THE COURT: Okay. Mr. Dungan, any further witnesses?
MR. DUNGAN: Your Honor, because of some of these last witnesses I’m going to have to have Mr. Mercier and Mr. Henderson testify to a couple of things that have come up.
THE COURT: Okay. Which one’s first? Mr. Mercier, step up. You’re still under oath.
MATTHEW
PATRICK MERCIER RECALLED
At 8:15 p.m. by the Defense, previously sworn, testified:
DIRECT EXAMINATION
BY MR. DUNGAN:
Q. Matt, you heard Joel Mead testify?
A. Yes.
Q. And you know that young man?
A. Yes.
Q. All right. Was there a car out front that he was interested in?
A. There was, yes.
Q. And was there a time that he stopped by asking about buying it?
A. There was, yes.
Q. When was that?
A. It was some time in September.
Q. How do you know that?
A. I still had a cast on my leg. He also had asked a question about the puppy that I had which I had just gotten that puppy at the beginning, the middle of September, and he wanted another one, some long story about that, but I remember sitting in the car because I still had a cast on my leg and I didn’t even get out. So..
Q. Was Jim there?
A. He was there, yes.
Q. Had you guys driven together or separately?
A. I believe we’d driven separately at that time.
Q. Okay. This didn’t happen in January?
A. No. A little chilly out the end of January to be standing out talking and conversing, so…
THE COURT: I thought it was a mild winter in January and February, Mr. Mercier.
THE WITNESS: A mild winter?
THE COURT: Yeah. It froze and was real mild and rainy and then all of a sudden it froze.
THE WITNESS: All December was nasty and rainy and then the beginning parts of January were nasty and rainy and then we got that ice storm at the end of January, beginning of February.
THE COURT: Okay. But this is in between perhaps.
THE WITNESS: It may have been, but I don’t think it was. I mean, I know we were there in September, so…
THE COURT: All right. Mr. Dungan?
BY MR. DUNGAN:
Q. He said his daughter was born on January twenty-second, right?
A. Which would have been the end of January because he said it happened after that, so…
Q. Right, okay. And what do you drive?
A. The Dodge Ram pickup truck.
Q. Silver?
A. Silver Ram pickup truck.
Q. What does Jim drive?
A. Jim drives a maroon Sebring was his typical transportation. You can’t get hay with a Sebring.
Q. Do you know where David Pierce lives?
A. Yes, I do.
Q. Do you drive by his house?
A. Yes, I do.
Q. Jim drive by his house?
A. If he’s going to the farm he would drive by his house if he was going wherever, he would, yes.
Q. Okay. Where is there to go for you guys besides that farm when you go past Mr. Pierce’s house?
A.
Anywhere. You can go to
Q. And then you heard Brigitte Gozowsky testify.
A. Mm-Hmm.
Q. All right. Do you have any recollection of what it is she’s talking about? About Jim being out by the gate sometime between January and March of ’07?
A. I sure don’t, no.
Q. And particularly if she’s driving by at seven o’clock in the morning, are you going to be there?
A.
I may, but I would have, one, driven in the gate on
Q. Is Jim going to be there at seven o’clock in the morning between January and March?
A. No, absolutely not.
Q. How do you know that?
A. Because if anybody was there it was me, so Jim may have been on his way to work, he may have been still in bed. I don’t know. But it was still dark out at that time anyway, so it didn’t get dark(sic) till almost eight o’clock in the morning in January, February.
MR. DUNGAN: Okay, thank you. I don’t have any other questions, Your Honor.
THE COURT: Miss Lamp?
CROSS-EXAMINATION(At 8:18 p.m.)
BY MS. LAMP:
Q. Mr. Mercier, do you ever swap vehicles with Mr. Henderson?
A. When he’s out of town I may drive his Sebring, yes.
Q. Okay. And is there times where he ever may drive your Dodge truck?
A. No, pretty much not.
Q. You said—-
THE COURT: You said pretty much not. That means he does?
THE WITNESS: No. He would, I can’t--
THE COURT: Ever?
THE WITNESS: I would say the last time he ever had my pickup truck to drive it when I had it was 2003 probably. But I was, I was the one driving the pickup truck. So..
THE COURT: Just guessing, Mr. Mercier?
THE WITNESS: It was a long, long time ago.
THE COURT: Just guessing?
THE WITNESS: Yeah. Because it was a long time ago. Yeah.
THE COURT: Okay. What makes you remember that?
THE WITNESS: Because originally the truck was financed in my parents’ names and they were really angry that Jim was driving it at that time and they said do not let him drive that truck.
THE COURT: Okay. Miss Lamp?
BY MS. LAMP:
Q. And you said when you had the vehicle. Is there some time that you no longer had the vehicle?
A. Well, I don’t any longer because that was so trashed and then I ended up selling it to Jim, so..
Q. When did you sell it to Jim?
A. When?
Q. Yes.
A. Actually right prior to the seizure actually, he decided to pay it off and it was his.
Q. So just prior to, when you say prior to, how prior to?
A. Within a week to two weeks.
Q. And Mr. Mercier, would you agree that it would be light in January around three or five, I guess we would say January, March and February of 2007 around three and five in the afternoon?
A. Three o’clock. If I remember I think five o’clock it’s starting to get dusk.
Q. It might be, but it’s still daylight. I think we only get dark at five in December. But maybe I’m wrong. Do you disagree with that?
A. I don’t know. I think it’s probably getting dark, so…
Q. Okay, all right. And…
MS. LAMP: That’s all I have. Thank you.
THE COURT: Mr. Dungan, anything further?
MR. DUNGAN: No, thank you.
THE
COURT: Now, in addition to all these
other places when you come down
THE WITNESS: Correct.
THE COURT: And you’ve seen Mr. Henderson drive, leave your place and drive to that ranch, haven’t you?
THE WITNESS: Leave what place?
THE COURT: Your home.
THE
WITNESS: When I lived at
THE
COURT: Yeah, okay. So there could be many times he drove up and
down
THE WITNESS: Over what time period?
THE COURT: What Mr. Pierce was talking about.
THE WITNESS: Over the January to March time period, I mean, he could have driven down the road but---
THE COURT: Thank you. Step down, Mr. Mercier.
(At 8:20 p.m. witness excused)
THE COURT: Mr. Dungan?
MR. DUNGAN: Call Mr. Henderson briefly, Your Honor.
THE COURT: Mr. Henderson, you’re still under oath. Step up here.
JAMES
EDWARD HENDERSON, JR. RECALLED
At 8:21 p.m. by Defense, previously sworn, testified:
DIRECT EXAMINATION
BY MR. DUNGAN:
Q. Mr. Henderson, you heard Joel Mead testify?
A. Yes.
Q. About he issue with buying the vehicle?
A. Correct.
Q. Was there a vehicle like that at the farm?
A. Correct. It was there.
Q. Whose vehicle was that?
A. My vehicle.
Q. And do you recall this day he’s talking about when he stopped by?
A. I mean, I don’t know the exact date, but I remember it was in the fall, it was clearly in the fall.
Q. Okay. Not in 2007.
A. No, it was not.
Q. Not in the winter time.
A. No, it was not in the winter time.
Q. All right. What vehicle do you typically drive?
A. I drive the Sebring.
Q. All right. And Matt--
A. Like exclusively. Like as Matt had testified to, his father does not allow me, part of the agreement was I’m not allowed to drive that car. Until after I bought it. Now I can drive it every day.
Q.
Okay. And you heard David Pierce
testify you drive past his house on
A.
Yeah, and you know what? The
reason why he says I drive the truck is because he’d just seen me two weeks ago
in the silver truck coming out of Carol’s house who’s another neighbor. I drive by their house to go to the library,
I’m a member of the library. I go there
almost every week to check my, or often, I go there to check my email. I get my groceries sometimes at
Q. All right. So you can at least eyeball what you can see from the road.
A. Correct.
Q. Were you ever at the farm as Miss Gozowsky said between January of ’07 and March of ’07?
A. Absolutely impossible. I mean, if you listened to her thing she said seven thirty in the morning. I have to be to work by eight. Where am I going to be at seven thirty? I’m going to be on my way to work, not walking in a muddy farm or frozen barn getting dirty before I go into an office and have to go to court. That’s just not going go happen.
Q. If you’re not out of town or out of state, what time do you have to be at work?
A. I don’t have an absolute time I have to be there. We start at eight. I do have some flexibility and then I stay late a lot of times too. And I’ll work weekends too sometimes.
Q. All right. Well, through the week do you have a typical pattern you follow as far as what time you leave and what time you get there?
A. No, I don’t. I mean, typically I go, I mean I go in in the morning, I stay late all the time. I mean, I’m, I probably, there’s days I stay to ten o’clock, there’s other days I may stay till one in the morning because I do other stuff at my office, not just that. I work on presentation off the clock.
Q.
Going from your house on
A. I would not drive by the farm unless there was a reason, you know what I mean, like if horses—-
Q. It’s not on your regular route to work.
A. Right. It’s not on my regular route for work, no.
Q. It would be out of your way.
A. It would be out of my way, correct.
MR. DUNGAN: Thank you. I don’t have any other questions, Your Honor.
THE COURT: Miss Lamp?
CROSS-EXAMINATION(At 8:24 p.m.)
BY MS. LAMP:
Q. Mr. Henderson, are you conceding then that it’s possible that Mr. Pierce did see you driving by the farm?
A. He could have seen me drive—-he could have seen the red car drive by the farm to go get mail, to go get groceries, to go to the library, correct.
Q. As I recall his testimony, he said he actually saw you driving by. If--
A. He saw me driving by in a silver truck, which was a flat out lie.
Q.
Okay. So are you, so you’re not
conceding that, you’re saying that he could not have seen you driving down
A. He seen me driving down Maute Road about two, three weeks ago in the silver truck while he was riding a bicycle, he was riding a bike down his road, a red bicycle if I’m correct, like a ten speed or a mountain bike. He seen me pull out of his neighbor’s house, Carol, and it was after she wrote to the Voice of the People and said Animal Control was, wrote the negative thing about Animal Control and how the horses were always turned out in different pastures, and I stopped by to thank her for recognizing that and writing the Voice of the People and being honest. And he seen me drive out in the silver truck, which now I own and is mine to drive. I still don’t typically drive that. That particular day I was going to get rid of some garbage at my sister’s dumpster.
Q. Two weeks ago?
A. No, no, no. This is when-—
Q. Well, when are we talking about?
A. This was two weeks-—it was, oh, yeah, about two weeks ago to maybe…
Q. Same incident?
A. Yeah, yeah, yeah, same incident.
Q. Oh, okay.
A. I drove by, I drove the truck that day to my sister’s house which I drive by the farm to get to my sister’s house, to dump stuff in her dumpster and I had gone into Carol’s house a couple times that week, but she wasn’t home. She, I don’t know where she was, she was on vacation, and in fact her neighbors even kind of told her this guy’s coming to your house, and I had driven the red car a couple times, but that day I drove the silver truck and when I drove out of the driveway Mr. Pierce was right there, we made direct eye contact. I nodded and waved because he seen me in the silver truck and now that’s where he came up with I was driving that.
Q. And who’s Carol?
A.
Carol is a neighbor. She’s the
post, she’s the, she delivers mail in
Q. Okay.
A. And she lives a little further down and she’s the one who wrote a letter to Voice of the People.
Q. As you already testified to, yes. And you said you were driving coming to your sister’s house?
A. Correct.
Q. Where’s your sister live?
A. She lives, I don’t know the name of the town, it’s out past, I don’t know. Ask her.
Q. Why don’t you tell me how you get there then and we’ll figure out where it is.
A.
I don’t know the name of the road.
I drive down
Q. And—-
A.
I drive down
Q.
Are you heading north or south down
A.
From
Q. Okay. And what’s your sister’s name?
A. Diane Showerman.
Q. Can you spell that?
A. No.
Q. You can’t spell your sister’s name?
A. No.
THE COURT: Shower man.
MS. LAMP: Okay. Thank you, Judge.
BY MS. LAMP:
Q. Why weren’t you allowed to drive the truck?
A. Huh?
Q. Why weren’t you allowed to drive the truck?
A. That really, you’d have to ask Mr. Mercier that. I mean, he told--
Q. You don’t have any idea?
A. He did not want anyone, maybe for insurance purposes, he wanted, he signed it for his son and he wanted his son to drive the car. If I did not want to sign something for me to drive a nice new forty thousand dollar truck, see what I mean?
Q. Sure. But when you testified I understood and maybe I misunderstood you, that you specifically were not allowed to drive that vehicle. Did I misunderstand that?
A. He did not want me driving the vehicle. He wanted that truck to be for Matt.
Q. Okay.
A. Matt did not let anybody drive that vehicle except for Matt. He was the one insured for it, he was the one that drove it.
Q. So you don’t know why?
A. You’d have to subpoena them. I’m sorry, I can’t answer for him.
Q. Now, Mr. Pierce struck me as a fairly articulate, intelligent person. Would you agree?
A. I would, yeah.
Q. Okay. And I think when I asked him about the dates I asked him, I’m fairly certain that I asked him if the times that he saw you driving by, he specifically was able to identify you, was between January first, 2007, and March twentieth of 2007. And I believe that I asked him that and I believe that he testified it was between those dates.
A. He would be mistaken. He also said that I drive a silver truck and he said that Matt drives a car. All testimony shows that even when Animal Control came, whose truck was there? The silver truck. Who was driving it? Who is it insured by? Matt. Who is its name titled under? His parents. Whose is the red car? Mine. So I mean, he’s mistaken, and that’s okay, he’s not lying, he’s mistaken and misled.
Q. Sure. Okay. And are you able to-—
THE COURT: I’m sorry. He’s mistaken and—-
THE WITNESS: And misled.
THE COURT: Misled.
THE WITNESS: Yes.
THE COURT: Okay.
BY MS. LAMP:
Q. So you’re able to opine that based on what?
A. I’m sorry?
Q. How do you know that he was mistaken or misled? I mean, how do you know? Did he tell you?
A. Because he testified that I drive a silver truck. And he testified that Matt drives a red, maroon car. Matt does dive the maroon car when I’m gone. I do not drive the silver truck. He didn’t know who drives what vehicle, so he testified—-
Q. How was he misled? I could see that, you know, from your opinion he might be mistaken, but how would you opine that he’s misled?
A. Maybe a bad choice of words. I’m sorry.
Q. And so it being July sixteenth today, two weeks ago would have been approximately July second. So it’s your understanding that he has mistaken you driving by on approximately July second with multiple dates between January and March, March twentieth, 2007.
A. He seen me in a silver truck and then he derived from that, oh, that must be Jim’s, that must be Jim’s vehicle. Because like other people they see the vehicles and they decide, oh, that’s who’s there, you know. Same thing.
Q. Did he tell you that he concluded based on upon A and B, he arrived at C?
A. No.
Q. You’re just filling those blanks in.
A. Correct.
MS. LAMP: Nothing further.
THE COURT: Mr. Dungan, anything further?
MR. DUNGAN: No.
THE COURT: You mentioned before that Mr. Pierce outright lied. Is that correct?
THE WITNESS: Well, when he said the car was mine, it’s not my car, and he said it as an absolute, not as a I think Jim drives the truck and I think Matt might drive, he said absolutely unequivocally he said Jim drives the silver truck, Matt drives the maroon car. Absolutely not true.
THE COURT: Well, but you said that--
THE WITNESS: Well, that--
THE COURT: Now, you’ve changed and he’s mistaken.
THE WITNESS: Well, all right. Lied could be a tough word because lie kind of implies intent. And I don’t want to say that it was an intentional, I don’t think the man came up here to try to perjure himself, I’m not saying that at all.
THE
COURT: You must be convinced now that
Mr. Chaltry is lying, aren’t you?
THE WITNESS: Mr.… Who’s that, Joel Pierce?
THE COURT: Chaltry.
THE WITNESS: No, not at all.
THE COURT: You’re not convinced he’s lied after what you’ve heard today?
THE WITNESS: Absolutely no, not at all.
THE COURT: Okay. Why is, why didn’t you tell us about the time you were at the farm when Joel Mead stopped by?
THE WITNESS: That was back in September. That was never--
THE COURT: Why didn’t you tell us about it because Mr. Dungan asked you all the times that you were at the farm and you did not include that. Why is that?
THE WITNESS: He was asking me correctly, he asked me from January forward. Then he asked back do I recall the last times I was there, and I said well, I was there in October, I was there a lot in the fall catching horses. I never said I wasn’t there in the fall. I was there in the fall.
THE COURT: But now you remember it was September. That the car was there and that’s when Mr. Mead came up.
THE WITNESS: No, and I, you know, and I even knew that before when I seen the witness list. I’m, oh, he’s going to come in and talk about the time that he tried to buy the car from me in the fall.
THE COURT: And you told that to Mr. Dungan.
THE WITNESS: Correct.
THE COURT: And now you remember it’s September, but before you didn’t tell that to Mr. Dungan.
THE WITNESS: Yeah, I told that to Mr. Dungan. I didn’t--
THE COURT: And you told also about Mr. Pierce to Mr. Dungan seeing you two weeks ago.
THE WITNESS: I don’t know if I told him that I seen Mr. Pierce two weeks ago. I told him that what Mr. Pierce would be able to testify to is that I was there in the fall and would help catch horses a lot when they got loose, because that’s what I figured he would testify to, and then I was there.
THE COURT: And then you had the revelation as you came up to the witness stand-—
THE
WITNESS:
THE COURT: Mr. Henderson. You then had the revelation when you came up to the witness stand, oh, yeah, he saw me two weeks ago in the silver truck.
THE WITNESS: When he testified that the silver truck is mine, I’m just kind of like, what, where did he get that, and I’m like, oh, it’s when he seen me coming out of Carol’s and I acknowledged him.
THE COURT: And you didn’t know that until you sat down.
THE WITNESS: No, I knew it, but I didn’t think that he would assume because he seen me driving a truck one time that it was mine. So when he’s up here and the man’s testifying under oath that that’s my car and the one I always drive and the other car is Matt’s car and I don’t think that the man is intentionally trying to perjure himself, because I don’t, I don’t think he’s that type of person. I then had to think, well, why would he say that, and I’m like, oh, I know why, he seen me drive that truck the other day and he just decided from there, oh, it must have been Jim driving that silver truck.
THE COURT: And that’s what you told Mr. Dungan before you came up to testify. While Mr. Pierce was still testifying.
THE WITNESS: I may have said that, yeah.
THE COURT: You may have.
THE WITNESS: Yeah. I don’t remember what I said. We were talking about testimony and I’d say, hey, you could ask him this, you could ask him that, and I may have said that to him.
THE COURT: And ask him if he saw you two weeks ago driving the silver truck.
THE WITNESS: Yeah, I may have asked him that. I may have.
THE COURT: But he wasn’t asked that, was he?
THE WITNESS: I don’t think he was asked that.
THE COURT: Okay. Were you involved in anything with the Gozowsky law suit?
THE WITNESS: I had to go testify, correct.
THE COURT: Was this child a party to that law suit?
THE WITNESS: Correct, yes, she was. Well, I mean she wasn’t, the law suit was between Matt and her mother.
THE COURT: Okay.
THE WITNESS: She was one of the major testimony people and I was not involved in any of that stuff. I was there mostly because then they were trying to say that I tried to trump his dealings with them.
THE COURT: She was a witness.
THE WITNESS: She was a witness and I was a witness.
THE COURT: Okay.
THE WITNESS: It wasn’t my lawsuit, it wasn’t hers.
THE COURT: Anything further, Mr. Dungan?
MR. DUNGAN: No.
THE COURT: Miss Lamp?
REDIRECT EXAMINATION(At 8:33 p.m.)
BY MS. LAMP:
Q. Mr. Henderson, is it true that Mr. Pierce had your phone number?
A. Yeah, he did have my phone number.
Q. And is it true that he would call you on occasion?
A. If the horses got out. He came over, once we seen him there having a foal, he came over and told me that, and he called me when the horses got out and was eating the hay next to his yard, correct. His brother owns the hayfield right next to him and he would call me and say if they’d gotten loose that day or something.
Q. And how did he get your number?
A. I gave it to him.
Q. And when did you give it to him?
A. I don’t know. I mean, I could have given it to him years ago and then I could have re-given it to him, because he’d come, sometimes come out there and maybe help me get them in. Like if I was out there by myself and sometimes they may get stubborn. Most horses will follow the herd, but you might have one or two that are stubborn, they’re going to do their own thing. And then what happens, if you go back to get those two but you got to leave the gate open, then the other ones are all going to think hey, he’s not watching the gate and they’re going to bolt back out. So if you could have another person there, it’s pretty helpful.
Q. So you don’t recall when you gave him that number.
A. I don’t recall. I just know I gave him my number and, you know, and said, you know, hey, if there’s ever any concerns, if there’s any problems, give me a call.
Q. And was the purpose essentially that if your horses got out, just give you a call?
A. To give me a call. Especially, you know, it may have even been like in 2005 when Matt was living further away, you know, so when Matt was living at his parents’ house or living at my place, he was like, you know, five minutes away so you could call him. Well, then when you move a half hour away and I’m five minutes away, you know, it makes much more sense to call me and say, hey, Jim, your horses are out, much less time for something to get hurt or injured.
MS. LAMP: Nothing further.
THE COURT: Okay, Mr. Henderson. You may step down. Watch your step there and have a seat.
(At 8:34 p.m. witness excused)