Monday, July 16, 2007 – at 1:00 p.m.
(Court, counsel, parties present)
THE
COURT: People of the State of
MS. LAMP: Your Honor, no, but just I, it occurred to me that there may be witnesses in here that I don’t know of, so if there’s anybody here who’s a witness that I’ve subpoenaed, you should not be here, should be in the hallway. Looks like we don’t have anybody in here, Judge.
THE COURT: Is that the same for you, anybody that you subpoenaed in?
MR. DUNGAN: Were sequestered, Your Honor.
THE COURT: But you’re all set?
MR. DUNGAN: Yes.
THE COURT: Okay. Anything preliminary from you, Mr. Dungan?
MR. DUNGAN: No, sir, thank you.
THE COURT: Okay. And I think we’re with you, Mr. Dungan.
MR. DUNGAN: Your Honor, we’ll call Matt Mercier at this time.
THE COURT: Okay. Step up, please. Raise your right hand. Do you solemnly swear or affirm the testimony you will give in this matter will be the truth, so help you God?
MR. MERCIER: Yes, sir.
THE COURT: Come on around, watch your step coming up. The chair is on rollers, so be careful.
THE WITNESS: Okay.
THE COURT: And the microphone is 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: Matthew Patrick Mercier.
THE COURT: Spell your last name please.
THE WITNESS: M-e-r-c-i-e-r.
THE COURT: Thank you. Mr. Dungan?
MATTHEW
PATRICK MERCIER
Called at 1:01 p.m. by the People, sworn by the court, testified:
DIRECT EXAMINATION
BY MR. DUNGAN:
Q. Matt, what address are you residing at right now?
A.
Q. And prior to that, where were you living?
A. Prior to Springport?
Q. Yes.
A.
13570 Sager Road,
Q. And that was with who?
A. Jim Henderson.
Q. All right.
THE COURT: 135 who?
THE WITNESS: 70.
THE COURT: Thank you.
BY MR. DUNGAN:
Q. All right. And was there, you know who Billy Jo Cockroft is?
A. Yes.
Q. And was there a period of time that you were living with her?
A. Yes.
Q. And her family.
A. Yes.
Q. And what period of time was that please?
A. Sometime in the fall.
Q. Of?
A. Of ’06.
Q. Until when?
A. Up until now.
Q. All right. Do you still live with her now then?
A. Yes, I do.
Q. All right. Do you have experience with horses?
A. Yes, sir.
Q. All right. I know you prepared a memo for me. I want you to take me through the information in that about your experience with horses, starting at the very beginning. Give us as much detail and description as you can please.
A.
Okay. I started riding horses
about fifteen years ago, or maybe a little bit more, with a friend of mine who
worked at the
Q.
That friend at the
A. No, it’s a different friend. So I started riding back in high school, got out of high school. Essentially at that point it was just kind of trail riding and, you know, learning about horses. I got, once I got out of high school I actually purchased my first horse through Jane Barnes, one of my friends and the other witness. And at that point I started to learn a lot, I mean I had my own horse, had to start dealing with, you know, real things with horses, you know, injuries and feeding and learning about nutrition and stuff.
Q. All right. So that first horse that you purchased you kept where you lived at that time?
A. Yes. Well, actually I boarded it for a little bit down the road at the neighbor’s house. At the beginning of it, so…
Q. And then later on?
A. And then later on when I got closer to Jim’s family, Jim Henderson, his family, they barrel raced, we kind of got into that together while his uncle was alive, they took me to shows. And so then I moved my horse over to his family’s side of the farm essentially for quite a while.
Q. All right. When did the barrel racing start?
A. That started probably about ’94, ’95 is when I started barrel racing.
Q. And you’d have been about how old?
A. Twenty, about twenty. Nineteen, twenty years old probably.
Q. And for those of us who don’t have experience in that area, what is barrel racing?
A. Barrel racing is a timed event competition where you essentially run a cloverleaf pattern and the fastest time wins.
Q. Essentially you have to make a pattern with the horse around certain barrels?
A.
Yes, yes. Very competitive. I mean horses have to be in tip-top shape,
ready to go, because I run, I don’t run small shows, I run a lot of big shows,
the futurities circuit is what we call it, which is across the country. I mean you’re running from, anywhere from
thirty to a hundred thousand dollars is the top prize. I also run some smaller
THE COURT: Did you say future circuit?
THE WITNESS: Futurity.
THE COURT: Spell it.
THE WITNESS: F-u-t-u-r-i-t-i-e-s.
THE COURT: Okay.
BY MR. DUNGAN:
Q. All right. And once you began to get competitive then, you started keeping horses at your own home or at Jim’s parents’ place?
A. Right. We had horses in between a couple different spots. I had horses down at my folks’ house because they have property and then we had horses down at which is Jim’s cousin’s place essentially. So he has kind of, and my parents live right down the road from there, so…
Q. Okay.
A. So they were in a localized area.
Q. And then as you begin to get more into this barrel racing then, are you developing a network of people, similar interest and things like that?
A. Yes. I started, I started going to different clinics riding with the top riders in the country basically, learning, you know, the different training techniques and, you know, bettering my riding, bettering my training, among obviously nutrition, stuff like that.
Q. All right. So you’re not just learning how to be a good rider, but also how to take care of horses on a daily basis?
A. Right, absolutely.
Q. And what was your experience with that?
A.
I mean, I started out the typical horse owner who knew nothing. You know, you, oats and grass, hay grass were
what horses ate. And then I learned just
through going to seminars and clinics at like the equine affair, the quarter
horse congress,
Q. All right. And when did you meet Jim Henderson?
A. I’ve known him quite a while. I used to bale hay for his uncle when I was a kid, so probably like twelve, thirteen years old probably is the first time I, I think I met him, I don’t remember because it was, you know, so long ago, but I knew his…
Q. Okay. Probably a better question would be when did the two of you become involved with each other as far as horses are concerned?
A. That was about ninety—-ninety-three, ninety-four, when I first-—
Q. How did that come about?
A. Well, his uncle had sold, when he died his uncle had sold property to a lady who lived next door and she had bought their indoor arena and the property and everything, so I boarded my horse there, which is right across the driveway from his place, and so his uncle actually encouraged him to go out there and help me, and, because I barely couldn’t ride real well then, so he said get out there and help that kid ride, so that’s…
Q. So you took some lessons from Mr. Henderson then?
A. Not really lessons. We just started riding together, you know, and he’d say you should do this differently or you should do that differently. He’d been riding his whole life, so he knew, between him and my friend Jane who’d been riding her whole life, you know, they helped me out just learning how to ride better, so..
Q. And did you help him with his horses as well?
A. Yes.
Q. What were you doing?
A. At that time he was, I believe he was either, I think he was in graduate school at that time, so I became kind of the caretaker of them. I went and fed and watered and did all that stuff, you know, at my folks’ house. I believe I lived at my parents’ house at that time, so I’d feed the horses down there, then I’d go down there and feed and ride and stuff like that. So I think he was in graduate school at that time.
Q. All right. What were you getting in return for that?
A. Jim likes his highbred horses, his high powered bred horses, so I mean, I couldn’t afford to go out and buy the best of the best, I mean these, the horses basically breeding wise was the Cadillacs of, you know, horses. I couldn’t afford to go out and buy a ten thousand dollar prospect and he could, but he didn’t have time to ride them so I got the advantage of being able to ride some of the very best bred horses in the country, you know, with no charge essentially.
Q. In exchange for doing the day to day--
A. In exchange for doing the work essentially, yeah. Mm-Hmm.
Q. Okay. Now, you’ve been to a couple of classes where you’ve been certified in certain areas?
A. Right.
Q. What are those please?
A. In I want to say it was ’95 probably I went to horseshoeing school at the Michigan School of Horse Shoeing, became a certified farrier, so I went to learn to not only trim feet but to actually do shoeing, corrective shoeing for problem horses, stuff like that, and I did that, I actually did that for a little business for a while as I shoed customer horses. And then in two--’99 I believe, ’99 or 2000, I went out to Colorado State University and went to classes there for artificial insemination and breeding and reproduction stuff.
Q. What got you into that?
A. We were breeding a pretty decent amount of horses at that time, you know, we were breeding seven to ten a year basically and my veterinarian actually recommended it. He said, you know, you’re pretty smart, you know what you’re doing, why don’t you go to classes so you can just do it and you don’t have to have me out here and pay me to do it. Plus he was really busy with other customers and he felt it was just, you know, there’s, he figured there was other people who couldn’t do it on their own, he’d rather spend his time going to those farms than coming to us for those things because it was pretty simple for me to learn to do it.
Q. How long was that program?
A.
It was I believe a week or two weeks long I think. It was a pretty intensive, I mean I went out
to
THE COURT: What year again was that?
THE WITNESS: I believe it was in ’99 or 2000. So, and then I also in 2003 or 2004, went to Lexington, Kentucky, and took a equine chiropractic seminar where you learn to do your own basic adjustments of your horses rather than pay somebody to do it.
BY MR. DUNGAN:
Q. They have to have adjustments just like people?
A. Yes, uh-huh. And I did that because that’s one of the growing areas of performance horse stuff that we do nowadays. And that in order to compete at the level that I was competing at, your horse has got to be tip-top, ready to go and the chiropractic and massage stuff, you know, really does give them an extra little advantage and I don’t have to take to a chiropractor and pay a hundred and fifty dollars apiece to do, so..
Q. I mean you’ve established for yourself I guess somewhat of a library, including subscriptions to journals and things like that?
A. Yes.
Q. What are those and why do you have those?
A. Quarter Horse Journal, Quarter Racing Journal. Those are breed specific, but they have a lot of articles of interest for nutrition and foaling and breeding and lameness and stuff like that. They also keep up on what’s going on with the competition world. The Horse magazine is basically a medical type magazine, so you read about lamenesses, you read about diseases and illnesses and how to treat them. It’s a lot of the most emerging research comes out in these sorts of magazines through the veterinary clinics and the hospitals across the country. The, obviously, the barrel racing publications, Barrelhorse News, Quarterhorse News, stuff like that. Just to keep up fresh with the bloodlines and, you know, what’s out there winning and how, you know, how my friends are doing too because I know a lot of people from across the country who run the pro circuit.
Q. So what’s been the primary emphasis then the last couple of years?
A. Primary emphasis for the horses essentially?
Q. Yes.
A. I mean, I’ve dedicated most of my time to barrel racing. Jim likes the race horses. He likes to go and watch his horse run down the track and stand in the wind picture, so I mean I break the colts and get them ready to go off to the racetrack and then I compete on them after that for, in the barrel racing. Also breeding and selling colts and standing stallions. We’ve got two, well, Jim owns them, but two really, really nice stallions. One is, you know, one of the only horses in the country to get certain titles, so it’s been more about just kind of getting the name out there of the stallions and proving them, proving their babies, basically.
Q. So we’re talking about a major investment here.
A. Oh, absolutely, mm-hmm.
Q. Not just of money?
A. Oh, a time investment, absolutely. Absolutely.
Q. And if you are going to be successful with a particular horse barrel racing, I’m assuming that horse is going to need a particular level of care for it?
A. Yes.
Q. What is that?
A. It’s not a standard oats and grass hay thing. I mean, you’re talking the latest in equine nutrition research. Such as we’ve gone a long ways from feeding high protein diet to now feeding a high fat, low starch, kind of the Atkins diet for people, we’ve gone into, you know, a very high fat type thing without the starches and stuff like that to, to help the horses in their competition. In addition to all the, I mean there’s thousands of different supplements out there, and so knowing which one fits with what is almost, I mean it is a science, you know, I mean there are people who go to school to learn equine nutrition as a, you know, a science degree and that’s all they know.
Q. Tell the judge the history of the Turn Three Ranch and how that came about.
A. We moved there in ’99. And basically it was an empty property that the owners, there was a house there, it burned down back in probably the seventies or something. It was completely abandoned. I mean, some farmers had farmed it but it was, you know, it was abandoned, it hadn’t had any animals there in ages and ages and ages. So we were kind of spread out between two or three different farms at that time, so I, you know, we tracked down the owners, I think I did it if I remember correctly, tracked down the owner, and said hey, can we lease your property.
Q. So were you looking for one place as opposed to the three that you were spread all over?
A. Right. I spent more time driving around every day feeding horses than I did, you know, to do the other stuff I needed to do. So we moved there in ’99, it was pretty much bare. I mean, the barns were totally filled with stuff, we couldn’t even get into, there was no interior fences at all, I mean, there was the exterior fences, but there was no interior fences. So we had to move in and we had to dig post holes, put up paddocks, put up fence, put up the run-ins. You know, completely redo the roof on the barn. All while it’s a leased property. So we’re trying to do it, you know, without dumping millions of dollars into someone else’s property that we can’t afford to buy, I mean…
Q. How many acres is out there?
A. It’s ninety-eight acres I believe.
Q. You guys lease all of that?
A. Yes. Mm-Hmm.
Q. What was the monthly rent on that when you first started?
A. Originally it was really cheap if I remember, I think we were paying like seventy-five dollars a month or something. Jim pays it, so I’m not actually sure what it is now. I want to say it’s a couple hundred bucks a months, three, four hundred maybe.
Q. All right. So you knew you had to do some things to it, but didn’t want to do too much in the sense that—-
A. Right. And then we—-
Q. –-you may be leaving there one day and leaving the buildings behind.
A. Right. And that was part of the reasons why the owners of the property gave us a really cheap lease at the beginning was because so much work had to be done around there and they knew we were going to dump tons of money into fencing and the barns and stuff like that, so they gave us a really cheap lease at the beginning of it.
Q. How many horses did you guys start with out there?
A. Probably about twenty-five, thirty maybe I think.
Q. Okay. And then tell me how the farm and the number of horses and what you guys were doing out there progresses over the years.
A.
I mean, we kept buying better and better bred brood mares. You know, I
mean we would sell the lesser quality brood mare and Jim would buy, there’s a
big sale out in Oklahoma which is the top race horse sale for quarter horses in
the country and so he would a lot of times buy on line and then tell me about
it later on that hey, I just bought this horse and, you know, someone needs to
go out to Oklahoma to get it or whatever and then we would sell essentially the
lesser quality mares in order to continue to improve the bloodlines. Then Jim bought the paint with the, I’m not
sure which one he bought first, he bought two paint stallions. He bought one that stood out in
Q. Now, as far as the horses that have been out at Turn Three Ranch, who’s owned those horses?
A. I’ve owned a few here and there. Jim owns the predominant amount of them. I can’t afford to own that many horses or basically afford off of my bill to keep them. I’ve owned up to as many as probably eight at one time. I mean, I sell the horse basically. I have my own horses, I sell them to pay my bills. Right now, you know, it goes back and forth, you know, I’ll pick up a few here and there or whatever and then I’ll ride them and sell them basically.
Q. Okay.
A. So, but Jim owns, Jim has always owned the majority of the horses, so….
Q. Let me take you then to the fall of 2006. What were the arrangements between you and Jim at that point as far as taking care of the horses and the farm?
A. It was a continuation of I basically take care of them. You know, I’m the caretaker, I get to do whatever I want to do. I mean, Jim bought a sixty thousand dollar horse trailer that I don’t think he ever hooked up to and pulled once. But I was able to use the horse trailer to go to shows. You know, I had his horses that were getting ready to go, I would be riding and futuriting them, you know, for this year basically. He was out of town a lot, so I was, it was my responsibility to take care of them. Which was fine because I got pretty good benefit. I mean, not many people can ride a, you know, a fifty, sixty thousand dollar horse and never have to drop a dime to ride it, you know.
Q. So at least the way the responsibility is broken down then, what, Jim’s the checkbook?
A. Essentially, yeah.
Q. And you’re the day to day guy.
A. Yeah. Jim pays the bills, you know, I mean a lot of times the horses pay the bills, but you know, with like the stallion standing or, you know, if there wasn’t money in the account for hay that week or something, Jim would have to come off of it out of his own pocket basically to, you know, to pay the feed bill that week or something.
Q. And as far as the day to day care, the feeding and maintenance and things like that, who’s that on?
A. That is me. That is me.
Q. And essentially what you’re getting in return for that is the opportunity to use these horses that you’d otherwise not have access to.
A. Right, yes.
Q. All right. Again, starting say in the fall of 2006, was there a regular routine that you followed as far as taking care of these horses?
A. Twice a day, every single day. I would be, I would be there anywhere from seven, seven thirty when I start to feed. In the fall I was there a little bit more, I mean I would be there till probably ten, eleven o’clock and then I’d go get lunch and come back because it was still warm out. I would also have to go, at that time in the fall I had to start going buying hay for the winter time. Three times a week I went to Perry Haag’s and bought round bales. Usually I’d drive the wagon in, he’d load it up and I’d drive off with it essentially. Once a week at least, well, once a week or twice a week depending on how many horses were in the barn, I had to go to Art Feldkamp and get square bales of hay. So I would usually be there between seven and seven thirty in the morning, sometimes eight I mean if I didn’t roll right out of bed in the morning and run over there. So I would feed, water, you know, it was still warm out then so there wasn’t, you know, there was not breaking of ice or anything of that nature, but feed the horses in the barn, clean up, do whatever need to be done, you know, go home, eat lunch, go to the grain store, go get hay, whatever, any number of things I had to do and then I would be back there usually depending on the day, I mean sometimes I was back there at five o’clock to feed at night, sometimes I didn’t get there till eight, nine o’clock at night to feed, it just depends on what my schedule was. So, I remember in the, well, it was more the winter time I was there a lot in the dark, so…
Q. Okay. As far as the conditions of the farm were concerned in the fall, how would you describe that?
A. Fall, everything was fine. I mean, there was fence, we had all the horses separated, there was three or four different pastures. Because in the summer time they’re all out on back from probably about the middle of May through Thanksgiving usually, some, usually hunting season, about the middle of November, November fifteenth we brought them all up front. But they were always out on the back acreage, which is, you know, eighty some odd acres eating grass. You know--
Q. I think I’ll stop you right there.
A. Sure.
Q. Now is a good time for the chart.
A. Okay.
Q. Do you see the defendant’s exhibit B?
A. Yes, sir.
Q. And is that a, basically a breakdown of how the farm was set up, at least in the fall?
A. Yeah, pretty close.
Q. Can you see that from where you’re sitting?
A. Yes.
MR. DUNGAN: And Judge, can you see that as well?
THE COURT: Yes.
BY MR. DUNGAN:
Q. I’m not going to promise anybody it’s not going to fall. If you have to get up, that’s fine. If you, keep your voice up. But take the judge through how the farm’s laid out. And just probably going with the outside in.
A. Okay. Well, this is obviously the main gate, this is the gate we pull the trailers which are parked right here--
Q.
Off
A.
Right off of
Q. This is the creek we’ve all heard so much about.
A. This is the creek, yup.
Q. Was there apparently a bridge over that?
A. There’s a bridge that goes over it and there’s two gates that shut it off so horses can either be locked from back there or locked from up here, depending on where we were keeping the horses.
Q. Okay. Now, in the summer time they use this area here?
A. In the summer time there, from usually about the middle of May till the middle of November.
Q. Okay. Why does that stop in the fall?
A. One, hunting season starts. We have a lot of problems with trespassers and hunters; in fact, we’ve had people pull into the gate on the hayfield, park, leave the gate open, and drive off. Back in ’99 horses got loose. So we try to, when hunting season, plus we’re worried about people shooting the horses basically. So we don’t put them in the back during the, during the hunting season and then obviously winter rolls around and there’s no grass back there so there’s no reason for them to be back there essentially.
Q. All right. So that gate’s shut off?
A. That gate’s shut off during the winter time, yes.
Q. Okay. And that leaves the horses with this area here.
A. Right. That leaves the horses up with this entire area here. This is eighteen acres from the square, from the creek forward is eighteen acres.
Q. All right. Go through the different sections of the chart then—-
A. Okay.
Q. –-and tell the judge what it is, what they’re used for and what other details.
A. All right. This up here, horses don’t come from here all the way over to here. This is basically, I mean, we keep garbage there, you know, the pool has got garbage in it. The horse trailers are up here. This well barn is, that’s where the well is basically, that’s why we call it the well barn. We don’t have any running water in this barn, we just have it in this barn. And this was a storage barn. I mean, if it was garbage it was in there, it was, I mean we had, you know, our shipped semen stuff for the stallions that was stored in that barn, my hot water heater, I had a desk with, you know, we have receipts and paper work and stuff in there. But we didn’t use it for actually, for the horses.
Q. What’s that camper there for?
A. It was actually there because I lived out there all last summer when my leg was broken. I had a friend Shannon Pastur who lived out there with me, so she slept in a horse trailer which has living quarters and I slept in the camper.
Q. And these two things you have marked trailers, those are just horse trailers?
A. Yup, those are horse trailers, yup, yup.
Q. This area right here?
A. The building, it was an old carriage house. It was up when we bought, or when we started leasing the place, but it obviously being a hundred and fifty-two years old, it eventually fell in. There was, they had, the owners had cars in there and they had a sleigh in there and they had a bunch of stuff that wasn’t our stuff to touch essentially, I mean, it wasn’t mine to give away, it wasn’t mine to throw away. There was really nothing I could do with it. The horses didn’t come here. I mean, the only time the horses was anywhere near this was if we walked them out from the driveway to go in the horse trailer or if someone left the gate open, they might get up there or something of that nature, but we didn’t keep horses up in this area. Kept round bales and stuff.
Q. What keeps the horses from this area here?
A. There’s a, for the arena part, there’s what we call the arena, there’s a fairly tall fence, it’s probably about yay big, and then there’s some shorter fence from here over, and up here there’s a gate that goes in between these two paddocks and there’s actually a fence that runs here, but it’s a pretty close representation. There’s a gate and then a fence that shuts them off from this area. Over here there is a fence row. It wasn’t up at this time because I had taken it down to replace it.
THE COURT: Where’s that? I can’t see what you’re talking about.
THE WITNESS: Up near the driveway. As you can see there’s posts in there and stuff like that. But they didn’t, this was just kind of storage, it was trailers where the campers were, where, we had a hot walker which is something you hook a horse to, to walk it in circles after you’re done exercising it to cool it off, we had that up there, and of course my infamous shoes were there.
BY MR. DUNGAN:
Q. And what’s this area right there then?
A. This area here is two large paddocks with, they had run in sheds, this one actually has two run in sheds and each of these is, this paddock here is an eight foot tall wall, so eight foot high, and the paddocks are probably about forty to sixty feet long.
Q. What’s your definition of a paddock?
A. A paddock is a small, contained area for a horse, as opposed to a pasture is a very large grassy, usually grassy area. A paddock is usually a dry lot so it’s just dirt, you have to feed hay if you’ve got a horse in there.
Q. And a run in is what?
A. A run in is a lean to shelter, so it’s a three sided shelter so it’s a wind break, they can get out of the wind and rain.
Q. Now, these paddocks are not areas that are roofed?
A. No, no. Just the lean to, the run in shelter is roofed.
Q. Okay. And the rest of this area is just fenced off from--
A. Right. Well, these are, huge walls make the fence on the outer edge, on the west side of it is a huge wall. This one’s eight foot tall and the other one’s ten foot tall and they run the entire length of the paddock, so they’re forty to sixty feet long, I’m not sure of the dimensions on it.
Q. All right. And this area right here?
A. This is what we used-—in the summer time it was my arena, this is where I rode horses and trained horses essentially. In the winter time we used it as turn out.
Q. What does that mean, turn out?
A. That might be a little, not completely. Because this kind of separates into the two, but….
MS. LAMP: Your Honor, I’m just going to interject at this point. It does indicate which way is north, and it would probably be helpful at least for me in my notes to know which part of the property we’re talking about, if it’s the south, east--
MR.
DUNGAN: This is the gate at
THE COURT: It’s got to be south.
THE WITNESS: This would be the south.
THE COURT: Yeah.
THE WITNESS: And that would be north.
MS. LAMP: So would that, could you refer to that so that I know what you’re talking about and when we go to read the transcript later we know which part of it you’re talking about?
THE WITNESS: Okay. So here we’re talking on the west side of, of the barn essentially. This arena, it kind of comes together if I’m, remember correctly, but we use that as, to put horses in during the winter time. Because I wasn’t riding in the arena because the ground’s frozen, it’s hard. And so we just used it as space to put horses in basically. And there’s another run in shed in that west paddock basically, a three sided lean to.
BY MR. DUNGAN:
Q. All right. And then moving south, what are these other areas?
A. This is actually, this is all pasture. This, the dotted lines indicate what we had before the ice storm in I think it was January sometime. There was a lot here, a paddock where we had some geldings in there. We had three or four horses in there.
THE COURT: North above the arena now?
THE WITNESS: Yes. We’re north above the arena.
THE COURT: The west side of the farm.
THE WITNESS: Yes.
THE COURT: Okay.
THE WITNESS: What we had was there was this dotted line is, was an existing fence row and it was both electric wire and white braided wire. What happened was when the ice storm came in, the horses, you know, the power went out, the horses tore it down, and so they were essentially all just running in that area.
BY MR. DUNGAN:
Q. So everything here that’s the dotted line was a fence that was an electric or wire fence?
A. Right. Which in their pictures, the prosecution’s pictures actually have, you can see all the T posts where it used to be. But so basically then this is, we call it a paddock because it is pretty dry. In the summer time there’s grass grows there because we don’t keep horses on it, but in the winter time obviously there’s no grass. So we go back to the middle on the north side of the barn we have another big paddock. This has several run in sheds. One of them had fallen down. There was three or four other ones. Then we have another one that was right next to it which is where we kept the water for the horses. It seemed to be the best place to keep the water for the horses because it didn’t freeze as easily because the barns and stuff had blocked the wind from going, and then of course we had the run in which was divided between the paddock and the big pasture basically, this paddock here on the north side. But which all horses could get in there, they could get in the run in over here, they could get over, and most times of years, you don’t see it here obviously in the drawn picture, but there’s a wooded tree lot that’s like a thicket basically the horses could get into if they wanted to.
THE
COURT: Where?
THE WITNESS: Over on the east side of the property. The southeast side.
THE
COURT:
THE
WITNESS: Yeah, it was between the barn
and
MR. DUNGAN: Okay, good. Have a seat. Thanks.
BY MR. DUNGAN:
Q. All right. Now, that chart and what you have described for us, does that accurately represent the condition of the farm and the layout of the farm as far as the fall of 2006 was concerned?
A. Pretty close, yes.
Q.
All right. And then again,
concentrating on the fall of 2006. I
wanted to ask you about some particular horses that have been brought up
through the course of this trial. You’re
familiar with
A. Yes.
Q.
All right. Talk about
A.
THE
COURT:
MR.
DUNGAN:
THE
WITNESS:
BY MR. DUNGAN:
Q. Twenty-five to a horse is like what to you and me?
A. Eighty, ninety years old. I mean, that’s ancient, that’s an old horse right there.
Q. All right. And Easy?
A. Easy is twenty-four years old. She had actually just come to us last summer. Neither Dee nor Easy were pregnant and Easy we had kind of gotten in a deal, Jim made a deal with somebody in Texas to buy a young horse and they threw the old horse in essentially, or two old ones, and I gave one to a friend to haul them back for me or something.
Q. Okay. What about—-
A.
She lived in
Q.
And then was welcomed in
A. Yes.
Q. And what about Moose?
A.
Moose was the four year old grulla mare.
I think Jim bought her last spring, in the spring of ’06 I believe, if I
remember correctly, because I actually had to go to
Q. But all three of them were definitely present on the farm owned by Jim in the fall of 2006.
A. Yes, mm-Hmm.
Q. All right. And you’re heard testimony throughout the many times we’ve been here in court about their condition in March of 2007, that being a thin condition.
A. Mm-Hmm.
Q. All right. What did they look like in the fall of 2006?
A. Everybody looked fine. I mean, we were just getting off summer
obviously where they all got out on grass and were fat and shiny. You know,
Q. Moose?
A.
Q. All right. And then you’ve heard testimony too about the horse that you guys call Elvis?
A. Yes.
Q. That Animal Control calls Lucky Seven?
A. Correct.
Q. And who apparently had an issue with his pelvis.
A. Mm-Hmm.
Q. In the fall of 2006, had that issue come up with you yet?
A. No, no.
Q. All right.
A. He was fine all 2006.
Q. And you’ve heard testimony about the horse referred to as Ice that had the wire injury.
A. Yes.
Q. Fall of 2006?
A.
Perfectly fine. She, the blind
eye thing, the blue eye which she wasn’t completely blind in it, she did have
that at that time. She had done that a
year prior. Had, another farm out in
Q. All right. What was the plan for wintering the horses over 2006 and into 2007?
A. What we do is we, like I said, with that back pasture that’s to the north, I mean we bring everybody up and keep them pretty centrally located to the barn because we feed round bales. The last thing that I want to be doing is driving to hell and back basically all through the pasture and the woods to drop round bales off. So we bring them pretty centrally located to the barn. There’s also only rolling hills and stuff and woods back there, there’s no run ins or anything and so we bring them all up front in the fall.
Q. Which in on the other side of the creek then?
A. Right, on the, yes, the south side of the creek. De-worm, trim feet, you know, get everything ready for winter basically, fix whatever we need to fix.
Q. Is there a particular routine that you go through not just with the farm but with the horses as well with knowing that winter’s coming up?
A. I mean, we obviously try to fatten them up, you know, all herd management things tell you to, you know, fatten your animals up before winter gets here. So we fatten them up. De-worm, trim feet, you know, especially the things that need their feet trimming. Separate them out basically into, okay, who’s, you know, we got the grandmas, we got the young colts, we, you know, something’s, maybe a barrel horse I’m going to be running over the winter time, they’ll, you know, be in a different paddock or something.
Q. What’s the purpose of separating them like that?
A. Feeding them differently is the most important thing in the winter time. You know, I mean we have, you know, some horses they get twenty-four hour access to round bales of hay but they don’t need it, you know, they come out of winter looking like, you know, they’re about to give birth to four different babies and they aren’t even pregnant, so some of them you, sometimes you try to limit the amount of feed that goes into them. The old horses you try to keep separated so you can give them more. You want them so they’re not in a pecking order, they’re not having to worry about it, stuff like that, you know, it’s just a management type thing essentially.
Q. Okay. What else is done in the fall, if anything else?
A. Clean up. We usually take, you know, a good day or two, friends of mine come out and we pick up whatever got thrown around in the summer time, you know. Summers are hectic. I mean I’m showing horses, trying to get them ready for the racetrack, we’re breeding mares, you know, we’re weaning babies, we’re doing, it’s a lot of hecticness so we don’t get as many things out in the pasture, maybe a barn roof needs fixed or something, we do that in the fall time as well, just to get everything ready to go. So because we know when winter ends it’s going to ugly around there, so…
Q. And then the plan too apparently was to winter the horses primarily outside?
A. Yeah, they always winter outside.
Q. Is there a particular reason for that?
A. One, we’ve got a lot of them. Two, barns are breeding grounds for disease. I mean, you take any wet, moist environment and you are going to end up with disease in it. So I don’t like keeping horses in the barn. They’re healthier outside. I mean, they grow their, there in the fall time when the time changes and we get less daylight, they start to grow their winter hair. You know, they’re fat, they’re ready to go and they, ultimately they stay healthier. Every single horse I’ve had in a barn, I mean, not only me, but all, you know, people tell me how, you know, they got pneumonia and they got this and they got that, but they lock barns up, you know, airtight and horses get sick, so we don’t have too many problems with illness around there.
Q. And then as we move from fall of 2006 into the end of 2006, into the beginning of the winter of 2007. Tell the court any particular issues or problems that arose for you in regard to the farm or the horses.
A. It was a lot more work than normal this year. I had broken my leg last summer, so wasn’t able to put up all the winter hay. Normally we would bale hay, we’d buy hay out of the field and have, you know, several hundred if not a thousand bales of hay in the barn.
Q. Is that just essentially a stockpile—-
A. Yeah, a stockpile of hay, right.
Q. --so you don’t have to go see mister hay guy every day or every other day?
A. Exactly, so I didn’t have to run and do it three times a week or whatever. So it was a little bit more work because I had to do it three times a week, and it was horrible, December and January were absolutely horrible because I actually had to take the truck and go put new tires on the back end of it, put mud tires on it because we’d had so much rain and it was a slop pit everywhere and I was getting stuck and having to pull the truck out and stuff like that. So that was a starting issue with it, it was already a mud pit everywhere with all the rain we had.
Q. Okay.
A. And then it got really cold, so it was wet and muddy and then it froze. So that became another issue of, you know, now I’m skating on rocky ice basically. And the horses were skating on rocky ice for a period of time too, you know, getting the truck and trailer, the hay wagon in and out of there, you know, you’re in four low and it’s still not wanting to move.
Q. All right. Despite those weather related problems, are you still able to get out there twice a day?
A. Oh, absolutely, yeah.
Q. Still able to bring enough food out?
A. Yup. Just a little more work than it would have been if we would have had great conditions though.
Q. You’re still able to pay attention to everybody that’s out there?
A. Sure, absolutely.
Q. Okay. Then what happens?
A. Then we have the lovely ice storm. When we got the ice storm--
Q. Which was when?
A. I want to say it was the end of January, beginning of February, if I remember correctly. It was somewhere in, it was in February, I think the beginning of it. Where we had, you know, I had the dotted lines again with all the pasture fence and it was all electric fence. Well, we lost power. I have a generator there, but my generator was used to run the well. I didn’t use it to run the electric fence because there’s perimeter fence surrounding it, so the horses took advantage of it, I mean the saying the grass is always greener on the other side of the fence, you know, comes from horses, you know, there’s another, there’s something on the other side of the fence, that’s where they want to be. They don’t care what, you know, if you don’t want them there, that’s where they want to be. So what happened was all those individual lines of fencing basically, they came down and the horses spreaded everywhere, but what happened was it came down and then it, we had ice and then it froze into the ground, so I couldn’t even clean it up because it was frozen into the ground and we had, you know, three, four inches or ice at one point, especially down the slope of the little hills where it was just, it was ridiculous, there was no way I could tear it out or do anything. So the horses then ran amok running around through the pasture. I mean they weren’t anywhere where they were not supposed to be necessarily, they were just running together.
Q. Still contained within the farm?
A. Still contained within the fence, absolutely. And I wasn’t worried about it, to be honest with you. I mean, there’s been some stuff about, you know, the young stallions running loose with the mares. They were yearling stallions. Yearling, with a mare, first of all, mares have winter inestras where they do not come into heat, you can’t, you know, very few mares can get pregnant in the winter time. It’s a biological response to being a wild animal, because they, you know, their wild instincts tell them they shouldn’t have a baby in January, they should have it in May, June, July. So we have mares that are not in heat, not going to get pregnant and then young colts who aren’t even at sexual maturity. I mean, they’re yearlings and most colts don’t come into sexual maturity till about two years old. It would be like putting a three year old at the Playboy mansion, he’s not going to know what to do essentially. So I wasn’t worried about them young stallions running loose with-—
THE COURT: Do you know that from personal experience somehow?
THE WITNESS: Do I know…
THE COURT: A three year old at Hugh Hefner’s place?
THE WITNESS: No.
THE COURT: I thought maybe that was in the memo, Mr. Dungan.
THE WITNESS: It was a bad analogy, but…
THE COURT: I don’t know, I’ve never been there so I’ll take your word for it.
THE WITNESS: I’ve never been there myself either.
THE COURT: Okay.
MR. DUNGAN: I’m going to claim Fifth Amendment. It sounded fun from what I heard about it.
THE COURT: Yeah, so we heard. Mr. Dungan?
BY MR. DUNGAN:
Q. Did the fence coming down, the electric fence coming down cause you any trouble other than the fact that some of the horses are mixing together?
A. Some of the horses are mixing together and Ice found a piece of wire that I hadn’t found yet at some point and it got wrapped around her leg. So, and that was, that became an issue of obviously it was cut and had to deal with it.
Q. Other than that, any other issues because of that fence?
A. Not really. I mean, it really didn’t. It was just, you know, I mean there was—-well, I guess it did in a way because, you know, a couple of the horses had to be separated because their pecking order was now in full effect. I mean, you had fifty horses in a pecking order at that point. And so that’s where Moose ended up getting separated out of them, Dee and Easy got separated out of them and then I later on at about the beginning of March, I ended up having to separate out the yearlings, a few of the yearlings because of the pecking order. They were starting to lose a little bit of weight, so..
Q. Okay. Once the fence is down, the electric fence that went down in the ice storm, what ability do you have at that point to keep certain horses separate from others? What’s still in place that you can use for separation?
A. We had the individual paddocks still. These ones right here on the southwest side of the barn, those are not electric wire fence, they’re, this was either walls and in the front there’s some mesh, mesh fence. So those were still up. I mean, we had these if I wanted to use them, which I didn’t, but we also had the barn.
THE COURT: North of the horse barn you had if you needed them?
THE WITNESS: Yes, if I needed to, correct. But there was also the barn which is where usually I would separate horses into if I needed to separate them.
BY MR. DUNGAN:
Q. What’s the capacity to keep horses in that barn?
A. I believe we have what, one, two, three, four, five, I think we have six stall-—five or six stalls on the south side, two of those are pretty large foaling stalls. On the north, north, what would that be, northeast corner of the barn is a pretty large run in area, it’s a lot inside the barn that we can either block them in the barn or we can let them run in and out of the barn and that’s probably, oh, I don’t know, probably forty foot long by maybe thirty foot wide I would guess. I’m pretty bad with measurements, so..
Q. How many horses could be in there comfortably?
A. What we usually kept in there was young horses, you know, anything like two years old, three years old, that, you know, so you could put five or six in there pretty easily if they’re running in and out of the barn. If we just kept them in all the time, then you could probably only put three in that part of it. Then we had another area that was, where we kept one of the stallions and that was probably about twenty foot wide by thirty, twenty, thirty foot long I’m guessing, that was separated into a really, really large stall basically and then in addition to that on the northwest corner we had a very large area where what we did use that for was we weaned our babies, stuff like that, and that’s probably about fifty--forty foot long, thirty foot long by twenty foot wide, thirty foot wide maybe, where we weaned babies, stuff like that, it was a big open area. Yeah, it’s on that chart up there, it would be number eight.
Q. Okay.
A. Where there was eight horses.
Q. As winter went on did you start to develop certain issues with keeping weight on certain horses?
A. Mm-Hmm.
Q. Tell the judge about that.
A.
Well, when that, everything was fine December and most of January, until
that ridiculous amount of cold weather we had hit. And it didn’t just slowly come in, it was
like boom, all of a sudden, you know, you’re in the dead of winter. The end of January, beginning of February was
when we started to have some problems.
Q. That’s the two old ladies?
A.
That’s the two old mares. At that
time they were, at that time I think they were still out in, maybe in the lots
with the mares with all the rest of the horses, if I remember correctly. Then I believe I brought, brought them into
the paddock and I think I brought
Q. Why did you do that?
A. To keep her warm so she didn’t burn so many calories just trying to stay warm basically.
Q. And then when you bring her into the barn too, does that change her access to food?
A. Yes. Well, it gives, it actually allows me to give her more, you know, because outside with everybody she can’t get grain or anything like that without taking her every day and moving her twice a day, so being inside the barn in a stall she was able to be grained. She was given, I had brought Coca Soya which is a very high fat supplement that you just top dress on to horse’s feed to try to keep her weight up. The problem was it got so cold that no matter how much I shoved in front of her face, she couldn’t keep weight on. I mean, she was on--the bright green hay that was found in that barn, that’s what she was eating twenty-four hours a day pretty much. I mean, she may go an hour or two without food, but I was constantly chucking her food left and right. And I was feeding her, you know, four, five times a day small amounts, you don’t want to just throw large amounts to them because their stomach can’t handle it, so I was feeding her small amounts four, five times a day, just trying to keep the weight on her, but you know, it was just, it was dumping as fast as, you know, as fast as I could feed it to her, the weight was just going right off of her.
Q. Did you have similar issues with Easy?
A. Yes, uh-huh. Pretty much the same thing.
Q. Exact same thing?
A.
I didn’t bring Easy into the barn and blanket her. I did try blanketing her outside. She was not having any part of it. I mean, twenty-four years old, I assume
probably living in
Q. Was she brought inside though?
A. She wasn’t brought inside because I really didn’t have the space the way things were. So she was, she had been separated into the paddock originally. She was kind of off by herself basically.
Q. And then what about Moose?
A.
Moose was a whole different story.
Hers had nothing to do with age or anything like that why she looked so
poor. What happened was she was out in
the pecking order, she was out there getting beat up basically, and so I
noticed it. She had, I mean, a horse isn’t
like a human, you know, you’re going to, it takes a little while longer to
notice a weight loss on a horse, you know, you’re not, it’s not like you or I,
the minute we, you know, we lose weight it’s pretty obvious. She had probably lost fifty, forty, fifty
pounds and this was about, it was probably about the beginning of February, end
of January, beginning of February when she had, I noticed she’d lost forty or
fifty pounds. And so at that time you’ve
got to separate her from the herd. So I
brought her into the barn and put her in, that stall’s really not marked up
there, but put her in one of the south stalls to feed her extra, because she
hadn’t lost a ton of weight, I mean forty to fifty pounds is like five to ten
pounds to us, but you could notice it.
It was obvious, you know, she’d started the winter off without a whole bunch
of fat because she’s a thinner built horse anyway, so I put her in one of the
stalls in the barn. When I did that, she
just pretty much didn’t like it. She had
never been separated from her buddy. Her
and her buddy Lucy came from the same farm, had been raised on the same farm in
Q. Because of the pecking order?
A. Because of the pecking order. She wasn’t going to get her share. And when it’s twenty below, I mean I’ll be honest, when it’s twenty below zero, the last thing I’m going to do is run out in the pasture twice a day, put a halter on a horse and lead it up to the barn and wait for it to eat and then put it back outside, it’s twenty below zero out there, you know, she can stay in the barn. That was my theory on it, well, you can go in the barn and get extra food. Well, what happened was as a result of being brought in the barn, she got angry that she wasn’t with her buddy, she stressed out. She paced her stall, she threw herself around, she was just literally ticked off about being away from her buddy. When that, so she picked her food, she didn’t want to eat, she was just mad about, she was mad at the world basically, unless I would have put her back outside and we’d have been in the same boat. So as a result of all the stress and stuff she began to gas colic, and essentially-—
Q. What does that mean?
A. Well, gas colic is basically a buildup of gas in the colon and in the intestines. It’s like you and I get gas, you know, a colicky baby basically, you know, they get gas built up and it’s uncomfortable, not life threatening, but it’s uncomfortable. And as a result of the gas colic she further quit eating. I mean, I gave her supportive care, you know, she had some Banamine, she had probiotics, she had additional products to try to keep her gut moving. Meanwhile she was picking her hay, she was eating, you know, a little bit, she was drinking some water, but she was getting skinny. Gas colic’s not an emergency, you know, I mean it’s nothing that any owner that has a pretty decent amount of horses shouldn’t be able to treat themselves. So I didn’t call the vet out. I mean, I didn’t want to waste the vet’s time and I frankly didn’t want to waste the fifty dollars for him to come out there and tell me everything I was doing was right, you know, she’ll get over it, so--
Q. Were you comfortable with what you knew about her and those horses that you could handle that issue?
A. Yeah, absolutely. You know, gas colic is a pretty standard routine thing. I mean, you give it a shot of Banamine which is essentially a, it’s a NSAID(sic), like Ibuprofen basically and all it does is kill off a little bit of the pain and it will relax the gut a little bit. She was on daily probiotics which is basically like yogurt for you and I, it has lacto bacillus in it that keeps the gut moving so that she wasn’t getting an impaction colic basically. And so she just, she dumped all of her weight as a result of the gas colic and the stress. Well, as soon as she got over it and was fine being inside, then the really cold weather hit. You’re not going to put weight on a horse that that’s thin or any horse for that matter when, you know, it’s so freezing cold out that, you know, your nose freezes off the minute you walk outside. I mean—-
Q. But she was continuing to eat?
A. She was continuing to eat. I mean, she picked her food. And then she started eating good, after she got over it and realized she wasn’t getting her way, you know, she wasn’t going to get outside and she was stuck in that stall, she started eating just fine, you know. They’re kind of like kids, you know, that way. You know, I mean if you give in to your kid every time, they fully expect it, you know.
Q. We had some complaints then about horses getting loose.
A. Mm-Hmm.
Q. Towards early, middle March. What was the issue with the horses being able to get out?
A. I thought I was crazy. The electric fence charger kept coming unplugged. And I had had to move it around and stuff because we had the electric in the main horse barn was out at that time and I was waiting on somebody to come out and fix it, so I had to actually put it in the well barn and run it across. It kept coming unplugged and three days in a row it came unplugged and I mean, I thought I was crazy, I went, I know I just plugged that thing in. And then I thought well maybe it’s the coons, maybe it’s the wind, I don’t know what the heck it is, and so there was a few horses that were over in a lot right here that was electric fenced. When the electric fence comes unplugged, the first thing they do is they know it, you know, and they therefore walk out. Well, when they walked out-—
Q. So you’re talking the fence that’s the dotted line to the far right there?
A. Yes. To the east of this paddock here, right here.
THE COURT: East in the middle of the diagram?
THE WITNESS: East in the middle of the diagram.
BY MR. DUNGAN:
Q. So is that one that was not taken down by the ice storm?
A. It was. No, it wasn’t because I don’t think I had horses there. I knew I had to fix it before I moved those colts in there though. So there was some fence that needed to be fixed and I had fixed it before I moved the electric fence charges actually.
Q. So that one was operational even after the ice storm?
A. Yes, yes. Yup.
Q. But apparently if it’s not plugged in, it doesn’t do much good?
A. If it’s not plugged in it doesn’t work very well. You know. And I mean, horses push on fence. I mean, I know people have millions of dollars worth of fencing and their horses somehow manage to find a way to get themselves loose. And so what we had was three or four, there might have been four or five colts that were in there. They were younger stallions that were separated from the herd, so they were like what we call colts, but they were four year old stallions basically and we had them separated from all the brood mares and the babies so they didn’t get anybody pregnant basically.
Q.
So if they get through that fence, then is the fence at
A. At that point, yes, yes.
Q. Okay. All right. Let me take you to March fourteenth, 2007.
A. Mm-Hmm.
Q. The first time that Animal Control showed up on the farm. One of the observations that was made by the neighbor Pat Davis who testified is essentially that the neighbors don’t see anybody on the farm except on weekends. All right. Where is--
THE COURT: Except when?
MR. DUNGAN: On weekends.
BY MR. DUNGAN:
Q. Where is Pat Davis’s home located in reference to the chart that’s up there?
A. On the north side of the property approximately, almost directly across from this pool. So…
THE COURT: That can’t be the north side of the property, is it?
THE WITNESS: Oh, I’m sorry, the south side.
BY MR. DUNGAN:
Q.
She’s across the street from your
A. Yes.
Q. All right.
A. She’s actually not due from, due from, directly across from the driveway, she’s actually more directly across from where this pool is. So even the driveway is probably still another thirty, thirty to forty yards from her, where her driveway is.
Q. Now, when you would go to the farm twice a day every day through the fall and winter, how are you getting on to the farm?
A.
I go through the east side gate on
Q. Why?
A.
It was easier basically. I mean,
I never plowed the snow in there or anything, I just threw it in four wheel
drive and drove through that gate. I
didn’t have to fight traffic on
Q. If the horses throughout the fall and winter of 2006 and 2007 had only been fed on the weekends, what would have been the result as far as the health of the horses?
A. They’d have been dead. I mean, just like you and I can’t go six months and eat three times or drink three times without dying, horses are the same way. There’s no, snow dehydrates a horse so they can’t eat snow to get water. You know, there’s not grass underneath the snow, you know, it doesn’t grow, it’d dead, there’s nothing there to eat. They would have all been dead.
Q. When Animal Control first arrived at the farm on March fourteenth of 2007, the first observation that they recorded in their report was a dead horse with tow strap attached to it, something that we’ve all seen pictures of. Are you familiar with that particular horse?
A. Yes, I am.
Q. What is the story behind how that horse ended up where it was when Animal Control arrived on March fourteenth?
A. About sometime on I think it was the thirteenth if I remember correctly, I came there in the morning and the horse was dead out in the pasture. It was a yearling. She had no signs of communicable disease, no snotty nose, no, anything to give any indication she was sick. She just up and died. Which does happen. I mean horses just die for no reason at all, young horses, middle aged horses, old horses. So I had put the tow strap and drug her out of the pasture up to the front because I needed to dispose of her. It was March, you were not digging a hole in the ground to bury her, no back hoe was strong enough at that point