Wednesday, June 6, 2007 – at 8:06 a.m.
(Court, counsel, parties present)
THE COURT: This is James Edward Henderson, Jr., 073772FY, and Matthew Patrick Mercier, 073773FY, scheduled for preliminary examination in those matters, as well as appearing on the request of the summons and complaint of the prosecuting attorney’s office for forfeiture as outlined in the complaint. Jennifer Lamp here from the prosecuting attorney’s office. Are you ready to proceed, Miss Lamp?
MS. LAMP: I am, Your Honor.
THE COURT: Anything preliminary?
MS. LAMP: No, Your Honor, I don’t believe I have anything preliminary.
THE COURT: Let’s see, James Henderson, are you present?
MR. HENDERSON: Yes, I am, Your Honor.
THE COURT: Mr. Mercier.
MR. MERCIER: Yes.
THE COURT: And Mr. Hurst.
MR. HURST: Yes, Your Honor.
THE COURT: You’re here on, for both of them on the examination?
MR. HURST: I am, Your Honor.
THE COURT: And Mr. Dungan, you’re here for both of them on the forfeiture.
MR. DUNGAN: That is correct, Your Honor.
THE COURT: Are you ready to proceed, Mr. Hurst?
MR. HURST: Yes, Your Honor.
THE COURT: Anything preliminary from you?
MR. HURST: No, sir.
THE COURT: Mr. Dungan, are you ready to proceed?
MR. DUNGAN: Yes, sir.
THE COURT: Anything preliminary from you?
MR. DUNGAN: Your Honor, I would just ask the court to sequester witnesses.
THE COURT: Do you have an officer you’d like to have stay with you?
MS. LAMP: Your Honor, I have two officers that have worked extensively on this case. If I could have them both remain.
THE COURT: That will be fine.
MS. LAMP: Thank you.
THE COURT: Do you have any other witnesses in the courtroom?
MS.
LAMP: Any other witnesses that I’m
calling should be in the hallway.
Anybody who’s received a subpoena on the
THE COURT: I know it may be difficult, but if you can kind of keep an eye on who may come in and out as far as potential witnesses.
Are you all set now?
MR. DUNGAN: Yes, sir, thank you.
THE COURT: All right. Miss Lamp?
MS. LAMP: Thank you, Your Honor. The People call Deputy Walter Deland to the stand.
THE COURT: We’re okay to go as long as we need till four o’clock today.
MS. LAMP: Yes, Your Honor.
THE COURT: What did we decide on tomorrow? I got something from you but I erased it but that had to do with Friday.
MR. HURST: Yes, that had to do with Friday, Your Honor.
MR. DUNGAN: Yeah, we should be all set for Thursday afternoon.
THE COURT: Thursday afternoon, but you wanted to start--
MR. DUNGAN: One?
THE COURT: Could we start late morning Thursday instead of the afternoon?
MS. LAMP: Your Honor, I have a trial upstairs in Judge Rappleye’s court tomorrow morning. I anticipate that we’ll be done by the end of the morning.
THE COURT: Okay.
MR. HURST: I’m in Battle Creek in the morning, Your Honor, starting at ten thirty.
THE COURT: That’s right.
MR. HURST: But I anticipated that I would be here no later than one o’clock.
THE COURT: You had something too, Michael, didn’t you?
MR. DUNGAN: I think I can be here at one o’clock as well, Your Honor.
THE COURT: Okay. Friday, Dennis, you are going out of town Friday?
MR. HURST: Yes, Your Honor. I’m leaving Jackson County at noon after a hearing in front of Judge McBain and Judge Grant at nine o’clock.
THE COURT: Depending on where we are by end of business Thursday, let’s, possibility of Tuesday afternoon and Wednesday morning.
Stop and raise your right hand please. Do you solemnly swear or affirm the testimony you will give at this hearing will be the truth, so help you God?
DEPUTY DELAND: I do.
THE COURT: Come on around, watch your step coming up. That chair is on rollers, so be careful, okay?
THE WITNESS: Okay.
THE COURT: The microphone’s not going to make you any louder, so you need to make sure you speak up loudly and distinctly for us. State your full name.
THE WITNESS: Walter Frederick Deland.
THE COURT: Spell your last name please.
THE WITNESS: D-e-L-a-n-d.
THE COURT: Thank you. Miss Lamp?
MS. LAMP: Thank you, Your Honor.
DEPUTY WALTER FREDERICK DELAND
Called at 8:11 a.m. by the People, sworn by the court, testified:
DIRECT EXAMINATION
BY MS. LAMP:
Q. Deputy DeLand, where are you employed?
A. Jackson County Sheriff’s Department.
Q. And in what capacity are you employed?
A. Deputy sheriff.
Q. How long have you been so employed?
A. Six years.
Q. And were you on duty on or about March thirteenth of 2007?
A. Yes, I was.
Q. And on that day did you have occasion to be dispatched to the area of 12815 East Michigan Ave in Grass Lake Township?
A. Yes, I did.
Q. And what was the reason for the dispatch?
A. Traffic hazard, horses in the roadway.
Q. Okay. And approximately what time of day is this?
A. Dusk.
Q. Okay. And what happened when you arrived there?
A. When I arrived there were no horses, made contact with the neighbor and he advised that the horses had been put back in.
Q. And do you know the name of the neighbor?
A. No, I do not. He’s directly across the street from the address.
Q. Directly across, okay. And did you make any contact, did you, were you able to see where the horses had come from?
A. The fencing isn’t very good. They could have got out any number of places.
Q. Is there a farm, a horse farm located at the area of East Michigan Ave and Maute Road?
A. Yes, there is.
Q. Is that I’m guessing directly across the street from the address that you responded to?
A. Yes.
Q. Okay.
A. I believe that’s the address that they gave me.
Q. Okay, all right. And let me ask you where, whether you had the chance to observe the fencing at that particular farm?
A. Yes.
Q. Okay. And could you describe the fencing that you observed?
A. Poor.
Q. Okay. And when you say poor, could you be a little more specific please.
A. I could walk right through it. I mean I could step over to walk right through it. I don’t know how it contained a horse.
Q. Okay, all right. Had you been to that location before?
A. Yes.
Q. Okay. And for what type of reason had you been there before?
A. I had been there for traffic hazard before, horses loose in the roadway.
Q. Okay. Was there any other farm out there at that corner that had fencing?
A. Not that I’m aware of.
Q. So that was, that was, would that be the apparent place that the horses were coming from?
A. Yes.
Q. Okay. No other place that you could see that--
A. Not that I’m familiar with having horses that close to that area.
Q. Okay. Did you make contact with anybody from that farm at the corner of East Michigan and Maute?
A. They advised the responsible party was enroute.
Q. Did you wait?
A. Yes, I waited.
Q. And who did you make--
THE COURT: Who’s they that advised you?
THE WITNESS: Central dispatch advised.
BY MS. LAMP:
Q. Okay. And what happened, did somebody arrive?
A. I stood by until the responsible party arrived and that would have been Matt Mercier.
Q. Okay. And what happened when he arrived?
A. I made contact with him. He advised that he had the horses contained up by the barns, he don’t know how they got out there.
Q. Okay. Did you have any discussion with him at that time about the fencing?
A. I just made the comment that I did not know how the fence kept the horses in as poor as the fence was.
Q. Did Mr. Mercier have any response for that?
A. Not really.
Q. Okay. And is the person that you made contact with that you identify as Mr. Mercier here in the courtroom today?
A. Yes, he’s in the front row on the far right.
Q. And could you indicate what color shirt he has on?
MR. DUNGAN: Your Honor, we’ll stipulate to ID, this is Mr. Mercier right here.
THE COURT: The record will reflect that the deputy has identified Mr. Mercier. Miss Lamp?
MS. LAMP: They look a little alike, that’s why I wanted to make sure we knew which one. Thank you.
BY MS. LAMP:
Q. And Deputy DeLand, after that occurred, did you take any action or make any other report to another agency?
A. Yes. I made a phone call to animal control officer Heather Wheaton, expressed to her my concern for the condition of the farm, the fence and its ability to maintain the horses.
Q. Was there a safety concern that also was arising for you as well?
A. Yes. That’s not the first time I’ve been sent out there for horses in the roadway. If they get out in the roadway at night a motorist is not going to see them.
Q. So it could pose a danger both to the horse and the motorist?
A. Yes. I actually, prior to my being dispatched by central dispatch I was actually flagged down by a motorist and advised that there were horses in the road in that area, so when dispatch gave it out I told them I would respond that way.
Q. Okay. And is that farm located in the county of Jackson, state of Michigan?
A. Yes.
Q. And do you know approximately how many times you’ve responded there for similar complaints?
A. No, I do not have any idea how many times I’ve went down there.
Q. Would you be able to quantify as whether it was over five?
A. I could probably safely say I’ve probably been down at least five times.
MS. LAMP: Okay, all right. Thank you, deputy. I don’t have any further questions.
THE COURT: I don’t know how you gentlemen want to do this relative to both of you ask questions?
MR. DUNGAN: Yeah, I think we’re going to have to.
THE COURT: You first, Mr. Hurst?
MR. HURST: Yes, Your Honor.
CROSS-EXAMINATION (at 8:16 a.m.)
BY MR HURST:
Q. On the five occasions you described as earlier going to this location, did you find horses in the roadway that were owned by Mr. Mercier or Mr. Henderson?
A. Well, when I arrived there before, usually I could honk my horn or hit the siren and they’d walk back in through the fence, so I assume that horses had belonged there.
Q. Okay. And, but did you ever make a determination whether or not the horses on the prior occasions you had been called to the scene belonged to Mr. Mercier or Mr. Henderson?
A. No, because there’s no, normally nobody around the farm.
Q. And there are a lot of farms in this area of this little horse ranch. Is that correct?
A. Well, it’s a farming area, but I’m not familiar with anyone else having horses that close to that farm.
Q. But do you know whether or not anyone else in the area has horses on their farms in that area?
A. Well, I’m sure there’s other horses in the area, yes.
Q. Okay. When you went to the location that you described in your direct examination by the prosecutor, did you check and see whether or not there was a reason why the horses had gotten out, such as fences that had been destroyed by fallen trees in an ice storm?
A. The fences that I saw there were in poor condition, were not damaged by an ice storm that I could see. There were no limbs laying on the fences.
Q. But did you make a complete examination of all the fences to determine whether any had just recently been destroyed in an ice storm?
A. No, I did not.
Q. Okay. And you indicated in your testimony that, I believe the words that were used were the apparent place where the horses came through the fence. You were not able to actually determine how the horses got loose, were you?
A. No, I didn’t see them come through the fence.
Q. Okay. And by the time you arrived at the scene the horses in fact were back where they belonged. Is that correct?
A. Yes, to--
Q. So you don’t really know how many horses were out that belonged to Mercier and Henderson. Is that correct?
A. That’s correct.
Q. All right. Did you also examine the fences to determine that there were a series of interior fences as well as exterior fences that were used to contain the horses?
A. No, I did not.
Q. So if there were a series of interior fences inside the exterior fences, you’re not aware of that or did not become aware of that at the time of your examination?
A. That is correct.
MR. HURST: All right. I have no further questions. Thank you very much, sir.
THE COURT: Mr. Dungan?
MR. DUNGAN: Your Honor, I don’t have any follow-up questions. Thank you.
THE COURT: Miss Lamp?
MS. LAMP: Nothing follow-up, Your Honor.
THE COURT: Deputy, you mentioned that at some point a person who you identified as Mr. Mercier arrived at this area. Is that correct?
THE WITNESS: Yes, sir.
THE
COURT: When you talked to him did he
indicate that the horses were contained by the barn and does not know how they
got out, is that right?
THE WITNESS: Yes.
THE COURT: Did you discuss with him his position or interest relative to these horses on this farm?
THE WITNESS: No, sir, I did not. I assumed he was the responsible party, he was either the caretaker or friend of the owners of the horses.
THE COURT: Why did you assume that?
THE WITNESS: He responded to take care of it. I assumed it would be no different than someone responding for an alarm or what, that they would be the responsible person for the livestock or the business.
THE COURT: Did you ask for someone through central dispatch to have a responsible person respond?
THE WITNESS: Central dispatch advised who was coming and gave me a name.
THE COURT: All right.
THE WITNESS: Of the Matt Mercier.
THE COURT: What did he do while you were with him at the farm?
THE WITNESS: He started rounding up the horses.
THE COURT: How did he do that?
THE WITNESS: Walked around behind them, herding them towards--
THE COURT: Towards.
THE WITNESS: Towards the barn area.
THE COURT: Did they go in the barn then?
THE WITNESS: Yes, they went in that area.
THE COURT: The other times that you were in that location for the reason that you stated, had you seen Mr. Mercier?
THE WITNESS: No. The horses were either back in or like I said, I hit my air horn or the horn on the car and they’d go back in and that would be the extent of it.
THE COURT: Okay. Miss Lamp, any follow-up questions on that area?
MS. LAMP: No, thank you, Your Honor.
THE COURT: Mr. Hurst?
MR. HURST: Just briefly.
THE COURT: Sure.
MR. HURST: Thank you, Your Honor.
FURTHER CROSS-EXAMINATION(At 8:20 a.m.)
BY MR. HURST:
Q. On the day you arrived to respond to the report regarding horses in the road, did anyone report to you that there had been any near accidents involving automobiles and these horses?
A. No.
MR. HURST: Thank you.
THE COURT: Mr. Dungan?
CROSS-EXAMINATION (At 8:20 a.m.)
BY MR. DUNGAN:
Q. How many horses are we talking about that Mr. Mercier was rounding up after he got there?
A. I didn’t take a head count. I would say ten, fifteen, maybe twenty.
Q. And was it made obvious to you that he was bringing them to a place of containment?
A. Well, I assumed that’s what he was doing if they were getting out, he’d have to put them somewhere where he could contain them.
Q. All right. Other than this—-
A. Until he could repair the fencing.
Q. –-outer fence that you’re talking about that had some issues with it.
A. Yes.
MR. DUNGAN: Okay. Thank you, Your Honor.
THE COURT: Okay. May the deputy be excused, Miss Lamp?
MS. LAMP: Please, Your Honor.
THE COURT: Counsel?
MR. HURST: Yes.
MR. DUNGAN: Yes, Your Honor.
THE COURT: Thank you, deputy. Watch your step going down and you’re excused.
(At 8:21 a.m. witness excused)