked up his flashlight, and moved toward the east side 
of the house. Hymon became aware that there was a light on 
inside the house as he proceeded down the west side towards the 
rear. As he approached the southwest corner of the house 
Hymon heard the back screen door slam and reaching the corner 
of the Anderson house', he saw a figure running from the back of 
the house to the back of the lot where a cyclone fence extended 
across the south boundary of the property. The backyard of 
739 Vollintine was completely encircled by fencing.

3. There was a three to four foot chicken wire fence 

supported by boards which ran in a north to south direction 

along the west side of the backyard and was situated between 

Hymon and the cyclone fence, which appeared to Hymon in the
ydarkness to be approximately six or seven feet high. As 

defendant Hymon was standing at a point near the southwest 

corner of the'house he could also observe that a garbage can 

had been placed under a window on the back side of the house

^  Actual height was about 6 feet high with pointed wire 
extending across the top.

- 3 -



■ j

and the glass was broken out of the window in the rear; he could 
also make out a clothesline and the outline of objects in the 
backyard between him and the fleeing subject. Defendant Hymon 
shined his flashlight along the fence and spotted Edward Eugene 
Garner in a stooped position next to the cyclone fence near the 
southwest corner of an outbuilding located in the southeast 
comer of the yard some thirty to forth feet away. He did not 
appear to be armed, but Hymon could not be ceirtain of this at 
the moment.

4. Defendant Hymon immediately shouted "halt" and 
identified himself; Garner paused momentarily and then as 
defendant Hymon started in his direction and toward the chicken 
wire fence. Garner sprang to the top of the cyclone fence 
extending half of his body and his head over the fence when 
Hymon fired his service revolver hitting Garner in the right 
side of the head. The area to the south beyond the fence was 
in darkness and there was poor illumination in the Anderson 
backyard. Hymon was not familiar with this particular 
location or neighborhood, having lost his way in proceeding
to the site.

5. Patrolman Wright, in the meantime, had proceeded 
along a picket fence on the other side of the house and heard 
defendant Hymon yell "halt" in a loud voice, following which 
there was a pause. As Patrolman Wright approached the south
east corner of the house, he heard a shot; defendant Hymon then 
called for assistance, at which time Wright also flashed his 
flashlight along the fence until he picked up Garner whose
body was then draped on the fence, the top over the southside and 
the lower half on the nort still on the Anderson side. Wright 
apparently d-d not hear Hymon*s earlier instruction to get Garner

153



. I

when he had first located him with his flashlight as Garner 
paused. An ambulance was called and Garner's body was removed 
from the fence mortally wounded. Garner was transported to the 
hospital where he expired shortly after his arrival, having 
never fully gained consciousness after being shot by Hymon.
Garner was unarmed at the time he was shot.

6. It was later determined that after breaking into 
the Anderson house. Garner ransacked the bedrooms and removed 
a ring and wallet containing a small amount of cash.

7. Less than two months prior to October 3, 1974, 
young Gamer, then only 15 years old, was placed on probation 
by the Juvenile Court in Memphis in connection with an 
adjudication of Juvenile Delinquency stemming from a charge of 
burglary which his parents had investigated and reported. 
Previously, Garner was placed on probation by Juvenile court 
on November 1, 1971, in connection with a lesser charge of 
burglary, and he had also been charged with violation of curfew 
set by the Juvenile Court. Mr. Garner, the plaintiff, admitted 
that his son, Eugene, was somewhat a problem for him, particularly 
since he worked at night.

At the time of his death, the alcohol content in the 
blood of Edward Eugene Garner was .09 which is just under the 
standard for adults established by Tennessee Law of a presumption 
that one is acting under the influence of an intoxicant. He was 
only about 5’4" tall and weighed probably in the neighborhood of

y100 to 110 pounds at death. The blood alcohol content was 
sufficient to slow his reactions.

8. Officer Hymon, also a black as was deceased 
Garner, is a native Memphian, attended public schools in Monphis

2/ Hymon, however, stated that in the circumstances of visibility 
Garner appeared to him to be a "black male" about 5'5" tall and 
about 17 or 18 years old.

154



and received a B.S. degree in English from Tennessee State 
College, participated in athletics, worked in the Tennessee 
prison system, and is 6'4" tall. As a part of his police 
training, after joining the Memphis Police Department in 1973, 
he was given instruction in physical combat —  use of night
stick and judo —  and required to do physical conditioning.

9. Defendant Hymon at the time he was attempting to 
apprehend Garner could not be certain whether there was an 
accomplice in the house, or in the area, and whether the 
accomplice might be armed. The area by the cyclone fence in 
the back of the yard was not illuminated, and the area south 
of the fence was very dark at the time defendant Hymon was 
trying to apprehend Garner. He could detect only traces of 
tall underbrush and trees on the other side of the cyclone 
fence. He did not know the lay of the land in this area which 
was only a few blocks from the Garner home.

10. After a full investigation of the incident of 
October 3, 1974, and a review of same by the Memphis Police 
Firearm's Review Board, no disciplinary action was taken against 
Hymon, nor was any action taken by the Shelby County Grand Jury 
although the matter was presented ot it. There is nothing in 
the record to indicate that defendant Hymon had any propensity 
toward precipitous or reckless use of firearms as a police 
officer or otherwise.

11. The training methods used and the subject matter 
taught at the Memphis Police Department Training Academy in 
the area of the use of firearms and deadly force, are generally 
consistent with those used by other police departments and the 
FBI Academy. Memphis Police instructors received training at 
the FBI Academy. They taught police to fire at the largest

I -6- 15o



target present, usually the trunk or torso area, the "center 
mass". Police were given instruction also by legal advisors 
on the Tennessee law with respect to the use of lethal force.

Regulations published by the Memphis Police Department 
in connection with the "Use of Firearms and Deadly Force" 
effective at the time were somewhat more restrictive than 
TCA 40-808, which deals with lawful means by which a fleeing 
felon may be apprehended. A three judge court has ruled this 
statute constitutional. Cunningham v. Ellington. 323 F.Supn.
1072 (W.D. Tenn. 1971). See Beech v. Melancon. 465 F.2d 425 
(6th Cir. 1972).

12. Prior to this tragic incident, the Memphis Police 
Department decided to make a study of various types of ammunition 
following complaints by officers that the "round noee" type 
ammunition they were issued for their service revolvers was not 
sufficiently effective in stopping or neutralizing individuals 
with whom they were confronted in dangerous situations. This 
followed an episode in which a police officer was killed (and 
a Federal Probation Officer wounded) by an apparently beserk 
man firing at random at others. Tests were conducted by the 
Firearms' Section of the Memphis Police Department under the 
auspicies of Captain John Coletta who recommended a change to a 
"hollow point" projectile or bullet as more effective in 
"neutralizing" or incapacitating an individual and less likely 
to penetrate through a target and thus continue in flight to the 
possible harm of others.

During the term of Police Director Hubbard, the 
Memphis Police Department thereafter, following consideration 
of the Coletta recommendation, changed to use of "hollow point" 
ammunition, specifically ,38 Special Caliber Remington 125 Grain

28 -7- 15G



semi-jacketed hollow point. Hubbard also established a 
Firearms Review Board to investigate instances wherein police 
employed a firearm.

13. "Hollow point" ammunition is used by many other 
police departments throughout the United States and by the FBI, 
although it is more lethal in its effect. A key factor in the 
injury producing effect of a bullet is the part of the body they 
strike, the point of entry. The particular type of ammunition 
used by the Memphis Police had a greater wound producing 
potential with greater velocity than was formerly utilized, and 
was more accurate. "Hollow point" ammunition produces more 
injury than round nose ammunition, all other factors being 
equal, but State and Local medical examiner and County 
Coroner Francisco could not state that the type of ammunition 
used in this particular episode would have made any difference 
in bringing about Garner's death in light of the place where 
the bullet struck and the point of entry.

14. Various persons with police experience were 
permitted to testify as to whether or not under assumed 
circumstances it was, or not, reasonable for Hymon to fire his 
pistol at the fleeing Gamer. The substance of such testimony 
was to the effect that Hymon should first have exhausted 
reasonable alternatives such as giving chase and determining 
whether he had a reasonable opportunity to apprehend him in same 
other fashion before firing his weapon. A training film was 
shown in evidence which was used in training Memphis Police 
Officers, such as Hymon, as to circumstances in which lethal 
force might properly be used.

15. There was no evidence introduced tending to 
indicate any personal involvement whatsoever by Director Hubbard

29 -8- 15 i



or Mayor Chandler in the episode in controversy; or in any 
failure on their part with respect to police hiring procedures 
regarding the employment of Hyraon as a police officer.. There 
was evidence to the effect that Hyraon was, prior to this episode, 
a corapetent police officer, indeed, that he was the type person 
who was a desirable police recruit by reason of his education,

4/background, ability and his race. There was no evidence 
indicating insufficient or inadequate police hiring methods or 
standards.

CONCLUSIONS
I. Since plaintiff failed to present any significant 

evidence bearing upon the personal liability of defendants 
Hubbard and Chandler, they were entitled to be dismissed at the 
end of plaintiff’s case in chief.

II. Since plaintiff failed to present any significant 
evidence as to deficient hiring procedures, claims in that 
respect as to the City of Memphis and its Police Department 
should be dismissed.

III. Jurisdiction of this Court over defendant Hyraon 
is established by 28 D.S.C. § 1343(3) and by 42 U.S.C. §§ 1983 
and 1988. Monroe v. Pape, 365 U.S. 167 (1961). Jurisdiction 
of this Court over defendants Memphis Police Department and the 
City of Memphis is established by 28 U.S.C. § 1331 amd the 
Fourteenth Amendment.

IV. Under TCA 40-808 and under regulations of the 
Memphis Police Department issued thereunder lethal force may
be used by police officers to apprehend persons fleeing from the 
commission of certain felonies. Reneau v. State. 70 Tenn. 720,

^  There have been previous civil rights cases filed in this Court 
by the law firms representing this plaintiff charging the City of 
Memphis and its Police Department with failure to hire enough black 
police officers and charging police bias towards blacks.

8 0 15S
- 9 -



31 Am. Rep. 626 (1879); Love v. Bass. 145 Tenn. 522, 238 S.W.
94 (1921) ; Cunningham v. Ellington, supra; Beech v. Melancon. 
supra. Burglary of a residence is one of the felonies covered 
under this statute and under Tennessee law, TCA 39-901. Lethal 
force may be resorted to in order to apprehend a person fleeinc 
from the commission of a burglary such as that in which deceased 
Garner was involved, "only after all other reasonable means to 
apprehend ... have been exhausted." Reneau. suora; Scarborouch 
V. Statef 76 S.W. 2d 106 (1934); Cunningham, supra; and Beech, 
supra.

V. The real and principal issue in this case, then, 
is whether defendant Hymon was justified in using his weapon to 
apprehend Edward Eugene Garner as the only reasonable and 
practicable means of apprehending him or preventing his escape. 
Garner was clearly a felon and Hymon could not be sure that he 
was only a juvenile. After having been ordered to halt and 
knowing that he was confronted by a police officer. Garner 
recklessly and heedlessly attempted to vault over the fence to 
escape, thereby assuming the risk of being fired upon. Under 
the circumstances Garner was knowingly,directly and proximatelv 
contributing to his own injury and death, taking into account 
®11 factors present. There was very little opportunity of 
identification of Garner for purposes of future arrest if he 
escaped.

VI. Hymon realized there v;ere several obstacles 
between him and Garner at the moment Garner made what evolved 
into a fatal effort to scale the chain link fence. He was 
uncertain about the time required for him to reach the area 
from which Garner made his desperate leap, and he was reasonably 
concerned about the remote prospects of locating Garner once he

31 -10- 15ij



disappeared into the brush and undergrowth out in the reaches 
of darkness and in an area unfamiliar and unknown to Hymon.

Hymon (and his partner), up until the moment of firing, 
had followed good police procedures in investigating an apparent 
burglary in progress by a person or persons unknown, who may or 
may not have been armed. In a split second, Hymon was called 
upon to make a fateful and difficult decision in the face of what 
reasonably appeared to be a successful effort to flee from 
arrest or apprehension from a felony scene. Hymon did not know 
whether Gamer had committed only a so-called "property crime" 
or whether persons in the home which he had forceably entered 
might be or have been endangered. The Court concludes that 
Hymon was justified in thinking that once Garner scaled that 
fence, he would escape and that he, therefore, acted in 
compliance with lawful requirements in the use of potentially 
lethal force to prevent the escape of a fleeing felon. See 
Beech v. Melancon, supra. There was no reasonable alternative 
apparent if he were to prevent the escape or to effect the 
arrest.

VII- One particularly difficult aspect of this case 
was the age and size of young Garner. Hymon was called upon in 
making a reasonable decision to weigh the factor, together with 
the potentiality of inflicting a fatal wound,in making an 
arrest, in preventing an escape, under these circumstances.
This factor, together with the eventual (but not then realized) 
fact that Garner was unarmed, made Hymon's decision to fire both 
difficult and agonizing. The Court has taken these considerations 
into account in concluding, nevertheless, that Hymon acted 
within his responsibility as a reasonable police officer. He

-11-
32 IGU



He certainly acted without any malice, predisposition, or 
racial animus towards Garner. He also acted within general 
guidelines afforded him as a Memphis Policeman, and the policy 
has been one essentially established by the Tennessee legislature, 
which has been determined to be a constitutionally acceptable 
one.

VIII. The policies of the Memphis Police Department 
which authorize the use of firearms to apprehend fleeing felons 
come within the general ambit of the Tennessee statute (TCA 
40-808). The training program of the Memphis Police Department 
which incorporates some of the methods, practices and procedures 
used by other police departments was at least adequate in 
respect to apprehension of resisting or fleeing felons. The 
City of Memphis and the Memphis Police Department are not liable 
to plaintiff on this basis asserted.

IX. The choice by the Memphis Police Department to 
utilize the particular type of ammunition for service revolvers 
at the time in question was undertaken after consideration and 
study. There were plausible reasons for its conclusion that a 
more effective type might be utilized for the protection of the 
police officers and in the general welfare, even though there 
was involved a greater potential for serious injury, severe 
wounding, or even death to an intended target in connection 
with its use. Perhaps a different type euamunition with less 
"wound producing potential", as Dr. Francisco described it, 
would be preferable if this Court were called upon to make this 
decision; but this is not the issue to be decided. Plaintiff's 
counsel concedes in his memorandum and proposed conclusions that 
the Court must rather determine whether the Memphis Police 
Department's decision to utilize the "hollow point" bullet with

u O -12- IGi



a high velocity is such conduct as to "shock the conscience
of the Court", citing Rochin v. California, 343 U.S. 165 (1952),
the "stomach pumping" case. Interestingly, Justice Douglas, a
renowned civil libertarian, in a concurring opinion observed

"Yet the Court now say s the rule that a 
majority of states have fashioned (to 
admit such evidence of narcotics pumped 
from the stomach) violates the 'decencies 
of civilized conduct' to that I cannot 
agree." 432 U.S- 178. (See also the 
concurring opinion of Justice Black).
The other two cases cited by plaintiff in support of

his contention in this respect appear inapposite as pertainingVonly to police mistreatment of a prisoner in custody. The
Memphis Police Department's conduct in selecting ammunition
in question does not violate standards of civilized conduct so
as to shock the conscience of the Court; it is similar to
policies in use and established by many other jurisdictions
and was not adopted merely for purposes of inflicting excessive

6/punishment or denying due process. Rather, it was 
considered action with a policy toward minimizing hazards to 
the police and to citizens in situations of resisting or 
fleeing felons subject to lawful apprehension, or in situations 
were the life or safety of a policy officer or an assaulted 
citizen might even be at stake.

X, In this case, moreover, plaintiff has not shown 
a proximate and direct relationship between the police choice 
as to type of ammunition used and the particular effect on

See plaintiff's proposed conclusion No. 6, citing 
Rosenberg v. Martin, 473 F.2d 520 (2nd Cir- 1972) and Johnson 
v. Click, 431 F.2d 1028 (2nd Cir. 1973).

This conclusion is reached even if the Hague Declaration 
of 1899 may imply a contrary standard.

-13- 1G2





filed
Fe b Z3 4 3i PH 'RO

' L COURT "‘̂C'=r,N:;ST.CF tern.

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION. _____

CLEAMTEE GARNER, etc., 
Plaintiff,

MEMPHIS POLICE DEPARTMENT, 
et a l . ,

Defendants.

NO. C-75-145

,9 (9) “

dooiei in
compliance ,1th Kule 58 and/or

O R D E R

Plaintiff brought this civil rights action in 
April of 1975 seeking damages for the shooting death of his 
son, who was killed by the police officer while attempting 
to flee from arrest. Named as defendants were the Memphis 
Police Department; the City of Memphis; Wyeth Chandler,
Mayor of Memphis; and E. R. Hymon, the Memphis police 
officer who fired the shot that caused young Garner's death. 
The defendants other than Officer Hymon were sued on the 
grounds that they filed to exercise due care in the hiring, 
training, and supervision of officers and also on the grounds 
that their policies authorizing the use of deadly force 
against nonviolent felony suspects and the use of hollow 
point bullets were unconstitutional. In addition, plaintiff 
asserted that lethal force would not have been employed had 
his son been white.

Plaintiff's complaint purported to assert an 
action for damages under 42 USC §§ 1981, 1983, 1985, and 1988

2 ( y



to redress alleged deprivations of rights secured by the 
Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to 
the United States Constitution.

By Order of August 18, 1975, this Court ruled that 
plaintiff could not utilize 42 USC § 1983 and 28 USC § 1343 
to assert claims against the City of Memphis or the Memphis 
Police Department since at that time, prior to the decision 
in Monell v. Department of Social Services, 436 U.S. 658 
(1978), those entities were not "persons" within the meaning 
of § 1983. See Monroe v. Pape, 365 U.S. 165 (1961). The 
Court nevertheless invoked jurisdiction over both of these 
defendants under 28 USC § 1331, relying on Bivens v. Six 
Unknown Named Agents, 403 U.S. 388 (1971).

Following a bench trial, the Court held that the
training programs and guidelines of the Police Department
regarding the use of lethal force were adequate and that
neither the City nor the Police Department could be found
negligent on that basis. See Memorandum Opinion, November 29,

1/1976. The Court further held that the use of hollow point 
bullets, based on the proof and evidence presented, was not 
implemented merely for the Infliction of excessive punishment 
and did not violate standards of civilized conduct or "shock 
the conscience." See Rochin v. California, 343 U.S. 165 
(1952).

Police Department officials testified that the 
department became concerned when the type of bullets 
previously used proved ineffective at stopping assailants

1/ It is noteworthy that although plaintiff in this case failed to 
establish negligence on the part of defendants, even a showing of 
negligence nay be insufficient to establish liability under § 1983.
See Gomez v. Toledo, 602 F.2d 1018 (1st Cir. 1979). The decision in 
GomezTi^d that a § 1983 plaintiff must establish malice or recklessness. 
B0TT.2d at 1020.

- 2 - 37



and resulted in the death of a Memphis policeman. After 
conducting comparative tests, the department found the 
hollow point bullets more effective in this regard and also 
less likely to ricochet and injure innocent bystanders. There 
was also evidence that other police departments and the FBI 
used such ammunition. See Trial Transcript, Vol. III.
Finally, the evidence showed that, under the circumstances 
of the wounding of Garner, death would have occurred 
regardless of the type bullet used, thus preventing any 
claim for compensatory damages under this particular theory 
of liability.

The Court additionally noted that the 
constitutionality of Tenn. Code Ann. § 40-808, permitting a 
city to authorize its officers to use deadly force against 
fleeing felons, had been upheld previously in Cunningham v. 
Ellington, 323 F .Supp. 1072 (W.D. Tenn. 1971) (three-judge 
court. Chief Judge Phillips participating).

Cunningham v. Ellington, supra, upheld the use of 
lethal force against fleeing felons, armed or otherwise, when 
no other effective alternatives were available to effect 
arrest and to prevent escape. Subsequent Sixth Circuit 
decisions have noted this holding with approval. For example, 
the Sixth Circuit panel in Wiley v. Memphis Police Department, 
548 F.2d 1247, 1251, cert, denied, 434 U.S. 822 (1977), 
expressly stated that the decision in Beech v. Melancon, 465 
F.2d 425 (6th Cir. 1972), cert, denied, 409 U.S. 1114 (1973), 
had held the Tennessee statute to be constitutional. Under 
these circumstances, this Court declined to reconsider further 
the constitutionality of the use of deadly force by the Memphis 
Police Department per se, rather considering the adequacy of 
its policies and regulations in safeguarding previously 
delineated constitutional rights.

-3 -



Intervening decisions in this Circuit and elsewhere 
provide little justification for re-examining the facial 
validity of the Tennessee statute. The only decision noted 
which held the use of dealy force against fleeing felons to 
be unconstitutional was vacated by the Supreme Court. See 
Mattis V .  Schnarr, 547 F.2d 1007 (8th Cir.), vacated as 
advisory opinion sub nom., Ashcroft v. Mattis, 431 U.S. 171 
(1977) . This decision was strongly criticized by the Sixth 
Circuit in Wiley v. Memphis Police Department, 548 F .2d 1247, 
1252-53 (1977), cert, denied, 434 U.S. 822 (1977).

In addition, the Second Circuit in Jones v. Marshall, 
528 F.2d 132 (2d Cir. 1975), held constitutional a 
Connecticut law affording a privilege to police officers to 
use deadly force when they reasonably believe that a felony 
has been committed and that force is necessary to effect 
arrest, a law virtually identical to that in Tennessee. In 
Marshall, the fleeing felon was suspected of auto theft and 
there was no threat of deadly force by the suspect. The 
Second Circuit refused to impose a federal constitutional 
requirement that deadly force be employed by officers only 
when the crime suspected involves a threat to death or bodily 
injury, holding that the state must be given some leeway in 
legislating in this sensitive and contested area. W .  at 
139-42.

Finally, it should be noted that although the evidence 
presented at trial in this case suggested that Garner appeared 
unarmed, the officers could not have known this with certainty, 
nor could they have known whether the crime he had apparently 
committed was against persons or against property only. This 
recurring dilemma exposes the difficulty with any statute that 
attempts to restrict the use of deadly force only to

- 4 -

3D



particular types of offenses or in which the fleeing felon is 
armed.

Finally, the Court found that in view of all
surrounding circumstances, Officer Hymon had acted without
malice and within his responsibilities as a police officer
under the guidelines and policies of the Memphis Police

2/
Department.

On appeal, the Sixth Circuit upheld this Court's
holding as to Officer Hymon, but remanded the case against the
City for "reconsideration" in light of Monell v. Department of
Social Services, supra, which, as noted before, reversed
Monroe v. Pape, supra, in holding that a city or municipal
agency may be held liable as persons in damages under § 1983
for constitutional deprivations that result from a "policy or
custom" followed by the City. 436 U.S. at 694, n. 66. The
remand noted that a qualified immunity insulated the officers
and officials in the case from personal liability, but asserted
that the following questions remain open under Monell:

"1. Does a municipality have a similar qualified
iimunity or privilege based on good faith under 
Pbnell?

2. If not, is a municipality's use of deadly force 
under Tennessee law to capture allegedly non- 
dangerous felons fleeing from nonviolent crimes 
constitutionally permissible under the fourth, 
sixth, eighth, and fourteenth amendments?

3. Is the municipality's use of hollow point bullets 
constitutionally permissible under these 
provisions of the Constitution?

4. If the mmicipal conduct in any of these respects 
violates the constitution, did the conduct flow 
from a 'policy or custom' for which the City is 
liable in damages under Monell?"

600 F.2d 52, 55 (6th Cir. 1979).

2/ The Court further noted that Hymon had a conpetent record as a police 
officer and that he was the type person who was a desirable police recruit 
because of his education, back^ound, ability, and race.

-5 -

40



After carefully reviewing the earlier proceedings 
in this case as well as subsequent submissions by both parties, 
and after hearing further arg-ument by their counsel, this 
Court has difficulty in determining how the decision in Monell 
has any effect on this Court's prior decision and it is concluded 
that further evidentiary proceedings are inappropriate under 
all of the circumstances.

I. SCOPE OF INITIAL TRIAL AND HOLDING 
Plaintiff's broad complaint in this case alleged that 

the killing of his son violated the latter's constitutional 
rights and was the direct and proximate result of the following 
alleged actions of the City and Police Department: 1) hiring
an individual unqualified for the job, 2) allowing the use 
of deadly force against suspects without providing adequate 
training; 3) allowing the use of hollow point bullets;
and 4) authorizing the use of deadly force against "nonviolent" 
felony suspects. Plaintiff further asserted that his son 
would not have been shot had he been white.

Although rejecting plaintiff's pre-Monell attempt to 
invoke the Court's jurisdiction under 42 USC § 1983 and 28 USC 
§ 1343(3) with respect to the City and Police Department, the 
Court held that jurisdiction over both these defendants was 
properly invoked under the Fourteenth Amendment and the general 
federal question statute, 28 USC § 1331. See Bivens v. Six 
Unknown Named Agents, 403 U.S. 388 (1971) ("federal courts do 
have the power to award damages for violation of 'constitutionally 
protected interest'"); see also Bosely v. City of Euclid, 496 
F.2d 193 (6th Cir. 1974).

Thus, as a result of the Court’s exercise of 
jurisdiction under § 1331, the City of Memphis was potentially

- 6 - 41



liable in damages for each and all the constitutional 
violations asserted by plaintiffs under 42 USC § 1983, who 
had full opportunity to develop proof and evidence on each

3/of the issues raised.
At trial, which lasted several days, plaintiff

submitted substantial evidence concerning the policies,
practices, and training programs of the City and Police
Department with respect to the use of lethal force, including
testimony regarding the use of such force against suspects
who, upon investigation, were, in fact, unarmed. In addition,
considerable evidence was introduced concerning the
utilization of hollow point ammunition.

Following presentation of proof, counsel for
defendant noted that plaintiff had presented no evidence to
substantiate the assertion that his son had been denied equal
protection on the basis of race. After counsel for plaintiff
expressed no desire to pursue this facet of the case further,

5/
the Court disposed of the issue summarily.

3/ Plaintiff's very conpetent counsel is now a h i ^  ranking member of 
the United States Department of Justice.
4/ Ihe Court has reviewed the full record carefully in light of the 
ranand in this respect, as well as others considered.
5/ This Court did have occasion to consider an equal protection challenge 
1X1 an earlier, somewhat similar case, Wiley v. Memphis Police Department, 
No. C-73-8 Ĝ .D. Term. June 30, 1975) ,~afFd., 548'F.2d 1247 (6th Cir.), 
cert, denied, 434 U.S. 822 (1977). This Court found that plaintiff in 
Wiley failed to establish discriminatory intent on the part of defendant 
was affirmed on appeal. Ihe reference by the circuit panel in this 
case to statistics introduced in Wiley leaves this Court scmewhat 
puzzled as to their relevance here. In any event, plaintiff in the 
present action offered no evidence whatsoever to support his claim of 
racial discrimination; in Wiley, as the Court recalls it, there were 
assertions that the white police officers involved would not have fired 
at the fleeing suspect had he been white instead of black. There were 
distinct racial overtones in that case not pursued by able counsel here 
despite the opportunity to do so.

-7- 41’



As noted above, the Court considered all claims 
against all defendants (except for the dismissed equal 
protection claim) and the evidence presented on each claim in 
its Opinion of November 29. 1975. Finding that plaintiff had 
failed to establish any constitutional violations, the Court 
ordered judgment in favor of all defendants.

II. EFFECT OF MONELL V. DEPARTMENT OF SOCIAL SERVICES
To discern the effect of Monell on the instant case, 

42 use § 1983 creates no independent rights or protections, but 
merely provides a federal cause of action for violations of 
rights conferred by the Constitution and perhaps by other 
federal statutes. As the Supreme Court recently stated:
"one cannot go into court and claim a 'violation of § 1983' -- 
for § 1983 by itself does not protect anyone against anything." 
Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 
617 (1979).

The decision in Monell therefore simply makes 
municipalities liable under § 1983 if and when they violate 
rights conferred by the Constitution, provided the deprivation 
results from municipal policy or custom. In the earlier 
proceeding in this case, as a result of the Court's recognition 
of a direct action under the Fourteenth Amendment and juris
diction premised on 28 USC § 1331, the City was potentially
liable for all the constitutional violations then and now

6/alleged by plaintiff. This potential liability would have 
been no greater, no different, had the Court exercised

6/ A1 thmigh some of the constitutional provisions relied upon by 
plaintiff are of qtiestionable application to this case, pertinent state 
actions as to these claims are incorporated throu^ Fourteenth Amendment 
application. See Sibron v. New York, 392 U.S. 40 (1958); Gideon v. 
Wainwright, 372 U.S. 335 (1963); Robinson v. California, 370 U.S. 560 (1962).

- 8 - 43



IJ
jurisdiction under § 1983 and 28 USC § 1343. Since
plaintiff's constitutional claims received full and careful
consideration under § 1331, reconsideration under Monell with
additional evidentiary hearings would be inappropriate.
Plaintiff has no new "cause of action" as a result of the
decision in Monell and is bound by the previous judgment
which we reiterate holding that the City and Police Department

8/did not violate the Constitution. The present effort by 
plaintiff to reopen the case and introduce additional 
evidence on issues already decided is barred by established 
principles of res judicata.

There is pending before the Supreme Court at present 
one case which dealt with similar issues in an action 
involving 42 USC § 1983 charges against a municipality, in 
which Bivens v. Six Unknown Named Agents, supra, rationale had 
been applied prior to Monell. In that case, Owen v. City of 
Independence, supra, the Supreme Court remanded to the Court 
of Appeals "for further consideration in light of Monell," 
supra, a decision rendered in 550 F.2d 925 (8th Cir. 1977). 
That Court held, as did this Judge, that 28 USC § 1331 
authorized an action for damages for alleged constitutional

7/ Potential municipal liability could conceivably be less extensive 
imder § 1983 because of the necessity of "policy or custom" prescribed in 
Monell. Compare Leite v. City of Providence, 463 F.Supp. 385 (D.R.I.
1978) (since Congress in fact provided an adequate retnedy under § 1983, no 
reason exists to imply a cause of action under § 1331).
8/ Since defendants were found not to have violated the Constitution in 
m y  respect and since the Court deemed the facial validity of the 
Tennessee law to have been previously decided, the availability of a 
qualified imumnity for nunicipalities need not now be considered. In the 
absence of any actions that may result in a finding of liability, the question 
of imiunity is imnaterial.

Nevertheless, the absence of any evidence of bad faith in this case would 
probably immunize defendants from liability 'under the qualified municipal 
immunity in § 1983 actions recognized by an increasing number of courts. See 
Sala V .  County of Suffolk, 604 F.2d 207 (2d Cir. 1979); (Ven v. City of 
iHaipendence,' 589 F.2d 335 (8th Cir. 1978) (Supreme Court Appeal Pending); 
Morgan V .  Sharon, Pa. Board of Education, 472 F.Supp. 1157 (W.D. Pa. 1979).

-9 -



violations against a city whether or not it was a "person" 
subject to suit under 42 USC § 1983. On remand, interpreting 
Monell, 435 U.S. at 695, 701, 707-08, 712-13, the Court of 
Appeals stated:

... We inply from the Court's discussion of 
imnonity that local governing bodies may assert 
a limited imnunity defense to actions brou^t 
against them under section 1983.

Owens, supra, 589 F.2d 337.
That Court expressly recognized prior to 1978, a

good faith defense available to the municipality to a claim
for damages for an alleged constitutional violation. Applying
Monell, it held that "a limited immunity will apply to claims
for equitable relief against municipalities." 589 F.2d 338.

Applying the Owen rationale, under the evidence
presented to this Court, the City of Memphis has established
a good faith defense. The City of Memphis also was entitled
to claim a limited immunity in light of the evidence presented
on plaintiff's constitutional allegations against it and
other defendants in the trial of this cause. The very
allegations made by plaintiff in this case against the City,
and as to which he was afforded an opportunity to present
evidence, related to policies and procedures allegedly established
or utilized by the City and the Memphis Police Department,
including its hiring and training practices.

In summation, then, the Court believes that each
of the specific questions posed on remand have previously been
addressed and answered in the Court's prior Memorandum Opinion,
but this Judge has carefully re-examined the record, its notes,
and the circtimstances of the prior trial in light of the remand
and Monell, supra.

The answer to question No. 1 is "yes" based upon 
Owen, supra, and cases cited. Whether or not the City has

- 1 0 -

43



such immunity, however, plaintiff has failed to make out a 
prima facie case of any claimed constitutional violation.

The answer to question No. 2 would also seem clearly 
to be "yes" in light of prior authorities cited, particularly 
Cunningham v. Ellington, supra, which held squarely on similar 
facts that Tenn. Code Annot. 40-808 met federal constitutional 
standards on its face and that it was "not unconstitutional" 
in the face of similar attacks made by the same counsel 
involved in this case. 323 F.Supp.l076. (Two of the present 
Judges of the Sixth Circuit Court of Appeals participated in 
that decision as well as the present Chief Judge of this 
Court.)

The answer to question No. 3 was answered "yes" in 
light of the evidence presented and the opportunity to 
present any pertinent proof relating to a constitutional 
challenge to this policy and practice. Absent further 
persuasive proof and evidence in another factual context, 
this Court would still answer "yes" to this inquiry.

As to question No. 4, any answer would be purely 
speculative and conditional since municipal conduct referred 
to in prior questions was not determined in these respects to 
violate the Constitution.

The Court concludes therefore that judgment should 
issue for defendants, including the City of Memphis and the 
Memphis Police Department in light of Monell v. Department 
of Social Services, supra.

r O i

It is so ORDERED this day of February,
1980.

HARRY W. j^ElLFORD, JUDGE/, 
UNITED StATis DISTRICT COTRT

- 1 1 -

40



CIV 32 
(7/63)

JUDGMENT ON DECISION BY THE COURT

^taf^a Distrirt. Cmirt
F O R  T H E

WESTERN DISTRICT OF TENNESSEE 
WESTERN DIVISION

CIVIL ACTION FILE NO. C -75-145
CLEAMTEE GARNER, father and next of kin of 
Edward Eugene Gamer, a deceased minor

MEMPHIS POLICE DEPARTMENT; CITY OF MEMPHIS, TENNESSEE; 
WYETH CHANDLER, Mayor of Memphis; JAY W. HUBBARD, 
Director of Police of Memphis; and E. R. HYMON, Police 
Officer of the City of Memphis

JUDGMENT

This action came on for ijtxwi (hearing) before the Court, Honorable HARRY W. WELLFORD

, United States District Judge, presiding, and the issues having been duly kDignt 

(heard) and a decision having been duly rendered, on the remand from the Sixth Circuit,

It is Ordered and Adjudged that in accordance with the Order entered by the Court 

on March 3, 1980, judgment is hereby entered for defendants, including the City of 

Memphis and the Memphis Police Department in light of Monell.

APPROVED:

*m — I*

, entered on docket eh 
document

79 (a) TdC?

,e t in  compii^i""®
,U h  llu le 58 and /or

Dated at 

March

Memphis, Tennessee

, 19 80 .

47

, this 3rd day



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISON

CLEAMTEE GARNER, father and next of kin 
of Edward Eugene Garner, a deceased 
minor.

Plaintiff,

MEMPHIS POLICE DEPARTMENT, CITY OF 
MEMPHIS, TENNESSEE; WYETH CHANDLER, 
Mayor of Memphis; and JAY W. HUBBARD, 
Director of Memphis Police,

| i  Defendants.

CIVIL ACTION 
No. C-75-145

MOTION FOR RECONSIDERATION I

Plaintiff respectfully moves this Court to set aside its 
order of February 29, 1980, and the judgment entered herein on 
March 3, 1980, and to grant plaintiff a rehearing for the 
following reasons:

1. The Court erred in ruling that plaintiff should not be I
afforded the opportunity to adduce additions! evidence, or in the :I
alternative, to make an offer of proof before decision in this j 
case.

2. The Court erred in deciding the ultimate questions of
1law posed on remand without affording the plaintiff the oppor- | 

tunity to fully brief and argue the merits. |
I3. The Court erred in upholding the constitutionality of Iithe policies and customs of the Memphis Police Department regard- ; 

ing use of deadly force by Memphis police officers.
Wherefore, plaintiff respectfully moves this Court for

Ireconsideration and for an extention of ninety (90) days after ' 
the granting of this Motion for Reconsideration in which to file 
a full brief on the merits and an offer of proof to be followed byl

4 S’
r



oral argument.
Dated: March 1980

Respectfully submitted.

STEVEN L. WINTER 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

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

Attorneys for Plaintiff

43 - 2 -



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

CLEAMTEE GARNER, father and next of kin of 
Edward Eugene Garner, a deceased minor.

Plaintiff,
vs.
MEMPHIS POLICE DEPARTMENT, City of Memphis 
Tennessee; WYETH CHANDLER, Mayor of 
Memphis; and JAY W. HUBBARD, Director 
of Memphis Police,

Defendants.

CIVIL ACTION 
No. C-75-145

MEMORANDUM IN SUPPORT OF 
MOTION FOR RECONSIDERATION

On February 29, 1980, this Court entered an order conclud
ing that further evidentiary proceedings were inappropriate under j 

the circumstances. It further ordered that the decision in '
Monell V .  Department of Social Services, 436 U.S. 558 (1978),

i
did not require reconsideration of this Court's previous opinion, |

idespite the remand for reconsideration by the Sixth Circuit in | 
Garner v. Memphis Police Department, 600 F.2d 52 (5th Cir. 1979).! 
Finally, the Court perfunctorily answered the four questions posed!

i
by the Sixth Circuit for determination on remand, and subsequently

on March 3, 1980, entered judgment in favor of the defendants.
Plaintiff respectfully moves this Court pursuant to Fed. R.

Civ. P. 59(3) to reconsider and vacate the judgment.
"[A] motion which asks the court to vacate 
and reconsider, or even to reverse its prior 
holding, may properly be treated under Rule 59(e) 
as a motion to alter or amend the judgment."

Smith V .  Hudson, 600 F.2d 60 (6th Cir. 1979).
This Court erred in holding that plaintiff was barred from

adducing additional evidence "by established principles or res

50



judicata." Memorandum Op. at 9. Only the judgment for the indi
vidual defendant Hymon was affirmed by the Sixth Circuit. The 
judgment in favor of the City was specifically remanded by the 
Sixth Circuit for redetermination by this Court. Plainly then, 
the principles of res judicata do not apply because there was no 
binding judgment on that issue in this case.

Having ruled against the plaintiff on whether there should | 
be further hearings in this case, the Court further erred in 
proceeding to determine the merits without affording the plaintiff 
a full opportunity to argue and be heard. jtIA fundamental requirement of due process is "the |

opportunity to be heard." Grannis v. Ordean,
234 U.S. 385. It is an opportunity which must jbe granted at a meaningful time in a meaningful .manner. j

Armstrong v. Manzo. 380 U.S. 545, 552 (1965). "Nor is there any j
1doubt that notice and hearing are prerequisite to due process | 

in civil proceedings." Joint Anti-Fascist Refugee Committee v. j 
McGrath, 341 U.S. 123, 164 (1951)(Fran)tfurter, J., concurring). ' 

Here, plaintiff never had the opportunity to argue or brief the I
merits of the issues posed on remand. While it is true that j

I
plaintiff filed memoranda and that oral argument was heard on I 
December 14, 1979, all of these memoranda and arguments addressed : 
only the issue of whether further hearings should be held. The ' 
merits were discussed only incidentally, if at all. Indeed, dur- ' 
ing oral argument on December 14, 1979, this Court specifically 
asked plaintiff's counsel what procedures would be necessary for 
determination if the Court were to deny a hearing. In plaintiffb 
memoranda of January 14, 1980, submitted pursuant to the Court's 
specific request, plaintiff requested that; he be allowed to 
formulate and tender an offer of proof as to what would have been 
presented at trial; he be allowed to submit a full brief on the 
legal and factual issues of the case; and that there be a full I 
oral argument after the submission of the brief and the proffer.

51 - 2 -



Anything less would be a denial of the opportunity to be heard |
! iI "at a meaningful time and in a meaningful manner." Armstrong, i
supra. i

Accordingly, plaintiff respectfully moves this Court for 
reconsideration of its judgment and order and that he be given ; 
ninety (90) days from the time of the granting of this Motion 
for Reconsideration in which to file a full brief on the merits |

I
and an offer of proof. Plaintiff further requests oral argument be
fore this Court after the submission of the brief and the proffer. •

Respectfully submitted,

STEVEN L. WINTER
10 Columbus Circle 
Suite 2030
New York, New York 10019

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

Attorneys fo Plaintiff i
i
i
iCERTIFICATE OF SERVICE |
II hereby certify that a copy of the foregoing Motion for

Reconsideration and Memorandum in Support of Motion for Recon- !
isideration have been served by United States mail, postage prepaid 

to Henry L. Klein, Esg., 100 No. Main Building, Suite 3500,
Memphis Tennessee 38103, this ___ day of March, 1980.

Steven L. Winter

J - 3 -



FILED
Af r ZS Su^.iH’Pn

-f,.
WESTERS UlST. OF TENN.

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

CLEAMTEE GARNER,etc., 
Plaintiff,

V .

MEMPHIS POLICE DEPARTMENT, 
et a l .,

Defendants.

NO. C-75-145

O R D E R

After entry of an Order in this cause, concluding 
after remand that plaintiff, as a matter of law, was not 
entitled to reopen.the case by way of a new trial on issues 
already decided, plaintiff's counsel has moved for 
reconsideration. The plaintiff is hereby granted forty-five 
(45) days from the date of this Order to submit further 
briefs and memoranda on the issues asserted to be "open” for 
proof in light of Monell v. Department of Social Services,
436 U.S. 658 (1978). The Court will consider further the 
questions raised, including any offer of proof, after allowing 
defendants twenty (20) days to respond after receipt of 
plaintiff's submission.

It is so ORDERED this ^  day of
t f

1980. Judgment for defendant will be suspended pending such
further consideration in light of the contention that plaintiff 
was not given full opportunity to brief and argue the merits.

; , 7 t i n ^ c = p l i a . n o e  Kith R..Ua 58 and/oi

53 ‘



May 12, 1980

Hon. Harry W. Wellford 
United States District Court 
Western Division 
957 Federal Building 
Memphis, Tennessee 38103
Re: Gamer v. Memphis Police Dept.

Civ. No. C-75-145___________
Dear Judge Wellford:
By order dated April 29, 1980, the Court granted 
plaintiff's Motion for Reconsideration filed 
March. 10, 1980. Because of an oversight, I did 
not receive a copy of the Court's April 29th 
order granting reconsideration. i first learned 
of this order this afternoon during a telephone 
conversation with local counsel in Memphis.- Be
cause of this failure of notice, I shall be at a 
significant disadvantage in complying with the 
time period set by the Court's order. Nonetheless,
I shall endeavor to comply with the deadline set 
by this Court. I would expect that I shall be able 
to complete my brief within the 45 days. The offer 
of proof, however, may create a problem. Accord
ingly, I am writing to inform the Court of what has 
transpired and to explain why it may become neces
sary at a later date to request an extension of time,
I am providing a copy of this letter to the Clerk 
so that this situation can be avoided in the future.
Thank you for your attention to this matter.

Sincerely,

.,. -r- -
Steven L. Wintercc: Henry L. Klein, Esq.

J. Franklin Reid, Clerk

1 0  C O L U M B U S  C I R C L E 5 8  6 - 8 3  9 7 N E W  Y O R K ,  N . Y .  1 0 0 1 9

M .



V', ' f -  \ ' . ' . '■ • / ,  r  ■ I , .' /■  t •, (■ - h v . : . .

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

CLEAMTEE GARNER, etc. , 
Plaintiff,

V.

MEMPHIS POLICE DEPARTMENT, 
et al.,

Defendants.

NO. C-75-145

— — Ln
o L  iL

mo

O R D E R  = 5  —

The Cotirt has entered an Order for reconsideration 
of its February 29, 1980 Order in light of further contentions 
of c o m s e l  for plaintiff in this cause. There has been submission 
or tender of further proof by plaintiff in light of plaintiff's 
position that the remand from the Court of Appeals entitles 
it, to go forward with further proof in the cause. Both parties 
have indicated that the matter is now submitted for decision 
on the difficult issues presented in this controversy.

The effect of plaintiff's submission of further 
proof by affidavit is that a professor and former New York 
City policeman, James J. Fyfe, believes and expresses the 
opinion based on his study and experience, that use of deadly 
force to apprehend fleeing non-violent suspects is "inconsistent 
with the concern for life characteristic of the operations 
of the rest of the criminal justice system;" that it does 
not deter criminal behavior nor increase "law enforcement 
effectiveness." He found the incidence of use of firearms 
in Memphis prior to the episode in question by police was

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il'H-O 59 a n d /01

* oT-tered on,dooi.ei;
This ^  /  u  I f ?  /  -— ■■
79 la) rocp oa



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considerably higher than in New York City, and that this
- yrate applied particularly to so-called "property crimes."

Professor Fyfe found that although only comprising 
about 40Z of the population, about 80Z of "property crime 
suspect's" shot at by Memphis Police were black. He did not, 
however, specify the actual n m b e r  of blacks arrested and/or 
convicted for alleged "property crimes" as compared to whites 
during this period. Presmably burglary of residences or 
robbery of victims by use of a weapon or placing the victim 
in fear of his own life may be a "property crime" in the 
Fyfe definition. Whether or not a higher ratio of blacks 
shot at than the ratio of blacks to the total number of persons 
arrested, indicted, or convicted for criminal conduct was 
not definitely established by statistical evidence. That 
Fyfe's statistical analysis showed a higher proportion of 
blacks involved in or arrested for so-called "property crimes" 
being fired xipon than whites is not,in this Coxirt's view, 
determinative of any racial selectivity, particularly since
plaintiff's affiant concedes elsewhere that there is also

2 /
"differential racial involvement in police shootings."
Neither does Fyfe's finding that the rate of blacks being 
wotmded or killed by police as higher than whites necessarily 
indicate any racial animus or selectivity if more blacks 
were proportionately involved than whites in the felonious 
conduct being analyzed. This data does not indicate racial 
proportions as to resisting arrest, being armed, or whether

V  Professor Fyfe adnitted his ccmparison was not "precise" in respect 
to "prcperty crimes" ccmparison.
2/ fyfe states such differential in New York City is accounted for 
^  "different racial involvement in the types of activities likely 
to precipitate shootings."

5 B



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3/

the suspect was tmder the influence of drugs or alcohol, 
for example, or whether there were multiple offenders involved 
at the time of a shooting.

The thrust of the Fyfe affidavit is that there 
should be a policy against allowing police to fire at fleeing 
felons or those reasonably suspected to have been involved 
in so-called "property crimes," because this would eliminate 
much of the alleged racial discrepancy in statistical evidence 
above noted. Obviously, if there were a policy or rule adopted 
by a proper authority limiting the use of deadly weapons, 
there woiild be a reduction in woundings or deaths, and particularly 
as to those in the delineated and restricted category placed 
"off limits" to police. Plaintiff's expert a s s m e s  that 
"property crimes" do not involve danger to police or citizens," 
and that, therefore, as a matter of policy, suspects so involved 
should not be placed in fear of being shot. This assxjmption, 
however, is not so easily drawn - how does a police officer 
responding to a home binrglary call, for example, know whether 
there has been,or may be in connection therewith,an act of 
violence committed to a home occiipant, or that a homeowner 
or property owner may not have felt justified in using violence 
to respond to an assault upon his home or property?

The Court does not adopt Professor Fyfe's conclusions 
that Memphis Police were, at the time in question, more likely 
to shoot "unthreatening" blacks than "unthreatening" whites.
Such conclusion cannot reasonably be drawn from the type 
of statistics referred to in the record; nor is it clear 
what "unthreatening" means -- if the suspect assaulted a 
victim, or placed in jeopardy a property owner's life, but

y  See paragraph #13 of his affidavit to this effect.

57
-3-



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not the police, is he defined as "unthreatening?" Furthermore, 
as was indicated in considering the facts of the instant 
case, a police office simply cannot clearly determine at 
night or in darkness whether a suspect is armed or has been 
armed with a deadly weapon when involved in the suspected 
felony. The bias of plaintiff's expert is apparent in his 
last conclusion, "it was very wrong that the officer had 
been told to do what he did," (a conclusion drawn not from 
the record in this case, but from a brief account of facts

A/in an appellate decision) and that G a m e r  was dead "because 
of policy and training which authorized the s^mmary shooting 
of non-dangerous suspects on the basis of suspicion or probable 
cause."

This Court does not believe that the additional 
tender by plaintiff shoxild properly be taken into accovmt 
for the reasons set forth in the Court's Order (and Opinion) 
dated February 29, 1980, but even giving it ftill consideration, 
the conclusion heretofore reached is not changed. The facts 
of this case did not indicate to Officer Hymon that G a m e r  
was "non-dangerous."

The City cannot be held liable in this case absent 
a showing of direct responsibility for its improper action.
Wilson V .  Beebe, ____  F. 2d ____  (5th Cir. 1980). No improper
action by Officer Hymon has been demonstrated for the reasons 
heretofore stated. The very question involved in this case 
was recently decided by Chief Judge McRae of this District 
in Campbell v. City of Memphis, No. 79-2508 (March 25, 1981), 
who held:

The Mgnphis Police Department's deadly force policy, 
inter aUa, authorized police after having made known their

V  The Sixth Circuit decision, dated June 18, 1979, made no factual 
reference to practices of the City except to indicate Hymon fired 
at the t:pper part of the body of the fleeing suspect, "as he was trained 
to do."

58 - 4 -



identity and p-urpose, to use deadly force:
To apprehend a fleeing person, after exhaiL<;ting

has
reasonable cause to believe the suspect has 
cannitted a felony which is either a burglary 
in the first, seccnd, or third degree, or a 
felony involving an actual or threatened attack 
which the officer has reasonable cause to 
believe could result, or has resiiLted, in death 
or serious bodily injury.

As plantiffs stress, this motion does not question the 
use of deadly force by police officers against suspects who 
forcibly resist arrest, who pose a threat to the life or 
bodily security of the arresting officers or other persons, 
or the use of deadly force to apprehend persons suspected of 
felonies involving violence. Instead, "[t]he only issue 
presented here in the constitutionality of'using'deadly 
force against a property crime suspect, who has not engaged 
in violenc."

Plaintiffs contend that the deadly force policy of 
the Menphis Police Department is ■unconstitutional on 
several grounds. First, they argue that use of deadly 
force against a non-violent property crime suspect is 
cruel and unusual punishiient. Second, they argue that this 
policy violates the equal protection clause of the Fourteenth 
Amendment. Ihird, th^ contend that the use of deadly force 
against a non-violent property crime suspect violates the 
due process clause of the Fourteenth Anendment. Fo'urth, 
they argue that tjse of deadly force to arrest a non
violent property crime suspect is an mreasonafale 
seizure.

.... In accordance with Cunningham, this Coxart holds 
that the deadly force policy of rha Mpmphis Police 
Department does not ■violate the equal protection clause 
of the Fourteenth Amendment because of not allowing deadly 
force to be used against fleeing misdemeanants.

The definition of the goal to be served by the deadly 
force policy beccmes inportant. Clearly, a goal to be 
served by the deadly force policy of the Msaphis Police 
Department is the prevention of all future felcnies. As 
such, the deadly force policy is not overinclusive. See 
discussion in Cannent, Deadly Force to Arrest: Triggering
Constitutional Review, 11 Harv. C.R. - C.L.L.Rev. 361.375-380 (1976) . --------------

The dissenting judges in Mattis (v. Schnarr, 547 F.2d 
1007 (8th Cir. 1976)), criticized the majority for failing 
to identify the interests of the state which shoiiLd be 
balanced against the felon's ri^t to life. The dissent

-5-



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said these state interests "include effective law enforce
ment, the c^rehension of criminals, the preventinn of crine 
and the protection of manbers of the general populace who, 
like fleeing felons, also possess a ri^t to life." Id.
1023. ---

The dissenting judges in Mattis also criticized the 
majority for a "single-minded focus on the seemingly 
absoltite right of an individual to life." Id., 1022.
After noting that life is filled with contraHlctions and 
obstacles, the dissent noted, in a statement quoted by the 
Sixth Circuit in Wiley at 1253:

There is no constitutional ri^t to commit . 
felonious offenses and to escape the consequences 
of those offenses. There is no constitutional 
rigjht to flee from officers lawfully exercising 
their authority in apprehending fleeing felons.

Mattis. 1023.
■nie dissent in Mattis. with which the Sixth Circuit agreed 

in Wiley, points out that the interests of the state in 
effect!^ 1®7 enforcement, the apprehension of criminals, 
and the prevention of crime outweigh the interests of the 
fleeing felon in this matter. As noted earlier, deadly 
force may be used only after the officer has warned tie 
fleeing felon to halt, and only if the officer reasonably 
believes that no lesser means will prevent the escape of 
the fleeing felon.

"No court has ever specifically found force necessary 
to effect arrest to be unreasonable under the fourth 
amendment." Deadly Force to Arrest: Triggering 
Constitutional Review, supra. 384. 385.

Judge McRae concluded (after citing the Sixth Circuit cases
noted in this Court's prior Orders) that similar constitutional
attacks made by plaintiff in Campbell to those made on behalf
of G a m e r  were meritless.

This Judge recognizes that the common law rule 
adopted in Tennessee as to use of deadly force on fleeing 
felons may in some circumstances be deemed harsh or disagreeable 
to other jurisdictions and to some judges, but the policy 
determination should be a legislative decision not a judicial 
one. See Alaska v. Sundberg. 611 P.2d 41 (1980) and Landrum 
V .  Moates, 576 F .2d 1320 (8th Cir. 1978). Jurisdictions 
may have strongly differing views on imposition of or abolition 
of the death penalty in any particular felony situation. Again,

■6-



V,/ —V ;< > -, j '. V . V> - Cy < ; " ^  -J ; ; /  '-. *> . a ■̂' *r / - ‘^ . . .v  J v ,• t . ./ /  ' J /, '.v

those.views should be expressed legislatively as a matter
of policy, not by a trial judge attempting to apply his view
of the law to a given set of facts. See Davis v. Balson,
467 F.Supp. 842 (N.D.Ohio 1978), and Wolfer v. Thaler, 525

5/
F.2d 977 (5th Cir. 1976).

The answer to the first question posed by the appellate 
court in remand is in some doubt. The answer may now, in 
light of subsequent appellate interpretations, be "no" - 
a city may not claim a good faith immunity in a 1983 action.
See Shuman v. City of Philadelphia, 47 U.S.L.W. 2720 (E.D.Pa. 
1979), and Bertot v. School District, 47 U.S.L.W. 2336 (10th 
Cir. 1978). Even if the answer were "no," however, this 
response would not impose liability upon the City in the 
circumstances of this case. The City may not claim immunity 
from liability simply because of the good faith action of 
its agent. Officer Hymon. Owen v. Independence, 445 U.S.
622, 48 U.S.L.W. 4389 (1980). The answer is in doubt, however, 
despite Owen, supra, because the City itself was apparently 
relying upon the Tennessee law as it had been interpreted 
by the Federal as well as State courts concerned. Compare
City of Newport v. Fact Concerts, U.S. , 49 U.S.L.W.

■ 6/

4860 (1981).~
The use of deadly force xmder Tennessee law m d e r  

the circtnnstances of this case where the officer was attempting 
to apprehend a burglary suspect, whom he did not definitely 
know was unarmed, and when he did not know if some violent 
offense had been committed in the cotirse of a burglary, was 
permissible and constitutional in this Court's view.

5/ A particular state's view of the validity of the death penalty 
may, of course, effect its view of the issues involved in this case.
_67 No punitive damage could be awarded against the City.

fu
- 7 -



The question of use of hollowpoint bullets does 
not require a constitutional determination under the facts 
of this case; it had no causative relation in this case, 
because whatever kind of ammunition had been used, the result 
would have been the same. If required to answer the question, 
however, the answer would be "yes" as previously determined.

Since the answers to questions one through three 
are as indicated, the action taken would not render the City 
of Memphis liable for the conduct of its Police Officer,
Hymon, in this case. There was demonstrated no constitutionally 
impermissible "custom or practice" in the record.

The Court has attempted to deal with the difficult 
and even painful issues involved in this case in light of 
the remand. Upon reconsideration, judgment is rendered for 
the City of Memphis, primarily because of previous decisions 
by the Co\xrt of Appeals in Wiley v. Memphis Police Department.
548 F.2d 1274 (6th Cir.), cert, denied, 434 U.S. 822 (1977); 
and Beech v. Melancon, 465 F.2d 425 (6th Cir. 1972), and 
the persuasive reasoning in Cunningham v. Ellington. 323 
F.Supp. 1072 (W.D.Tenn. 1971), and Campbell v. City of Memphis. 
supra.

It is so ORDERED this S T h  day of '/, /y
1981.

g:
-8-



CIV 32 
(7/63)

JUDGMENT ON DECISION BY THE COURT Filed
Stairs Diatrirl CCourt d 5- ?'f 'P<

F O R  T H E
WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION
■ i h n.

CLEAMTEE GARNER, etc..

Plaintiff,

vs.

Civil Action File n o . c - 75- 1̂ 5

J U D G M E N T

ME!iPHIS POLICE DEPARE-iENT, 
at al.,

Defendants.
consideration

This action came on f o r / b e f o r e  the Court, Honorable Harry W. Wellford

, United States District Judge, presiding, and the issues having been duly ;t3bed 

(heard) and a decision having been duly rendered,

It is Ordered and Adjudged that in accordance with the Order entered by the Court on 

July 8, 1981, judgment is rendered for the City of Memphis.

OVED:

m i E D  Ŝ ftflES DISTRICT JISDGE
//

Dated at 

of July

Memphis, Tennessee 

, 1981 •
, this 8th

Clerk of Court

day

This dcsur.ent entered on docket snest in cone_lar.es r._i.e .
79 (L) FEC? o n--- ---- 1.1̂ :-----



UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE

Civil Action File Number 
C-75-145

NOTICE OF APPEAL

CLEAMTEE GARNER, father and next 
of kin of EUGENE GARNER, a 
deceased minor. Plaintiff,

V.

MEMPHIS POLICE DEPARTMENT, CITY 
OF MEMPHIS, TENNESSEE and 
JAY W. HUBBARD in his official 
capacity, Defendants.

Notice is hereby given that Cleamtee Garner, Plaintiff 
above named, hereby appeals to the United States Court of Appeals 
for the Sixth Circuit from the final judgment entered in this 
action on the 13th day of July, 1981.
August 5, 1981.

STEVEN L. WINTER
Suite 2030
10 Columbus Circle
New York, New York 10019

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

Attorneys for Cleamtee Garner

61



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.-I 2
m

IN THE UNITED STATES DISTRICT COURT 
FOR THE l̂ ESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

CLEAMTEE GARNER, Father and 
Next of Kin, EDWARD EUGENE 
GARNER, Deceased, A Minor,

Plaintiffs,

VS No. C-75-1^5

MEMPHIS POLICE DEPARTlvIENT, 
CITY OF MEMPHIS, WTETH 
CHANDLER, Mayor of Memphis,
J . W . HUBBARD, Director of 
Police of Memphis, E. R. 
HYMON, Police Officer of the 
City of Memphis,

Defendants. )

Be it remembered that the above-styled case came 
on to be heard on this date, Monday, August 2nd, et seq., 
1 9 76, at Memphis, Tennessee, before the Honorable Harry 
\'J. Wellford, Judge, presiding, when and where evidence 
was introduced and proceedings had as follows:

65
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± ' J C

C A R Y  E L I Z A B E T H  M IL L E R
S UITE  ^10

FIRST AMERICAN BANK BLOG. 
MEMPHIS. T E N N E S S E E  38103



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APPEARANCES:
For the PIaintiff

For the Defendant

MR. DREW S. DAYS, III, ESQ. 
Attorney at Law 
10 Columbus Circle 
New Yorit, N. Y. 10019
MR. WALTER BAILEY, ESQ. 
Attorney at Law 
l6l Jefferson 
Suite 901
Memphis, Tennessee
MR. HENRY KLEIN, ESQ.
Attorney at Law
Rickey, Shankman, Blanchard,
Agee S: Harpster
100 North Main Bldg.
Memphis, Tennessee

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2 WITNESS DIRECT CROSS r/d f7 c

3 Cleamtee Garner 8 27
Talton Douglas Enoch 46 55 63 6B

4 David Michael Cordero 71 80
Ann Stepp 86 91

5 Leedell Anderson 93 100 1 1 3

I N D E X

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2

MORNING SESSION 
AUGUST 2. 1Q76

THE COURT: Gentlemen^ are we
ready to proceed in the matter of Cleamtee 
Garner versus Memphis Police Department 
and Hymon and others?

MR. KLEIN: YeSj sir.
MR. BAILEY: YeSj Your Honor.
THE COURT: Gentlemen, I have

read the memorandum that each of you have 
filed together with the interrogatories 
that have been filed and the statements 
that have been filed, your statement of 
issues, and it's very helpful to the 
Court that these memoranda and full 
positions, setting forth your respective 
views of the issues in the case and the 
matters that the Court will be called 
upon to decide.

We are ready to hear from you, 
and in light of the fact that the Court is 
familiar with your points and authorities 
and statement, you may either proceed to 
an opening statement on each side if you

^  - IGO



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1 vjistij or you raay proceed v?ith tlie 
presentation oi prooi and evidence as 
you desire.

MR. BAIL5Y: Your Honor^ two
things —  cnej I wish to apologize for 
our briei delay. Lt. Lee's funeral sort 
of interrupted —

THE COURT: (Interposing) All
right. Lee's funeral hasn't already taken 
place?

MR. BAILEY: No, sir. No, sir.
I have been niinistering to his daughter.

THE COUHT: I see. I see.
MR. BAILEY: Secondly, I wish

to introduce co-counsel, Mr. Draw Bays, 
who is a itember of the New York Bar and I 
know it's Sixth Circuit and I thini-i the 
Supreme Court and some other Circuits.

THE COURT; He're happy to have 
Mr. Days appear i.n this matter.

I was shocked to read about 
that matter this mor.ning, Mr. Bailey, a.nd 
in the press. There hasn't been very many 
like him in our part. I don't know v.’hether

G9
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there will aver ba another one like Lt. Lee
Are we ready to proceed as far 

as you're concerned, Mr. Klein?
MR. KLEIN: Yes, sir. Mr.

Charles Holmes, who I'm sura Your Honor 
Imows, .is going to work with me in this 
case.

THE COURT; All right. We are 
glad to have you, Mr. Holmes.

All right, as I say, on either 
side, I'm prepared to hear from you by 
openin.̂  statement if you like, but again, 
as I say, I am familiar thoroughly with 
what you have already submitted and the 
Court appreciates the full position that 
each of you have set out in your memoranda.

Mr. Bailey, you may either 
proceed with opening statement or proceed 
with your proof, whichever you desire.

MR, BAILEY: Your Honor, we
waive opening statement and are ready to 
proceed with our first witness, Mr. Garner,

THE COURT: All right, sir.
Mr. Klein, is it agreeable with you that

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1 the opening statement be waived and we go 
ahead with the proof?

MR. KLEIN; Yes, Your Honor. I 
am going to ask Mr. Hymon, who is one of 
the Defendants, to sit behind me at the 
counsel table.

THE COURT: All right, sir.
MR. KLEIN: He will remain in

the Courtroom.
THE COURT: All right, sir. He

Is entitled to be present.
You may call your witness, and 

gentlemen, in this non-jury type of pro
ceeding, for the benefit of each of you,
I don’t plan to have the marshal in the 
Courtroom. He will be attending the jury 
that is out, so if either of you have 
matters that you wish to present to a 
witness, you are free to approach the 
witness and present that to him. Mr. 
Clerk, will you call the first witness 
if he is —

ilR. DAYS: (Interposing)
Your Honor, we would like to call as our

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first witness the Plaintiff in this case,
Mr. Cleamtee Garner.

THE COURT; All right.
Whereupon,

CLEAiMTES GARITSR.
after first being duly sworn, was examined and testified as 
follows:

DIRECT EXAIIIHATION 
BY MR. DAYS:

Q. Mr. Garner, would you state your full name and
address for the record, please?
A. Stand or sit?

THE COURT: Ho, you may sit,
Mr. Garner.

A. (By the witness) My name is Cleamtee Garner. You
want my address?
Q. That is right.
A. I live at 928 Tully, Memphis.
Q. And hov; long have you lived at that
A. About 11 years.
Q. Are you the Plaintiff in this case.
A. Sir?
Q. Are you the Plaintiff in this case?

A. plaintiff, plaintiff. yes, sir.

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Mr. Garner, co’rld you indicate what your -educa-
t ional background is?
A. About six grade level
Q. And where are you ori
A. Mississippi, Til^atob
Q. How long have you res

Since 19^5.
Q. Since 19^5?
A- Since 19^5*
Q. Are you employed?
A> I am employed at the ?
Q. And how long have you

About, since 1952, ab(
‘0(,. And what is your job (
A. Wo material packer.
Q. And have you been in ■
A. I haven't been in tlial
been in that job about 12 years.
Q. I see. At what level
employment?
A. I started out in laboi

Is it correct to say i
original level to your present pc

Correct.

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2o you have any history of service in the military,
Mr. Garner?
A. I stayed four years and four months in the Armed
Forces, the Army.
0- And your present address, how long have you been at
that address?
A. About 11 years.
*5* 2o you reside in a private home or do you reside in
some type of apartment complex?
A* I guess what you would call an apartment complex.
I would suppose Just like a residential house.
Q.
A.
Q.

A.
Q.
A-
Q.

A.
Q.
A.
Q.

A.
Q.

A residential house?
Yeah.
And do you rent or are you buying a house? 
I'm buying.
Are you married, Mr. Garner?
I'm married.
And hov; long have you been married?
I have been married since 1946.
And is your wife still alive?
She is still alive.
Do you have any children?
I have five children.
And could you name those cnildren and their

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relative ages?
A- Curtis Garner, twenty-two, Charles Garner, twenty,
and Larry, nineteen, and Edward would have been, if he had 
been living he would have been seventeen, Linda, sixteen, and 
Diane, thirteen, I believe she'll be fourteen her birthday.

Now, could you indicate something about the educa
tional background of your children? Are any of your children, 
who are presently living, high school graduates?
A- Yes, I have tv̂ o high school graduates, Charles
Garner and Larry Garner.
Q- And are Linda and Diane in school?
A. They are still in school.
Q- Do you know whether they intend to complete their
course of study?
A- They intend to finish. They like school very much.
I think they will finish. At least, I hope they will.
Q* Is it fair to say that you expect that they will
complete their course of study and graduate?
A. I believe they will complete.
Q- Are any of your children presently employed?
A. Yes. Charles, he runs a body shop, and Larry, he
runs a grocery.
Q> And what about Curtis, the oldest son?
A. Well, he helps out with the grocery and the body

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shop .
Q- Doss he engage in any other hind of eoiploynent?
A. Wellj he did work in the grocery. He was working
in the grocery a while, but his back —  he had trouble with 
his back and he stopped v/ork because he got operated on for 
his back.
Q- So the reason why he stopped working was because of
an illness?
A. He was still having back trouble, you linow, from
the operation.
Q* Now, in terms of the children that you have .just
mentioned, the children who are presently living, do you 
recall having any problems with these children in terms of 
their educational situation, that is, any school problems that 
they might have had while they v/ere growing up?
A. Well, speaking from Curtis, I didn't have any
trouble with him too much. Charles and Larry, well, I think 
Charles failed one year and I think Larry failed one year. 
Other than that, I didn't have no problem with them in school. 
Q- But Charles and Larry did ultimately graduate from
high school?
A. They did finish. Yeah, they graduated.
Q. I see. And did you have any problems with the
girls in terms —

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A, (Interposing) I don't have no trouble with the
girls. They seem to like school.
Q. Have these other children had any problems with
the police authorities, to your knowledge?
A. Kot to my knowledge.
Q. So that the children that you have just mentioned
earlier have not, to your knowledge, had any difficulty with 
the police authority?
A. Not to my knovirledge.
Q. Have you had any problems ever with the police
department in terms of your personal life?
A. VJell, I was picked up a couple times for being
drunk. You see, I was drunk a couple times, about the only 
problem that I had.
Q. And was that a recent occurrence?
A. One time, when I first got out of the service,
would be about 30 something years ago and I think about maybe
two years later than that. That was about the last time I had 
trouble with them.
Q. So at least for 30 years you haven't had any per
sonal involvment with the police department?
A. I haven't had any trouble with them.
Q. Has your wife had any problems with the police
department? JL7b

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A. She hasn't had any problem with the police.
Q* I want to turn to your son, Edward Eugene Garner.
Is it correct that he is deceased?
A. That is correct.
Q- Now, could you describe in terms of physical
appearance, your son, Edward Eugene Garner, at the time of his 
death?
A. Yes, he was kind of a small type person, slander.
Q« How tall would you say he v;as?
A. I would say he was about five feet two inches or
three inches.
Q* And do you have any recollection of his weight?
A. I believe he would v/eigh between a hundred and
maybe eighty-five or ninety. He didn't weigh over a hundred,
I don't believe.
Q.
A.
Q.

But you don't recall?
I don't recall the exact weight.
—  the exact weight. And how old was he at the

time of his death, if you recall?
A. Fifteen.
Q- Was he enrolled in school at the time of his death?
A. He was .
Q* Now, in considering Edward Eugene- in comparison to
your other children, v;ould you say that he had more or less

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trouble in terms of school situations?
A. Well, I would say he had more trouble in school
situations. Well, he had a little more problem in school it 
seemed.
Q- Could you give some indication of vfhat, if any,
problems he had?
A. Well, I believe he failed twice and then he had
some trouble, you know, I think he skipped some classes or 
something like that.
Q. Were you informed of this fact by school
authorities?
A. That is right, I was.
Q- Did you take any action in response to this infor
mation from school authorities about Edward Eugene's diffi
culties?
A. I talked with the principal and I talked with some
of his teachers.
Q- Why did you take that action, Mr. Garner, if you
can indicate?
A. Because I was concerned about him doing well in
school. I thought he should be corrected and what I could do
to correct him, I v/ould try to do it, because I was working 
with the teachers, the principal.
Q- Again, comparing your son, Edward, with your other

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caildrerij did he have more cr less problesi with police 
authorities than the other children?
A. Well, he might have had more perhaps. I'ra quite
sure he did, yes.
Q- Could you indicate what, if anything, you recall
about his having problems with the police authorities prior to 
his death?

THE COURT: Excuse ms Just a
minute, Mr. Days, if I may. Excuse me,
Mr. Garner.

(Discussion off the record.)
THE COURT: Excuse me, sir.
MR. DAYS: That is quite ail

right. Your Honor.
THE COURT: You may proceed.
MR. DA.YS: I'm not intimately

familiar with the Judicial calendar in 
Memphis, but I have some idea what that 
matter related to.

Q- (By Mr. Days) Mr. Garner, at the time the Court
had to turn to another matter, I was ashing you whether Edward 
Eugene had any problems v;ith the police authorities as com
pared to experiences you had had with your other children, and 
you v/ere about to describe to the best of your recollection thi

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nature of problems that he had had. Could you continue your 
answer in that respect?
A- He did have some problems. I guess you would call
them problems. I don't ioio-w if you would call them problems. 
He was picked up, and you know, taken to Juvenile on a couple 
of occasions, you know.
Q- Could you be more specific, if you're able to?
What, to the best of your recollection, was the nature of 
Eugene's first problem with the police authorities?
A- I believe it was third degree burglary. I believe
he was charged with third degree burglary.
Q- And could you describe, to the best of your know
ledge, what circumstances produced that charge of third degree 
burglary?
A- Well, he was placed on probation for a year and
after that he was taken off the probation.

But what was he alleged to have done that produced 
those charges?
A- They said he had entered a building, you know, and
I wanted to know what happened.

He said really they picked him up at school because 
I don't know what happened —  so they taken him to Juvenile 
from school, so I wanted to Icnow what happened. When I got a 
report —  that v;as a report that I got that they had him on

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third degree burglary, you know.

That is when I went in and talked with one of the
counselors , i believe, and they put hin on probation for a 
year.

talked to a councilman or to a counselor?
^ counselor. I believe it was Mr. Rogers, if i>rn 

not mistaken. I'm not sure.

Q- And you say as a result of these charges, your son
was put on one year's probation?
A- Probation, that is correct.
Q- AS a result of these charges having been brought
against your son and his being put on probation, did you tahe 
any action with respect to Eugene's behavior, Edward Eugene's 
behavior after that time?

right. I counseled with him and I chas- 
tlsed him and gave him certain hours to be home, you iinow, 
during the day and at nighttime, and different things.
Q- What were the conditions of his probation, if jou
recall?
A* What was the —

Q- (Interposing) Conditions of his probation. Were
there any requirements that he had to meat to satisfy —

Restrictions. He had certain times 
of night he would have to be at home. Somebody would have to

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know where he was at all times.
Q* And who in your family, if anyone, assumed the
responsibility of overseeing that he complied with those 
requirements?
A. I would, when I would be at home, and my wife was
supposed to when I would be away from home. Of course, his 
other brothers and his older brother, he was concerned about 
him and they would keep check on him as near as they could.
Q* I believe you indicated that you were away from
home?
A. Yes, I worked the second shift, evening shift, and
I‘m supposed to be at work from four o'clock to 12:30 o'clock. 
Q* And is that the regular shift you had?
A- That is the regular shift I had.
Q- And you continue to work that shift?
A. I still work that shift.
Q» So does that mean that you were away from your
home from four o'clock in the afternoon until twelve o'clock 
midnight?
A. I get off at twelve o'clock but I usually get home
about one o'clock if I don't stop no place. Sometimes I stop 
at the store, at Fred Montesi's. But if I don't stop, I get 
home about one o'clock.
Q- Can you recall what, if any, proolems Edward Eugene

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had with the police authorities after this third degree bur
glary charge?
A. Wellj after this third degree burglary, well, then
he was picked up once —  I believe on a curfew charge, I 
believe, and he was taken to Juvenile Court, being out after 
hours,
Q. Did you have any knowledge of the circunstances
surrounding this alleged curfew violation?
A. No. He was working at a little sundry at the time
on the corner. I don't know. He said he saw some people 
being aurested or something and he watching or looking on.

Him and some more children or something v;as looking 
on and he was ordered by the police or a policeman to go back 
inside the place, and I think he refused to go and he was 
taken to Juvenile Court.
Q. You say that Edward was working in a store at that
time?
A. He was v̂ orking in a little sundry when he would be
off duty, anyway be out of school on a holiday and his off 
days.
Q. Do you have any idea what he did in the store?
A. I thinic he was to clean up and empty trash and
stuff like that.
Q. And he would do that after school?

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A. After school hours and on holidays.
Q. vJould he do it on -.'('eehends?
A. YeSj sir, weekends, yes.
Q. Do you know how long he had that particular job?
A. He didn't really —  sometinies there was a lady.
She would send for hisi to come in and, you -know, he didn't 
really work too steady at it. 'ihenevar she needed somebody, 
she would call for him to come in to work.
Q. I see. Did Edward have any other types of employ
ment?
A. He used to throw a paper called the Consumer Times^
I believe. He used to throw that once a week.
Q. And do you recall how long he had that particular
job?

A. I believe, if I can remember good, I think he threw
it for about two years :aaybe, more or less.

ME. KLEIN: I'm sorry. I
didn't understand what he said.

THE COUET: The Court under
stood him to say that he threw papers for 
a time, approximately two years.

THE WITHESS: Consumer Times
was the paper, name oi the paper.

THE COUET: Consumer Times.

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quent to the curfew violation that you just described?
A. After, you mean?
Q. That is right.
A. He did have trouble because really —  one particu
lar time, particular occasion, you know, I give him a two 
dollar bill, or my wife, one, gave him two dollars and he had 
to have two dollars for someohing. I didn't know what reason, 
but I gave it to him.

And then later on, v;ell, he turned up with a let 
of pennies, you know. I don't know where he got the pennies 
from. My son, one of my sons, was telling me v/here he had, 
you knov/, a lot of pennies.

So I talked with him about it, and he said he got 
those two dollars changed into pennies. And so I begin to 
believe it. Then my son said he had more than two dollars 
worth of pennies.
Q. Your son told you that he had more than two dollars
worth of pennies? Are you referring to Edward or are you 
referring to the other son?
A. My other son was the one who told me that Gene had
more than two dollars worth of pennies.
Q. So these were ocher sons of yours who informed you
that Eugene —

Q. (By Mx". Days) Did Sdv;ara have any probisnis subse

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A. (Interposing) Gene had more pennies. Yeah, that
is right.
Q. I see.
A. But I questioned him further where did he come up
v/ith the pennies, and then I was questioning him about where 
did he get them from, and later on he told me v/here he got 
them from.

It was ;just about time for me to go to work at the 
time. You know, it was at evening time. So I told him to 
show —  I told him take them back to where he got them and 
also my oldest son v;as at home, and I told my oldest son to go 
with him and see where he got them and take them back, you ■ 
know, to the place.

And so, he taken them back. And the lady —  I 
forget her name —  she didn’t want to call the police, you 
know. Well, see, I think my oldest son insisted on calling 
and she said since somebody had been into her place and since 
a person the size of Edward couldn't have done it by himself, 
it would take more than it would have to be a larger 
person to move the stuff around that had been moved around.
Q. Nov;, why did you make Edward Eugene Garner take the
pennies back?
A. Because I thought that would teach him not to
bother things that didn't concern him and, you know, I felt

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that it wo\ild correct hini some and that he would be ashamed 
to do something lilce that again. I thought that would hslo 
him some by making him take them back^ and facing up to it, 
you know, and tell the lady what he had did. I thought that 
would help him.

And I believe you indicated that, you were 
informed of this penny situation by your other boys?
A. Yes, Charles.
Q- Was that unusual for them to bring to your atten
tion something that Edward might have done?
A. No. Any time when one of those children —  the
oldest children sees one doing something they don't think is 
right, and he v;on't listen to them, then he brings it to my 
attention or either their mother's' attention.
Q- And this was something that happened from time to
time, rarely, frequently? How 'would you describe it?
A. You mean, what? Bringing things —  any time that
he thought that Edv/ard or someone v/as doing something he 
shouldn't do, they would tell me about it or tell my wife 
about it, bring it to our attention.
Q- In September of 197^ was Ed'ward Eugene enrolled in
school?
A.
Q.

He was.
And 'When did he die, if you recall?

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A- I believe October —  I believe on the 3rd or 4th
of October, 1974.
Q* And so at the time that he died, he was enrolled in
school?
A.
Q.

A.

That is correct. West Side.
What school was that?
West Side Junhr High, I believe it was, out in

Frayser. I believe it was junior high or high school.
Mr. Garner, if you had to sum up in a few v;ords 

what your son Edward Eugene Garner was like, what would you 
say?

A- Well, he was a very easy person to get along with.
He wasn't a violent type person. I mean, most anybody could 
talk with him. He could make friends quick, and he was a nice 
person, I mean, as far as I'm concerned.

How would you describe him in terms of his intelli
gence? Was he a slow person or was he quick-witted? How 
would you describe him?
A* He was quick to catch on. He wasn't very slow.
He was quick to catch on, very easy to catch on.

Mr. Garner, if your son had not died in October of 
1975j do you have â -y thoughts about what would have happened 
to him?

MR. KLEIN; Your Honor, I'm going

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to object to that.
THE COURT: Well, in these

types of things, Mr. IO.ein, I thinic 
some latitude is appropriate. This 
may involve speculation and it may 
involve opinion, but I'm going to 
permit it under these circumstances.
You may proceed.

Q- (3y Mr. Days) Do you recall the question, Mr.
Garner? If he had not died in 197^> do you have any 
thoughts about vrhat would have become of your son?
A. I believe he could have been corrected. I believe
he would have changed and been a different perso.n.
Q. Well, v/hat is your basis for thinking that, Mr.
Garner?
A. Well, because I 'was planning on retiring, you
imow, shortly before that happened, and I was goLng to have a
chance to be v;ith him more where I could correct him direct
myself more, and I think that would have helped a whole lot. 
Q- So you would have no longer been on that four to
twelve shift?
A. That's right. I was planning on retiring the next
year, that following year after, but see, after this happened 
that made me have to work on longer.

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MR. DAYS; Just one moment.
Your Honor.

THE COURT; Yes, sir.
MR. DAYS: ;Je have no further

questions. Your Honor.
THE COURT; You may cross-

examine .
CROSS EX.y.miATION 

BY MR. KLEIN:
Mr. Garner, you said you had hov/ many sons?

A. How many sons I have?
Q- Just the number of them, not the names.
A. I have three sons.
Q* Three sons. All ri^ht, and was Larry Eugene Garner
is he a son of yours?
A. ^̂ ho?
Q* Larry Eugene Garner.
A. That is right.
Q* All right. How, I think Mr. Days, your attorney,
asked you a minute ago if any of your other sons had been in 
any trouble and I think you said, no, that they had not?
A. To my luiowledge, that is right.
Q- VJell, now, wasn’t your son, Larry Eugene Garner,
didn't he have some trouble 'with the Juvenile authorities back

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in 1970 and 1 9 7 1?
A* Not to my knowledge. I don't remember it.

Nell, wasn't he picked up on an assault and 
battery charge back in 1970 and turned over to the Juvenile 
authorities?
A. Not to my knowledge.

You don't know anything about that? Is that what 
you're saying?
A' I said I don't Imov; anything about that.

Jhat about truancy? Do you know what truancy is? 
A- I said, to my knowledge, I said I didn't know any
thing about it.
Q- Well, now, what about another charge of truancy?
Jas he having any problems about going to school or were you 
having any trouble keeping him in school back then?
A- Keeping Larry in school?
Q- Yes.
A* Larry stayed in school until he finished school.

Well, do you know whether or not he was ever 
picked up by the Juvenile authorities and charged with 
truancy?
A. Not to my knowledge.
Q* You don't remember that either?
A. No.

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ilo'.vj as far as Edward. Eugene Garner, your sen who 
died in October 197^^ I think you have mentioned tv/o instances 
where he was held by the Juvenile autlioritiss for burglary?
Is that correct?
A. That is correct.
Q- All right, and you described to us what each one
was involved, I believe. In one instance he had stolen a jar 
of pennies or stolen something out of a house, is that correct 
A. I don't ioiow whether those pennies was in a jar or
what it was in. I mean, I Icnow when I saw them, they v/as in aj 
bag.
Q. You saw them in a bag?
A. I believe they was in a plastic bag, I believe.
Q- All right. Now, hov; did you find out about that?
A. One of my sons was telling me about it. Charles
was telling me about it.
Q* Charles was telling you about that?
A. That's right.
Q. And what did you do?
A. Nell, I questioned him about those pennies. He saiji
it was —  I think it was two dollars worth. Either I gave him 
two dollars or his mother gave him two dollars. He said he 
got it changed into pennies.

And after Charles was telling me that it was more

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thaui two dollars v;orth of penniss that he had, then I chscksd 
into it further, and he come up with the pennies and then I 
asked him where did he get them from, and then finally he told 
me where he got them.
Q. Where did he tell you he got them?
A. Some lady's house down the street.
Q. Did you know the lady?
A. Uo, I don't know the lady, no.
Q. Did you go down and talk to the lady about it?
A. I sent my oldest son dov;n because it was time for
me to go to work, vThen I found out, it was about work time.
Q. So you sent the oldest hoy. How old is your
oldest boy, or how old was he back then?
A. Well, Curtis was about twenty years old back then.
Q. That 'would be back in 197^ when this happened, is
that right?
A. He would be about twenty years ch.
Q. All right. And then he was handled by the Juvenile
authorities and then placed on what? Probation?
A. Probation.
Q. For a year?
A. At least, he 'wasn't —  the officer didn't arrest
him. If he had arrested him, they would have made a notation 
of it. He had to go to Juvenile Court to see a Judge and they

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put hiia on probation for a year.

In tiic tine before^ „?nicn v̂ culd have been bacit in 
1971, I beiievs, ha was charged with burglary again^ and do 
you knov/ wiiat iiappened on that occasion or where the place 
was that wac supposedly burgiarized?
A. I thinit it was over on Manassas near Chelsea socie
place. I thinic they told me —  I think I did have a report 
from the Juvenile Court. I haa a latter, a copy or it. It 
was some placs on Ivlanassas near Chelsea.
Q* All ri,Jit. And what happened to him on that
charge?
A. Ke was placed on a year's probation,
Q» 'das ho still on probation when he was charged in
1 9 7 4 ?

/u Kot for that, but he was on probation for his
penny deal.
Q. Eo was on probation for the penny deal?
A. Yeah, when he got killed.
Q. ilnd then you mentioned another violation, the
curfew. Is that correct?
A. That was before the penny deal.
Q. All right, and on October 3hd of 1971, that
evening, ware you working that uay?
A. I was working that nic;ht.

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Q* You worked that night, and what was your shift at
that time?
A. The same, from four o'clock to 12:30.
Q- Four o'clock to 12:30. So in other words, it would
be four o'clock in the afternoon —
A. (Interposing) Until 12:30.
Q. Until 12:30 at night?
A. That is right.
Q* —  or early in the morning. All right, now, did
your son go to school that day?
A. He didn't go to school that day. In other words,
he was being bussed and his bus didn't run or he missed the 
bus for some reason.
Q. So he didn't go at all that day?
A. No, he didn't go.
Q. Well, now, who would be at home? If you were
v/orking the evening shift, who was at home with the children?
A. My wife.
Q. Was she there all the time?
A. She was supposed to be there all the time.
Q« All right, and he was on probation at that time,
v;as he not?
A.
Q.

At that time.
All right, was there any condition of his probation

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about the hours that he would keep or was supposed to keep?
A. I think they kind of left it up to his parents
because, you know, they could be knowing what he did i the 
time, while his probation officer would be here to check on 
him. He should have a certain time to getting back home, to 
be at home.
Q. Well, what hours did ya'll establish for your son?
A. Well, my hours was supposed to be back home around
9 :3 0 or no later than ten.
Q. 9:30 or no later than ten. Was he working at that
time, back in October of 197^?
A. He used to clean up for this here lady v̂ hat run
that sundry sometimes.
Q. He would do what no:'f?
A. He would clean up for her, clean up in the sundry.
Q. Well, how long would that take him?
A. It ’wouldn't take him —  I don't know how long it
would take him because I think he would go down sometimes and
clean up and I don't kno’w hovx long he would stay dovrn there. 
It was mostly holidays and weekends. That is when he worked 
mostly.
Q. Holidays and weekends. How, October 3rd of 197^^
that was during the week, was it not?
A. That was during the v/eek.

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0,. Do you remember what day of the v/eek that was?
A. I don't remember whether it was a Thursday or
VJednesday. I believe it was a Thursday.
Q. All right. But in any event, it was during —  he
was supposed to be in. Based on the requirements that you had 
of him, he was supposed to be in by 9 :3 0 or.no later than 
ten o’clock, is that correct?
A. About ten o'clock.
Q. All right, and you said he didn't go to school
that day. Was your wife home with him that day or do you
know?
A.
Q.
A.

See, I was home until I went to work that day. 
Until four o'clock?
Until about 3:15* I would leave about three

o'clock or 3 :1 5 *
Q. All right. What did he do that day while you were
there?
A. Well, I had him cleaning the back, raking the
leaves in the back yard and he was —  I left going to work, 
he was laying dovm in the bed.
Q. Well, now, you say he missed his bus and that is
the reason he didn't go to school.
A. That's right.
Q. Hovf far is the school from where you live?

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A. He be bussed though. They would bus him to Hest
Side in Frayser. See^ they had to bus him.
Q* I see. Did you have a car at that time?
A. I did.
Q- Did you give any thought to taking him to school
that day?
A- «̂7hen I found out he didn’t go to school, it 'was
already after school. It was late when he came back.
Q* You mean he missed his bus and didn't come back
for a long time?
A. I guess he stayed around waiting for the bus.
Sometimes when children be bussed to school and sometimes 
those buses be late. They don't run on time all the time.
Q- What time does the bus usually come by to pick him
up?
A. I don't remember exactly the time. I don't really
have a —  I don't remember what time because it had different 
times. I had —
Q* (Interposing) Well, it 'would be reasonably early
in the morning, wouldn't it?
A. Now, some of those buses go seven something and
some go later because they pick up t'wo different groups of 
children.
Q- All right. So when he finally came home, you say

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it was too late for you to take him to school?
A. It was too late. It was after school. School
had been taken in because —  I'm quite sure it had been taken 
in at that time.
Q- So you left before four o'clock to go to your
Job, and who 'was at home with him when you -left?
A.
Q.
A.
Q.

A.
Q.

A.
Q.

that —  

A.
Q.
A.

My wife.
Anybody else?
Some more of the children was home.
All right. And then you came home at what time? 
I guess about 1:30 perhaps.
1:30. That would be October 4th then?
Correct.
All right, and he, of course, wasn't at home at

(Interposing) Later on.
All right. Did you inquire as to his 'whereabouts? 
That is what I usually do. When I was home I 'woulc: 

check to see if all the children 'was home, and he wasn't home 
And they told me he had left home about ten o'clock to go get 
a drink. I believe that is what my wife said, and he hadn't 
gotten back home.
Q- Left at ten o'clock at night to go get a drink?
A. To go get a drink.

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Q. All right. Nov;, when did you first find out, Mr.
Garner, that anything or that something had happened to your 
son?
A. I don't believe —  it v;as about two o'clock or
maybe a little bit later. I don't know the hour. I had 
somebody called and wanted to speak to Edward.

And I told him he v/asn't home and then he wanted 
to know what kind of clothes does he have on and, you knov;,
I don't remember what kind of clothes he had on because I 
wasn't there when he left, but anyvT’ay somebody told me they 
would be out there later on to talk with me and finally two 
gentlemen came out.
Q.

A.
Q.

A.
Q.

All right, came out that morning.
That morning.
Now, we're still talking about October 4th? 
Correct.
All right. Do you knov; who the two gentlemen

were that came out to see you?
A.
Q.

I don't remember their names.
VJere they police officers?

MR. DAYS: Objection, Your Honor.
We have heard part of this line of inquiry 
and it's our position that this goes beyond 
the scope of direct examination.

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1 THE COURT: Mr. Klein,
normally my ruling in that respect is 
that if you go beyond the scope, to the 
extent that you do you make the witness 
your witness in that respect.

If you understand that ruling, 
if you go beyond the scope of the direct 
examination and cross examination, to 
that extent the witness is your witness, 
and in that event, Mr. Days, .you would be 
entitled to examine the witness further 
in respect of that area.

MR. KLEUI: Your Honor, I don't
have any —

THE COURT: (Interposing) What
is the relation, Mr. Klein, in respect to 
anything that this witness may have stated 
in any conversation with any representatives 
of the Defendant?

MR. KLEIN: VJell, I'm getting to
that. Your Honor.

THE COURT: Well, I'm asking —
I'm assuming that it must relate to some 
conversation or discussion.

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1 What is the relevancy or 
materiality of any conversation or 
discussion on the pajrt of the Plaintiff 
with the police officers following the 
episode that is in question?

MR. KLEIN: Well, it was a
characterization by this gentleman to 
the police officer of vihat he was 
expecting to happen to his son.

Now, I can tell you exactly 
what I*m going to ask. before I ask it, 
if you want me to.

THE COURT: All right. Will
you wish to be heard further in that 
respect?

MR. DAYS: No, Your Honor.
We don’t want to be heard.

THE COURT: All right. You may
proceed.

MR. KLEIN: Your Honor, again,
as I say, I have no quarrel with making 
him my witness in that tnis wasn t gone 
into on direct examination, but this gets, 
I think, to the heart of inquiry and this

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1 is the reason I '31 proceeding.
I'm trying to follow a chain 

of events that occurred and this is just, 
to my way of thinking, this is a part of 
that chain of events.

THE COURT: Well, you may
proceed.

MR. KLEIN: All right.
MR. DAYS: Your Honor, we v/ould 

have no objection. We have some sense of 
what Mr. Klein is after and if he would 
just ask the questions directly and get 
the correct answer, v;e have no objection.

THE COURT: All right, sir.
Q* (By Mr. Klein) All right. Did you talk to two
gentlemen or two police officers who came out to your home 
at 928 Tully, is that correct?
A. That is correct.
Q* All right. Did these men ask you if you would go
down to identify a person that they had at the morgue to see 
if it was or was not your son?
A. They did ask me that.
Q* All right, and what was your response to that
request?

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A. At the time I was really heavy and I didn't say
anything for a few moments, and finally I let my oldest son 
go with them to check, to see was it my son.
Q. All right, you don't remember the names of the two
officers?
A. We did have a card. I don't remember the names.
Q. Would one of them be named Wheeler and one of them
be named Chambers?
A. They could have been. I don't remember.
Q. All right. And you told them that you didn't feel
like going down. You were going to send your son to go down,
is that correct?
A. That is correct.
Q. Did you make a comment to them at the time that
even though you weren't for sure, that you felt that the body 
at the morgue 'was your son and that you had been expecting 
something like this for some time?
A. rio, I think I told —  I asked what type of person
'was it. I asked was it a kid 'with a clean face? He said he
did have a small face.
Q. But you didn't make the comment that I just asked
you about?
A. I don't remember ma.king no comment.
Q. You don't remember making it?

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A.
Q.
it?

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NOj I don't.
You're not saying î'or certain that you did not maki

A* I don't remember malcing such a comment.
Q- Nowj you were talking about jobs that your son
held. You mentioned the sundry store job, and then I think 
you said something about throwing papers.
A. He used to throw a little old paper, a sale paoer.
Consumer Times. I think they come out once a week. People 
would sell them. They have advertisements and stuff for 
different sales.

It wasn't like the Commercial Appeal or nothing 
like that. It was just mostly for advertising.
Q* All right. Well, now, you remember my asking you
on your deposition, which I took on November 19th in my 
office —  you know what a deposition is? Do you remember when 
you came to my office with your lawyer, Mr. Bailey, and we 
asked you some questions before a court reporter and you gave 
me some answers under oath? Do you recall that?
A. I remember.
Q* Now, I think I asked you at that time if he had
had any other jobs other than the one at the sundry store and 
your answer to me was, no, that he had had no other jobs. Do 
you know of any other Jobs that he has had other than the job

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at the sundry store? Now, you have mentioned the one about 
the —
A- (Interposing) I remember he had this little job
throwing the paper. Really, I wouldn't consider that really 
as a job but it vms something to keep some of his time 
occupied, and you know, those paper jobs, you know how 
children keep them. They keep them a while and they let them 
go. It's not a job that you would be employed at, that you 
would have to go to every day.
Q* And you were characterizing your son a moment ago
by saying that you believe that if he had lived he might have 
been a different person, and that you were due to retire soon 
and you were going to spend more time with him. Is that what 
you are saying?
A. What I meant by spending more time, I would have a
chance to be at home more at night thani would just be at home 
in the daytLme.
Q- You're still working, are you not?
A. I'm still working, correct.
Q- When are you scheduled to retire?
A- I was thinking about it pretty strong, you know,
during the time that that happened, before it happened. I 
don't know when I'll retire. Maybe sometime in the near 
future.

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Q. All riglit. You also mentioned the fact thatj I
thinlv you were again characterising your son, you said he was 
quick to catch on and not very slow. Was that v;hat you said? 
A. Well, -just like he —  what I meant by quick to
catch on, if you were trying to explain something to him, he 
would catch it real quick. You Itnow, he vjasn't a slow type, 
hard to learn.
Q. Well, he did have trouble though, as I thinlv you
mentioned earlier, in school he failed at least two ti:n.es, 
did he not?
A.
Q.
school?
A.

Right.
And he was having difficulty with something in 

He was having some problem in school, yes.
Q_. Do you Icnow vfhat the problems were that he was
having in school?
A. I don't really know. I talked with some of the
teachers, and one teacher told me that he 'was, seemed to be 
something more like an entertainer, you knew, because 'when she 
v.'ould go out of the school room, lots of times the children, 
when she came back in the room, the children 'would be listen
ing to him, you kno’w. He would be the center of atrenrion.
Q. Did he ever have any special tutoring or anything
to help him catch up for having failed two grades?

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NOj he never did go to sunmer school or nothing
like that.

All right. What grade was he in at the tine of
his death?
A. Eighth grade.
Q- He was In the eighth grade, and what school again
was that?
A.
Q.
A.
Q.
A.

VJest Side High.
That is the one in Frayser?
Frayser, I believe.
Well, he was in the eighth grade at that tine? 
That is right.

I'iR. liLSDI: All right. Your
Honor, excuse me just one minute.

THE COURT: Yes, sir.
MR. KLEIN: That is all I

have. Your Honor.
THE COURT: Any further

examlTEtion of Mr. Garner?
MR, DAYS: Just a moment.

Your Honor.
No, we have no further questions 

of this witness.
THE COURT: All right, so you may

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step down, Mr. Garner.
You may call your next witness.
I'lR. BAILEY: Your Honor, at this

time we wish to call -- may I peep in the 
jury room to see who is in there?

THE COURT: Yes, sir.
Whereupon,

TALTON DOUGLAS EHOCH,
having been duly svvorn, was examined and testified as follows

DIRECT EXAMINATION 
BY MR. BAILEY:

Q. State your full name to the Court, please.
A. Talton Douglas Enoch.
Q. And Mr. Enoch, your occupation?
A. Architect.
Q. With what firnn?
A. Gassner, Nathan and partners.
Q. And did I not engage you to go out to 739 Vollen-
tine in order to view am alleged scene involved in the law
suit in question?
A. Yes, sir, you did.
Q. All right. While out there, did you happen to
view the scene?
A. Yes, sir, I did.

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Q.
A.

Q.

The residence, 739 Vollentine?
Yes, sir.
I hand you four photographs and ask you —

MR. KLEUT: Let me see those,
Walter.
(By Mr. Bailey) I hand you a photograph and ask

you can you identify it?
A.
Q.
A.
Q.
A.

Yes, sir.
And what does that photograph depict? 
Well, it shows the back of the house.
Of 739?
Of 739.

MR. BAILEY: Your Honor, we
woiild like to have that marked as 
Exhibit A.

TEE COURT: All right, sir.
That can be introduced as —  have you 
pre-marked it, Mr. Clerk?

THE CLERK: No, sir.
THE COURT: All right. Let it

be introduced as Exhibit 1.
('Whereupon, the said document 

was marked as Exhibit 1.)
MR. KLEIN: Your Honor, may I

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1

Q.

Inquire as to whether he made those photo
graphs or someone else made them?

THE COURT: You may inquire.
MR. BAILEY: I made them.
THE COURT: You may proceed.

(By lir.' Bailey) All right. I hand you another
photograph and ask you can you identify it?
A.
Q.

Q.
A.
Q.

Q.
A.

Yes, sir. It's the back of the same residence. 
All right. Can we have that marked as Exhibit B?

THE COURT: . Yes, sir.
Let it be introduced as Exhibit No. 2.

MR. BAILEY: 2.
(Whereupon, the said document 

was marked as Exhibit 2.)
(By Mr. Bailey) A third photograph.
Right. The same residence.
Could_we have that marked as Exhibit 3?

THE COURT: Yes, sir.
Exhibit No. 3.

(Whereupon, the document was 
marked as Exhibit 3.)
(By Mr. Bailey) Fourth photograph.
Same residence. Just farther back from the rear. 

MR. BAILEY: All right.

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Q.

Q.

Exhibit 4, Your Honor.
THE COUET; Let it be 

introduced as E:diibit No. 4.
(Vlhereupon, said document 

was marked as Exhibit 4.)
(By Mr. Bailey) And a final photograph.
Yes, sir. The same, again, the same residence. 
Could we have that as Exhibit 5?

THE COURT: Yes, sir.
Exhibit No. 5.

(VThereupon, the said document 
was marked as Exhibit 5.)

MR. BAILEY: Your Honor,
at this time we wish to tender these 
photographs for the Court’s view.

THE COURT: All right, sir.
(Whereupon, the said documents 

were passed to the Court.)
(By Mr. Bailey) Mr. Enoch, did you also, pursuant 

to my Instructions, make measurements of the back of the 
residence, 739 Vollentine and do an illustration, a diagram? 
A. Yes, sir.
Q* A scale model?
A. In the form of a scale model, yes, sir.

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can you identify that?
A. Yes, sir. This is the same residence on Vollentine
Q* And is that the scale model you did?
A. Yes, sir. This is at a quarter inch scale with
some of the measurements showing the back yard area there.
Q- I see. And did you make your own measurements?
A. Yes, sir, I did.

MR. BAILEY: All right. I
ask you. Your Honor, for the benefit of 
all of us can we —

THE COURT: (Interposing)
Yes, sir. Mr. Clerk, would you —

MR. BAILEY: (Interposing)
Mr. Enoch —

THE COURT: (Interposing)
All right, sir. You may approach if you 
wish, Mr. Klein.

MR. KLEra: Thank you. Your
Honor.

Q- (By Mr. Bailey) I hand you a pointer and ask you
to show the various models on your scale model.
A. Okay. This is the main part of the residence,
right here, where the family lives. This appears to be some

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sort of small apartment or Just a small storage room. As I 
recall, it's about ten by nine or something like that, and 
then this is Just the back door and then a bathroom window,
I believe, and a bedroom window, and then there is Just a 
concrete stoop at the back door.

The only other thing that we show here —  this is 
like a this is a chain linl̂ . fence with aJLuminum supports 
and then the top of it is rather sharp and has pointed edges, 
and I believe that is six feet high, and there is a small 
chicken wire fence or something like that at this end that 
probably Just contains some sort of small animal or something, 
but it's not very sturdy. And this is five feet high here, 
this fence, and then there is a wooden fence along this side 
of the property with a wooden stop at this side and then it 
was open through here. Just a —  but it's less than two feet 
behind this building and the fence.

And then there was another smaller fence back 
behind this fence and then another fence back behind that.
Q- You mentioned the —  is that chain link five feet
or six feet?
A- Five feet. I guess it's five —  it's five and a
half feet.
Q- Five and a half feet.
A. Five and a half, right.

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there, would you again point to it?
Q. A ll r ig h t. The chicken v;ire fence you nientioned

Okay. It's right here.
And how high is that chicke.n wire fence? Hov; tall

A.

Q.
is that?
A. Three feet, as I recall. Yes, it's three feet.
Q. All right, and is there any, between the storage
house and the residence, was there any enclosure or obstacle 
in there?
A. There v;as no enclosure here.
Q. All right. Now, I do believe you v/ent completely
around the storage?
A. Right, but there was a lot of, you know, debris,
sort of like, in here, in that area.
Q. And is that area fully enclosed or is it not?
A. Well, it's enclosed at this end, so you couldn't
get out through there, but I mean unless you could Jump over 
it but it's very tight. I think that is just l8 inches right 
there. That is only l8 inches on this side and like I said, 
two feet on this side. So it's very tight.
Q. I see. So now, one other thing. Is there a
drivev̂ ay on —
A. (Interposing) There is a driveway here, right
Q. Now, I notice on your model there are items behind

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the main chain linii fence, and would you explain those?
A. Okay. These are the dimensions of this area, and
it's shown in five feet increments, so where you see a "five’’ 
indicates five feet and then ten, 15j 20 and then this entire 
distance from this small building here to this chicken wire 
fence is 32 feet and nine inches.

And then the same device was used from here. This 
is 15 feet arid three inches from the back of the house to this 
chain link fence.
Q. All right, and going behind "the on the other side
of that chain link fence, what are those items sho'wn?
A. What, in here?
Q. Yes.
A. This is a low fence again, almost a chicken wire
fence. It was not as tall as the chain link fence, but then 
this was another chain link fence in here, and this looked 
like it was used as a garden area.

At the time I was there, which was in the winter, 
it was, you know, sort of grov/n up though. But that is what 
it looked like it was used for. There were no buildings or 
anything in here, but you could see, you know, through back 
there.
Q. I also notice you have a fence running dov/n the
side there.

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then runs along the —  it looks to be a property line fence 
all along here.
Q. I see. And did you make the measurements relative
to the other fences?
A. Yes, sir.
Q. And what are those measurements?
A- Let's see. I didn't put these on here. I9 feet
from this fence to —  from this chain link fence to this 
chicken wire fence, and then lo feet to this other chain link 
fence.
Q. I see. All right, and just for the record, I take
it the shrubbery looking item is a tree?
A. Are trees, two trees.
Q. Two trees, all right.
A. That is really all the vegetation you could say —
I mean, that was back there. In other words, it wasn't 
covered in trees or anything.. There were only two trees back 
there.
Q. And that chicken v;ire fence you mentioned, you saw
in the photograph, do the photographs show exactly what you 
saw when you were out there?
A. Yes, sir. That is the same. It was not what you
would say in good repair. It was, you know, falling dovm in

A. Right. I t  connects at this point right here and

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some parts of it.
Q.
A.

Q.

Q.
Enoch?

But that is the same chicken wire fence?
It's the same chicken wire fence^ right.

MR. BAILEY: You may re sume
the stand.

Your Honor, at this time we 
wish to introduce the scale model as,
I believe, it's Exhibit 6.

THE COURT: Let it be intro
duced .

(Whereupon, the said document 
v;as marked as Exhibit 6.)

MR. BAILEY: V7e have no further
questions.

THE COURT: You may cross-
examine .

CROSS EXAI.miATION 
BY MR. KLEIN:
May I see those photographs, please, sir?

THE COURT: Yes, sir.
(IVhereupon, the said documents 

were passed to Mr. Klein.)
(By Mr. Klein) What 'was your first name, Mr,

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A.
Q-
A.
Q-*
sir?

ijO u.g,
Douglas?
Riglit
All right, How long have you been an architect^

Let's see. Three years.
Q. Three yeai'S?
A. Right.
Q* Are you licensed as such?
A. Yes, sir, for three years.
Q* Yhen did you go out to take the —  or view the
site in order to make your model?
A. Well, like I said, I believe it 'was in the v?inter.
I just recall tliat it 'was cold and rainy.
Q- Do you remember what month it was and -what year?
A. Well, it vjas either late last year or early this
year. That is all I —
Q- (Interposing) So it 'would be either 1975, late
1975 or early 1975?
A. 19 75 or 1 9 7 6, yes, sir.
Q- Nov;, when you went out, were you given these
pictures to take with you? Had you seen these pictures when 
you 'went cut to malce your vis'w?
A. No, sir. I don't believe I had the pictures then.

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did you ascertain who lived at the property?
A. No.
Q. I assume you had permission of whomever lived
there?
A. Yes. Mr. Bailey went up to the door and told them
what we were there for.
Q. Mr. Bailey took you out there?
A. Right.
Q. Okay. Did you ascertain where the property lines
were?
A. Not officially, no, sir.
Q. Well, for example, you have shown here the back
fence, which you have referred to as a chain link fence, 
which you initially said w&s five feet and then you corrected 
yourself to say it was five and a half feet tall. Do you 
know whether that was the back property line of this residency 
on Vollentine?
A. When I say, ’’Officially", I don’t —  I mean by,
you know, through a legal, in a legal way, we did not check 
that out. I did not check that out.

There is a house —  I mean that appears to be the 
back yards of other houses that front on another street.
Q. What appears to be the back yard?

Q. A ll r ig h t. Now, when you got out to the scene,

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A. Those other fenced areas.
Q* In other words, the two fenced areas behind this
five and a half feet chain link fence appears to be the back 
yards of other houses? Is that 'what you're saying?
A. Right. I mean it just appears to be the property
line.
Q« And you said that it appeared to you also that
they possibly used this back area for gardening. For garden
ing, and there v;as gro'wth or vegetation?
A. Some, you know, just overgrown weeds like you have
in the winter.
Q. All right. VJell, let me show you Exhibit 4 and
ask you if that —
A. (Interposing) Right. That is taken from that
axea looking back at the back of the house.
Q. All right. Now, do you know whether there are
any exit ways in this back area? Do you know what I'm talk
ing about, "the back area"? I'm talking about the area 
behind 739 Vollentine.

Do you know whether there are any gates, any exit 
ways or vjhatever?
A. In these other instances, I do not know. I mean,
there is no —  there are no gates anyvjhere that I saw, I mean, 
as far as, you kncv;, a gate.

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A. I really don't know. I would think it's north.
I don't know. Do you know? Is it —  I don't know.
Q. You don't know which direction is which?
A. I do not know.
Q. All right. Well, I'm pointing here down to the
bottom of your exhibit. Do you know whether there was a 
driveway on that side of the house?
A. I don't recall that there vias. I know there vras a
driveway on the other side that serviced that particular 
residence, but on the other side it seems to me there was a 
house very close and there v;as no drivev>fay on that side.
Q. Nox*̂ which side are you talking about?
A. Well, let's see. If that's the north, that ^̂ /ould
be on the west side.

If the houses faces north, then this would be on 
this side right here. There v;as no driveway. There was a 
drivevmy on that side.
Q. All right. In other words, you're saying there
was a driveviay that goes to this little garage-like house?
A. I don't think it was ever a garage. It's not
large enough for a garage.
Q. All right. And your scale is wfe t now?
A. One-quarter inch.

Q. A ll r ig h t. Now, v/hich way does th is house face?

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Q. One-quarter inch represents v:hat?
A- One foot.
Q* One-quarter inch represents one foot.
A. Right.
Q- All right. Co you know how far it would be from--
let's call this the southwest corner of the house —  over to 
this far corner, which would be the southeast corner of that 
little outhouse?
A.
Q.

I don't know. I could measure it. 
Measure it and tell me.

MR. BAILEY: Your Honor,
for the record, Mr. Klein, can we 
agree on the directions?

THE COURT: That would be
helpful to the Court if you gentlemen 
would orient me as to which direction 
is north on that scale model.

Q- (By Mr. Klein) Would you put arrows on there
showing the directions?
A. It's 37 feet approximately, 37 feet.

MR. BAILEY: You had better
put it up where the Court can see it.

MR. KLEIN: Mark, if you would
for me, please, sir, this direction and

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tiiat direction.
THE V/I'THESS: Okay. You v;ant

me to just —
MR. DAYS: In fact, mark in

all four directions. That would be helpful.
A. (3y the witness) This would be the east side.
This would be the west, and this would be the south.
Q- All right. Now, that measurement that you gave me
just a moment ago where I asxed you from this point —
A. (Interposing) From this corner is where I made
the measurement.
Q- All right, I want you to go just outside of this
corner on the other side of this fence and then make the 
measurement all the way over to this corner of the garage or 
the outhouse.
A. It would be just about —  would that be approxi
mately the point you want it --
Q- (Interposing) Just on the other side of this
chicken wire fence just mark a point there and a point there, 
if you would for me, please.
A.
Q.
A.
Q.

You just want a point here?
Yes.
And then a point right here?
Right, just on this side of the outside, and then

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tell me wliat the distance —
A. (Interposing) That is 37 feet six inches.
Q. 37 feet six inches.
A. Right.
Q. When you were out there, Mr. Ehoch —  and 1*11
refer to it as a chicken wire fence running along the west 
side of the house —  was it up or down when you were there? 
A. Partially up and down. The area nearest the
house was up and then the part nearest the chain link fence 
was down.
Q. All right. Do you know —  of course, you
wouldn't know what the condition of it was back in October
1974?
A- I wouldn't have any idea.
Q. You wouldn't have any idea. And that chicken
wire fence was how tall, did you say?
A. Three feet.

MR. KLEIN: Three feet.
That is all I have. Your Honor.

THE COURT: Anything further
of Mr. Enoch?

MR. BAILEY: Just one other
question. Your Honor.

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RE-DIRECT EICAI-IINATION 
BY MR. BAILEY:

Q- Does Exhibit 2 show pretty auch the condition of
the fence when you were out there, the chicken wire fence?
A- Yes, sir. That is what I would -- it was up, you
know, it was erect' on the side nearest the residence and 
then falling down or sagging near the chain link fence.

MR. BAILEY: All right.
That is all. Your Honor.

THE COURT: All right, sir.
You may step down, sir. Thank you.

Gentlemen, why don't we take 
a brief reoess now before you call your 
next witness and we'll be ready to 
proceed. About ten minutes.

(Recess.)
THE COURT: Are you ready with

your next witness?
MR. BAILEY: Yes, sir, Mr.

Enoch, would you resume .the stand again, 
please?

There v/ere three photographs.
Your Honor, I neglected to get testimony 
on.

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THE COURT: All rie,ht, sir.

Q. (3y Mr. Bailey) Can you identify this photograph?
A. Yes. This is the area directly in back of the
small shed, looking toward east, nov; that we have the direc
tions established.
Q. And what is this —
A. (Interposing) That is the beginning of that fence
that goes along the side of the entire shed.
Q. On which side of the shed?
A. On the east side of the shed. It does not coruiect
at the corner. This photograph is a little bit misleading.
It doesn't connect at the corner of that fence. It starts 
at the corner of the chain link fence and then continuss past 
that really.

THE COURT: Mr. Bailey, would
you put your finger at the point that I 
think he discussed?

MR. BAILEY: Here?
THE COURT: Yes, sir. Thank you.
THE WITNESS: Right.
ME. BAILEY: Could 'we have this

marked as Exhibit 7?
THE COURT: Yes, sir. Let it be

marked as the next exhibit number.

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THE CLEHl̂ : No. 7-
(V/hereupoHj the said dccument 

was marked as Exhibit J.)
Q. (3y Mr. Bailey) I hand you another photograph
and ask you what does it shcv;?
A. Okay. This is the enclosure at the end of the
shed. Well, at the north end of the —  at the northeast 
corner of that small shed. This wooden fence continues past 
the shed on do'wn that assumed property line several feet, and 
then this is the enclosure from that corner over to that
fence
Q. VJould you use your pointer and indicate? 

THE COURT: Thank you.
A. (By the witness) It's at tnis point right here.
The photograph is actually naade from back here looking 
through that area to that iiotle fence right there.

MR. BAILEY: And finally. Your
Honor, may we have this marked as 8?

THE COURT: Yes, sir. Let it
be marked Exhibit Ho. 8.

(Whereupon, the said documerat 
was marked as Exnib it 8.)

THE COURT: I'm going to suggest
when we complete, if you will, Mr. Bailey,

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if you'll marii. on the chart there where 
Exhibit 7 and No. 6, for the record, will 
show on your scale aiodel. Tie in these 
exhibits to the scale model for the 
purpose of the record.

You have pointed it out and 
I can see it clearly, but I think the 
record should also make that clear.

MR. BAILEY: Very well. Your
Honor.

Q- (By Mr. Bailey) I hand you another photograph and
ask you can you identify that?
A. Yes, sir. This is made in that back lot behind thi
main house and it's made looking east down this, almost on 
top of this small chicken wire fence along in hers, and you 
can see in the picture where there was a garden on this side.

You can still see some tomato stakes or something 
in that area.
Q- And does that reasonably depict the conditions
when you.were out there?
A. Yes, sir. It shows those two trees, too, that we
have shown here.
Q- Can we have that marked as 9?

THE COURT: Yes, sir.

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(vrnsre'aporij tiie said document 
was mariced as Exhibit u.)

Q- (By Mr. Bailey) Mr. Enocnj would you mark on the
model, correlate the photographs?
A. The photographs .

THE COURT: Let him have
these photographs.

THE WITHESS; Just these three?
THE COURT: Yes, sir.
THE WITHESS: You want me to

just mark them where they were made from 
and what direction they are looking —

THE COURT: (Interposing)
Yes, sir. That would be fine. Thank you.

Q* (By Mr. Bailey) l7ould you also mark an X on the
chicken wire fence on the photograph and I guess you had 
better mark —  would you make a mark on the photograph show
ing the chicken wire fence and the chain link fence that you 
have testified to?
A. I probably need a.nother pen. Just with an arro'w,
just denote the two different —

MR. BAILEY: (Interposing)
li you will put an X on the chicken wire 
and maybe a Y on the chain link showi.ni- the —

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1 all right. Thank you. I have no —
2 MR. KLEIil: (Interposing)
3 Your Honor, may I see those, please?
4 THE COURT: Yes, sir.
5 Just a minute, Mr. Enoch. We'll see if
6 there are any further questions..
7 RE-CROSS EXAI-UNATION
8 BY MR. KLEIH:
9 Q. Mr. Enoch, you again didn't make these photographs

10 I take it?
n A. No, sir. I did not.
12 Q. I'm talking about now Exhibits 7, 8, and 9?
13 A. No, sir. I made none of the photographs.
14 Q. All right. Then did you have them with you when
15 you v;ent out to visit the scene?
16 A. No, sir.
17 Q. You had not seen them at that time either?
18 A. I had not seen them, no, sir.
19 Q. All right. So it's subsequent to that that you
20 have seen these photographs?
21 A. Right.
22 Q. I take it Mr. Bailey showed them to you, is that
23 correct?
24 A. Right.

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Q. And again, what is depicted on your model is, oi
course, as you sav/ it in the latter part oi 19 75 oi* early 
part of 1 9 7 6. You don't have any idea what it was like back 
in October of 197^?
A. No.
Q. Of course, I guess it goes without saying that
whether or not this three foot chicken wire fence had 
extended all the way across, you wouldn't —
A. (Interposing) Well, I mean, you can see from the
photograph that it was all the way across at one time, that 
it was sagging in one portion.

MR. BAILEY: We'll stipulate
to that, Mr. ILLein. I think we're pretty 
much in agreement.

Your Honor, we'll stipulate 
that that chicken wire fence went all 
the way across.

THE COURT: All right. As is
reflected on the scale model, as a matter 
of fact?

MR. BAILEY: Yes, sir.
THE WITNESS: Right.
THE COURT: All right, anything

further of this witness?
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MR . BAILiiY : No .
THE COURT: Thank you, sir.

You may call your next witness.
MR, BAILEY ; Mr. Cordero.

Your Honor, Mr. Cordero is being taken 
out of turn. He is suffering with an 
illness and I assured him we would get 
him in and get him out so he could make 
his doctors visit.

THE COURT: All right.
MR. KLEIN: Your Honor,

excuse me. I don't know what the 
gentleman is going to testify to. I do 
notice he was sitting in the Courtroom 
while the other witness was testifying.

THE COURT: Nell, the Court
noted that he was there just in the last 
series of questions, and unless there is 
some unusual problem, there is no problem 
as far as the Court is concerned under 
that circumstance.

MR. BAILEY: He is the ambulance
attendant.

THE COURT: Proceed, Mr. Bailey.

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1 MR. BAILEY: Thank you.
2 Whereupon,
3 DAVID MICHAEL CORDERO.
4 after first being duly sworn, was exainiined auid testified as
5 follows:
6 DIRECT EXAMIilATION
7 BY I-IR. BAILEY:
8 Q. State your full name for the benefit of the Court,
9 please.

10 A. David Michael Cordero .
n Q. And your residence, please?
12 A. 1265 Vinton Avenue.
13 Q. Here in the ity of Memphis?
14 A- Right.
15 Q. And your age?
16 A. Twenty-seven.
17 Q. Occupation?
18 A. Paxamedic with the Fire Department.
19 Q. And married?
20 A. Right.
21 Q. All right. Calling your attention to the date in
22 question which was October 3rd of 19?4, did you and a Mr.
23 Williams ride as companions?
24 A. Yes, sir.

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Q' Providing ambulance services?
A- Yes, sir.
Q- And vjhere were you stationea?

Engine house 15. iz v;as on —  I don't icnow. It 
was either on 3ieedlo\Ae or Faxon. They have moved the nev? 
engine house. I don't know 'whether that day —  I can't recal 
if we had moved into the new engine house by that time. It 
was emergency unit 11.
Q* I see. And what sort of call did you ŝt?
A. Ref err Lag to —

(Interposing) The gun matter, the call you made.
A* Okay. These calls like this usually come in,
A shooting, meet the police at such and such addresŝ ' or 
something like that.
Q- I see.
A* I think the police —  this particular call came
through the police dispatcher.

All right. I see. And how long die it oake you 
to get to the scene?
A- I don't know. That could be —  just a short time,
you know. Less than five minutes.
Q* I see.
A- Less than five minutes. I would think less than
five minutes and that probably could be checked with the alarm

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office out there. They keep a record^ time out of quarters 
and arriving on the scene and all of this.
Q* But to your best recollection, it was less than
five minutes?
A. Right.
Q- And upon arriving on the scene, just exactly —
would you describe in detail exactly what you saw and what 
you heard?
A- Well, we didn't hear much of anything except this
boy, the young boy that was shot was shot in the head, and he 
was hollering, you know, from the pain.
Q- Do you recall his utterances?
A- Nothing that you could understand. You know, just
hollering. He wasn't saying anything that I can recall, you 
know, anything —  I don't believe he was saying anything.
The officer was really upset on the scene.
Q' Bid you overhear any remarks on the part of the
officer?

MR, KLEIN: What officer are
we talking about?

A* (By the witness) The officer that was at the
scene when v/e arrived.
Q- Was he black or white?
A. This was a black officer.

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Q* And I ask you to lock at the gentleman sitting
behind counsel and do you recall v/hether or not that is the —  

A. (Interposing) I don't recall.
Q- How many black officers were on the scene?
A. I believe, tv/o. I believe, two. You know, I
didn’t really pay that dose attention to this. I do Icnow that 
it was a black officer and he seemed to really be upset, you 
know, that the fellow that got shot was such a young fellow, 
and that is pretty much it. You know, he just really seemed 
to be real upset about what had happened.
Q- And what did he say? Did he say anything, this
officer?
A. I think we probably asked him what, you know, what
had happened here or what, you know, what did happen and I 
think the officer —  I think it was stated that the fellow was 
running away from a house or trying to go over a fence and 
they hollered for the man to stop, and he didn't and so, you 
know, they shot.
Q- Did he say, indicate what steps he had taken to
try to apprehend him?
A- I can't recall. You know, like he was describing
a chase to me or something like this?
Q. Y e s, s ir.
A. I don't recall. I mean, I'm sure he probably did

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chase the fellow^ you icnowj and holler at hin to stop, and I 
have seen this happen before and, I aean, I didn't see it 
happen In this case, but I mean, that's usually 
Q. (Interposinji) You have seen officers chase?

ĵ ight, and before they usually shoot, I mean, they 
have always hollered and tellins the people to stop, Fut up 
your hands. You're under arrest" or "Stop. This is tne 

police.''
Q, And chase them?
A. Right.
Q, Did you hear any remarks about a boy, about the
victim being described as a boy?

MR. KLEHl: I'm going to have
to object to this unless it comes from 
the Defendant. I don't know who he is
asking about or who is supposed to have 
said, "Boy," but I'll object to it unless 
it's further identified, as being hearsay.

Q. (By Mr. Bailey) All right. Now, the officer you
saw upset, did he Indicate he was the officer who had shot th2 

boy?
A. I don't know. I don't recall if he was the one,

you know.
Q. T̂Tas any other officers as upset as tnis one you

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describsd?
A. IIo, no. You know, I guess I would assums that he,
you know, would have been the officer that fired the shot, but 
he might have said that —  about, :,̂ u know, this fel_ow being 
so young.

I thinli that was what, you know,-he was really 
upset about, you Imovr, because the fellow that did get shot 
was such a young —  you know, he was young. I don't recall 
exactly -- I don’t think he 'was but about fourteen or fifteen 
years old, or something like this. He was a big boy, yu knew, 
big for his age, but he was I think he was —  I can
remember about five feet six, five feet seven.
Q. All right.
A. —  maybe in height.
Q. All right. No'w, one other question. VJhat -was the
position of the body of the victim -when you saw him?
A. Hell, he was laying dovm and he v/as rolling, kind
of rolling a little bit, but it was close to, I think, a 
wooden fence, as best I can remember.
Q. Do you recall whether or not he tried to get up or
move other than rolling?
A. No. He was Just, you know, really hollering. The
child was in a state of shock I'm sure from all that
happening.

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To the best I can rememberj I think he was holding 
his head and just thrashing about on the ground and rolling 
around.
Q.
A.
Q.
A.
don't know.

Anybody try to restrain him?
My partner and I.
I mean 'before ya'll took charge?
I don't —  I don't know. I don't think so.

Q- Vlhat about the black officer? You say there were
two black officers on the scene?
A. I think. I don't really recall. I do remember
there was one black officer there that was terribly upset. 
And I don't recall if it was —  I don't remember.

I'm not one for faces anyway, and I don't 
remember if it was this officer or not. You know, I don't 
know. I do know that there was a black officer there and he 
was upset, you know.
Q- Do you know whether he tried to administer treat
ment or anything of this sort?
A. Well, I couldn't tell. I mean, I'm sure, you
know, he would have tried to do something for the fellow, but 
there was really nothing, you know, he couldn't have done too 
much for him, I don't think, other than just try to calm him 
down and keep him from hurting himself any further, you know.

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by moving around on the ground.
0.* But you didn't see him. doing that?
A* No, not when we got up. He —  I thintc that is wher,
I remember, you know, he was upset and that is when we —  we 
weren't on the scene very long at all, I don't believe.

We just stayed —  all this happened Just, say, in 
a matter of a couple of minutes, two and a half, maybe three 
minutes at the most of us getting to the scene, you know, 
trying to find out what, you Icnow, a short instance of what 
had happened and getting the fellow on the stretcher and on 
the way to the hospital.
Q- I ask you, to the best of your recollection, would
you use the pointer and try to point out where you saw the 
body of the victim when you arrived on the scene?
A. Weil, I think it was, you know, right close to the
fenced area here. I don't know how close the fence was in 
relation to the house or anything, but it was this close to 
the fence.
Q. Back fence?
A. Right. Well, what are you talking aoout? Like
this one? Which way was the street running?
Q- Okay. This is 7b9 facing north. This is the back
Ox bhe house, and ohis is tns fence directly behind the house. 
A. Well, I believe that is the fence where he was.

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Q.
roughly?
A.
the most. 
Q.
A.
Q.

All right. Do you icnow how far from the fence

Just a couple of feet, just two or three feet at

Which side of the fence was his body?
On the side that the house was on.
All right. Now, in transportin^, young Garner to 

the hospital, do you remember him constantly yelling and 
hollering?

He hollered pretty much all the way to the hospital 
Lihe I said, I believe I was driving,. I wasn't in the bach 
with the young fellow. I oelieve Williams was riding in the 
bach with him and I was driving that night.

I thinic, you hnow, he'probably hollered some, I'm 
sure, and he 'was still hollerinj^ —  he hollered some when he 
got to the hospital, I thinh.
Q. He did?
A* When we notified -- we were carrying him to John
Gaston and 'we notii'ied them to stand by to be ready for us, to 
have the resuscitation room ready, you hnow. We radioed 
ahead, so they would be prepared for us.
Q- Would you again mark on che scale where the body
was, to the best of your recollection, wne.n you got on the 
scene or where young Garner, I should say, was lying and

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rolling? I believe you're going to need a pen.
A. I ohink rouglily, you loicw, maybe here like that.
He wasn't really far from the fence.
Q. I see.
A. I don't know —

MR. DAYS: (Interposing)
Your Honorj would it help the record 
if the witness just initialed that spot 
on the exhibit?

THE COURT: Yes, it would be
helpful if the witness initialed. Thank 
you;

MR. BAILEY: Your Honor, we
pass the witness.

THE COURT: A-lI right. You
may cross-examine.

CROSS EX.W1IIIATION 
BY MR. KLEIN:

Q. Mr. Cordero, while you're down, if you'll just look
at the point where you initialed. You say that is the best of 
your recollection as to where the body was. Do you know 
whether the body had been moved or not?
A. Well, there was really no way for us to tell,
because he was, like I said, he v;as rolling around. I didn t

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notice any —
THE COURT: (Ini:erposins,)

Can t h e  reporter near ail rl̂ tit?
Q. (3y Mr. Klein) IT you'll just face zhe reporter

while you taiic.
Okay. I didn't notice, you know, diun't notice 

he had been moved any distance, you lusow, other than just 
maybe a two or three foot area. Just around where he was.
Q. 3 Ld you see any blood on cne ground?

Just, you know, ri^ht where he was.
Q. Right wnere he was.

At the time. Right, it v;as dark. I ohink it wa^
pretty late at night, 1 1 :3 0 or twelve o'clock, 
q, Vias there much light in tne back yard area, that

you recall?
A. No, sir.
Q. 'was there not?
A. No, sir.
Q. jiow, again, this is to the best of your recollec
tion, it could have been a little bit one way or the other, 

as far as you kno'w?
It could have been on this fence here, as far as I 

know. I Just remember a fence. Ycu 'mow, we just —  we reali 
didn't pay tnat does attention to the details to it. He was

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very close to a fence, and it was a wooden fence. I believe 
it was a wooden fence.
Q- Could it have been a chain link fence?
A* I think it was wood at the time. I bdieve it was
wood.
'5- Be that as it may, that is not your job to go out
and investigate the scene, is it? You're mors interested in 
administering first aid to v/homever is hurt?
A. Right. First aid.

All right, sir. When you got there, this was 
pursuant to a call that you received at your station, at your 
fire station, is that correct?
A. Yes, sir.
Q- All right, and you are a part of the Memphis Fire
Department, is that correct?
A. Yes, sir.
Q* You may sit down. And you had a partner with you,
is that correct, too?
A. Right, a fellow T. L. Williams.
Q- All right, and hov; far were you from this scene,
in other words, your station?
A. Well, at that time I think the station had moved —
I don't know for sure, but I think we had moved into the new 
engine house on Breedlove. That was at 688 Breedlove and what

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was the address?
Q. Vollentine.
A. Vollentine. Okay. That is just —  that is the
first big intersection heading north from the engine house, 
so we weren't —  like I said, it was inside of five minutes. 
It could have possibly been less than that.
Q. All right. You don't know who made the caJ.1 or how
the call came out, do you?
A. That could be checked with the fire alarm office.
I don't know. I would think, just assuming, because I have 
made calls similar to this before, you know, a shooting where 
the police were involved or -whatever. Usually the police or 
the officers there on the scene would call for an ambulance. 
That is usually the practice, ana that's probably —  I think 
that might have been the way this one came in. All this 
stuff is on taoe out at the alarm office.
Q.
A.

I understand.
And these calls come in like, "Meet the police at

such and such address on Vollentine, a shooting caU.." I 
don't know for a fact but, I mean, it could be checked.
Q. Do you make a report or a record of each call that
you —
A- (Interposing) Just a little ticket for the city's
records, you know, for the billing records. It's just a name

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and an address like this.
Ail right. And so when you got to the scene, I 

think Mr. Bailey asked you how many officers were present.
Do you remember how many, or he asked you if one 

was black or you indicated you thought there might be two 
black officers. Do you remember how many officers were there 
at the scene when you arrived?
A- No. I remember some arriving. As we were leaving,
some more were coming up as we were leaving.
Q. I see.
A. But all I can recall —  really I think there were
just t'WO .
Q* Just two when you got there? Were there any other
people around?
A. No one in back. I think there were some people out
front, just some neighbors or whatever, people on the street 
who stopped —  any time an ambulance or a police car drive up, 
you have got a crowd.
Q- All right. How long were you actually there on the
scene before you took the subject —
A. (Interposing) Again, we didn't spend much time on
the scene, probably three minutes or just —  I wouldn't say 
four minutes. Two and a half, three minutes, something like 
that, probably not any longer.

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Q- So you were mostly concerned with administering to
the wounded subject?
A- Right. He was breathing on his own when we got
there.
Q. All right.

THE COURT:
MR. KLEDI:

Anything further? 
That is all I have.

Your Honor.
MR. BAILEY: That is all. Your

Honor.
THE COURT: Mr. Cordero, if you

were not in your new station on Breedlove 
and you were at your former station on 
Faccon, is that the station that is —

THE WITNESS: (Interposing)
On the corner of Faxon and Decatur.

THE COURT: Three or four
blocks from the old v;ater works?

THE WITNESS: 'Yes, sir. It's 
right behind the Pic Pac Store at Jackson 
and Decatur.

THE COURT: All right. Anything
further?

MR. KLEIN: No, sir,
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THE COURT: Thajak you.
THE WITNESS: Yss, sir.
MR. HAILEY: Your Honor, again,

we are going to tales a couple of other 
witnesses out of turn.

THE COURT: All right, sir.
MR. BAILEY: would you asie Mr.

Anderson?
THE COURT: Any reason why Mr.

Cordero can't be excused?
MR. BAILî jY : Ho, sxr.
THE COURT: Thank you.
MR. BAILEY: Your Honor, I really 

wanted the Anderson from the hospital. This 
is another Ahdersen.

THE COURT: All right. We'll
call you later, Mr. Anderson. .

Whereupon,
Aim STEPP,

after first being duly sworn, was examined and testified as 
f ollo'ws:

DIRECT EXiiMIHATIOH 
BY MR. BAILEY:

Q. State your name, please.

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Ann Stepp.
S-t-e-p?
Two p's.
Miss Stepp, your employment?
I work for the City of Memphis Hospital.
In 'What capacity?
Assistant director of the medical record department 
And are you familiar v/ith the books and records oi

the medical record department?
A. Yes, I am.
Q- And are they kept in the normal course of business?

A. Yes, sir.

Q. In recording medical records?

A. Yes, sir.
Q. And do you ha'/e the medical records on Robert

Eugene Garner?
A. Yes, I do. On Edward Garner?

Q. Edward Garner, I'm sorry.
A. Yes, sir.

Q. And were those records also kept within the normal

course of business?
IS Yes, they -were.

Q. Did you bring those records with you?

A. Yes, I did.
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Q- And would you read those records in reference to

his admission of October 3 and his discharge?

A. Ohay. You want his diagnoses? I have several
things here.

Q. Yes, the doccors —  the observation, his diagnoses,
his history, his —

A. (Interposing) You want me to read the discharge
summary, that includes a final dia;gnosis?
Q. All right. Read the discharge summary.
A. Oltay. "This young blade male was brought to John

Gaston Hospital emergency room the eveninb of 10-3~7^> with 
a history that he had .been shot in head by the police in 
circumstances which were unl-enowTa to me.

"When I first saw this young man, he was lying in 
the emergency room with a gunshot wound on the bade of the 
head. There v;as a lot of blood on the sheet. He was moaning 
some, lying on the bed.

"He was bilaterally decerebrate. The pupils were 
mid position and fixed. Head movements appear to be intact bi 
laterally. His respirations were approximately ten per minute 
and quite shallow. His pulse was about 6o and regular.

"The X-ray showed a gunshot wound on the back of 
the head that appeared to be transcerebral. I thought on the 
pre-operative X-ray examination there might be a superior

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saggifcal sinus injury in addition. The patient was taken to 
surgery in a very critical condition.

''We attempted to do a craniotomy and repair the 
gunshot wound to the head. However, he expired on the table 
soon after we got surgery started. At surgery, we did find an 
extensive skull injury on the back of the head, and in addi
tion, a transected superior saggi^al sinus.

"Admission diagnosis v;as gunshot wound to the head. 
Discharge diagnosis, same with extensive cortical injury and 
superior sag tal sinus transection. Operative and special 
procedures, attempted repair of g'unshot wound to head through 
craniotomy."
Q- Okay. Ivill you identify that docume.nt you have
just read from?
A.
Q.
A.
Q.
A.
Q.
A.
Q-
us?
A.

This is the discharge summary.
By whom?
By Dr. Howard Morgan.
Was he the attending pĥ ŝician?
He was the resident at the case.
Does it have a form number?
It’s form number "rOA.
Do you have an extra copy that you could provide

VJellj not with me. This is

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THE COURT: (Interposing)

Well, the Clerh can make a photostatic 
copy so that Miss Stepp may retain her 
permanent record, but the ClerK may make 
a photostatic copy a.nd the copy may oe 
marked as an exhibit in this cause.

MR. BAILEY: Very well. Would
Your Honor have the copy marked as the 
next exhibit?

THE COUR.T: Yes, sir.
THj:< CLiiiRh: lu ' s Ho . 10 .
(Whereupon, the said document 

was marked as Exhibit 10.)
MR. KLEIil: Your Honor, I

realize these are ousiness records. I 
v/ould make an objection on the theory 
that it was a doctor who v/as giving this 
report, and ol course, I don't have an 
opportunity to cross-examine that doctor, 
as sucn.

So granted it is part of her 
business records, but for the reason that 
I can't cross-exa*;ixne the doctor's statement 
or his diagnosis, then I v;ould object to the

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admission.
THE COURT: Objection will be

overruled and the exhibit will be introduced.
MR. BAILEY: Ue have no further

questions of this lady.
THE COURT: You may cross-examine,

Mr. Klein.
CROSS EXAMI^IATION 

BY MR. KLEIN:
Q. Miss Stepp, you were reading from the discharge
summary, is that correct?
A. Yes.
Q. Now, this was prepared and signed by Dr. Howard
Morgan, is that correct?
A. Right.
Q. You, of course, had nothing to do with that and
were not present and know nothing about it, is that correct?
A. No, I did not.
Q. Are you familiar with any of the terms that are
used in this report?
A. As to their meaning, not really.
Q. Okay. Again, I was referring to the discharge
diagnosis v/here it says it's the same as the admission 
diagnosis, vmich is gunshot wound to the head and then it goes

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on to say that there v;as extensive cortical injury and superior 
saggital sinus transection. Do you knov̂  what that means?
A. No, I really don't.

MR. KLEIN: I have no further
questions.

MR. BAILSY: Your Honor, I
might observe that we plan to call Dr. 
Francisco, who can define that termino-

THE COURT: In any event, this
record is admitted and Miss Stepp, cifter 
the next witness is called, the Clerk 
will have an opportunity to go with you 
to the Clerk's office and .rake a copy 
so that you can retain your record and 
the photostat will be introduced as the 
next exhibit number.

You may call your next witness.
I4R. BAILSY: Mr. Anderson.

Whereupon,
LE7DF.LL A?IDERS0N.

after first being duly sworn, v;as examined and testified as 
follows;

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DIRECT EXAMINATION 
BY m .  BAILEY:

Q- state your name to the Court, please.
A. Leedell Anderson.
Q- Mr. Ajaderson, where do you reside? Where do you
live?
A. 739 Vollentine.
Q. And your age?
A. Fifty-four.
Q. Married?
A. Yes.
0.’ All right. Is 739 Vollentine where you reside the
site or the place v;here young Garner was shot by the police?
A. Yes. Yes, sir.
Q* All right, and v/ere you present at the —  you
weren't present at the actual shooting, were you?
A. No, sir.
Q- You got home a little later after the shooting?
A. Right.
Q. All right, and after you got there, did you get a
chance to see the young boy who was shot?
A. They v.'as fixing to put him in the ambulance when I
rolled up.
0.- I see. And your house had been burglarized, had it

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not?
Right.

Q* As a matter of factj v;as there evidence that some
body had gained forceful entry into the home?
A. Right.
Q* What kind of evidence v/ac there?-
A. Wellj the window was broken cut and the door
hadn't been broken in̂  so somebody had to go through the 
window to open the door.
Q* You say the door had been broken in?
A. The door hadn't been broken in.
Q. Had not been broken in.
A. The latch v/as still on it, but when I went in
there it v;as open, so I assumed somebody opened the door from 
the inside.
Q.
Qoor?

A.
Q.

’Was there no sign of any instruments used on the

Ho.
And the door was completely intact?

A. Right.
Q- What about your window that you —  which window are
we talking about?
A. The back window ae:ct to the bedroom was broken out
Q. All right. I ask you to step down just a second, i

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you would. Would you stand over here where the Court can see?
Wait a minute. I guess you do have to stand on 

that side so we can see the window and all.
Now, assuming that this represents your house, that 

this is 739 Vollentine where you live —
A. (Interposing) Right.
Q. (Continuing) —  what would this object be, this
building?
A. That VTOUld be facing Vollentine and the back would

be back that away.
Q. All right. I understand that. Now, what is this
building, I suppose, is really what I'm asking you, that small 
building on your premises?
A. Right. That woiold be —
Q. (Interposing) îHiat do you use it for?
A. The outer house.
Q. Okay.
A. Right.
Q. And on the night of October 3rd of 197^^ aid yoa
have a wire mesh chicken v/ire fence across there?
A. Right. Three foot high.
Q. Three foot high, and would you point to it?
A. That would be —  the fence would be hers
(indicating).

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1 Q. All right.

2 MR. KLSIIT: Can vie get him to
3 mark that?

4 MR. BAILEY: Your Honor^ for
5 the benefit of the record, we're referring
6 to the model Exhibit 8 -- I mean. Exhibit 6,
7 I'm sorry.

8 THE COURT: Exhibit 6 scale model.
9 Q. (By Mr. Bailey) Would you put your initial right
10 by that chicken wire fence that you mentioned?
11 All right. That is good enough. Okay.
12 MR. BAILEY: Would Your Honor
13 have the record show he has put his
14 initials by —
15 THE COURT: (Interposing) Yes, sir.
16 Q. (By Mr. Bailey) Now, did you have a light on your
17 back porch that night?
18 A. It wasn't on.
19 Q. Do you know anything about the lighting conditions?
20 A. The light would be on the kitchen, on the back door,
21 Q. You leave any other lights on in the house?
22 A. No. It was day when I left. V/e was supposed to go
23 right back but my car quit on me.
24 Q. I see. And of course, there is a driveway down

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here?
A. There is a driveway and that is the outer house.
Q. All right. What is this?
A. That is a wooden fence.
Q. All right,
A. It‘s about that high.
Q* All right. And what is this?
A. That is —
Q- (Interposing) Is that the chicken wire fence that
runs the length of the back of the house?
A. That is an ordinary big fence. I think it was
about eight feet, I think.
Q* You never measured it?
A. No, I never measured it. It comes through by the
other property back of the house. It was about eight foot.
Q.
A.
Q.
A.

Q.

That is Miss Sarah's —
(Interposing) Miss Sarah, right.
(Continuing) —  property?
Right.

MR. KLEIN: It's whose property?
MR. BAILEY: Sarah Jackson.
THE WITNESS: Miss Jackson.

(By Mr. Bailey) And that is her —  the front of
her home faces Woodlawn, does it not?

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A.
Q.
A.
Q.

-93-

Right.
And Woodlawn intersects vrith VcRentine?
Right.
All right. And she ov;ns all of that property all

the way —
A- (Interposing) All the way back to —
Q* (Interposing) Woodlav/n?
A- To the house on the other side of mine.
Q. And does that fence run all the way back down to
Woodlawn?
A.
Q.
A.
Q.

Ail the way back.
I see.
—  from VJoodlav-;n on back down to —
(Interposing) Do you recall whether there was any 

small grass or large grass, and what the condition of the 
area was right behind the fence? Behind your back yard? Well 
that is —  is there a garden back there?
A. There is a garden back there and pecan trees and
apple trees, and a pear tree back there growing in her garden. 
She has a garden.
Q. Is it kind of clear back there or is it brushy?
A. It's kind of brushy.
Q. How much brush is it?
A. Well, the trees, you know. It's mostly shady back

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1 there.
Q. Small brush or lar̂ ê brush or what?
A. Just small trees.
Q. How about the brush? Small brush?

MR. KLEIN: I'm going to
object to the leading questions. Your 
Honor.

A. (By the witness) I don't recall no brush.
Q. You don't recall about the brush?
A. I don't recall no brush. Trees are back there.
Q. All right, now, doss that model pretty much —
does that accurately show the condition of your premises at 
the time of the shooting on October 3rd?
A. Right.
Q. It shows all of the fences?
A. Right.
Q. Even shows that little area running down the side
of the storage house?
A. Right.
Q, And it even shows the little area on the side over
in here, I'm asking?
A. Right, That is right. This is another house
sitting back over on that side ''f the fence.
Q. And I ask you, direct your attention to the front

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1 of this storage house on the model v;here we have got a little 
small fence here.
A. Right here. Right in between here. Yes, right.
Q- So is there any way out or any gates or anything
all the way in this enclosure at all?
A. No, not unless you go over that fence.
Q. That is the only way out?

I asked you to bring the chicken wire fence. Is 
it weak or strong wire?
A. It's little old chicken wire. It's weak. It's
weak wire.

MR. BAILEY: I trust Your
Honor can take judicial notice of 
chicken wire and I don't have to 
bring it? Very 'well. I have no 
further questions.

THE COURT: You may examine.
Mr. Anderson, if you v;ill resume the 
stand up there, please, sir. All right,
Mr. Klein.

CROSS EXAMINATION 
BY MR. KLEIN:

Q. Mr. Anderson, what is your first name again,
please, sir?

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1 A.
Q.
A.
Q.
A.
Q.

Leedell Anderson.
How do you spell that first name?
L-e-e-d-e-l-i.
Okay, and what is your wife's name, please? 
Louvinia Anderson.
Louvinia. And ya'll were both living there back

in October of 197^, is that correct?
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.

Yes, sir.
All right, and that is 739 Vollsntine?
Yes, sir.
All right, and do you know a Daisybell Statts? 
Daisybell?
Yes.
Daisy stays next to me.
Right. That is a neighbor of yours?
Yes, sir.
Do you know a lady by the name of Haywood, I

think, Ruth Ann Haywood?
A. Yes. She stays right across in front of me.
across the street,
Q.
A.
Q.
A.

Ail right. Is she still there, or do you know? 
No. She has been away from there.
Does Mrs. Statts still live in the neighborhood? 
Yes.

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one of there lives right nextdoor to you?
A. That is Daisy.
Q* Miss Statts lives right nextdoor to you. And Mrs.
Haywood lived across the street, 'vould that be —
A. (Interposing) Right.
Q* Now, you said you had been away from the house
that day, is that correct?
A. Yes, sir.

You and your wife?
Yes, sir.
What time did you leave the house that day, do you

Q* She s t i l l  liv e s  there. A ll righ t, nov; which one —

Q.
A.
Q.
recall?
A. About three o'cloclc, something like that.
Q. In the afternoon?
A. Right.
Q. Ail right. Doss anyone else live there besides you
and your wife?
A. No, sir.
Q. All right, and so ya'll left and you got back
about what time? Do you remember?
A. Well, it was turned dark. I imagine it was around
seven somethin;̂ , because is 'was —
Q. (Interposing) Well, now, I think you said a minute

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ago that vjhen you got there they viere taking —
A. (Interposing) They was putting him in the
auLDUlaJice .
Q. Putting Mr. Garner in the ambulance, is that
correct?
A. Right.

/■

Q. All right. Do you remember whether there were any
policemen around there when you got home?
A. Yes.
Q. Bo you remember hov; many policemen were there?
A. It was about three in the house and it vras one
standing back there by the outer house, and it was one in 
front, front of the house to keep anybody from going in there. 
Q. All right. Did you go through your house .just as
soon as you got home?
A. No, sir. It was about —  it was near about £in
hour before they let me in.
Q. Well, there were police out there investigating
your house?
A.
Q.
A.
there. 
Q.

They let my wife in.
They let her in?
Let her in when we got there, directly after we got

Hell, now, when you get in, was the —

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(Interposing) Thsy didn't let her in when we first
^ot to —
Q- (Interposing) They let your wife in when she
first —
A- (Interposing) No, sir. They didn't let her in
when we first got there.
Q- All right. But she vjent in before you did, is
that right?
A. She was in about uQ minutes before I —
Q- (Interposing) All right. Was it you just didn't
want to go in or they wouldn't let you in?
A. They wouldn't let me.
Q" I see. But how long was it before they let your
’W i f e  i n  the house?
A. I iiiiagine about 20 minutes, some’where like that,
before she —
Q- (Interposing) All right. Nhat did you notice
about the house when you -went inside?
A. All the stuff ’was out on the floors, ail the
drawers was pulled out, and stuff was scattered all over.
That is all I remember.
Q- All right. Well, it was oovious somebody had been
in there and ransacked the house, would that be ivhat happened? 
A. w ha t hap p e ne d.

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Q. All right. Hcv7 .nany rooms were upset, so to speak,
or where there had been drawers out or soaiethino had been done 
to the house?
A. One that I paid any attention to, and that was niy
wife's room.
Q. All right. No other room was disturbed as far as
you remember?
A. No, sir. The first I had some old coins in there
and when they did let me in, I went to them. They were still 
there.
Q. The old coins were still there. Was there anything
missing that you Icnow of in the house?
A. Well, my wife's rings 'was missing and she said she
had a little old purse in there, a pocketbook or something or 
other. She had two five dollar bills in it.
Q.
A.
Q.
A.
Q.

All right. Was that missing?
Yes, sir.
Anything else that you know of that is missing?
Not that I know of.
Did you later recover the ring or the purse vfith 

the two five dollar bills in it, or did your wife?
A. They never did recover the ring. So they give her
the ten dollars up here some’where.
Q. I see. What about the purse that was —  aid she

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ever get the purse bacit?
A. I don't know. She just told m.e about, she said she
got her ten dollars back.
Q. All right. How, how long have you lived at that
house on Vollentine, Mr. Anderson?
A. About seven years.
Q. Seven years. Has this back fence —  and I'll call
it a chain link fence that I'm pointing to —  was that there 
when you bought the house?
A. Yes, sir.
Q. All right, now, hov; tall would you say that fence
is?
A. I think it’s about eight foot.
Q. Ho'w tall are you?
A. About six feet.
Q. Well, now, can you stand up to the fence? Is it
taller than you are?
A.
Q.
A.
Q.

Yes, sir.
How much taller is it than you?
I imagine it's about two feet.
Are you sure about that?

A. Right at it. I didn't pay too much attention to
it, ho'w tall, but I imagine it was eight feet wide, it looked 
like to me.

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Q. You didn't pay much attention to it. All right.
Now, this property behind, you said that belonged to —  what 
is the lady's name?

Miss Sarah Jackson.
Miss Sarah Jackson. And her house laces what

A.
Q.
street? ^
A. It faces Wocdlawn.
Q. Ail right, now, which direction is Woodlawn? Would
that be down here west of here or would it be —
A.■ (Interposing) It would be east —  I mean, west of
my house.
Q. Be west of your house?
A. Right.
Q. All right, and so you say this is her. Now does
s.ne raise a garden back there? Is that what she does in the 
summer?
A. Yes, sir.
Q. All right. Now, which part of the back yard does
she raise the garden in? Would it be this section, which is 
the section right next to the chain link fence which separates 
your house from —
A. (Interposing) That's right.
0,. Ail right. What about the second section? Do you
know what she raises back there, or if she raises anything?

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A. It's some pear trees right in the next section from
the garden, pear tress and apple trees.
Q- Was anything left from the garden when this shoot
ing tooh place? In other words, were there any growth back 
there from the garden in October of 197^?
A. No, sir. .1 never heard her saying anything about
it.
Q- When I say like, you know, how corn stalks will
stay in the garden or how you mitsht have some beans or peas 
or something. Sven after you have already picked them, there 
would still be some brush or —  was some of that still back 
there in the back in October?
A. Yes, sir. It was collards and things back there.
Q* All right. Do you ever have any occasion to go
back in her back yard?
A.
Q.
A.
Q.
thing?
A.
Q.

No, sir.
Are you friendly with her?
Yes, sir.
But you don't have any reason to go back for any-

No, sir.
Okay.

MR. KLEIN; Your Honor, excuse me.
I think that is all, but let me check.

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Q- (By Mr. Klein) Mr. Anderson, you were talking
about one of the v.’indows being broken and I think you said 
the back door —  v;as it the back door that was open or un
locked?
A.
Q.
door̂

Yes, it v;as —
(interposing) VJas it daiaaged in' any way, the back

A. No, sir.
Q. You can open it from the inside, I guess, without
a key,■is that correct?
A. It looked somebody had took a little job and broke
that glass on the inside, and I say that because glass was on 
the outside.
Q. I see. So then whoever did whatever they did, they
used some object to do it v/ith? In other words, it's not a 
matter of just turning a knob or a latch and unlocking —

MR. BAILEY: (Interposing)
Your Honor, now I'm going to object to 
that. This cauLls for speculation on the 
part of the witness.

THE COURT: I'm going to
overrule the objection. You may examine 
him as to the basis of his conclusion, if
any,

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The witness stated that he 
observed the glass on the outside, and 
he drsvr a deduction frcni thatj and you 
oiay cross-examine him in that regard.

Q- (By Mr. Klein) All rights and your deduction was
that somebody had taken something and broken the glass or 
pried the back door? Is that what you're sayi.ng?
A. No, sir. Couldn't nobody get their hands through
the door, but the glass was —  it looked like it was 
shattered from the inside and laying over into the other glass 
from the inside and on the outside.

Had the door been pried open?
No, sir.
How was it opened? Could you tell how it was 

It was opened by the latch from the latch on the

Q.
A.
Q.
opened?
A.
inside.
Q. I see. I see. Nov<, the v/indows, were any of the
windows —  I'm not talking about the door now. I'm talking 
about any of the other windows in the house. Were any of the 
other windows broken, and if so, where were they?
A. The one in my bedroom.
Q. If you would, please, sir, step down here and just
show us where your bedroom is and where that window would be.'

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1 A. Right there.
2 Q. Al-b right. The back part ol the house over on the-
3 A. (Interposing) This window up here was the one that
4 was Droke out.
5 Q. All right, chat would be over on the west side of
6 ttie —
7 • A. (Interposing) Next to the cop window.
8 Q. Ail right. Is that a cedroom back —
9 A. (Interposing) There's four parts to that window.
10 Q. Four parts to that window?
n A. Yes.
12 Q. All right. That is your bedroom, is that right?
13 A. Yes, sir.
14 Q. All right. And what part of the window was broken
15 out?
16 n. That one right there, and the one next to the top.
17 Q. Co you have a top half and a bottom half of the
18 window? Is tliat —
19 rtA* (Interposing) Yes. It's the top pare and the \
20 bottom part slide up. It's got two short pieces and —
21 Q. (Interposing) I see. Do you have any sort of
22 grill or anything on tne outside of that window?
23 Yes, sir. It Just covers naif of it.
24 Q. Just covers the bottom half, is tnat right?

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-112-

A- Yes.
Q. So if soaiebody oroke in, he would have to come
through the topj is that righs? i'as that window unlatched or 
could you tell whether the window had been moved out or palled 
down in any way?
A. No, sir. It hadn't been pulled down.
Q. All right. Was it big enough for somebody to get
through where it was broken?
A. They would have to be mighty small to get through
there.
Q. All right. Were any ether windows broken in the
house?
A.
Q.
A#

No, sir.
Just the one by your —
(Interposing) Just the one in my bedroom and the

one at the door.
Q. The one at the door. Okay. How many rooms have
you got in that house?
A.
Q.
house?
A.
Q.

Four rooms.
Four rooms. Okay. Where is the kitchen in the 

Right there.
All right. Are you pointing to the back of the.

house now, over on the east‘s

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A. The Icitchen is on tns back.
Q. On zr,e Dac-c over bcv;ara the east side.

MR. IvLRIil: Ohay. That is all
I have .

THE COURT: Any further
questions?

MR. BAILEY; Yes^ sir. Your Honor.
THE COURT: v.'ould you please

resume the stands Mr. Anderson? Thanh you.
RE-BIP.ECT EXAl'i: nation 

BY MR. BAILEY:
Q. Mr. Anderson, I shov; you Exhibit 2 and ash you,
is this the chichen wire fence that was tnere?
A. That is it.
Q. Is that the exact —  I mean, that is the same v;ire,
same fence?
A. That' s the same .
Q-
A.
Q.

But it came all the way across?
It come on across there.
Ohay. Was it weah wire or strong wire or what?

A. It was a bad part of it riĝ ht there. That is the
reason I taken it down, because dogs was jumping, over this.
Q. Dogs -were jumping over the —
rt. (Interpcsingj Over this here part rijit here, ne.xt

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-114-

to the fence.
Q-
A.
Q*
A.
Q.
there?

Was it sagged li^e that on. the —
(Interposing) It was sagging in there.
V;as it sagged liice chat on October 3rd?
Right.
It came all the way across but it was sagging right

A. It was sagging in there.
Q. And was this pretty much the exact condition it v/as
on October 3rd that is shown in Exhibit 2?

Right.
Did you ever go back and forth over this fence

H.
Q.
yourself?
A.
Q.
fence.

NOj sir.
You never did? I’m talking about the chicken wire

A. Ko, I never did go.
Q. Your wife?
A. Not as I know of.
Q. Your neigjhbors?
A. Neighbors might be coming over there. They used to
hako out clothes over there sometimeused to.
Q. I believe you subsequently have taken this whole
fence down^ haven't you?

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A. Correct.
Q. And put another one ucj a wood fence?
A. Right. It's about five feet high.

MR. BAILEY: I have no further
questions.

THE COURT: Anything further?
MR. KLEIH: Your Honor, this

is something that really v/culdn't be 
re-direct. It's something I omitted, if 
Your Honor would let me ask him about it?

THE COURT; All right, sir.
Q. (By Mr. Klein) Mr. Anderson, I'm going to show you
some photographs which depict the inside of your house and ask 
you if you can identify these as being the inside of your 
house, and the first one I'm going to show you is a picture 
with a window and it shows —  may I approach him. Your Honor?

THE COURT: Yes, sir.
Q. (By Mr. Klein and continuing) —  window broken and
I'll ask you 'if you can identify that?
A. Yes, sir.
Q. Is that your house?
A. Yes, sir.
Q. Is that the way the
A. Right.

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Q. All right. What room, is that, Mr. Anderson? 
That is my room. That is the bach room.
Is that the back, room ohat is over on the rear.

toward the west side of the house?
A. Right.

MR. KLSII-I: Your Honor, I'm
going to ask that thac be made am exhibit 
to his testimony.

THE COURT: Ail right. Let it
be marked the next exhibit number.

THE CLERK: It’s No. 11.
(Whereupon, said document was 

marked as Exhioit No. 11.)
Q- (By Mr. iLLein) I'm going to hand you another one
and ask you if you can identify that, please, sir?
A*
Q.
A.
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bedroom on? 
A.
room.

Yes, sir. 
vihat is that?
That is my wife's bedroom.
Loes she have a separate bedroom from yours?
All right. What sice of the house is your wife's
t

That is in the front room, west, next to the front 

No'w, 'Would that be up in the front of the house?

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That would be the —
A. (Interposing) Yes, that is right.
Q- Or would it be toward the east side or toward the
west side?
A. It would be in the west side.
Q« On the same side of the house as-your back bedroom?
A. Right.
Q* All right. Is that the way her bedroom looked
when you came home?
A. Yes.

MR. KLEIK: Your Honor, I'll
ask that that be marked an exhibit.

THE COURT: All right. Let it
be introduced as Exhibit lio. 12, I believe,
Mr. Clerk.

(Whereupon, said document was 
marked as Exhibit No. 12.)
(By Mr. Klein) I hand you another one and ask you 

can identify that, Mr. Anderson?
This is the same room.
Is that the same room?

Q.
if you 
A.
Q-
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Q.
night?

Yes.
Is that the way it looked when you came in that

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A. Rignt.
MR. KLEI2i: All right. I'll

aslc that te marhed an exhibit. Your Honor.
THH COURT: That v;ill be

introduced as Exhibit No. 13.
(Whereupon, the said document 

was marked as Exhibit No. 13.)
Q- (3y Mr. Klein) And I'll hand you another one and
ask you if you can ioentiiy that, please, sir?
A. That is the same room.
Q- You keep saying, "the same room". You're talking
aoout your wife's bedroom, is that right?
A. Yes.
Q- Is that the way it appeared when you came home on
the evening of October 3j 1574?

I'll ask that that ce made an exhibit, too,
THE COURT: This is the same

room as in the previous exhibits but 
different?

MR. KLEIN: It's the same room.
It just shows a little different —

THE COURT: (Interposing) All
right. Let it be marked, uhe prior one,
13A and this one, 13B, Mr'j Clerk, please.

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1 (Whereupon, the said documents 
were marked respectively as Exhibits 13A 
and Exhibit 133.)

Q. (3y Xr. Klein) I ask you if you can identify this
one, Mr. Anderson?
A. This is the kitchen.
Q. Is that the kitchen?
A. Yes, sir.
Q, Now, is that the inside or the outside of the
kitchen?
A. This is the inside.
Q. That is the inside?
A, No, this is the outside. This is the outside.
Q. But that is the door that —  is that in the back
of the house?
A. Right.
Q. And if you open that door, you walk into the
kitchen, is that correct?
A. Right.
Q. All rignt.
A. If I open it, it opens back yonder.
Q. All right. Ija other v:ords, open it, of course,
goes into the inside of the house, as you open it, is that
correct'

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A- Right,
Q. Is that z'ae way Lz would have appeared on
October 3j 197^?
A.
Q.

Q.

Yes.
All right. I ash that that oe made an exhibit.

TEE COURT: Let it be
introduced.

THE CLERIC: It's No. Id.
THE COURT: YeSj sir.
(Whereupon, the said document 

was marhed Exhibit No. 14.)
(Hy Mr. Klein) I'm going to hand you one more, Mr,

Andersen, and ash you if you can identify it?
A.
Q.
A.
Q.
A.
Q.

This is my bedroom.
That is the windov; to your bedroom?
Yes, sir.
Is that the inside or outside of the house?
It would be the outside.
All right, and there is a screen that has been

tahen off.
A. The screen 'was tahen off.
Q. That screen 'was tahen off, is that correct, sir?
A. Yes.
Q. All right. So that is tne way ib would have

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appeared on October 3> 197^? Is that correct, sir?
A. Weil, the cans and the garbage cans were over here
somewhere when the picture was taken.
Q. But there is a garbage can that sits underneath
that window?
A. Yes, right over there somewhere.
Q. Ail right, sir. I'll ask that that be made the
next exhibit.

THE COURT: Let it be marked
as Exhibit No. 15.

(Whereupon, the said document 
was marked as Exhibit No. 15.)

MR. KLEIN: Your Honor, that
is all I have. I would ask they be passed 
for the Court's viewing.

THE COURT: Is there further
examination in iighe of this last line of 
inquiry, Mr. Bailey?

MR. BAILEY: Your Honor, one
omitted question.

THE COURT: Ail right,
Q. (By Mr. Bailey) I shov; you Exhibit Mr. Anderson
and ask you does that in any sort of way resemble the condi
tions of the yard back behind your house on October 3rd of

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197^?
A. That is ri^ht.
Q. Is that pretty much the way it Icohed bach there
on October 3rd?

You're shaAine your head. You have to —
A. (Interposing) Yes^ sir . That ,is right.

MR. BAILEY: I have no further
questions.

THE COURT: All rie,ht. Any-
thing further? Thanh youj Mr. Anderson. -
You may step down, sir.

Excuse me. Mr. Anderson, let
me ash you one question . Hov/ far is
Tully from your house on Volientine?

THE WITIIESS: Tully?
THE C0UP.T: Tully Street.
THE WIT1JE33: Cne block and

a half .
THE COUF.T: Thanh you. You

may step down.
MiU BAILEY: Your Honor, may

I looh in the Jury Room and see —
THE COURT: (Interposing) Yes,

sir. Mr. Bailey, vje have planned to go for

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about ten or fifteen minutes, so you can 
plan on that with regard to whether you 
can complete your examination of the next 
witness or not. I'll interrupt if we don't.

MH. 3AILEY: Very well.
Your Honor, it seems as if we 

have run out of witnesses.
THE COUHT: All right, sir.

We'll take a break at this time ratner 
than later.

Gentlemen, I note that —  and 
we'll excuse you all. We have the lawyers 
here on this other matter and ask please 
that you return so that vie can resume at 
1 :30 .

We'll stand recessed in this 
matter until 1:30, and I don't know any 
reason why you can't feel that your things 
on the table will be safe without having to 
remove them.

MR. EAILEY: Very well.
(Whereupon, at 12:10 o'clock 

p.m., the Court was recessed for lunch.)

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1 AFTERNOON SESSION 
THE COUIiT: Arc we ready to

proceed, Mr. Bailey and Mr. Bays?
MR. BAILEY: Your Honor, we

have one rriinor pro'olen:i tr.at has arisen.
VJe filed our subpoenas on Tuesday and the 
marshal apparently has had some difficulty 
êttin;̂  all of our foll:s served, and I have 
Ececial concern about the failure of Captain 
Coletta, who” has apparently not been served, 
and we planned to’ forward with the 
deposition at this time, but we had plajined 
to put him on immediately afterward, and 
had ordered him, at least requested of him, 
to brine certain photographic equipment and 
slide equipment, a.nd I have looked out there 
and I haven't seen him, and I don't lenovj 
what the state of affairs is relative to his 
appearance .

THE COURT: Boos the Defendant
have any information?

MK. iCLEIN: Your Honor, I do knov;
this. I have got him under subpoena also.
He is out at the training center, at Armour

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Acader^.
I laiow that he was out of town 

forj I thinks one or possibly tv;o weeks, 
and I had issued o, subpoena for him >and I 
called and talked to his secretary to have 
her to be sure and tell him that I v/anted 
him here. I had subpoenaed him for tomorrovi.

Now, I did not loiow Mr. Bailey had 
subyoeas.ed him. I'll certainly cooperate in 
any way I can to Get him here because whoever 
puts him on, I think the Court is Going to 
have the benefit of his testimony, and that 
is the way we want it, and I don't see any 
problem.

I
As I say, I had him lined up for 

tomorrow. I haven't ta.lkcd to him since he 
came back. I understand he would be back 
today and whether he got Mr. Bailey's 
subpoena or not, I do not Imsow.

THE COURT: All right. Well,
if Mr. Holmes would be in a position, while 
we proceed, to see If Mr. Coletta can be 
present, then perhaps you could proceed 
vjitti another witness or witnesses and then

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put him on if he can be alerted to b-e 
present this afternoon.

MR. KLEiri: Your Honor, I think
Mr. Bailey wants hj.m to brin̂ , with him some,
I think certain fil.m.

MR. BAILEY: Film and slides.
MR. liLEIN: Do you have a copy

of your subpoena? I'll oivs i-t Mi'- 
Holmes so he can be si;a'‘o and have it, and 
I take it, you want him here this afternoon?

Your Honor, 1 don't Icnow whether 
he made a.ny plans. I don't have any idea.
I Inow he shouiid ha.vc sciieduled tomorrow, 
but I 'Will do everything we can to get him.

THE COURT: All right, sir.
MR. DAYS: Your Honor, at this

point in our case we would like to read 
into tiie record portions of the deposition 
of the Defendant in this case, Mr. E. R.
Hymon.

THE COURT: All right, sir.
MR. DAiYS: V/ould the Court like

for me to take the stand and read from there?
THE COURT: You may do so from the

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coionsel table if that is more convenient.
MR. DAYS: Fine. I am reading

into the record portions of —  my co-counsel 
has cu-gested that I take the witness stand.

THE COURT: All right, sir.
MR. BAILEY: Your Honor, while

Mr. Days is reading, may I indulge or request 
the Court's indulgence to check on come other 
witnesses?

THE COURT: Yes, sir,
MR. DAYS: I am reading into the

record irom the deposition o£ Elton Richard 
Hymon, a Defendant in this cause, taken on 
the 26th day of April, 19 7 6. I begin 
reading from the deposition at page four, 
lines si:c to nine :

Q. (Mr. Days reading) V'ould you give your full name
once again for the record, and your address?
A- Elton Richard Hymen; at the time, 901 Woodland,
Memphis, T>:’nnessee.
(I'ir. Days then reading from linos 19 to 2k on page k:)
Q. Can you indicate to me your educational background,
Mr. Hicmon?

Yes. Uhore v;ould you .11're me to start?

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Q- Wellj you can start with whether you- are a native
of MeciDhiŝ  and where you attenaed primary and secondary 
EChoOj-Sj and vincther you had any post secondary education.
A. Yes. I am a native Memphian. I attended primary
and secondary school at Jeter Schooij 46^9 Horn Lake
Road, Memphis. I f^raduatsd in i9 6 0.

.(Turning, to pa^e 5 of the deposition;) 
h. And in deptemder of 196b I eiirolled in the Tennessee
Ltote University, Nasliville, Tennessee; I graduated in 1970, 
in June of 1970, with a B.S. Degree in English.

(Moving to lines 11 to 24 on page 5:)
O- ' ..'cre you involved in o.ny extra curricular
activities v;iiiis. you were at Temiessee State? V.’ere you 
involved in any clubs or any ^roups or anything like that?
A. Yes. Basically, I guess; I don't recall the names
of the clubs. But sometning like the literary guild and 
sports.

Ivhat kind of sports did you play?
Basketball, softball.
But not any varsity level atkiietics, is that right? 
Bo you mean for the school?
For the school, that's right.
Yes.

Q.

B..

Q.

u. Did you play any athletics when you 'were in high

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school?

A.
Q.
A.
Q.

(Turning to page 6 of the deposition;)
Yes.
What sports were you involved in?
Basketball and softball.
Did you receive any letters for your participation

in those sports?
A. In basketball.
Q. How many years did you receive it?
A. One year.
Q- Kow tall are you, Mr. Hyaion?
A. Si:c-four.

(Tui’ning to page 23 of the deposition, starting at
line one;)
Q. Did you have any instruction in physical combat
when you were out there at the Academy?
A. Yes. We had some instructions in physical combat.
Q. Can you describe, to the best of your recollection,
what that instruction entailed?
A. V;cll, I might start by saying it entailed an
excessive amount of running. You know, we had to run some two 
or three miles a day while we were in training. Vie also had a 
little training in the use of tlic ni,_,ht stick, and also, some 
training in the use of, I guess you would call it Judo.

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Q.
Judo?

-132-

Well, how much training did you have.in the use of

A. I only had a rainii.ial amount. It wasn't that much,
you hnow. Just a few grappling techniques with the hands, and 
how to get a defendant down so that you could cuff him.
Q- How riiony hours would you say was involved in
instruction in Judo?

During the entire time?
Q. ies.
A. yjell, I can't really narrow it down to Just Judo,

■%but I would say that we went to the —  we went to the gym and 
received this type of training on a daily basis.
Q. i : :• ‘iCW .many hours a day?

(Turning to page 2d, line one:)
It v.’as something like an hour a day.
And this v:as over a three week period?
No. It was over a two month period, I believe. 
Eight weeks?
Yes.

A.

A.
Q.
A.
Q- In the running that you had to do, was there any
sprinting? Did you have to do wind sprints?
A. V;e had to do some of everything.
Q- Were you graded on things like how far you could
run and hov/ fast you could run?

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A.
Q.
A.

How fastj yes 
How fact?
Yes. la a given aiTiOunt of time, yes.

wnat distance did you have to run^ eind if you 
recalij what rniiiiiTiain did people who wanted to be police 
officers have to make?
A* I think the distance was roughly two miles or two
and a lialf miles; I'm not sure. In something like 15 
minuceSj I believe.

bOj it was really endurance as opposed to speed,
«

is that right?
It was a combination of both. It wasn't a situa

tion where you could’ run a few lainutes, and walk, and make it 
in that length of time.

(Turning to pâ jC 30 of the deposition, beginning 
at line 2 2;)
Q' , Were you given any instruction with respect to
dealing with persons v;ho are fleeing from what may have been 
the coKunission of a felony, who are unarmed, in terms of 
resort to lethal icrce?

(Turning to page 31:)
A- 'would you run that by me again?
Q- I will restructure the question.

\fters you ever, during training, presented with a

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hypothetical situation where a person is fleeing from what 
appears to be tne cominission of a felony^ but is unarniedj 
and the oxfxcer is aware of the fact that that person fleeing 
is unarmed, was such a hypothetical ever presented to you 
during training?

1 don't think so, but we v̂ ere given some instances 
where we 'would —•* I think most of the instances 'where we use 
lethal force, it was up to our discretion period. They never 
said, "in this situation, you will use legal force." It was 
a discretionary situation. But some minor felonies, I guess, 
liice larceny, you Icnow, if it v/as Just a minor larceny or 
something of this nature, then vie were instructed that it 
wouldn't be a wise decision to use legal force.

(Turning to page 33 of the deposition, starting at
line 1 9 :)

MR. DAYS: Will you mark this
for identification?

(VJhereupon, said document 
"Agility test" was marked Exhibit 2 for 
identification to the deposition of the 
Viitness.)

Q- (By Mr. Days) Mr. Hymon, directing your attention
to Exhibit 2 for identification, it's a three-page document.
I want to ask you whether you can identify the nature of that

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docuaent?
It soc-ms to uu tl'c ability teot that I had 

to take prior to ay corning on the force. It seems to be the 
score lor that test.

.you ccscr.'.l'c ihu iiatuic ol the a;_jility test 
that you h;:.d to ta!:c.?

fcs. It v;as a cô r.biac.tion cl various agile move
ments, basic.aily; you kjiov.', situ.o , ciiinups, jumps, run.

And can you indicate, id you recall, what a perfect 
score would be on the c.gility test?
A. I don't recall v;hat it v;as.
Q- Cn p'C.ac tv.’o ol Exhibit E, in one coitunn there is
indicated, is there not, a list ol the events tiiat form part 
of the agility test?
A. Yes.

And in the column nc:;t to that, on the right hand 
side, there is a score indicated. Is that correct?
A. Yes.
Q- Nov;, lor example, in nuMb:r one, under "Agility
Jump" being the event, a score of .si:: is indicated. Can you 
indicate v;'nat that six repi’escnts, v.lj.'it scale il, was mai'ked 
on? Six cut of ten? Gix out ol tv.'cnty?

(Turnin._, +-o prs-.,c o5:)
A. gix out ol ten.

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Q.
A.
Q.

Six out of ten?
Yes.
So that the higher score was ten?
I assume^ yes. I don't know if that was coherent 

all the way dov;n the line.
Q- Well, let's go dov;n the list. Number two is
"Back stretch" and you have a score of nine. Is that nine out 
of ten?
A. Right, I think so.
Q’ And "Broad Jump", nuir.ber three, you have a score of
eight. Is that eight out of'ten?
A. I think so.
Q- And "Dips" —  what are dips? Don't do it, but if
you can, describe it.
A- I was Just trying to recall exactly what they were.
Q- Well, it's not critical. The point is that you did
very well, did you not, on it? You got a ten?
A.
Q.
A.
Q.
were, 

A.

Right.
Is that ten out of ten?
I assLime that it is.
You did so well in it, you've forgotten what they

(Turning to page 3 6 :)
On soruo of them.

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On the balance beam you got a score of three. Now, 
is tnat a goou score or a bad score, if you know?

It wus three out of ten, I would assume that it's 
a bad score.
0- Now, si;c is Hand walk, parallel bars" and there
is, if I read it correctly,.a zero under the score.

Nov:, I don't lenow ij.’ tliat's a zero, or a circle 
end a line through, indicating that I didn't do them at all.
0- A j-1  right. Well, without going down the rest of
the list, do you have any reason to doubt that the highest 
score in each of these categories was ten?
A- No, I don't have any reason to.
Q' And there are ten categories, are there not?
A. Eight.
Q* And, so, a perfect score, if the assumption I aun
making is correct, would be 100?
A- If your assumption is correct, yes.
Q- And the total score that you made was 75?
A. Right.

(Turning to page h'( of the deposition, starting at
line 2 1 ;)
Q* All right. I would like to direct your attention,
Mr. Hymon, to zhe date of Octoi;er 3j 197^j and ask you vihether 
you were on duty at that time?

19!) 3QU



- 138-

.* J 1 I'tR. KLEIK: May I take a break
2 ior juGt a minute? It looks like we are
3 getting, into a new area.

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4 (Turning to pa^e -̂18:)
I 5 MK. DAYS: Certainly.

1 ^ 6 RSCEGS
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7 MR. DAYS; (Addressing Court
8 Reporter)  Please .read tiie last question
•9 asked.
10 (Whereuponj the Court Reporter
11 complies with the request of counsel.)

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12 A. Yes .

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13 Q . Can you indicate what shift you were 'working that

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Jj 14 day?

15 A. Yes. I was working 1600 to 2400 hour shift. 4:00
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17 Q- And can you indicate whether you were on a walking
18 patrol or a motor patrol?
19 A. Motor patrol.

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20 Q. In what area were yuii assi.picd during that time.
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21 ix you v;ere assigned an area?

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22 A. I was assigned to V7ard 128.
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Q - And can you indicate v;hat the geographic boundaries

24 are of that V/ard?

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A. Yes. I believe it was Evergreen on the east,
Bellevue cn the west, and I thinic it was Jackson on the south, 
and Chelsea —  I think it was Chelsea on the north. I'm not 
sure.

(Moving over to page -!-9:)
Q- Were you in the police car alone, or were you with
another officer?
A.
Q-
A.
Q.
rode?

I was with another officer.
And v.'hat is the name of that officer?
His name is Leslie VJright.
Was Mr. Wright the person with whom you generaJfLy

A. Yes, I believe so.
Q- How long would you say you and he had been riding
together in the patrol car?
A. I really don't know.
Q. You can't describe it in terms of the number of
months you have been on duty together?
A. Ho, not really, because some times I would be put
with a different partner. I don't recall him being a regular 
partner of mine.
Q- Well, who was your regular partner at that time?
A. I really don't recall having one because, you know,
sometimes we'd change. This day we might have somebody, he

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may be sick, and they'll put somebody else with'you. I really 
don't recall exactly v/ho it was.
Q. Well, ii' you had to rank officers with whom you
worked during 1974 in terms of the length of time you worked 
with each, which officer v/ould be number one; that is, the 
officer with whom you spent.most time during 1974, on patrol? 

(Turning to page 50:)
A. I really couldn't say because I don't remember all
the various officers that I rode with.
Q. I see. Did you have occasion, on October 3» 1974,

•%

to go to an address on Vollentine Street?
A. Yes.
Q. And can you indicate how you happened to be called
to that scene?
A. I couldn't tell you definitely. I could tell you
what was related to me, because I was in the fire house at
the time we received the call. Officer Wright v/as listening 
to the radio and came in and informed me that we had received
a burglary in progress call through the dispatcher.
Q. Now, when you talk about a burglary in progress
call, the dispatcher says, "Car such and so, burglary in
progress at -- " Is that the nature of the communications?
A. Usually, if it's in progress, he will say whatever
the na.ture is, burglary in progress at whatever the location

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-141-

is.

Q- Does the dispatcher ever give details of the nature
of the burglary?

(Turning to page 51;)
A- No. He just —  in some cases he gives the Com
plainant's name but no details^ unless the Complainant is 
relaying details to him over the phone or something.
Q- I see. Soj you were not present when a call
allegedly came over the radio that there v/as a burglary in 
progress?
A. No.
Q- But you were told that by your partner at the

«>
time —  Mr. Ivright?
A. Right.
Q- Now, can you indicate v/hy you were in the fire
house at the time this call arrived?
A. Yes, I can. I was in the fire house using the
restroom. $

Q- And the call with respect to a burglary in progress
was received by your car at approximately what time?
A. (No response.)
Q- I'm not asking for the specific minute. If you can
tell me generally the time of night, whether it was early in 
the evening, early tn the afternoon?

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-142-

Okay. I think it was somewhere in the neighborhood 
of 10;40 or 1 0 :5 0  ̂ somewhere in that neighborhood.
Q- And you were on duty at that time until midnight^
is that right?

(Turning to page 52;)
A. Yes.

Nowj do you recall being called to the area of 7 3 7

Vollentine?
A.
Q.
A.
Q-,

Yes.
And is 737 Vollentine in VJard 128?

•%
No, it's not.
VJell, why was it that your car received a call to-

report to that particular address?
A- The cars in that area —  I'm assuming the cars in
that area were out of service. I had no way of knowing that. 
Q* . Is it normal, to the best of your knowledge, for a
car from Nard 128 to be asked to go into another Ward?
A.
Q.
A.
Q.
A.
Q.

Sure.
What Ward is 737 Vollentine?
I believe at the time it was in 129.
129?

Yes.
In terms of the nature of the calls that come over

the car radio is there a difference between a report that a

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-143-

prowler is inside a building and a report that there's a 
burglary in progress?
A- Yes, I think there is a difference.
Q. Well, what is the difference?

(Ansv.’cr on page 53:)
A. There's a minor difference. I think we assume
basically that when one says that there's a prowler inside,
then we assume that he's inside for the purpose of burglaria*
ing. Now that you brought that out, I believe the call vias
prowler inside ratte than burglary in progress.%
Q- 'Well, do you proceed in any different fashion vihen
you receive a prov/ler inside notice asroposed to the way you 
would proceed if you received a burglary in progress call?
A. No.
Q. The same situation?
A. Right. It's the same for me.
Q. 'Well, is there any distinction in the way the
Police Department operates betv/een those two types of direc
tions?
A. I would say it is the same basically for everyone.
But you know, say where I might use a light and siren, some
body else may just use the light, or somebody may use the 
spotlight. But it's usually a call that we try and proceed 
rapidly to.

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-144-

Q- When you were told by your partner that you had bee
asked to go to 737 Vollentine, v;as there any indication of how 
the dispatcher received the report that there was a prowler 
inside?

(Turning to page 5̂ +:)
A. The dispatcher relayed it, I believe, as a prowler
Inside. I think that's the way —  well. I'm assuming that's
the way he received it since that's the way he lelajed it.

Q. Can you indicate how far the fire house is from
737 Vollentine? That is, the fire house where you were

>%
located?

A. You mean in miles,. I assume?
Q- In miles, if you can, and also in terms of the time

that it would take you, driving rapidly from the fire house to 
737 Vollentine.

A. Okay. Roughly, I would say that the fire house is
possibly, I would say over a mile. If you are going in a 
direct route, I would say a mile and a half, probably.
Q. Let's be specific. How long do you recall it took
your car to move from the fire house to 737 Vollentine?
A. Okay. I believe we received the call at about
2250 or -53> something like that. And we arrived on the scene 
at 2 3 0 3, I believe, or somewhere around there. So, we are 
talking about eight minutes or more, something like that.

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-1^5“

Q.
A.

Q.

Where is the fire house located?
It's located at Stonewall and Chelsea.
And upon arriving at 737 Vollentine would you

describe what you observed and what you did?

(Page 55:)
Yes. When we arrived, the —  a lady was standing 

in the door at 737 Vollentine, and she was pointing towards 
739 Vollentine, and she was, you Icnow, just making a gesture 
with her finger, pointing in that direction. And I asked her 
what she was saying, and she made another gesture, make some 
type of gesture with her mouth, and I couldn't understand her, 

so I went up to the porch and asked her what she was saying. 

Roughly I recall her saying, "They are breaking in inside.”
And at this time I went back to the car and got my flashlight 
and informed my partner of what she said, and told him to go 

arovind to the other side.
Q. you used the term ”They are breaking in." Did you

understand her to be saying that there were several people 

inside the house?
X don't really think she knew. . I think that she 

I think she might have mentioned that she had heard some 
glass breaking or something, and she knew that somebody was 
breaking in. I don't think the plural form had any indicatior.

of her knowing.
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Q.
A.
Q.

-1^6-

But you recall her oayins something about "They"? 
"They are breaking in inside."
And after you notified your partner what you under

stood the woman on the porch to have said, did you or your 
partner mo.kc any effort to radio that information to the 
dispatcher, to other units in the area? 

gloving over to page 5 6:)
A. I didn't make any indication. I don't know what
he did from the time that he moved the squad car over until 
the time he got around to the side of the house.
Q. Vj'ell, can you indicate what proper police
procedure is, to the best of your knowledge, under such 
circumstances? Is it appropriate for you, once you've 
received inforination with respect to a crime being in progress 
to radio that information to the dispatcher?
A. '.'iell, the first appropriate thing is to investigate
to see that that's actually what's happening. Once we see that 
that is actually w'hat's happening, -we informed the dispatcher 
of our findings.
Q. I see. So, it's not incumbent upon you to communi
cate the information that you receive upon arriving on the 
scene to the dispatcher?
A- ITo. ?Ie had already received that information.
Q. VJhen you were talking to the woman on the porch,

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-147-

were you in any position to see anything with respect to the 

house at 739 Vollentine?
A. Yes. I saw the house and I saw the lights on in th^
house,

Q. VJhere were the lights on^ if y:u recall?
A. I think it was the kitchen and —

(Going over to page 57:)
Q. Well, you didn't know it was the kitchen at that

time, did you?
A. No, no. Later on.
Q. Okay. Can you describe where you saw the lights

in terms of —
A. (Interposing) I believe there was a light in the
first room in the northwest corner of the house.
Q. All right. For purposes of further discussion
and questions, can you indicate the directions of the house

in terras of which direction the front of the house faced and 
which direction the back of the house faced, and the sides?
A. The front of the house faced the north, back to

south, and the sides are east and west.
Q. So, 737 Vollentine is located on what side of 739
Vollentine?
A. It was located on the west side.
Q. All right. So, you saw lights where? In the front

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-148-

of th. house, on the north side, or v/here exactly?
A. In the front of the house on the north side, yes.
Q. And v;here else did you see lights?
A. I believe on the east side, the southeast side of
the house.
Q. Well, how could you see lights on the southeast

side if you v/ere standing on the west side at 737 Vollentine? 
(Going over to page 5^:)

A. Weil, if I recall correctly, the room on the west
side had a reflection of a light, but I think, the light was 
coning from the room adjacent to that.
Q. I see. So, you assumed that there was some
reflected light on the east side, coming through on the west 
side?
A. I'm reasonable sure that's what it was.
Q. Do you remember if there v;ere any windows along the
v:est side of the house at 7 3 9’
A- I believe there are tvro windows.
Q. Two viindows. And in terms of their location, could
you say where they were located, whether they were toward the 
north, that is, the front, or to'ward the south, which is the 
back of the house?
A. I stand corrected, but I believe one is on the
north, towards the front. I don't recall the exact position I

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-149-

was st-ajadln.̂ .
Q. And you say there vjas another window somewhere else
on the west side?
A. I'm not sure. I'm assuming that it was.
Q. How would you describe the size of the window that
you recall on that west side? Was it a large window? A small 
window?
A. I don't really recall. I don't think it. was small
to the sense of being minute, but to the best of my recollec
tion, average size.
Q, Ts'ell, what would be average size in your terms?
A. vrell, I would think large enough for me to get
through would be termed average, without any problem.
Q. ivell, do you recall 'whether it had a top and bottom
pane?
A. I believe it had both.
Q. And when you say large enough for you to get
through do you mean if both panes 'were removed, or do you mear
if the bottom half were raised or the top half lowered you 
could climb through?
A, If the bottom half were raised or the top half was
lowered.
Q.
ground?

Do you recall how nigh the window was from the

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-150-

A. Ho. I do not.
Q- You don't recall v;hether it was in a position where
you could pull yourself into the house?
A.
Q-
right?

’.'ell, it was lov; enough for me to get in.
All right, sir. But you are six-four, is that

A, Right.
(Turnin.g to page 6o :)

Q- i)o you recall whether it would have been h under
for somebody under six feet to climb into such a window?«

A. I don't think it would; the houses weren't tall.
Q- I see. How high vjould you say the house was from
the ground to the roof?
A. That's a good question. I really couldn't say.
0,. Do you recall what kind of night it was in terms
of the weather, Mr. Hymon?
A.
Q.
A.
Q;
A.
Q.
A-

0.

To the best of my ability, the weather was fair. 
Fair?
Yes.
Do you recall whether tliere was a moon?
No, I do not.
Do you recall what the temperature was, rou.ghly? 
No, I do not.
But you don't recall It being cloudy?

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-151-

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Q.- You doa't recall it beui^ rainy?
A. Ho.
Q- All ric'nt. After you went baclv and spoke to your
partner and coauvjriicated to hi;p. v;hat you gaU-iereu from speak
ing to the -woman on the porch, v;hat did you do?
A. I got :ny flashlight out of the car and proceeded to
the rear of the house.

(Turning to page 6l:)
Q- • And how did you move from the front of the house to
the back of the house? Vlas there some wa.y of passing between 
737 and 739 to get from the front to the back?
A. Yes. I recall going between two houses, to the
rear.
Q- And what side of the house were you on at that
time?
A. I should have been on the west side of 739 and the
east side of 7 3 7 -
Q. IIov;, between 739 î-îd 737.- can you describe what, if
anything, separated the two hourx’s?
A. no, I cannot.
Q. Was there a drivev'ay that went the length of 739,
from the front of the house to the back of the house?

I don't have any idea

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Q-
A.

Do you recall anything about a driveway in 737?
Ko.

Q- Do you recall whether there v;ere any automobiles
parked between 7 3 7 end 739'?
A- Hot to my recollection.
Q. What type of flashlight do you ,use, Mr. Hymon, or
vjere you usin^ at the time of this incident occurring?
H- I really don't know. ■ I assame that I was using
kel-liijht. I had had another flashlight prior to that time;
1 don't remember whether it was tha.t kind or not.

%

(Turning to page 62:) 
t’. And what is that, exactly?

Kel-light?
Yes.
That's an unbreakable flashlight.
And is that something that's issued by the

Q.
A.

department?
A.
Q.
A.
Q.
A.
Q.
A.

No. Flasiilights arc not department issue 
So, you purchased that yourself?
Yes.
Do you recall hov; much you paid for it?
I think it was about :|;17.00.
(;1 7 .00?
Roughly.

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-153-

Q- Do you remember where you purchased it?
A. At whatever place wo were getting our uniforms at
that time. I don't know if that was Southern or Shapiro or 
what.
Q. Southern or —
A. (Interposing) Shapiro. I think it's S-a-p-
something.
Q. How many batteries docs that flashlight carry?
A- Five.
Q. Five batteries?
A. Yes.

(On to page 6 3:)
Q. And v/hat types of batteries are they? C? D?
ii. I believe they are C ' s .
Q. At the time that you were moving alongside the
residence at —
A- (Interposing) I think it was D cell.
Q. D cell?
A. Whichever is larger.
Q. I would have to ask my co-counsel.

MR. BAILEY: D.
Q. (By Mr. Days) As you were moving along the west
sidCj between 737 5-nd 739^ did you see your partner do 
anything?

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-154-

As I was moving along the side?

-ellj at any tLme after you spoke to him about what 
you had learned irom the woman on the porchj did he take any 
action?

• I asked !iim to (_,o around to the other side 
of the house, and he proceeded around to the other side.

Q- Did he proceed in the car, or did he proceed on
foot?

A- I really don't know.

Well, where was your car parked in relationship to 
737 and 739 Vollentine?

A- I think it was right at the end of 737, right at
the easo end oi 737* It wasn't —  it couldn't possibly have 
been, you Icnov;, even with the east corner.

(Going on to page 64:)

How was it parked, if you recall?

I think it v:as just normally pulled up to the curb. 
Alongthe curb?
Yes.

Parallel to the curb?

Q.
A.

A.
Q.
A. Yes.

Does your patrol car, or patrol car you were in on 
October 3rd have a floodlight or a spotlight?

I don't recall whether it did or not.A.

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Wellj are there patrol cars that don't have spot-Q.
li(3hts?

Most of them have them, but sometimes the spot
light has ina 1-functioned and we may have turned it in to get
it fixed, and we may be out of a spotlight at that particular 
time.

Well, assuming that a patrol car has a working spot 
light, and an officer is investigating a burglary, that is, 
some type of breaking and entering, I assume it's in the 
nighttime. Is there a police procedure that one is required 
to follow in using the spotlight for any purpose?

Well, it's not a police procedure, but it would be. 
coiamon sense not to use the spotlight and shine it in the 
house if you suspect that there is a felon inside,

1 believe you said it would be common sense not to 
shine the spotlight in?
A. Right.
Q* Did you mean to say it would be common sense to
shine the spotli.ght in?

No. No. It wouldn't be using common sense to 
shine the spotlight inside the home.
Q- Why ivould not it be?
A- Because if the felon is inside, then he would see
the lignt and possibly get out before you could get around to

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him to apprehend him.
Q* Wall, do you think it vjould be common sense to
shine the spotlight in the direction of the possible line of 
escape of a person v;ho was inside a house at ni-iht?
A- It v/ould be common sense then, if you were in the
car, and if you Icnew the house and the means of escape of the 
house.
Q* Well, did you at any point indicate to your partner
that he should be ready to shine his spotlight from the car in 
the direction of the back of the house in case the person 
inside tried to escape?
A- No. It would have been logical for him to stay in
the car in front of the house and shine the spotlight when 
the —  he was supposed to come around the other side, you know

Icome to the rear of the house?
(Going .over to page 6 6:)

Q- Is there any police technique recommended with
respect to using cars as shields when you are in the process 
of investigating a situation where a suspect may be armed?
A. VJell, yes, I —  you mean, you said "procedure”?
Q- Yes.
A. Okay. We were told if there are no other forms of
cover in an armed situatj.on, you know, v;here a party is armed, 
then, you knov;, that the car would be a feasible form; not

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necessarily the best^ but it would be one form of cover.
place your patrol car in a position where 

it miĵ ht be resorted to for cover in case the person inside 
were armed?
A.
Q.
A.
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No, we did not.
Did you consider doing that at all?
No, we did not.
Why didn't you?
Well, because we had no indication that the person

was armed. And for one thing, vjhen I got to the rear of the
■ %

house and I saw the subject running from the rear door, sind I 
still had no indication that he was armed, and if I had then 
it wouldn't have been a position where we could get the car in 
and use it as a form of cover.

(Page 67;)
Getting bach to the woman on the porch, did that 

person indicate anything about the nature of the person in the 
house? Male? Female?
A. No, she didn't.

Did she indicate whether she had seen the person in-' 
side the house?
A. No, she didn't.

Was there only one person on the porch at that time? 
A- Yes. That's ail I ever did see.

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Q. Only one v;oman?
A. Right.
Q. And there were no other people around, to your
knov/ledge?
A. Not to my lmov;ledge c’-.fter we arrived.
Q. All right. So, your patrol car was parked
parallel to the curb, approximately in front of 737 Vollentine 
is that right?
A.
scene.
Q.
A.
Q.

As best as I can recall, 'when we pulled up on the

And it was pointed in 'what direction?
It was pointed in an eastwardly direction.
All right. And I believe you indicated that you

told your partner to go around the east side of 739 Vollentine| 
Is that right?
A- Right. • •
Q. And what did you do?
A. I went to the west corner.
Q.
A.
Q.

Nhen you got to the —
(Interposing) Southwest corner.
(Continuing) —  southwest corner, what, if anything

did you observe?
A. Okay. I observed, when I got to the southwest
corner, just as I was getting to the corner of the house.

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peeked around the corner of the house and saw what appeared tc 
be a male —  well, a figure, rather, running from the door.
And I heard the door slam and I sav; a movement across a streak 
of light, and then I heard noise on the fence, and I shined 
the flashlight and saw vfhat appeared to be a male black on the 
fence.
Q- Now, you Just mentioned that you saw a streak of
light. Can you explain that?
A- Yes. As I got to the corner, the southwest corner
of the house, possibly a little before I got there, the lady 
at 737 turned her rear porch' light on.
Q- And how would you describe that porch light in
terms of wattage?
A. I really didn't look at the light itself. I Just
recall seeing the light flick on.

(Going on to page 6 9:)
Q- Well, at the time that the light flicked on, could
you describe the extent to which it illuminated the area 
beyond which you v/ere able to see with your flashlight? Were 
there things that you did not sec with your flashlight that 
became visible when the light went on at 7 3 7 Vollentine?
A. Well, that particular light didn't illuminate the
back portion of —  didn't seem to, well, it didn't cast any 
light, not too much light, really, on the rear portion of 7 3 9*

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It v;as still dark, you know, where you had to use a flash- 
lie.ht to idcntixy someone. It did seen:'to cast a better —  
■ vjell, a slij:;ht ray of liL,ht across the rear of 739.

have any reason to thinls: that the woman 
from 7oT Volicntjne was on the bad; porch at that time?
A.
Q.

Ko.
You didn't sec. anybody or hear anybody in that 

'.•■cll, 1 didn't really look.
And yoi: say you sav: a black male heading towards

ttio fence?
hell, X riidn't I’dalJ.y know v;here lie 'was heading 

alter I he;u‘d the uoor slam a,n<.i a.i tei‘ I saw him come from the 
door area and heara the door slam, because I saw —  like I 

} 1 jdst sa'w the streak and then I had to find him to see 
exactly 'where he 'went after I heard a noise on the fence.
Q- And could you describe what you recall of the back
yard of 7o9 Vokluntine at the time you shined your flashlight 
around? ,
A. Well, I think I crossed a building, -what seemed to
be either.a garage or an outer l.cuse, you know, trying to find 
the subject. Ke -was back on the fence In the rear of the 
house.
Q.' How, v;as it possible, j.'rcm where you 'were standing

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at the southwest corner, to see from one side of the yard to 
the southeast corner?
A. Not the furthermost corner because the building was
blocking that area betvjeen the outer house and the fence; 
there v;as an area bach in tlicrc that I couldn't see around in. 
Q- V.’ait a minute. IT you were standing at the south
west cornel' and you looked in a direct line across to the soutl}i 
east corner, could you see past the house, past the southeast 
corner?
A- Yes.
Q- And could you indicate what, if anything, you saw
beyond the southeast corner of the house?
A. Eeyond the southeast corner, at the time that I was
standing there?
Q. Yes.
A- Okay. At the time that I was standing there I
couldn't indicate what I saw because my attention was focused 
on where the individual went tha.t left the door area, the reau: 
door area.
Q. Eut was your flashlight of sufficient power for you
to be able to see what was beyond the southeast corner of the
house?
A.
Q.

Yes.
Could you see was there a fence, or was there

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brush, or v;as there anything beyond the house that separated 
739 from the next house?

A. The next house goinc east?
Q- That's right.
A. It seems to me I recall a driveway being over
there, I don't know about anything.beyond that. I know that 
there was a space for my partner to come down, because I 
recall going down that space.
Q- Ycu recall going down that space at sometime
subsequent?
A. Right.
Q- Now, at the time you vicre at the southwest corner,
where vjas your partner? As you arrived at the southwest cornê : 
of the house did you have any knowledge where your partner was 
at that time?
A. No. I don't knov; if he was moving the car around
to the other side,, or if he had gotten out and walked around, 
but I Imow he v;as in the process of coming around to the other 
side. • .
Q. Vlell, I don't understand your reference to "moving
the car around". Nas it your understanding that after you tolii 
him to go around the east side of the house that he was to move 
the car before he did that?
A. Nell, it would have been up to him. I don't recall

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exactly whether he actually moved the car from -its original
position -when -we arrived on the scene. Vaguely, seemingly, he 
did.

-.hat would be the purpose of moving the patrol car 
under those circumstances?

It v%’ould depend upon where the car was located.
Well, is there ai\y police procedure that dictates 

that upon arriving upon a scene where there is a burglary in 
pro-̂ rcss that once the officers iiave learned where this is 
goin;_, on, they should, rather than leaving their car, move 
their car to some- other position before going to investigate 
further?

There is no pi'ocedurc dictated on it, but it may 
have been a situation where he might have been getting into 
pOoition to use the spotlight in case, if v;e had had a soot” 
light, to use the spotlight in case the guy tried to come 
around, or in case the guy ran, or in another area he might 
have been able to drive the squad car and try to keep up with 
him.

DI*-! h‘0 say to you, to .your recollection, "I'm going 
to move the car before I back you up"?
A. Ko, he didn't.
Q- Did you expect to have the full cooperation of your
po.rtner in investigating this burgla>oy?

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A. Yes.
Q* Was it your expectation that your partner would
move the car after you asked him to around the other side 
of the house?
A- I really had no thouĵ ihts about it, and I really
don't knov/ whether he moved it or not.
Q* Have you ever investij^ated any other burglaries in
progress with Mr. Wright?
A. In the course of tirae vjc have ridden together,
however long it had been, it's a possibility.
Q. Do you recall any situations where you've gone
around one side of the house and he’s gone around the other?
A. Dure. That's normal procedure.
Q- Do you recall any situations in which, prior to
his going around the other side,* he moved the automobile?
A. Well, if he didn't, I might have done, it if I had
been driving, just depending upon v̂ ho was driving, because I 
might have dropped him off at one corner and cruised around to 
the other side.
0,. Well, assuming that you followed such a procedure
on other occasions, do you recall why, after your partner 
went around one side of the house, you decided to move the 
car before going to the other side of the house?
A. Certainly. It might have been a situation where

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the building was large and it v/ould have been faster to drive 
around rather than to walk around.
Q- yo, is it fair to say that on this particular
eveningj when you asked your partner to go around to the other 
sidGj you do not lonow whether you.i; partner went to the other 
side itmnedLatelyj  or in fact, took some time to move the car? 
A. I think that would be fair.
Q- L'eH, later in the evening did you have any
occasion to re-enter Car 128?
A.
Q.

Q.

After?
Later in the evening?
Later in the evcniiiij when?
Ah any point.
Are you talking about after this call? 
Yes.
Yes .A.

Q- Do you reca.ll whether the patrol car was in the
same position it v;as when you left it to go around the west 
side of the house^ or whether it was in some other position?
A. I don't recall<
Q- VJhat else were you able to see when you were stand
ing at the southwest corner of the house, looking toward the 
east?
A. Okay. Starting off, I guess, after I finally

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piched up the subject on the fence, I was able to see the 
brol:cen viindow on the southwest corner, I believe It is, the 
garbage can under the window, the door —  well, not the entire 
door, but you know, the facing where the door was going 
across.
Q. And you were standing at the southwest corner,
looking east, and you were able to see a door that was built 
into the back oi the house and could see what condition it was 
in?
A. No. I said I was able to see the facing where the
door was, which would indica’te that this was a door, I knew 
that it was a door, because I had seen the screen door slam. 
That' s why I Icnev/ the door was there.
Q. Nell, is it your testimony that you could see a
window in the back of the house when you were standing at the 
southwest corner, looking in an eastwardly direction?
A. I was looking at an angle, not directly east. My
peripheral vision, you know, would cover a reasonable portion 
of the area.
Q- Well, is it fair to say that you were not standing
directly at the southwest corner of the house, that, in fact, 
you were farther south-from the corner?
A. Not too much farther south. Far enough to see, you
know, to see what v;ould be coning from the east and to see wha

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was in that area.

Viere you in a position whereby you could looic from 
an angle, bach to the south portion of the house, that is, 
the rear of the house?
A. Yes .

bo, you weren’t standing in a position where your 
vision would be parallel to the back of the house? That is, 

ix you were soanuing parallel to tiie back of the house on the 
south side, it vjould be very hard, v;ould it not, to see what 
was in the lace oi the back of the house, a door or a window? 
A. Right.

Isn't that correct?
A. Right.

is it fair to say that you were farther south 
than at the very ccz'ner?
A. Blight.

O.̂ ay. Did you notice any buildings in the back of
the house?

A- Yes. I noticed some type of buildings. I stated
before, I don't knov/ if it was a garage or outer house or what 
it was .

Now, was there any space between the back of the 
house on the east side, and this building that you identified? 
A. Yes.

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much space will you say, what was the 
distance that that building ran in terms of its length, going 
north to south? I assume its length would be north-south.

I really couldn't say.
right. Can you just describe the length of the 

buildinti, that portion of it you sav;, in terms of its distance 
from north to south?

really, because all I hnow it was a building; 
my attention -was not focused on it at all.

VJere you able to see whether the building extended
■%

to the very bach of the yard behind the house?
To the best of my knowledge, it did not extend to 

the very back.

the best ox your knowledge, what do you recall 
to be the placement of this building in the back of the house?

Seemingly it was over to the —  what I would say, 
somewhere parallel to 'the east side; just looking south you 
could see the building, as if a garage would be, and it was 
off the fence, I would say a couple I'eet fx'om the rear fence.
Q* Now, at the very rear of the yard what, if anything
dia you see?
A- At the very rear of the yard was a chain linkf
fence, I would say approximately five and a half or six feet 
tail. Beyond that was a bunch of weeds.

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Now, can you recall wlni the approximate distance 
was irom the back ol the house to that chain link fence?
A. No, I can't.
Q* the chain link fence run beyond the point where
you were standing? That is, you were standing at some point 
south of the ivest corner of the house, but not exactly in the 
corner, is that right?
A* Couth of the west corner, but not exactly at the
corner, yes, I would say that's right.
Q- Okay. Now, did the fence run as far west as where
you were standing?
A- To the best ox my knowledge —  I take that back. I
really don't know. I really don't remember just how long the 
fence was.

VJeli, did you see any break in the fence between 
the^point where you were standing and where the building was 
located? That is, the building in the back of the house.
A.
Q.
A.
Q.
fence?
A.
Q-

From where I was standing, going east?
Yes.
No, 1 didn't.
Was it your recollection that it was a continuous

From where I was standing, roughly eastward.
And you don't have an̂ ’ recollection of the

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approximate distance between the back of the house to the 
chain linU fence?
A- I'lOj I don't.

-Oo you recall whether the fence was new or old?
really didn't look brand new, but it didn't look 

you know, rusty.

Would you say the fence was in good condition? 
Roughly, 1 would.

fence, riun down to the ground, or was there 
any space underneath the fence?
A- far as I can reme.Tiber, it ran ail the way to the
ground.

Now, you indicated that you saw some weeds beyond 
that fence, is that right?
A. Yes.
Q- Can you describe those weeds?
A- As far as I can remember, I believe it was Johnson
grass or regular grass, just tall grass.
Q* How tall would you say the grass was?
A. Well, I would think that it came up just roughly —
I think that it came up to almost the height of the fence.
Q- It was almost six feet high?
A- It was rather high. I am not sure that the fence
was six foot, but I'd say almost, or maybe half the height of

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the fence, but it was tall.
Could you sec beyond the weeds?
No, because it was a dark area.
VJell, could you see how deep the ^rass was with ‘ 

your flashli>_,ht?

I wasn't really paying any attention to it, as much 
as I was the subject.

Well, is it fair to say that based upon what you 
were able to see, the grass could have been tall one foot 
beyond the fence and not tall after that?
A- It could have been tall one foot beyond the fence?
Q- Yes.
A* No, I wouldn't think so. From watching him in the
grass, and I v;atched him in the area around, I just don't 
recall exactly hov; it was, but to the best of my ability, I 
was recalling that he was over the fence, then he was gone 
because the grass was —  to me it was that tall.

What, if anything else, did you observe about the 
back of the house? You described the fence, the grass, the 
building. Were there any clotheslines in the back yard, to 
your knowledge?
A- I guess roughly it was. I think I remember seeing
a clothesline.
Q- Ycu also described seeing a garbage can. Can you

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indicate more specifically what that was about?-
A. The garbage can was under the window, the window at
the corner of the south ~  on the south side of the house, and 
the glass was broken out, the window glass was broken out. •

îrne you were in the back of the house, 
were the lights still on in the building?
A" Inside the house, yes.

there a light on, viould you say, toward the 
back of the house?

Right. I think we later found out that there was a 
kitchen light on.

And was there a light on in what you later deter
mined was the kitchen?
A. Yes.

there any light reflected out from the kitchen 
into the back yard?

a-t the door, you know, where the 
light from the kitchen goes through the glass in the door, and 
I don't really think that was the case, because I believe 
there might have been some curtains.

What about the window that was broken open?
A- That was not in the kitchen.

That was not in the kitchen?
A- No. That was in the bedroora.

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Q* I sea. All right. After you arrived —
A. (Interposing) I take that oack. Which window are
you talking about that was broken?
Q- Well, you described the door in the back and you-
also descrioed the v/indow that I believe was over above the 
garbage can?
A.
Q.
A.
Q.
A.
bedroom.

Right.
Is that right?
Right.
Where was that window?

*That window was not in the kitchen. It was in the

Q- Was there another window in the back of the house
that was broken?
A- We later on discovered the window.
Q- And where was that located? Was that located on the
east side of the back, that is, that southeast side?
A. Yes, the southeast side.
Q- On the other side of the door?
A. No. It was the door. The window was in the door.
Q- I see. And there was no other window beyond the
door in the back of the house?
A. I don't think so.
Q- So, you are in the back of the house, the light

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comes on at 737 Vollentine, you see a figure rush tov/ard the 
fence. Is that right?
A- Right. From the door.
Q* At the time that you ss.v; this figure, could you
identify anything about the character of that figure?
A. Other than it seenicu to be a male black.
Q. A male black?
A. Right.
Q- Hov.' did you knov.' that?
A. V/ell, from the reflection, you Icnow, of the little
light I mentioned that was coming across the door, coming from 
somewhere, I don't Icnow v;herc-
Q- Now, did the figure move from the door prior to
your shining your flashlight in that area?
A. Yes. Yes.
Q- Well, where were you shining your flashlight when
this figure rushed from the back of the house, if you recall?
A- VJell, as I recall, I wasn't shining it at aJ.l,
because as I got to the corner, this is when the figure came 
from the door.
Q- You didn’t even have your flashlight on?
A. I may have had it on, but I don't recall shining
it, unless I was shining it directly at the fence, in the area 
in front of it, -which is probably where Ivas shining it. But

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this is what attracted my attention, the noise- coming from 
the door.

You had. no expectation that somebody might try to 
come out the back door?
A. None vjliatsoevsr.
Q- So, you shined your light at the fence rather than
at the back of the house?
A- No. I didn't say I definitely aid. I said this is
probably where I shined it.
Q* All right. So, this figure rushed out of the door.
You didn't have your flashlight directed in that area. And 
then vfnat happened?
A. After I heard the door slam, and someone streaked
across, that's when I started trying to find whoever it was, 
from the point of where I heard the door slam to the fenced 
area where I finally located him.
Q- Now, at the time that you were shining your flash
light either a.t the fence, or certainly not at the door, did 
you have your revolver drav;n?
A. Yes, I believe I did.
Q- When did you draw your revolver from your holster?
A. I'm assuming that it was right before I got within
viev; from the south side of the house.
Q* All right. So, by the time you arrived at the

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southwest corner, is it fair to say that you hail your revolver 
drawn?
A.
Q.
A.

I think that's a fair assumption. 
You ax-e left handed, is that rijiht? 
Ri£,ht.
So, you had your revolver in your, left hand and 

your flashlight in your right hand?
A. Right.
Q* Ana alter this figure streaked, as you say, from
the back, you heard the door slam,, what did you do?

■%
A- Shined my flastxlight and found whoever —  well,
found the fellow on the fence.
Q* 'Now, at the time you were able to locate this
person with your flashlight, the person was on the fence, is 
Chat right?
A. Right.
Q* And what did you do then?
A. I advised him to halt and identified myself.
Q- Did you use those words, "I aavise you to halt"?
V.'hat did you say?
A* Well, I said, "Halt. Police officer. Halt."
Something like that. "Police; halt." Something like that.
Q* Could you see the person you were telling to halt
at the tLme that you issued that direction?

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-177-

A. I saw —  I couldn't plainly see hinij - but I saw, you
know, I knew it was an individual; and again, I knew it was a 
black male.
Q- Was this person's face turned toward you at any •
point?
A. I believe he looked in my direction, yes.
Q- Do you recall the position of his feet at the time
that you shined the light?.
A. Ko, 1 do not.
Q- Do you recall the position of his hands at the time

•*you shined your light?
A- Yes. I believe his hands were grasping the fence,
and 1 believe Lie was in a stooped position.
Q. And after you cried ''halt" did you keep your flash
light on this individual?
A. Yes, I did.
Q. And what happened after that?
A. My partner, sometime beiore that, had made it to
the edge of —  to the corner of the house, the southeast 
corner of the house, and the individual stopped and I told him 
my partner, that he was around behind the building, you luiow, 
on the fence. Ajsd told him to come around and get him.
Q. All right. Now, your partner had arrived at the
southeast corner of the house, is that right?

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A. Right. .
Q- And could you see hi:ri?
A. Right.
Q- V'cll, hev; could you cce hi:a at that point?
A. "Him" v;ho?
Q* Your partner?
A. He v;as across in i’ront ol me. He v;as at the east
corner and I v;as at the west corner.
Q- Aid yeu chine your L'lcchiight in hie direction?
A. Ho.

■»Q- There was sufricient light for you to ®e your
partnei- at the southeast corner?
A. Yes.
Q- Did he have Lis flashlight?
A. I don't recall.
Q- And what did you ca.y to your partner?
A. I said tliat "He's on one fence, on the side of the
house, on the siec of the outer house,’’ or something to that 
effect, or the garage.
Q.
A.
Q.

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Q.

And vihat did you tell your partner to do?
To come around ana got him.
By "get him" what did you mean?
Apprehend him.
Using h^s hands or o'.cin_, his billy crub? What did

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you intend by telling your partner that, if you recall?
A- VJell, Qiy intentions v;ere not based on his, but my
intentions were lor him to apprehend him with whatever was 
necessary. I mean, if it took the club, the club. If it 
didn't, just use the cuffs.
Q* Was he closer to this individual than you were?
A. Yes. )

Q- How far would you say he v/as from the individual?
A- Well, I wouldn't -- I couldn't estimate in terms
of feet, but he was at the southeast corner and the individual 
was around behind the house,'on the fence.

Now, when you say ‘'around behind the house, on the 
fence", do you mean that in relationship to you, he v/as behind 
that outhouse or building, away from the wall of the building 
that was closest to you?
A. No. He wasn't behind —
Q* (Interposing) In other words, you weren't saying
by your testimony you didn't mean to indicate that he was at 
the south of that building?
A. No, I didn't.
Q- Where was he located in terms of that building?
A. To the best of my lcnov;ledĝ  he was right at the
corner of the —  excuse me —  the southwest corner of that 
outside building.

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Q.
A.
Q.

He was out the southwest corner?
On the 'west side.
ITo'w, In terms of that building, was your partner

at the —  let's say northeast corner of that building? That 
is, toward the front, but the iar side of that out building?
Or was your partner at the northv.'est corner of that building? 
A- I think he was closer to the northeast corner.
Q- So, he -was on the other side, if you will, the
other corner of tne building from where this individual was?

I wouldn't say definitely, but I'm saying somewhere 
perhaps the middle of the building.
Q- Okay. But somewhere in this relationship, your
partner was at the northeast corner, and this individual was 
at the southwest corner. Is that fair?

No. I would say that niy partner was directly at 
the northeast corner.
Q* You would say that he was closer to —
A. (Interposing) I would say that he v/as at the
corner of the house, not in respect to the building, but 
rather closer to the corner of the house.
0.- All right. Can you describe for me the relation
ship betv.'een the west v/all of this out building and the south
east corner of the house? Or maybe this -would be easier:
V.'as the east wall of that out building parallel to the east

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-181-

wall of the house, to your knowledge?
A* - No. I think the building is setting more or less
like in ohe driveway, on the side of the house. You know, as 
if you vjoula turn on the east side of the house and go dovn 
to the building, I woulu think that the building was like that 
But my partner wasn't situated in relationship to the building 
and house v.'here ho could look directly across and see the 
Defendant, or see the victim.

Oid you say anything else to your partner at that
t ime?

I think I had to tell him that twice, well, I had 
to tell him where he ims twice, because he didn't know where 
1 was talking about.

you have your light shining on the individual 
all this time, v;hile you were giving your partner instructions 
twice?
A. Yes, I did.
Q- And wioat whs this individual doing at that time?
A* The first time, he was doing as I had ordered; he
had stopped. But when my partner asked me the second time, he 
said "lihere? " and I told him, at timt time, this is when the 
individual started over the fence.
Q- By star-ting over the fence do you mean that this

upindividus.1 was at the top of the fence, or -was midvjay the

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-132-

fence j or just about to climb onto the fence?
A. . No. He was on the fence and about to go over the
fence, so he v;as well —  well up at the top of the fence,
Q- So, 'While you were giving your partner instructions
you, in fact, watched this Individual climb up the fence 
toiward the top?
A. 'Well, it wasn't a climb, it 'was a Jump. You know.
Just as if he were trying to spring over, spring over the 
fence.
Q- Did you make any attempt to move toward this
Individual at the time you were telling your- partner to appre
hend this invidivual?
A. I might have taken a couple of steps forward, but
I couldn't get —  I couldn't get directly to the individual.
Q. VJhy not?
A. Well, there was a fence separating me from him.
In other 'words, there wa.s a fence on the southv/est corner, 
running north and south.
Q- It was running north. and south?
A. Right.
Q- And could you describe the nature of this fence?
A. As far as I can recall, the fence was a —
seemingly —  I think it appeared to me to be a chicken wire 
fence- You kno'w, about three and a half to four feet tall.

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A chicken v/ire fence?
Eight

Q.
A.

Q* Hov; v/as it supported, if you recall?
I don't really recall. I think roughly, though, .it 

was probably two by fours, or something of this nature.
Q.
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Q,.
A.
Q-
that time?

Tv70 by fours?
Yes.
And was it an upright fence?
Straight up? Yes.
vihat will you say the condition of the fence was at

I vrould say that it was in good condition.
And it's your recollection that that fence went 

from the southw'est corner of the house to the chain link fence' 
A. Right.
Q- There v:as no break in it that you could see?
A- Well, I wouldn't swear to it because my mind vjasn't
focused on the fence at the time. Later on I think we found 
out, but I don't remember what we found out.
Q- You weren't considerin.g at that time how you could
get to the person wlio was trying to climb over the fence?
A. Right. And in that consideration I would say that
I considered that he was to the fence, or sav; that he was to 
the fence. I just don't remember exactly what I sav; at the

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-184-

time j or exactly wha,t I determined at the time
Did you. consider, ac that time, trying to hop over

that fence?
A.
Q.

No, I didn't.
Wh.y not?
«'iell, irom. the time that I had told my partner, 

since ray partner was there, from the time that I had told him 
and from tne time, tha.t the £ab.-_,ect made the attempt to go over 
the fence, if I had hooped over the fence, I still couldn't 
have caught him because I'm not qu.ite that fast.

‘̂ave any reservations about your ability at 
that ti.me to Jump over the fence?

No. No. I'm sure I —
(Interposing) To vault over the fence?
No. I'm sure I could have jumped over it. I could 

have stepped over the fence.
Q- You could have stepped over the fence?
A. R ight.

But you didn't feci that stepping over the fence 
would have ^iven you enough time to catch this individual?

■■Jell, I'm sure it wouldn't have.
Q* Nhy are you sure that it wouldn't have?

Nell, as 7 stated, well, I didn't state it, but 
v.’hcn the individual jumped, lie ■>;an already at the top of the

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fence; and before I could have made a step to get over the 
fence, he v;ould have been already over the fence. I mean, it 
was just that quick.

3id you at any point instruct your partner to try 
to circle around the other side of the fence, if possible, to 
head him off?
A. It happened too fast.
Q- You didn't think about that?
A- I'Jell, I would have thought about it, you know, had
it been a slow process. But like I said, when I told my

%partner and he started in that direction, then the individual 
was already up at the top of the fence. And as far as I can 
recall, there was no way tha.t he could have gone around and 
circled.
Q* Did you indicate anything to your partner about
whether this individual was armed?
A* 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 been 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.

V/ell, if you had had any questions about whether 
this person was armed, would it have been your responsibility ■

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to notify your partner of that fact?
A. Definitely.
Q" And what would have been the normal way you would
have gone about notifying your partner of that fact?

‘.'.’eil, I would have -- the thin.g 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.
Q- Did you have a riot ;;ua in your car that evening?
A. Yes, I sure did.
Q- During the course of this deposition I have been
using the tenn "individual" and so have you. Is this indivi
dual we've been discussing Edward Eugene Garner?
A. xe£
Q- You later determined that this person was Edward
Eugene Garner?
A. Right.
Q- Did you tell your partner to shoot Ed'ward Garner
at the time you told him where he was located, tliat is, where 
Garner was located?
A. No.
Q- Tell me again what you recall saying to your
partner. «

A. I recall telling him that he was on the fence, on
the side, of the house, or in back of the house.

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-187-

Q.
A.
Q.

Did your partner have a flashlight?
I don't recall.
And then what happened, after you notified your

partner several times of the location of Garner?
He sta.rted —  to the best of my ability, he 

started, perhaps a, little hesitantly, around where I was talk
ing about, and Garner started over the fence.
Q* And what did you do then?

g,ot to the top Ox’ the fence I fired one shot 
from my service revolver, after —— you knov/ well, we've 
already went through the hal’t situation and identification 
situation.

I don't Icnov; what that means, but v;e'll hold off
on that.

When you fired at Garner, v;hat v;as your intention? 
Well, I will state that in a roundabout way, but 

we are instructed that v/hen v̂e fire our 'weapons that we are to 
shoot for the largest portion of the body.
Q- And the largest portion of the body is what?
The t ho raw:?
A. The chest area.

The chest area. Well, his chest wasn't toward you 
at this time, v:as it?
A* I'lo. I guess his bach v.'ould have been tov;ard me at

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-188-

that time. It wasn't exactly toward me; his whole body was at 
an an<j,le.

Hio 'Whole body was at an angle, meaning exactly 
what? Could you see part of his lace at the time that he was 
climbing over?
A
Q
A.
Q.
A,
Q.
A.
Q-
A.

Just the side.
You could see the side of his face?
Yes.
Could you see part of his chest?
No. Kis chest would have been in front.
Could you see his hands at all times?
I'm reasonably sure I could.
Did you aim your gun at that point?
No. It v<;as a point shoulder position. It was not 

aimed I loae'w that I had the revolver on him, but it wasn't 
aimed at any certain portion other than the widest portion of 
the body.
Q- Under tiiose circumstances were you following the
correct procedure in firing your gun? Let me clarify it a 
little bit more.

Was t’ae way in which you fired the gun according to 
proper police procedure, the stance that you took, the way you 
pointed your gun, and the way you fired it?
A. I couldn't elaborate on the stance because I don't

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remember exactly how my feet were at the time. But the way 
that I pointed it, or the way that I fired it and the position
that I was to hold the revolver in, I would say that it was 
correct —

(Interposing) Did you fire with one hand?
A. Yes.

You diddt steady your hand with the other hand?
No.

Is there any police procedure that suggests that 
you steady your shooting hand with the other hand?
A* NOj not when you have a flashlight in the other
hand.

I see. They don't require you to drop the flash
light under those circumstances?
A. No.
Q* Can you indicate v/hat service revolver you were
using that evening?
A- Yes. I was using a 3^ caliber revolver. Model 10,
Smith and Wesson, four inch barrel.

Q.
A.
Q.

Q-
A.
Q.
A.
Q-

What kind of ammunition did you have in your gun? 
38 special.
Was your gun fully loaded at that time?
Yes, it was.
Did you fire more than one shot?

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A- No.
After you fired, what took place?/
After I fired, x-ny partner came around where the 

individual was goin̂ j across the ience, and said that he was 
bleeding badly from what seemed likeihe read,I think he said. 
He was slumped over the fence.

Your partner yelled this information to you, or 
stated this inforiiction to you?
A. He stated it to me.
Q* And then what did you do?
A- I proceeded over to Garner. V7e got him off the
fence, and I advised my partner to call for the lieutenant 
and ambulance and Crime Scene —

(Interposing) How did you proceed over to the
fence?

By stepping across the —  what appeared to be the 
chicken wir e fence.

So, you stepped over the fence, that is, the chicken
wire fence?
A. Yes.
Q* fuid vjenb to the chain link fence vAiere Garner's
body was draped?
A. Right.
Q- And did you remove his body from the fence?

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A.

Q.
A.

Yes.
Did you do tOat by yourself?
I don't recall. See:nine,ly, we both removed it

from the fence.
me backtrack just briefly for a moment.

At the time you saw Garner at the fence, can you 
indicate v/hat the relationship of his body was to the fence, 
how much fence was above his head at the point he was standing 
at the fence? ^̂ as there any fence remaining above his head?
A- I vjould think that in the stooped position, he was
probably about halfway the height of the fence.
Q* So, he was somev;hat stooped at the time?
A- Rightj in a jumping position.
Q- I see.

You are speaking of before the shot Vvas fired?
A. That's right.

(Turning to page 107 of the deposition:)
Q- , At the time that this Incident occurred on
October 3rd, who v/as in charge? Vfere you in charge, or was 
your partner in charge? By "in charge" I mean who had the 
superior rank?
A. I did.
Q- So, you were in charge, is that right?
A. Right.

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-192-

••'■‘sn you first perceived a flrurc inovlni I'rcrr. the 
bach 01 the hcacs to the fence, -..'hat svas your i.Tipression of 
the size of that person?
A- In relation to what? Rai£ht? Weight?
Q- Height and weight.

tell, I really didn't have an opportunity to get 
a vivid iiaprcssicn. He looked —  looked like an adult, I mear 
by you knov/j by face, by the look, well, I couldn't tell 
really iroin the door to the x̂ cnce, but once I shined the 
light on the lonce, as far as I could see, considering the 
lighting factor, hs looked to be about seventeen or eighteen 
years old.

well, v;hat sense did you get of his size v.hen he 
was at the fe.nce £uid you could see his face?

He wasn't short, you Icnov:, which would indicate 
that he wasn't necessarily that young, and he wasn't real 
tall. I would G<ay he was in the neighborliood of five-five or 
five-seven, and I would say maybe a little larger weight, a 
hundred and -anybe thirty pounds, just rougiily.

2o you recall whether Garner v;as wearing a coat 
that evening?

I don't think he was. I'm not sure.
Houlci it be fair to say that -what you saw, his 

physical appearan.ee, would not h-ave been distorted by any

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Q- you at any point, Juriny the tinic tint Garner
was at the fence, before you fired at him, turn away froia his 
direction, ioolc in another direction?
A. Ho, I did not.

'/cu did not?
No. .
You didn't loolc. at your partner at any point?
No. I could see him, you Icnow, moving out of the, 

you nijjht say side of peripheral vision, but I didn't 
focus on him.

A-
Q.
A.

‘'•i* You never tooh your eyes off Garner?

Q- You sav; him every moment?
A. Risht.
Q- Between the time that he Qot to the fence and the
time that you shot him?
A. From the time he got to the fence to the time he
was shot, yes.
Q- And durints that time, v.’hile you were loolcincj at him
every moment, you didn't move toward him?
A. If I did it wasn't —  it 'wasn't, you know, far
enough to make a difference. It might have been, you Know, 
might have stepped up a couple of feet or something, moved 
closer to the fence as I was -waiting for him.

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-196-1

Q- VJhat distance were you roughly from Garner vihen he
was on the fence?

I gncDs frora. the corner of the house to that area 
was 30 —  probably 30 or 4o feet, soaiethlno like that.
Q. 30 to 40 feet?

At an angle. That's just roughly guessing.
Q- Could you have climbed over the fence and kept your
eye on Garner while he was climbing the fence?
A. I wouldn't say that.
Q- You don’t thirds: that you could have stepped over
the fence, 'which you testified earlier you felt you v;ere able

I
to do_, and yet keep your eye on C-<arnar?
A. i-7ell, because I didn't Icnov̂ v;hat I v;ao stepping on
vrould have been the thing. I would have had to look down to 
see what was directly on the other side of the fence, you know 
step and vjatch him at the same tine, which 'would have been 
almost impossible.
Q- You decided that that would have been impossible?
A. Right. To risk stepping over; that's what I had my
partner for.
Q* Do you recall the condition of the chain link fence
tJiat Garner 'was climbing over in terms of 'what it looked like 
at the top? vras it rounded on the top? Was it pointed on the 
top? Do you have any recollection?

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-197-

A. To the best of my !cnov;iedfe, I would say it was
like any other storm fence that had the little wires sticking 
up at the ton.
Q- So, is it fair to say that if someone grabbed the
top of the fence viith a certain amount of force, it might 
damage the hand?
A,. With a certain amount of force, I would say so.
Just roughly trying to remember.
Q- ITovr, at the time that you shot Garner, could you
describe the position of his body on the fence?
A. It v;as draped over, I believe it was draped over
from the waist portion, hanging over the fence.
Q. So, his legs were hanging on the north side of the
fence?
A.
Q.
Bide?

Correct.
And his toro essentially was hanging on the south

A.. Correct. And arms.
Q. And arms. Did you encounter any difficulty in
removing his body from the fence?
A. It seems to mo as though his clothes might have
gotten hung in the v;lre and might have been sticking up. I 
don't remember exactly.
Q. Can you describe how Garner v;ent about getting over

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the fence? Wae he climoinc? Wee he leaping,? 'How would you 
describe v;hat he was doint,?

 ̂v.'cuid describe it ac leaping from a stooned. 
position; spring, where you ^rab and pull and spring at the 
same time and you plunge over the fence.

’dell, did you observe him at the fence, not 
climoing up the fence, but spring up and grab the top of the 
fence? Is t:iat what you savj him do?

’Will, now, that particular movement happened 
rather fast, and I wouldn't vrant to swear to say that he 
sprung up and grabbed the top; but I didi't observe him climb 
him, oO the best of my lenowledge, it vjas a leaping.
Q.
A,

Did Garner say anything to you? 
nothing.
(Turning to page 114:)

MR. DAYG: Please mark this
the next exhibit for identification.

(Whereupon, said PHOTOGRAPH 
'was marked EXHIBIT a* for identification 
to the deposition of the witness.)
* ii.'/'-’-on, 1 want to hand you what has been marked 

r.xaibit 5 for identification and see if you can identify it.
(Passed to witness.)

Yco, ohau seems to be a picture of me, roughly from

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behlnd. I v;oaldn‘t swear to it.
(Turning to page 115:)
1*0 y<3u have any knowledge of when that photograph

was taken?

Judging from the picture I would say that it v;as 
me, and I aosuaie that it was taken v;hen Crime Scene arrived.

the best of your recollection, was that photo
graph taken on the evening of October 3rd, I974?
A. Yes. ,

MR, DAYS: That is the end
of the portion of" the deposition that 
we wish to read.

THE COURT: All right, sir.
He will take a recess before you call 
your next witness.

(Recess,)
THE COURT: You may call your

next v;itness.
Whereupon,

DAN L. JONES..
the witness, having been first duly sworn, was examined and 
testified as follows:

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Q.
A.
Q.

DIRECT EXMINATION 
BY MR. BAILEY:
State your full name lor the record, please. 
Dan L . Jones.
And are you not Chiel of Detectives with the

Shelby County Sheriff's Department?
A. I am, sir.
Q- How lonji have you been v/ith the Shelby County
Sheriff's Department, Chief Jones?
A. 21 years.
Q- And I suppose in your 21 year period you probably
have run the fiamut in terms of departments of which you have 
served, is that a fair statement?
A. Right.
Q* Have you had the opportunity over your history with
the Sheriff's Department to be involved in police field work?
A. I have.
Q- You were a patrolman for many years, I take it?
A. I was.
Q. And while serving as patrolman, I take it, that you
had the responsibility of apprehending suspects? Is that not 
correct?
A. That is correct.
Q. iiven fleeing felonious suspects?

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A.
Q.
A.
Q-

- 201-

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I beg your pardon?
Fleeing felony suspects even?
Yesj sir.
And how long have you been Chief of Detectives with

the Sheriff's Department?
A. Since January 1, 1576.
0,. And how many are under your control?
A. 3 8 .
Q- How many men are employed by the Shelby County
Sheriff's Department?
A. 4 7 5.
Q. I see. And prior to becoming Chief of Detectives,
what was your primary responsibility?
A. Supervising the Detective Bureau, Fugitive Squad,
all the detective functions.
Q. I see. And for the record, what do the detective
functions entail?
A. Mostly investigative work.
Q. I see. And does that range all the way from
assault and battery to murder?
A. It does, sir.
Q. All right. Did you have the occasion to be a field
supervisor of patrolmen?
A. I did, sir.

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-202H

Q. And how ionej did you swerve as a field supervisor
of patroimen?
A. About four years, if nny memory is correct.
Q- And hovj iOn,̂  a^o v/us that?

lyoo tiirough '67-
Q- And Chiei' Jones, in your many years of law enforce
ment have you liad the occasion to ĵO off to many seminars and 
workshops cad conventions and tnat sort of thint:?
î. Yes, six. I have.
Q- All ri^ht. Now, and I take it you have had the
occasion to lecture to recruits on police apprehension of 
suspects?

Many o c c a s1o n s.
Q- And nave you partaken in co-authoring manuals and
other guidelines and sending out mcaioranda regarding the 
apprehension of suspects?
A. I hadn't sent out a.ny memoranda, but I am fajuiliar
vjith all the -- I ttiink I am faaiiliar with all aspects of 
the metnod of arrest.

X see. And are you xC-iiiliar pretty much with the 
standard, ,_eneral standard of apprehending suspects in this 
community?

I believe s :.
Now, incidentally, have you lectured and taught

a.

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recruits regarding the use oi firearms?
A. I ijve.
Q- And when it's proper to use firearms and when it's
not proper to use firearms?
A. That is correct.
Q* And have you not also lectured and taught recruits
as to various alternatives to the use of firearms in trying to 
apprehend suspects?
A. I havej sir.
Q. Now, incidentally, regarding the standard of appre-
hens ion, is the standard in this community such tl^t one 
exhausts all methods prior to using firearms in apprehension 
of a fleeing suspect, felonious suspect?

MR. KLRIII: I am going to
oDject to that question. Row, we're 
getting into a field, and I think I 
linow where we're headed, but I can't 
object overall.

I would have objected to 
this man's testimony in the beginning, 
because I think I know what he is going 
to testify to, but I know Your Honor 
'would be in no position to rule on it 
until we have heard what he had to say.

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But what the standard in this 
community is I think has nothin̂  ̂to do 
with it. I think there is a statute 
which controls the situation 'which we 
have here and I taink each case has to 
fall on its own, and I believe there 
isn't any standard which prevails in the 
com.munity which would be controlling or 
have liny effect or should have any 
influence on the Court in its decision 
in this case.

So for that reason. I'm going 
to object to what he lo.bels as the standard 
or custom in the community about when and 
when you don't use firearms or how you go 
about apprehending, I assume a fleeing 
felon, if that is what your question is 
directed to.

THE COUET; Mr. Bailey.
MK. BAILEY: Your Honor, our

position is the.t there is a standard in 
this section of tlie country. Just like in 
all sections of the country, regarding 
poor police work as opposed to good police

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-205-

work with the statute, of course, being in 
mind, and operating, and of course, good 
police and poor police vjork being determi
native in reference to how either of the 
other is done in accordance with the law, 
and that is the thrust of our questions^ 
is he not familiar with such a standard in 
this section of the community.

THE COURT: I'm going to permit
the question to be asked. I am not ruling 
on the Defendant's objection as to whether 
or not the witness's response, if he does 
so respond that there is such a standard.
I am not ruling at this time that the 
Defendant's objection is or is not well 
taken or v;hether it's material or whether 
it's relevant to the issues that may apply 
here on the question as to whether there is 
a legal standard that is or is not to apply 
here, and whether or not, of course, the 
actions in this individual case comply 
with the legal standard remains for us to 
hear all the proof in evidence.

MR- BAILEY: Very well.

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Q-

■ -206-

TllE COURT: But I will pei-mit
you to ask. the question of the witness, if 
he understands and has a response, to make 
his response subject to the objection made 
b y t h c: Dei e n ci an t.
(By iir. Bailey) Chief Jones, is there not a 

stajadard of conduct e:cpected out of officers in this 
coiiLTiunioy oased on your experience and exposure regarding 
proper aiethods Ox' apprehension of suspects?

I don't understand what you're getting at.
■%

MR. 3AILLY: All right. May I
rephrase the questioii?

•THE COURT: Yes, sir.
(By Mr. Bailey) Is there not a standard of conduct 

that oificers are expected to follow regarding the apprehen
sion ol fleeing felons, or any suspect for that matter?

My only response is that an officer is trained 
durin̂ j his rntcrim period as s.n oificer and receives training 
throughout his career in this regard and all other aspects of 
law enforcement.

And is it not arilleu within him proper methods 
of apprehension of suspects?

Viell, again, the officers are trained in the appre
hension ox fleeing felons and the apprehension of suspects.

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- see. Nowj whe.t is the training, th.-e standard of 
training around in this area regarding the apprehension of 
fleeing felonious suspects, or felony suspects?
A- Viall, here again, they e.re trained to protect
themselves and that a fleeing felon is a fleeing felon and to 
make the arrest.

I see. JIow, at what point are they taught when to 
shoot and not shoot?
A- This is included in the training and primarily they
are taught to protect themselves.
Q- I see.
A- And to apprehend the suspect.
Q- I sae. Now, in reference to the apprehension of
suspects, are they taught when it's better to —  at least, when 
it's proper or at what point it's better to use a weapon as 
opposed to not using a v/eapon?

MR. KLEIN: I think my objection
is a continuing,, one.

THE COURT; M l  right, sir. It 
may be treated as a continuing objection and 
you may proceed.

MR. BAILEY: Very well, thank you.
i

A. (By the witness) Would you ask the question again?
Q- Are officers taught what conditions they ought to

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-208-

use their firearm in trying to apprehend a fleeing felony 
suspect?
A. Yes, they are.
Q- I see. And is that sort of the standard? That ■
teachinf' and training, is that based on a general understand
ing of v;ha,t a sta,ndard is?
A. I think so .
Q- All ri ;,ht. And of course, you are familiar with
that standard in tlie Memphis area, are you not?
A. I think. I am.
Q. I take it you consort with police officers as well
as —  and work hand in glove with police officers and under
stand their basic training, and I take it the standards are 
pretty much the same, is that not correct?
A. I think that is correct.
Q. Very well. How, assuming. Chief Jones, that — ’

MR- BAILEY: Your Honor, may I
approach the diagram?

THE COURT: Yes, sir.
Q- (By Mr. Bailey) Assuming that this home is the
GUb.ject of a burglary, facing northwardly, and that there is a 
vrooden fence some six feet or five and a half feet running 
along the east side of this honied assuming further that there 
is a rear chain link fence some five and a half feet in

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-209-

height and a small chicken wire fence some thre,e feet in 
heightj and that this area from the chicken wire fence aTi the 
way around is fully enclosed, assuming those facts; assuming 
further ““ incidentally, at my request I believe you went out 
and looked at this?
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.

I did, sir.
All right. At 739 Vollentine?
That is correct.
And you recall seeing the chicken wire fence?
Very v;ell.
The wooden fence on the side?
I do, sir.
And v;as this not a fully enclosed area?
It is, sir.
All right. Now, assuming those facts, and assuming 

further thaf we have an officer who is six foot four, the size 
of the Defendant, Mr. Hyraon —

MR. BAILEY: (Interposing)
Your Honor, could we have Mr. Ilymon stand?

THE COURT: All right. Mr.
Ilymon will stand.

(Whereupon, Mr. Hymon complied 
with the request of the Court.)
(By Mr. Dailey) The size of Mr. Hymon.

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-210-

THE COURT; You may be seated.
(B-i Mr. Bailey) Assuming further that such an 

officer would receive a call that a burglary, or at least a 
strong notion that a burglary is in process and that he 
appeared with nis partner and left the vehicle in front of the
home, and that he approached the home from the rear and

/

stopped at the -- regained —  I mean, made his position at the 
southwest corner, right here where the chicken wire fence 
connects v.’ith the home; and assuming further that some 30 to 
^  feet away that he observed a burglary suspect flee from 
the home and he had every reason to believe that a burglary 
v/as in progress, that a burglary had, in fact, been commited, 
and that tne perpetrator of the burglary is a teenager, 
seventeen or eighteen years of age, v/eighing anywhere between 
five and —  I mean, I'm sorry —  weighing somewhere a;^und 
130 pounds, and that the burglary suspect is from a height of 
five feet five to five feet seven, and that is unarmed, 
obviously unarmed and in a stooped position after being told 
to halt after running from the home that was burglarized; and 
assuming further that the officer had had his flashlight, that 
he is left handed and had his flashlight in his right hand, 
and his 3S service revolver in his left hand; and assuming 
further that he assumed that his partner, or at least saw his 
partner, or thought he saw his partner approach the rear of

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-211-

the house from the east side of the victimized homej or the 
site of the aiie.sed burglary; and a.ssu:ninii further that the ~  

and stop me at any point you feel desirous of stopping me and 
repeat:in;_, and assuming furtlier fnaxt the teenagerj seventeen 
or cL̂ h-tccn year old by appearaaac co the oxficerj turned and 
looked at the officer and the officer had his spotlight on 
him, after telling him to-halt, that he did halu and remained 
tiicre j.'or some several minutes, vjoulci tixe —  and again, that 
ti.'.c: ufr.i.ci-i- is fuj.ly av.are tliat -- he lias no reason to believe 
tliat the suspect is armed and had seen his hands, has no 
reason Lo believe that taere is anymore than one suspect, 
v.ouia the officer have acted properly when the suspect stopped 
in the rear of the home in not proceedin^^ to advance toward 
the suspect in making the apprehension?

MR. liELIiT: Your Honor, I object.
THE COURT: All right. Vihat is

tnc basis of your objection?
MR. Klihlll: Your Honor, number

one, he is assuming a lot of facts that
aren't in the record and that aren't
correct. I know v;e b.avc read into Ltie
record the deposit io... oi Mr. Ilymon. We
haven't read all of it in and I would

at my proper time I can read
assume shat

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-212-

Other parts of it into the record. •

Furthermore, he is askin̂ i him 
to pass on a hypothetical question, and I 
presume, give an e:cpert opinion which 
really is what this lawsuit is all about, 
and what I think is left for Your Honor to 
decide.

And I don't think that it's 
proper to let him —  again, I don't say 
this in a disparaging ivay, but as a so- 
called expert testify what the man 
should or shouldn't have done under 
those circumstances, because again, as 
I say, that is the issue in this lawsuit. 
And I don't think it can be treated with 
an expert witness.

THE COURT: Hell, under the
new Federal rules, is it not so that where 
the former objection obtained that it was 
invading the province of the Jury or 
invading the province of the prior fact 
that that is no longer a basis for sustain
ing an objection to an expert's opinion or 
conclusion relating to matters that may be

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forthcoming and further, in respect to 
just about every product liability case 
that comes up before the Court, the 
Plaintiff, before I get through with 
the Flal-ntiff’s proci, has aslced an 
expert or experts, assuming such and 
such and such and such, would it or not 
have been a proper course of conduct for 
the Defendant mcLnui’c.cturer to have put 
this guard on here or to have done this 
or done that, which is the ultimate fact 
that the tryer of fact has got to deter
mine, whether or not they produced an 
unreasonably defective piece of machinery, 
whether it was unreasonably dangerous, an 
exoert is called upon to render his opinion 
on that subject.

Merely because It bears upon 
the ultimate issue, is that a basis ior 
your objection as to an-expert's opinion?

MR. KLEII'I: That is part of it.
Your Honor, and the other part is as I say, 
he is assuming facts that are not correct 
and only time and the rest of tne prooi will

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-214-

. Show what the facts are^ or there may be 
some facts that are in dispute and as I 
sayj the facts that he has posed to this 
.^entleman at this point are not really 
what I submit to the Court the facts are 
going to ultimately be.

THE COURT: Well, I'm going to,
at this point at least, to overrule your 
objection to the witness's response to the 
Question as put. Whether or not it includes 
all the actual facts that are involved, 
whether or not there may be other factors 
and other elements that ought to be taken 
into account with regard to that matter, 
remains for further proof, but I will 
overrule it as being addressed to the 
ultimate issue in this proceeding.

MR. ICLEIK: All right. Your
Honor, one other point, are we considering —  

as I say I am not belittling the qualifica
tions of this man at all —  we are consider
ing him as an expert at this time, because 
that is the only vjay I Imow that he would be 
entitled to give such an opinion?

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-2l5i

THE COURT: Mr. Ballsy? •
MR. BAILEY: Your Hcnorj of

course, we tender Lira to the Court as an
c:;pert in the iieid oi‘ apprehension oi'
suspects and there is no question Chief
Jones is second to none in terais oi* /
qualifications and credentials and 
experience ana training, and has himself 
icctai’cd and taû ĥt recruits rejiaruins 
the methods of appi'eheasion of suspects 
of all sorts, includn^ fleeing felon 
suspects and the proper use of firearms 
under such circuins tances .

THE COURT: VJell, I'm going
to overrule the objection on the basis 
that has been stated tiiat he may testify 

, if he vinderstanus the question that has
been asked.

Q. (By Mr. Bailey) Chiaf Jones, assuming all of
those facts that I have Just told you are true, would the 
officer v?ho '■.•culd have been stand in", soma 30 feet away right 
on the corner, at the southwest corner of this chicken wire 
fence, who incidentally, could have stepped over the chicken 
vrire fence, was tall cnô tgh and vho felt he could have stepped

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ovcr itj '.'.'oaj.a ht nave actea rjrcrcrli; .uncl accoraln?^ to a 
proper standard o. conduct in net steepInt, ever the lencc and 
goinf; toward the suspect where the suspect had stopped and 
loohed at hisi lox' acnie several ednutes or seconds?

"cry^ very hard to answer because I was not 
on the sĉ ,ne and was not familiar with what happened and lenow 
noi-hing about it except what I have been told. I did <2,0 cut 
and locK at tiic property and spent some time walicini' around 
tie house anu aooiiin̂  at it myscli in the daytime, and I'm 
assuming, that by use of his ilashli£,ht this cccur-red at night?
Q*’ IcG, Sir.

- want to be sure tho;t 1 understood you right 
when you asked rc, told me ratasr, that the officer had a 
flashlight in nis hand and -well knew that the Defendant was 
not armed?

Q- Yes, sir, sav; his hand grasping the fence.
fn rsuDonse uo ohat question, I can only say 

that I woulu not have shot the suspect 'cyseiX .
fiH. iXLSIII: 1 object. Your Honor.

Nothing has been said about shooting the 
suspect.

THE COUP.:!; I'll sustain the 
object Lon to the response under the circum
stances .

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-217-

(By Mr. Bailey) My question is really, would the 
officer have acted properly in not movine toward the suspect 
but resnaininr, there on the other side of the fence and malting
no advancement?

1 tiiim; the officer shculd ha'.'e moved over the 
fence and apprehended him.
Q- New, asEuminG further that the officer felt that
his partner was cn the other sice, vdiether he was or not, 
vculd you still reintain the san'c opinion that he should liave 
advanced toward the suspect and tried to apprehend him?
A. I would.

And '.'.■culd you say the failure to do so was not in 
accordance v/ith proper standards as you understand them?

MR. fQjEUi; Your Honor, my 
objection is a continuing one.

THE COURT: Yes, sir.
A- (3y the witness) Let me say acain, Mr. Bailey,
that I was not there --
Q- (Intcrposin^j) I understand that.
A. And I’m not familiar .■.•itli any aspect of the case
at all, and I Itnow.as you knew and the Court knows that every 
case is different and stands on its own merit. So I can only 
scy, or answer you tne way I C;.e it, the v;ay I think I would 
have done.

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Q* But in your opinion, based on your training and
experience and understanding of the standards of apprehension 
of fleeing felon suspects, you would have advanced tov/ard the 
suspect?
A. I certainly 'would have.
Q. Even if your partner was on the other side of the
house?
A. I would have.
0,. ACGarr.in:,- you could have stepped over the fence?
A. Yes, I -would have,
Q. V.'ould you have hesitated at any —  would hasteness
ana movemeat towax’d the suspect been Important in that kind of 
situation, or is it ioioortant?
A. Yes, it is.
V And although the officer is telling his partner,
•'There he is over there by the fence. Go over and get hin," 
w'ith his flashlight beamed on him, did he still have the 
responsibility of stepping over the fence and moving very 
quickly himself?
A. I would think so.
Q. Instead of relyin,_, on his officer?
A.. I think that is correct, yes, sir.

MR. BAILEY; Your witness.
THE COURT: You may cross-examine

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v/ithout waiving the objection that has 
ureviouGly been ouide.

CROSS E>lUiIIlATION 
3Y ilR. KL£IR;

ti. Do you leaow Captain Co.ietta oi the Memphis Police
Department?
A. ■ Very v;ell.
Q* Have you ever attended any oi the seminars that
they ijLve cut there at the Training /.ca.demy?

Yes, sir.
Have yau gone through their Training Academy?
Ro, sir.

Q- Do you imow what thry teach out there at the
Training Academy?
A. I pritiariiy iuiow what they teach, yes, sir.
Q- Do you all have a separate Training Academy your-
seii, members ol' the Shorin’'s Patrol?
A*
Q.
A.
Q.
A.
Q.

i‘i £  G O  •

Have you ever instructed at tiiat Academy?
Yes, sir.
’v.'hat did you instruct at that training session? 
Laws of arrests primarily.
Laws. Ail right. Are you iarniliar with the

Tennessee Statute on the apprelvsnsion and arrest of a fleeing

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I'elon?
A.
Q.
A.
Q.
felons.

I think so.
And what does that statute say, just in summary? 
The Tennessee Statute on arrests?
Yes, sir. I'm taikini_, atout apprehending fleeing

A. Well, I have been involved with it for 21 years.
I can't cite it to you, but —
Q- (li'iLorposini;) I'm not asking you verbatim because
I probably couldn't do it myself, but just what in essence

•%does it say?
A. That an officer is to apprehend a fleeing felon.
Q- All right, foes it say by what force or by what
means he can apprehend a fleeing felon?
A. Yes, it says, but 1 don't recall the exact wording
of it *
Q. well, can an officer use legal force to apprehend
a fleeing felon?
A.
Q.
A.
Q.
A.
Q.

Yes, sir.
Whether he is armed or unarmed?
That's right.
It doesn't make any difference, does it?
That is correct.
All ri:̂ ht. And it's reaxly up to the officer to

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act, and usually when an officer is confronted lie has got to 
act in a split second or on a secend's notice, is that correctV 
A. That is correct.
Q- And he iias to think quickly and do v;hat he thinks
is z'ight in that split second's tiins? Is that correct?
A. That's correct.
Q" All right. Now, you said you went cut to this
scene where tViis shooting occurrea?
A. I did, sir.
Q- V/hen did you go out to the scene?
A. Probably three weeks ago.
Q- Ail right. At Mr. Bailey's request?
A. Yes, sir.
Q- Ail right. And for the purpose of what?
ia.Tiil lari zing yourself with the scene so you could come up 
here and testify, is that correct?
A.. Yes, sir.
Q. Are you under subpoena?
A. Yes, sir.
Q. Ail ri,.;.,ht. Now, as you pointed out, you don't know
what the circumstances were the niglit that this shooting took 
place, is that' right?
A. I icnow nothing about it ,at all.
Q- Ail right. Now, Ij. Mr. Bailey pointed out to you

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that you wero to assume certain things and that the officer 
in question vjas coming around the west side of the house, and 
he comes to this small fence, v/hich you say is still out 
there and intact, is that right?
A» That is correct.
Q* How high is that fence?
A. It's four feet high. I didn't measure it, and I’m
assu/r.ing, it's four feet high.
Q* All right. And you're lojiiiliar with this bach
lence tliat runs along the bach line of the property line?
A. Chain link.
Q- How toJLl is that fence?
A. I didn't measure it, but 1 would guess it's slsc
feet.
Q* You would guess it s six feet?
A. That is vjhat I assumed when I saw it.
Q* Ai.1 right. How, again, assuming that the suspect
was shot over in this far corner, 'which is the far corner of 
the fence where it comes ciose to this little outhouse, you 
know vjhat I'm talking about there?

Right, yes, sir.
Q- Ro you liave any idea ho'w far distance-wise it v;ould
be from the, say, southwest corner of this house or Just beyonî  

tne soutnv;est corner of this house, over to the corner of the

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outhouce?
A. I diUn' t know until today v/here the incident
occurred as iar ao the fence v;as concerned, but to answer your 
question, I v.'oulo: gucsg 50 feet

I r,ee. I sea. Aii risht. Kovj, you said that when 
you ’were basinf̂  your opinion upon —  you said in your opinion 
the officer should have nioved to'ward the felon to apprehend 
him?

Q- Were you assumins t'nat the felon or the suspect was
still on the -round, or v;ere you assu-ninti he was attempting to
climb the fence?
A. I was r.sEurninG the suspect was still on the ground.
Q- Still on the ground. So if he remained on the
ground —  in other words, the officer comes up, he has got a 
flashlight in his right hand, he has got his service revolver 
in his left hand, and he shines his flashlight over to that 
far corner, and he sees the suspect over in that far corner 
by that chain link fence and let's say he is in a squatting 
position —
A. (Interposing) All ri{_,ht.
Q* And at that point that is when you say he should
have moved tov.-ard the suspect to apprehend him regardless of 
whs.t his partner may have been doing, assuming his partner was

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coaiing around the east side of the house?
A. Yes, sir. That ts the v/ay I see it, yes, sir.

And that is what you're predicatin^i your testimony 
on, is that rî iht? The fact tiiat that suspect was still 
squattin^^ dov/n by tliat ience and that the officer had his 
flashli;*ht on him?
A- ' As I said, I didn't ienovi v;here the suspect was
bei'ore you ^ot up, but if thatSwhat you're saying, you're 
ashing me if I feel the officer siiould have pursued him at 
this poinc squatting down?
Q- Yes, sir,
A. I thiniv he should have.
Q* A.11 right. You said you didn't know where the
suspect was prior to my'’ interrogating^ you? 
id As far as the fence —

MB. BAILEY: Your Eonor, I
wish Mr. iG-ein would not argue with the 
witness, and give him an opportunity to 
respond thoroughly to his questions.

THE COUiiT: Well, if the
witness has not load a lull opportunity 
to respond, he certainly will have a 
full opportunity to respond before 
couiisel proceeds to the next question.

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Q* (By Mr. Klein) Mr. Jones, don't let -me cut you
oix in uny vicvy nnci I don't intcxid —— I don't mean to be 
arguing with you.
A. Fine, I Icnow that.

I i/hiiih you 'undcrotana tlxat. But aiy cius stion to 
you is that when you gave yoLir opinion in i;esponse to Mr, 
Bailey's question, you said that that was based upon the 
Eusnect being over in the i'ar corner oi the yard, but that 
you didn't, knev; anything accut hir. being on the fence until 
I started interrogating you, is tiiat ■.•;hat you're saying?
A. '-̂hat is rny understanding, the way I took it,
Q- Ail right, nil ri;./.it, ho as far as you're concernec
in ^Ivin^ your opinion, thn suspect was doing nothing but 
remaining in a squatting position?

MB. DAILEY: Your Honor, I
don't believe Mr. Klein is correctly 
restating my assumption of facts. I 
also indicated that cac suspect had 
grasped the fence v:ith his hands.

THE COUIVT; V.cli, he may 
croE£-c:ca;aine and ii counsel is incorrectly 
stating any of these matters, you may pursue 
it.

MR. DAILLY: Very well.

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(By Klein) If I cay something OTongj you 
correct As 1 say, I W'ant to ue sure I understand w'nat
your opinion is tased upon. That is really what I'm driving
at, Mr » <j on̂  ̂o .
A. I Wf under tĥ
ing at or near ti:ie lence.
Q- All r i■Kht.
A. 7"' . 4 .k.7 W4 W j. iinve no J
ucceased sitting on the ground or o.s you called it, leaning 
over.
'i* All right. Avll right, has your opinion based upon
the suspect navin^ nis hands on she i'ence or touching the 
lencc in any u'uy?
A. I don’t believe that v;ould have changed my opinion.
''I- All rlfjht. V/hat ii tiie suspect was climbing over
the i'ence?
A. I thinit it would have.
Q. You think that wooi(. cuatige your opinion?
A. 1 do.
Q. . Jiii right, 'uiiat wouiu .'youv opinion be if the
suspect v;as climbing over ti:c xcnco?
A. i\nd 1 iiad toid nir.i to ■halt, police ?
Q. Yes, sir.

On one occasion or ;iLorc?

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Q* Yea, sir.
A. Well, I 'Chink cue first thin̂ , I wouiu have consi
dered was the si:;e oi the suspect, and probably tried to 
consider the oi the suspect in this short period of time 
that you call a split decision which is a hurried decision, 
and I just don’t inow what I would have done,
Q* All ri..;ht, sir.
A- 1 never have snot anyone and I hope I never have
to shoot anyone.

V.’ell, it goes without ŝ iying, I don't think any
■»

good responsible law officer cherishes the thought of having 
to shoot anyone. That is true, isn't it?
A. That is right.
Q- iuil right. But you're frankly saying you don't
know what you would have done, is that correct?
A. That is right, if the suspect was climbing the six
ioot chain link fence.
Q- All ri;jht. And let's assume that the officer is
not in a position to really tell what is on the other side of 
that six foot chain link lence except that he believes that 
there is brush or undergrowth or such as that on the other 
side, which would maice it difficult for him to maneuver or to 
find the so-called fleeing suspect. Is that another factor 
that would enter into the officer's judgment?

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A. Vfella here again, I would only have to assume that
tiie officer probably didn't tenew what was behind the fence at 
that time, as we Icnow today it was a ditch behind the fence,
Q. Hiere was a ditch behind the fence?
A. Thera was.
Q, ifiiere is the ditch behind the fence?
A. Just to the other side.

Now, we're taliiin: about this ctiin link fence?
That is right, the chain link fence.
How deep a ditch is behind that?
I couldn't get that close to see the size of it, 

but there is a ditch, a draina..̂ e ditch there.
Q. All right. And you actually savf that when you
were out there?
A. That is vihat I took it to be, yes, a ditch.
Q. v;as it something that you could negotiate, the
ditch? In other words, was it a real deep ditch or are we 
talking, about a shallow —
A. (Interposing) This j;ara has dogs in it and I
aidn't get that close to it, but I saw that there was a ditch 
there.
Q. I see. VJeli, quite likely at night the officer
v/ouidn't be able to see that ditch, would he?
A. I v:-oaicln' t think so.

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Q* All right, £0 again, assuming. I'm asking you to
assume that the officer in this brief iroment when he looked 
back there —  of course, only with the aid of his flashlight, 
and lec'c assume o.lso that there '•.■as a porch light that had 
been turned on ner.tdoor, at trie house to the rvest of this 
house, but that it didn't really illuminate all of the back 
yard, it v.’asn't particularly illuminatin:' as far as this back 
fence is concemau, but in the o.'fleer's mind, or at least he 
thougnt he sav; brush and undergreuth and it was sort of some
what of a thiclr.ct bach there, that would be another factor 
that 'would enter into his —
A- (int'erposing) I think so, yes.
Q' Tho.t mi^ht be a factor that he ’would consider in
whether or not he exercised tlie use of lethal force or used 
liis firearm, would it not?
A. "Je're still going on the assumption that the
Defendant v:as climbing the fence?
Q. Yes, sir.
A. I 'would think that is right, yes, sir.
Q. It could well be that in the offlcer'-s mind that
once the suspect ;..o't over the fence, that he would quite 
possibly be unable to apprehend him, not knowing altogether 
what is back in that arcs an the other side of the fence?
A. That is quite posslijlo.

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Q- And that if he didn't resort to the use of lethal
force, then the suspect znay ^et av/ay?
A- That is correct.
Q- And If the suspect aiay ;et away or there is a chanc^
or an officer '■nay fninlc. in his o’\'n -nind that the suspect may 
£,st away and the officer is convinced that he is a fleeing 
felon, then under State lav; he would be Justified in using his 
firearm, v.'ould he not?
A. Under five lav;, he would.

MR. KLEUT; Tha.t is all I have.
THE COURT: Excuse me before

you start, Mr. Bailey.
Gentlcnven, 1 asked counsel to 

come in on the case. Uc Inave a communica
tion from the Jury and we're awaiting Mr«
Earv;all and I would like to advise with 
you o.s soon as Mr. Harwell appears. All 
right, '̂ou may proceed.

RE-DIRECT L-XAMINATIOK 
BY MR. BAILEY:
Chief Jones, for purposes of clarity, assuming 

again that the officer is 'at the southwest corner at the 
chicken wire fence, suspect being some 30 feet awayj assuming 
further that the suspect has stopped in heed of the officer's

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command to halt and has turned toward him and looked at him 
xor soma lapse oi time, vjould your testimony be changed any 
that the officer should loave —  if he could have stepped over 
the fence by his own admission, assuming that he would have 
been Justified in remaining tiiere and not advancing tovjard 
the suspect?
A. ilo. I think he should have gone to the suspect.
Q- IJou’, assuming further that the suspect was in the
process 01 scaling the fence and liad completely stopped in 
obedience to the officer's demand to halt, and he stopped on 
the fence, would the officer have been proper or should he 
have under those circumstances, since the suspect had stepped, 
moved tovjard the suspect in order to secure his prisoner?
A- I believe that I would have continued to move towar
the suspect, especially if I ienew and had seen that he was not 
armed.
Q* fJdd it wouldn't luve made any difference what
portion of the fence he was on as long as he had stopped in 
obedience to the officer's demand to halt?
A. Here again, I just v;ant to say that I was not on
the scene and it -would probably be different had I been, but 
I would have pursued the suspect.
Q. And I do believe you said hastsness was of the
essence in a situation like tha.t?

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A. V/ellj it's like Mr. Klein said, here is a decision
that is :tiade instantly, which most of them are.
Q* 7ihen a suspect halts, isn't hasteness and quickness
of the essence in moviOî  ijrmiedlately toward the suspect to 
secure him, knowin.̂  that he isn't armed?
A. That would be the procedure I would have followed.

MR. -BAILEY: Very well.
Thank you.

THE COURT : Anything, further?
MR. BAILEY: One.iarther

question. Excuse m.e. Your Honor.
Q- (By Mr. Bailey) I believe I mentioned or used the
concept "Cerimunity standard" and v;hat I have reference to Is 
what is reasonable under the circumstajuces. I believe vie both 
understood that to be the mcani.ny of community standards, is 
that not correct?
A. Correct

MR. B/\1LLI: Mr. Klein.
RE-CHOSS lECrdliriATlON 

BY MiU ItLEIH:
Q. Mr. Jones, again, now vie're talking about assuming
certain things, but again let's assume tliat vihen that officer 
gets around to the corner of the house, the officer who has 
get the flaslilight and the firearm in his hand, and that he

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calls out, las secs the man runninc; out the back- doer ,and head
ing for the back fence, and he calls out for that man to halt, 
and that man doss pause momentarily —  we're talking about 
seconds now. We're not talking about minutes. Let's assume 
we're talking about seconds.
A. R ight.

—  because you and I both Imow that these things 
don't happen in a matter of minutes.

MR. BAILEY: Your }Ionor, is this
a commentary or is he asking him a question?

•%
THE COURT; I'll sustain your

objection to the comment.
(By Mr. Klein) And then assume further that after 

he l^lts before attempting to scale the fence and before the 
officer has had a chance to cross over the little fence, the 
three to four foot fence, then the suspect starts to leap over 
the fence, is halfway over the fence.

How, are you still saying that you would move 
toward him or -would you do whatever is necessary to apprehend 
the Bee ins felon even if that means using firearms?
A- I would have moved tovjard the suspect.
Q* Even after he has already started to go over the
fence?
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Q* Ilovij you said in your estimate it was 6o feet,
A. VJellj that is my estimate.
Q- Do you thinlc you could have caught him? You could
have apprehended —

MR. 3AILLY; (laterposini^)
Your Honor, this- is argument.

THE COURT: I'll sustain the
objection.

MR, ICLEIH; '.-Jell, novj. Your
Honor, he is saying v;hat he would have

■»

done under the circumstances and we're 
calling about a 60 foot difference and 
I v;ant to Knovj if in his opinion whether 
he thinks that he, the officer, could 
have apprehended him 60 feet avvay where 
the man is already —

THE COURT: (Interposing)
I'm not prohibiting you from asking 
’Whether he thinks under the assumed 
circumstances he could or could not 
liavG apprehended him.

MR. ICLEUi: All right. That
is irgf question.
(By i>ir. ivloin) Do you biiink tiiat the officer couldr\'f

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havs anprehendsd him some, ar. to say, 60 feet away ?jhere the 
officer is still on the other side of the chichen wire fence 
and the suspect is in the process of leaping over, vaulting 
over the vxlre fence?
A- I don’t know whether he could have apprehended him
or not, but I’ll put it this way, he could have been a lot
closer to the suspect. 60 feet Is no great distance in the
first place, and the fence would have been very easy to get
over, the three or four feet hogwire fence, is wnat it is,
for that officer or me either, because we’re both tall, but

«
all I can say is that he would have been closer to the suspect 
In getting closer to the suspect, the suspect, I believe 
you're saying that he is climbing the fence at this tins.
Q- Right. Assume he is climbing the fence before the
officer has even stepped over the chicken wire fence.
A. I thiiak he could have been much closer to the
suspect because It takes the suspect time to climb the chain 
link fence and, of course, it takes the officer time to climb 
over the hogwire fence.
Q. Eight.
A. ivhat I’m trying to say is that I think the officer
could have been closer to him than at the fence where he -was 
at the corner of the house.

iGll, but isn't it likely, Mr. Jenss, taac by the

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ti;ne what the oj-Ticer over tho chicken wire fences the
suspect is already over the si:: loot chain link i'oncs?

MR, BAILEY: Your Honor^ I'm
coins to object to that. V/e'rc ssttinc 
into an area that Is hi.jhly speculative.
He said —  Mr. Jones l.ndicated that the 
officer would have been closer^ and It 
seems to me to go beyond that, to try to 
speculate v;hat the suspect would have done, 
wile the-r he v/ould have kept movinc forward 
or tryinc to escape apprehension or whether 
he would iiave stopped because of the offi
cer's beinc closer, is a matter of great 
speculation and I think improper.

•THE COURT: I'm Going to
overrule the objection, Mr. Bailey. I 
agree v;ith you in what you say, but this 
v:noie area is hlrhly difficult, as the 
witness has testified here. The witness 
is being called upon ss an e:-:pert to 
testify at 11 o'clock at night what he 
would have done in the darkness after he 
goes cut sometime later to examine cn the 
scene as to what a oollce officer should

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or sVioulcl not do, and I oerrnittcd him to 
testify and give his opinion over objection.

Counsel can cross-examine him as 
to all the other possibilities or probabili
ties that may have existed at the time, 
vfacthcr the standard a-dmittedly —  was the 
officer acting reasonably under the 
ctrcar.stancGG . You may ash.

Q* (-by Mr. iflsin) Ail rijnt. ''rnat I’m saying is —
do you recall my question?
A. Ardc ? ■ p 1 n . n ̂ p
Q- All rl_,iit. hha.t I'm saying is that if the suspect
has begin to cli:.ib over the fence, and let's say he is halfway 
over the fence —  that is, that his mid section is doubled 
over the fence and he is in the process of climbing over —  

before the officer has even begun to step over the chichen 
wire fence, anu xicv.' we're taliiing about probabilities, isn't 
it likely that by the time the oiiicrx’ could step over that 
chicken wire fence the suspect has already scaled the six 
foot fence and ir fleeing through the brush in the adjacent 
yard?
A. I can only assume that that is possible.
Q- Aiil right. Then vdiat are the prospects of appre
hending that fleeing felon?

298 399



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I can only ansv:er as to what I would' have clone.
v.’hat are the prospects of apprehending that 

fleeing felon at that particular point?
Tice law says you should apprehend him.

•̂* The law also says you can use firearms to apprehend
hirnj toOj doesn't it?
A.
Q-
A.

That is correct.
£o you don't Itnow v:hat fnc prospects —  

(Interposing) I don’t know.
MR. KLEIII: All right. That

is all.
THE COURT; Any further questions? 
Gentlemen, if it's going to be 

any more extended back and forth now, I'm 
sorry. I thought we vrould complete this 
witness. I have called these others in.
Uo you have any further questions you want 
to go into with this viitness?

MR, BAILEY: Your Honor, I thinic
we have no I'urtlier questions. I think his 
testimony is quite clear.

THE COURT: All ri^ht. You ;say
steo dov;n.

Gentlemen, if you'll vacate the
400



o o
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