Wednesday, June 20, 2007 – at 1:05 p.m.
(Court, counsel, parties present)
THE COURT: People versus James Henderson, 073372FY, and Matthew Patrick Mercier, 073773FY, continuation of the preliminary examination and the forfeiture hearing. Jennifer Lamp is here from the prosecutor’s office. Mr. Henderson and Mr. Mercier are here, as well as Mr. Dungan.
Anything preliminary, Miss Lamp?
MS. LAMP: No, Your Honor, thank you.
THE COURT: You’re ready to proceed?
MS. LAMP: Yes.
THE COURT: Okay. Mr. Dungan, are you ready to proceed?
MR. DUNGAN: Yes, Your Honor.
THE COURT: Anything preliminary?
MR. DUNGAN: No, sir.
THE COURT: And do you have a witness?
MR. DUNGAN: Yes.
THE COURT: Okay.
MR. DUNGAN: We call Elana Rybak please.
THE COURT: Step up here 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?
MS. RYBAK: Yes.
THE COURT: Come on up, watch your step. The chair is on rollers, so be careful. And the microphone is not going to make you louder, so you want to make sure you speak up loudly and distinctly for us. Okay?
THE WITNESS: Yup.
THE COURT: State your full name.
THE WITNESS: Elana Rachel Rybak.
THE COURT: Okay. How do we spell the first name?
THE WITNESS: E-l-a-n-a.
THE COURT: Middle name?
THE WITNESS: Rachel. R-a-c-h-e-l.
THE COURT: Last name please?
THE WITNESS: R-y-b as in boy, a-k.
THE COURT: Pronounced Rybak?
THE WITNESS: Mm-Hmm.
THE COURT: Yes?
THE WITNESS: Yes.
THE COURT: Okay. Mr. Dungan?
ELANA RACHEL RYBAK
Called at 1:07 p.m. by the Defense, sworn by the court, testified:
DIRECT EXAMINATION
BY MR. DUNGAN:
Q. Miss Rybak, would you describe for the judge your educational background, beginning with your undergraduate studies please?
A. I completed four years of undergraduate work at Michigan State University. I got my bachelor’s degree in zoology in 2004, and I have been in the College of Veterinary Medicine since then, I started in, yeah, the beginning of September in 2004, and I’m now in my fourth year in veterinary school and I will graduate in May of 2008 with my doctor of veterinary medicine degree.
Q. So about halfway or two thirds through the veterinarian degree?
A. I’m in the last year right now, so about three quarters.
Q. All right. And then the first two or two and a half years of obtaining a vet school degree consists of what?
A. The first two and a half years is our pre-clinical phase and we pretty much take classes during those two and a half years and it gives us kind of a basis for going into our clinical section. The first two and a half years is our pre-clinical phase and we pretty much take classes during those two and a half years and it gives us kind of a basis for going into our clinical section.
Q. So that would be the academic bookwork part of the program?
A. Right.
Q. And then after that you proceed to what?
A. And after that, the last year and a half of our curriculum is actually going through clinical rotations, mostly within the veterinary teaching hospital at Michigan State. We do have a couple rotations that are off campus, but that’s our clinical training where we get to do more hands on and actual, actually work with patients.
Q. So you’re actually treating animals that have been brought to MSU for treatment for one kind of injury or disease or another.
A. Yes.
Q. All right. And that’s going to take a year and a half total to complete that?
A. Yes. That’s the last year and half.
Q. How far into that are you right now?
A. Right now I began in January, so January, February, March, April, May. I’m almost six months in, almost.
Q. Do you have intentions to specialize in a particular area of veterinary medicine?
A. Yes. I plan to do a general equine practice.
Q. Which means—-
A. Horses.
Q. –-horses.
A. Yes.
Q. All right. Do you have a history and background with horses?
A. Yes, I do.
Q. All right. Starting with the very beginning, describe that for the judge if you would please.
A. Okay. I think I was about eight or nine years old and I started taking riding lessons and that was mostly in my experience was kind of summer riding lessons. My last year of high school I took lessons more consistently at a riding stable and then when I started my undergraduate year at Michigan State University, I joined up with the horses association and the MSU polo team and started getting a lot more experience at that point as far as being around horses and dealing with them, and then I believe it was the summer after my first year in veterinary school-—or not veterinary school, in undergrad which would be probably about August of 2000, or 2001, I’m sorry, August of 2001 is when I was actually first introduced to Matt and Jim and I-—
Q. How did that come about?
A. A friend of mine’s mother worked with Jim and somehow they got to talking, that her daughter, or that my friend rides horses and somehow it kind of got, oh, why don’t you girls come out, you know, have your girls come out and ride and, you know, you can see the farm. And so I went with my friend over there and that’s how everything got started.
Q. All right. And, you know, I know the whole room knows who you’re talking about, but just so it’s clear for the record. What’s Matt’s last name?
A. Mercier.
Q. And do you see him seated here today?
A. Yes.
Q. Where is he?
A. He’s sitting right next to you.
Q. All right. And then Jim is who?
A. Jim Henderson.
Q. And do you see Jim here as well?
A. Yes, I do.
Q. And he’s seated where?
A. He’s sitting in the first row, second seat from that wall.
Q. All right. So association through someone that works with Mr. Henderson gets you essentially introduced to those two and to the farm in Grass Lake also?
A. Yes.
THE COURT: She identified both for the record.
BY MR. DUNGAN:
Q. What’s your experience then with the farm in Grass Lake beginning in 2001?
A. Beginning in about August, 2001, I went out there I think initially just a few times to ride pretty much and then once my school year started which was about, which was in September, I kind of kept in contact and tried to go out there more, and it was me and my friend that started going out there more, initially for riding purposes, but I ended up trying to get as much time as I could out there because I wanted to get more horse experience. And so I ended up for that, pretty much that year and the next year going out there between, it was a least two times a week, usually at least three would be probably about average, up to, I mean sometimes I was there five days a week. And even if it was for a couple hours I would go out there just to get on a horse and…
Q. So that would be 2002, 2003 and 2004?
A. That would be from, well, it started probably about September, October, end of September, October, of 2001, and then two years from that date very consistently I was out there.
Q. Did your time out there slow down a little bit after that or change?
A. After that it did. Then it was more, I still went out there kind of during the winter time to help with foaling mares the next year and over the summer I managed to get time to come out there, but it was a little bit more sporadic after that.
Q. And I would imagine once you get into vet school perhaps your times becomes a little bit more limited.
A. Yes.
THE COURT: Sporadic after what time? I’m confused. 2001 to when…
THE WITNESS: So from 2001, I’d say the summer or the fall of 2001 to the fall of 2003 I was at the farm very consistently.
THE COURT: After that sporadically.
THE WITNESS: And after that a little bit more sporadically. My last year of undergraduate I was still able to go out there I would say—-
THE COURT: 2004?
THE WITNESS: That would be, yeah, that would be 2004.
THE COURT: After that?
THE WITNESS: And after that, then it started tapering off. I would go on my vacations, winter break, I would try and go help with mares that were foaling in the winter time and I managed to get out there a few times throughout the summer, but it kind of tapered off because that’s when I started veterinary school.
THE COURT: Okay. Mr. Dungan?
MR. DUNGAN: Thank you, Your Honor.
BY MR. DUNGAN:
Q. And you’re obviously out there to gain some kind of practical experience as far as dealing with horses on a daily basis?
A. Yes.
Q. Have you ever owned horses of your own?
A. No, I have not.
Q. All right. So this was a good opportunity for you.
A. An excellent opportunity for me.
Q. And when you are out on the farm what is it that you’re actually doing or trying to learn and who’s teaching you these things?
A. Well, I wanted to learn everything that I could about horses pretty much, so I learned about riding different kinds, because I had started a different type of riding when I was younger and so I learned a different kind of riding out at that farm.
Q. What did you learn out there?
A. Out there I learned more, a more western type of riding, barrel racing, and I also learned how to break or train very young horses. I learned about reproduction of horses, I learned about feeding and daily care. I helped de-worm horses on the farm. I helped vaccinate horses on the farm. I helped care for sick animals. I helped with—-did I say that I helped with foaling?
THE COURT: With who?
THE WITNESS: With foaling. With the foaling there. And I also helped with, it was more from a restraint purpose but I helped with trimming horses’ feet and putting shoes on. That’s kind of the broad--I mean every aspect, and I was there, especially for those two years I was there all times of the year.
BY MR. DUNGAN:
Q. And when you were out there, who was taking care of the day to day services as far as the needs of the horses are concerned?
A. Matt Mercier.
Q. All right. And we were talking about these things that you’ve learned and these things that you were able to watch and learn from. Who was it that was teaching you those things?
A. Matt Mercier.
Q. All right. Now, as far as the immediately preceding twelve months or so.
A. Mm-Hmm.
Q. All right. How often had you been out to the farm?
A. The last time that I was on the farm was in the beginning of January of this year.
Q. Okay. And what is it that had brought you out there in January of ’07?
A. I was on winter vacation and I wanted to go ride and just see the horses a little bit, so I went out there.
Q. Everybody else was in Florida, you went to Grass Lake, huh?
A. Yup.
Q. How long were you out there for then?
A. I believe I went out there two or three days.
Q. All right. And I’m not trying to pin you down necessarily to an exact schedule or an exact number of hours, but can you tell us, I mean did you go out there for five minutes each day or how was it, how long were you out there for?
A. I usually got there around noon I think and I stayed until the sun went down pretty much. As long as I could stay. So that would be what, in January, six hours or so.
Q. Per day?
A. Per day, yeah.
Q. For two or three days.
A. For two or three days, yes.
Q. All right. And what did you do while you were out there?
A. I rode a few of the horses. I helped with some of the chores, throwing hay, feeding grain, and I believe on one of the days I helped move some horses from, I think we were moving them into a paddock, but…
Q. While you were out there for that two to three day period in January of 2007, did you have the opportunity to observe the various conditions out at the farm?
A. Yes.
Q. And did you also have the opportunity to observe the various conditions of the horses out there?
A. Yes.
Q. I mean, while you were out there do you know if you had a chance to see and observe all of the horses or were you just concerned with certain ones?
A. I think I got a look at most of them. Most of the horses on the farm.
Q. All right. Let me ask you first then about some specifics and details as far as the conditions of the farm and the buildings in January of 2007. How would you describe that for us?
A. Well, there, the building at the very front, that kind of apartment building, was falling down at that point, and, but there were no horses allowed up in that area.
Q. All right. Because someone told them they weren’t allowed or were they somehow segregated from that?
A. They were fenced off from that area so they were not capable of getting up to the front.
Q. And when you say up to the front, do you know what road that is we’re talking about?
A. East Michigan Avenue.
Q. Which is, is that the entrance that you took to gain—-
A. And that’s the entrance, yes, that I always entered into the barn.
Q. And the building that you’re talking about is the big collapsed one at the end of the driveway basically?
A. Yes.
Q. And while you were there, there was a fence that separated the horses from reaching that area.
A. Yes, there was.
Q. What type of fence was that?
A. There was mesh fencing along one side, there was some wire fencing I believe on the, it would be the east side. There were no horses in that field at the time anyways. And then there was a metal gate between the, it’s kind of between the barn and then another paddock so that the horses couldn’t get up to the front.
Q. While you were there in January of 2007, as far as the fencing was concerned, was there fencing in place on the interior of the farm to keep all of the horses on the farm property?
A. Yes.
Q. I mean, was there a place where, you know, if two or three or ten of them wanted to leave that they would have been able to do that because there was no fence around?
A. No.
Q. All right. And what other observations did you have as far as the farm conditions themselves?
A. The barn was fairly messy. There was hay and straw in the aisle way. I think I, yeah, there were some feed bags and maybe some twine on the floor in the barn and outside and in the paddock, or not in the paddock but in the, immediately as you exit the barn on the west side, that big field area there, there was, I mean in that area you could see some feed bags and some twine and I believe there was a little bit of wood out there as well. But I never saw, I walked by that, I walked by the pile of wood and I remember thinking, oh, there’s wood out here, but there were no nails or anything like that in the wood, so…
Q. Did you see anything about the condition of the farm itself that would be a dangerous condition to any of the horses living there?
A. No.
Q. I mean, I understand you probably wouldn’t give him a great housekeeping grade.
A. Right.
Q. But all I’m concerned about is anything that could potentially kill or cause an injury to a horse.
A. No. I never did.
Q. Now, as far as the conditions of the horses themselves in January of 2007, how would you describe the conditions of the horses?
A. The horses looked good. They had a good body condition, they had plenty of weight on them. All of them had either giant round bales to eat off of, or they, in the stalls they had hay, I helped throw the hay, and they were grained as well.
Q. At the time that you were out there in January of 2007, were any of the horses having any particular health, disease or injury problems that you were made aware of? Or that you could see for yourself.
A. Not that I can recall.
Q. Any of the horses have any weight issues that caused you any concern?
A. Not that I can remember, no.
Q. Okay.
A. No, I didn’t see any horses that I thought were of a concern.
Q. And you’re familiar from being out there and probably through your education and training as well, about wintering horses outside in Michigan.
A. Yes.
Q. When horses are wintered outside in Michigan, are there any changes as far as weight or appearance that one would expect to see?
A. Yes. First of all, horses that winter outside in Michigan tend to get very, very, very fuzzy coats if they’re used to wintering in Michigan because they’re kept outside and they have to keep themselves warm. A lot of times also what will happen is they actually end up losing weight, no matter how much you feed them a lot of times because they’re using all that energy that they’re consuming to try and keep themselves warm. And actually one of the best ways to help them stay warm is to feed them a lot of hay or roughage, which I know that I’ve seen plenty of hay out for those horses on my time at the farm.
Q. Okay. And you’re aware from being out there in the winter time going back to at least 2001, that Matt did winter his horses outside.
A. Yes.
Q. Okay. When is the last time that you saw Jim Henderson out at this farm?
A. I believe it was August of last year, 2006, was the last time.
Q. What did you see him out there doing?
A. We were having a bonfire out in the front, so that was the last time I saw him on the property.
Q. This was a social gathering?
A. Yes.
Q. That just happened to be out on the farm.
A. Yes.
Q. All right. And at any time between I guess August of 2006 through the last time you were out there in January of 2007, did you ever see Jim Henderson out at that farm?
A. No.
Q. All right. At any time--
THE COURT: What was that time frame again?
MR. DUNGAN: Your Honor, that would be from August of 2006 through the last time that she was there in January of 2007.
THE COURT: Thank you.
BY MR. DUNGAN:
Q. Miss Rybak, any time that you had been out to the farm in Grass Lake had you ever seen any horses that you would describe as either tortured or abused or neglected or horses that were being failed to be provided for?
MS. LAMP: Your Honor, I’m going to object to that question for the purpose of the fact that the witness is not a veterinary doctor. If the court wants to, I just object to the court taking it as an expert opinion because clearly she’s not reached that level of expertise. Nor has she been qualified as any type of expert.
THE COURT: We’ll take it for a limited purpose. For what the weight is, it means almost nothing since she wasn’t there since January, 2007, so it really doesn’t mean a lot to me, Mr. Dungan. But go ahead and answer if you can.
THE WITNESS: Can you repeat the question one more time?
BY MR. DUNGAN:
Q. At any time that you have been out to that farm including January of 2007, had you ever seen any horses that you would describe as torture?
A. No.
Q. Any horses that you would describe as being abused or neglected?
A. No.
Q. Any horses that you felt were not being provided for adequately as far as food, water, vet care and things of that nature?
A. No.
Q. All right. If you had seen something of that nature, what would you have done?
A. I would have told Matt what I thought about how he was caring for some of his horses if I ever saw something like that.
Q. Okay, all right. And you’ve been able to observe Matt Mercier as a caretaker of horses on a number of occasions going back to 2001?
A. Yes.
Q. And how would you describe him as a caretaker or horses?
A. I would describe him as a very knowledgeable caretaker of horses. He knows, I mean he knows about nutrition, he knows about basic veterinary care, he knows about reproduction, he knows about hoof care. So I would consider him an excellent caretaker.
Q. When you were there in January of 2007 for that two or three day period, did you see anything that would indicate that these horses were not being provided with adequate food?
A. No.
Q. Or water?
A. No.
Q. Or veterinary care?
A. No.
Q. Or shelter?
A. No.
Q. Would you trust Matt with horses of your own?
A. Absolutely.
Q. Would you let Matt care for horses of your own?
A. Absolutely.
Q. Would you let him care for horses of your own on that particular farm?
A. Yes.
Q. Any reason at all that you can think of why Mr. Henderson would be making a dumb decision to trust Mr. Mercier with the daily care of his horses?
A. No.
MR. DUNGAN: All right. Thank you, Your Honor. I don’t have any further questions.
THE COURT: Miss Rybak, Miss Lamp will have some questions for you. Okay?
THE WITNESS: Yup.
THE COURT: Miss Lamp?
MS. LAMP: Thank you, Your Honor.
THE COURT: You’re welcome.
CROSS-EXAMINATION (At 1:27 p.m.)
BY MS. LAMP:
Q. Miss Rybak, is it?
A. Yes.
Q. Okay. Who do you work for at Michigan State?
A. I don’t actually work for anybody. I’m a student, so..
Q. And as a student, do you work underneath somebody when you’re doing your clinical work?
A. Yes. We are always working with a clinician.
Q. Who do you work under?
A. It varies.
Q. Who are some of the doctors you work under?
A. Let’s see, right now Dr. Patterson, Dr. Bates, Dr. Larson.
THE COURT: What’s the second name, Baze?
THE WITNESS: Bates, B-a-t-e-s. This is on my current rotation. Do you need more names or..?
BY MS. LAMP:
Q. Have you worked for Dr. Schott?
A. Yes, actually.
Q. When was that?
A. Oh….
THE COURT: What’s the doctor’s name?
MS. LAMP: Schott.
THE COURT: How do you spell that?
MS. LAMP: I think it’s S-c-h-o-t-t.
THE WITNESS: Yes. The last rotation—-I would need to have, I would actually need to see a calendar because my life exists in three week slots right now.
BY MS. LAMP:
Q. Is that what your rotations are is three weeks?
A. Yes. Our rotations are three weeks long. So it was-—
Q. But it would have been since January I suppose.
A. Yes.
Q. Do you know, could you even narrow it down to a month, or you’re not able to do that?
A. Let’s see. I, you know, I’d have to look at a calendar to know specifically, just because, yeah. If you have a calendar I can narrow it down for you.
Q. No, that’s all right. And I don’t think I have one, but… You testified that you came to the acquaintance of Matt and Jim via your friend’s mother?
A. Yes.
Q. Who is your friend?
A. My friend is Rebecca Cape.
Q. Can you spell that last name?
A. C-a-p-e.
Q. And her mother is?
A. Hold on. I’m blanking on the name. It escapes my memory at the moment, I’m sorry.
Q. Do you know if her mother’s last name is also Cape or is it something different?
A. Yes, it is.
Q. Okay. And how does she work with James, if you know?
A. I actually don’t.
Q. You don’t know?
A. No. I just know that they work together.
Q. Okay. And so how did that transpire that you had this friend named Rebecca and then you end up being friends with Matt and Jim?
A. Well, my friend’s mother got to talking with Jim at some point that her daughter which is my friend rode horses, and so Jim said, oh, why don’t you have her come out to our farm and she can ride. And my friend told me about it and so we went out there together and that was my first time on the farm, that was my first meeting with Matt and Jim, and…
Q. You met both of them that day?
A. Yes.
Q. Okay.
A. And after that I don’t remember if we exchanged phone numbers all at that point or, you know, I kind of clung on to my friend’s, you know, connection for a little bit, but then after that I, I went out there a lot with my friend at first and then I started going out there on my own as well.
Q. Okay. Do you own horses?
A. No.
Q. Have you ever owned horses?
A. No.
Q. Okay. So any question about whether you’d entrust your horses to Matt and Jim would be purely hypothetical.
A. At this point, yes.
Q. I expect if you’re going to be an equine veterinarian you probably will someday own horses.
A. Yes. And I have cared or been in charge of caring for other people’s horses as well, so…
Q. You talked about the fencing at the property, and I’m not sure which time period this was that you had the chance to observe the fencing, if this was in January of 2007. Was that, did you have a chance to observe the fencing, is that what you were testifying about is January?
A. Yes.
Q. And did you go along and inspect the entire fencing of the property?
A. I saw most of it.
Q. Okay.
A. I didn’t see all of it, but I saw most of it.
Q. Did you see all the fencing along Michigan Avenue?
A. Yes.
Q. And you didn’t see any part there that was in bad shape at all?
A. No. Most of the fencing was actually pretty adequate.
Q. Right at Michigan Avenue?
A. (No audible response)
Q. Because we’ve had reports that horses have actually gone through the fence many times. That’s why I’m asking you.
A. Okay.
Q. If you’re sure that you observed it and if it was adequate.
A. From what I remember the fence, there was fencing up and it was at least a height that I would consider to be able to keep the horses inside.
Q. Do you have any reason to doubt your memory? Because you’re saying to the best that you remember. So I’m asking if you have any reason to doubt your memory.
A. No.
Q. Okay. So you think the fence was fine when you were there and you don’t think it was trampled down at all?
A. No.
Q. Could you describe the wood that you saw outside in the pasture please?
A. There was a small pile of wood.
Q. When you say small, could you give me approximate measurements?
A. Maybe, I don’t know, maybe about four feet by five or six feet. It was pretty much some two by fours and random smaller pieces of two by eight I guess. But I did, I do specifically actually remember walking by it and looking and didn’t see any nails or any sharp objects, sharp points sticking out.
Q. And that’s good that you made that observation. Did you go through the pile of wood and pull it out and take a look at? Is it possible there was a piece with nails in it, or did you observe it thoroughly enough to be able to come to that conclusion?
A. I observed it fairly thoroughly, but I did not pick through it.
Q. How tall was the pile?
A. The pile was, oh, maybe a foot or so, maybe.
Q. And where was it in relation to the barn?
A. It was, if you walk out the east side of the barn, or sorry, the west side of the barn, there are two paddocks on the left hand-—or there were two paddocks on the left hand side, and it was not immediately in front of, but just as far as reference it was in front of the second paddock. But it was at least ten feet away from it, at least.
Q. From the barn?
A. From the-—well, it was more than that from the barn, from that second paddock on the left.
Q. The barn being a landmark as it’s there, can you approximate the difference?
A. From the barn probably I would say at least sixty feet away from the barn.
Q. Did you have the chance when you were there, and is January of 2007 the last time you were at the farm, you haven’t been there since that time?
A. Correct.
Q. Okay. Did you have a chance while you were there in January of 2007 to observe a grulla mare?
A. I don’t specifically remember. Give me a second, let me think. I can’t recall.
Q. Is it possible then in the time that you were there that there were horses there that you did not observe?
A. There were probably things that I did not observe.
Q. You described being at a bonfire in August of 2006.
A. Mm-Hmm.
Q. Who else was at the bonfire?
A. Matt Mercier was there, Jim Henderson was there, actually my friend Rebecca Cape was there, and two other friends.
Q. Who are they?
A. I’d rather not say if that’s okay.
Q. Well, I’d like to know who else was there at the farm.
A. Well, one of them is, see if I can remember both names. Jim, oh, what is his last name…. I can’t remember his last name. It’s actually my friend’s boyfriend, so..
Q. It’s Rebecca’s boyfriend?
A. Yes.
Q. Is it still her boyfriend?
A. Yes.
Q. And who’s the other person?
A. The other person was, his first name is Adam and give me a second on the last name… Keenosh(sic).
THE COURT: Do you know how to spell that?
THE WITNESS: I believe it’s K-e-e-n, oh, yeah, I don’t know the last three letters.
BY MS. LAMP:
Q. And who’s Adam?
A. Adam was just a friend.
Q. Whose friend?
A. My friend and Jim’s friend.
THE COURT: And whose friend?
THE WITNESS: Jim. The--
THE COURT: Mr. Henderson?
THE WITNESS: Not Mr. Henderson, the other Jim.
THE COURT: The other Jim.
BY MS. LAMP:
Q. Anybody else there?
A. Oh, yes. What was her name? It’s another one, it’s one of Matt’s friends. I can’t think of her name right now. I’ve only met her a few times.
Q. What color hair does she have?
A. Light brown to blond hair. I can actually-—let me look at my phone, I have her phone number.
Q. Is it Billie Jo?
A. No.
Q. Okay. Yeah, go ahead and look at your phone.
A. I know I have her phone number in here. It’s Jessie but I don’t know, I’ve never known her last name…
Q. If you have a phone number instead of a last name, that would be fine.
A. I don’t know that I want to give my, other people’s phone numbers.
THE COURT: Give her the phone number please.
THE WITNESS: Okay.
MS. LAMP: I’d like to contact her.
THE WITNESS: Okay. It’s 269-8389100.
BY MS. LAMP:
Q. Is that the only number that you have for her?
A. Yes.
Q. Okay. Now, Miss Rybak, is it fair to say as I understood your testimony that Matt Mercier you consider to be very knowledgeable about caring for horses. Is that correct?
A. Yes.
Q. But would it also be fair to say that in 2007 and even in the later part of 2006, that you were not present to know how he actually cared for them in fact?
A. Well, I, while I was there in January I actually helped him care for some of his horses.
Q. But that was for a three day period of time as I understand.
A. Yes, it was.
Q. So I’m talking about a much broader period of time, and what I’m asking you is, is it a fair question to say that during the time that you’d not there which as I understand it is barely ever at that point in time, you have no idea how he’s caring for the horses when you’re not there.
A. When I’m not there I cannot observe him. So therefore I don’t know.
Q. That is a fair question then, yes?
A. So, yes. When I’m not there I can’t watch him.
Q. All right. We agree on that.
A. Yes.
Q. Now, let me ask you about the three days that you were there. You said that you observed adequate water.
A. Yes.
Q. Could you describe the water that was provided, where it was provided and what it was provided in?
A. There, in all of the stalls in the barn there were water buckets and those were filled with the hose from cold water. Outside there were, in the other paddocks outside there were big water troughs or barrels.
Q. How many paddocks were there? Let me ask you, let me stop you because I think this would be an easier way of doing it. As I understand it from your testimony and the knowledge that I’ve got, I think the layout may have changed? And maybe it would be helpful for you to come draw it as you saw it in January on the board.
A. Okay.
THE
COURT: What are you going to draw?
MS. LAMP: Do you want me to erase this, or…
THE COURT: No. What are you going to draw? What are we drawing, the whole farm?
MS. LAMP: I just want her to diagram out where the paddocks were, where the barn was.
THE COURT: Why don’t we use whatever we had, the gizmo before?
MS. LAMP: What gizmo?
THE COURT: I don’t know, somebody had a drawing.
MR. DUNGAN: Your Honor, I did not bring that today for this witness.
THE COURT: Okay.
MS. LAMP: I can provide her with a piece of paper, Your Honor.
THE COURT: Well, she hasn’t talked about anything since January of 2007, so I don’t even know why we’re bothering with her anymore at this point. She has absolutely no information—-why don’t you show her some pictures and ask her if those are what the horses looked like and why she thinks they looked like that because-—
MS. LAMP: Well, Your Honor, there’s only one picture that I want to show her that I think is relevant going back to January. I think otherwise-—
THE COURT: Because I don’t care where the water was last summer, I don’t care where it was last fall, I don’t care where it was in January. We’ve got testimony there wasn’t any water or there was some water. She hasn’t been there since January of 2007, she doesn’t know what the conditions of the horses were. She doesn’t even know a fence that the horses were trampling over, her testimony is becoming more meaningless every minute. So I don’t know why we need to draw a big picture of the farm now to figure out where a paddock was last summer or something.
MS. LAMP: That’s fine, Your Honor. I was just trying to understand her testimony better. If the court doesn’t--
THE COURT: I’m understanding it quite well.
MS. LAMP: --need it, then we’ll move along.
THE COURT: I’m understanding it quite well. Let’s move along.
MS. LAMP: Thank you.
BY MS. LAMP:
Q. Let me ask you if you noticed the horses tramping down to the stream or ditch in the back of the part of the property.
A. In January?
Q. Yes.
A. No, I don’t think there were horses back there.
Q. Did it appear that they were fenced out of that area?
A. They were mostly in the paddocks that were closer to the barn.
Q. Did you go back to that part of the property?
A. I’m trying to remember if I was back there in January. I’ve been back there before, but…. I’m having a hard time remembering if I had gone back there in January. I know I’ve been back there before, but in January..
THE COURT: Was it fenced off from the stream in any way from the ditch?
THE WITNESS: Umm…
THE COURT: Was it fenced off at all?
THE WITNESS: At what point?
THE COURT: Any time?
THE WITNESS: Anytime? Fenced off away from the water? I’m sorry. I’m trying to understand your question. Well, when they are allowed in that area?
THE COURT: Are they allowed then from time to time in that area?
THE WITNESS: From time to time I have seen them--
THE COURT: You’ve seen them some, but you don’t know if they’re allowed there.
THE WITNESS: Yeah, wait, okay. Let me, let me back up for one second. There is a stream and then there’s a little pond in back of the property.
THE COURT: How about the drain ditch. That’s what you’re talking about, isn’t it?
MS. LAMP: That’s what I’m talking about.
THE WITNESS: I know what--oh, the ditch, I’m sorry. The ditch from what I saw, I believe that there was some fencing around the ditch.
BY MS. LAMP:
Q. Do you recall whether it was trampled down by the horses at the time that you were there?
A. I’m trying to remember specifically. No. I remember seeing fencing up along that, that ditch, and it was not trampled down. From what I recall.
Q. And you don’t recall hoof prints going into the, through the ditch and into the water at the time that you were there?
A. No.
Q. And if it had been that way, would you recall that?
A. Yes.
Q. Okay.
MS. LAMP: Your Honor, may I go back in there and grab one of my exhibits and return? It’s back by Beverly’s desk. Is it okay if I go this way?
THE COURT: Sure.
BY MS. LAMP:
Q. I’m showing you what’s been admitted into evidence here as People’s exhibit twelve. And drawing your attention to the photograph on the left side of that. Does that depict the shelters as you saw them when you were there, or were they in different shape in January?
A. No, they were in better shape than that in January.
Q. Okay. Drawing your attention to this on up here, the top left. Do you recall seeing that one in January?
A. Where is that one specifically on the farm?
Q. I don’t know.
A. I’m having a hard time placing that, where that is on the farm. You can’t give me any orientation at all?
Q. I don’t know exactly where it is. I’m not able to do that.
A. Yeah. I mean, I can’t say for sure because I don’t know where that…
Q. I believe this is up towards the front part of the property. Which seems right here, with the grass and trees.
A. I’m trying really hard to place it.
Q. Well, this is the front part of the property. You probably would have to have gone by it. Whether you recall it or not may be a different thing.
A. Right. I’m trying to remember, you know, specifically which one it was. But I do know that the lean-tos that I saw on the farm were adequate when I was there.
Q. So it would not have looked like this. Would you call-—I guess what I’m asking is, would you call that adequate?
A. Um, that one looks like it’s leaning and maybe starting to fall down a little bit.
Q. So is that a yes or a no?
A. So that’s a, I might want to try and fix that sometime soon. It looks like it could fall down.
Q. Safety issues?
A. Umm…
THE COURT: You might want to fix it, is that what you said?
THE WITNESS: I, I would want to, yes, I would want to fix that.
THE COURT: Thank you.
THE COURT: Because it looks like it’s starting to fall down. I’m sorry. What was your last question?
BY MS. LAMP:
Q. Was it adequate or inadequate then? Looking at this picture.
A. I would say that one’s borderline. Because it looks like it’s starting to fall down.
Q. You don’t think it would be in danger of falling down under a horse, if a horse sought shelter in it?
A. I don’t think that a horse would stay in it if it, I mean, horses are pretty fast at running out of situations, so I don’t--
Q. Do you think a horse would go in there at all for shelter?
A. Yeah.
Q. Okay. What you’re saying is if it started to break down or even if a piece fell down on the horse, that the horse, it would be okay because the horse could just run out of there quickly?
A. Well…
Q. So that’s adequate?
A. I, in my experience with horses I know that horses can get out of situations quickly. That looks to me like it’s starting to fall down, so I would want to fix it soon. So I guess that one would be inadequate.
Q. Inadequate, okay, all right.
A. Mm-Hmm.
Q. Okay. And then moving down to the second picture.
A. I’ve had a long past couple of days so I’m just trying to run your questions through my head, but…
Q. That’s fine. I want you to take your time.
A. Mm-Hmm.
Q. So I’m just asking you about the second photograph down.
A. Okay.
Q. From the top on the left side.
A. Mm-Hmm.
Q. Could you tell me whether you recall seeing that in January?
A. Again, can you place that one for me?
Q. It also appears as I understand, toward the front of the property. Where you see the grass and the trees.
A. Right.
Q. As I recall that’s at the front of the property.
A. Okay.
Q. And if you don’t specifically recall it, that’s fine. I’m just-—
A. I’m trying to think of specifically where it is on the farm.
Q. Even if you’re not able to specifically place it on the farm on your mind, in your mind, are you able to look at that and recognize that particular shelter?
A. Like I said, I’m trying to remember if I’ve seen that particular one before. I can’t say specifically. Just because I don’t know exactly where it’s placed. If it was, the picture was a little wider I’d be able to tell, but…
Q. Okay. So you don’t recall if you saw that particular shelter when you were there in January.
A. Right. If it was on the front of the, in the front of the property I most likely did see it because I was in the front of the property at that point in January.
Q. Okay. If you had seen a shelter that looked like that in January at the property, would that have concerned you?
A. This one back here looks like it’s okay, the structure is okay. That second one the roof is caving in.
Q. Okay. So would that concern you, that’s what the question is.
A. It would concern me that maybe a horse wouldn’t-—well, it depends on how low that is, the horse maybe wouldn’t want to go in there for shelter. But I don’t know how low it is.
Q. Well, I guess if you look at it, I mean, you can kind of see where the fence level is, you can kind of see where the gate is. If you don’t think you can gauge that, that’s fine, but I don’t think it’s particularly deceptive.
A. (Indiscernible)
Q. I can move it, if you want to move it so you can see it better, that would be fine.
A. Okay. Yes, that’s getting kind of low.
Q. Okay.
A. It is, it is caved in.
Q. If you had seen that in January would that have caused you some concern?
A. Yes.
Q. Would you have brought that to Matt’s attention?
A. Yes, I probably would have said, hey, that looks like it needs to get fixed.
Q. And would you describe that as inadequate shelter?
A. Yes.
Q. Okay.
A. This side of this one, yes.
Q. Right. And then drawing your attention to this.
A. Mm-Hmm.
Q. Do you recall seeing that? That’s in the back part of the property.
A. Um.. I believe…. If it’s where I think it is, I remember seeing a lean-to in that area.
Q. Okay. Do you recall if it looked like that in January?
A. Um…
Q. In that condition is what I’m asking you.
A. Yeah. In that condition, no, because the lean-tos that I saw in January were pretty solid.
Q. Okay.
A. And this one, actually the structure doesn’t look that unsound. I guess my only concern would just be the (indiscernible) boards over here.
THE COURT: Speak up please.
THE WITNESS: Oh, I’m sorry. The-—
BY MS. LAMP:
Q. Where the hole is, you would fill that in?
A. The structure itself looks pretty good. Yeah, I might, I mean I don’t know, you know, I’d have to look at it--
Q. I know you’re only looking at one side.
A. Right. But I mean possibly, you know, I might stick a couple boards across that hole, but the structure itself looks pretty sturdy.
Q. And what about the bottom left one?
A. The bottom left.
Q. A series of structures, it appears that there’s like three.
A. Yeah. This one looks pretty adequate. This one is starting to cave in.
MS. LAMP: Your Honor, if the record could reflect, she’s pointing to the one that’s starting to cave in is the one on the left side and the one on the right side that is standing on the far right she’s indicating is adequate. Correct?
THE WITNESS: Yes.
BY MS. LAMP:
Q. Okay. And then the middle one?
A. The middle one is falling down, so obviously a horse cannot get in there.
Q. So that would be inadequate.
A. Yes.
Q. Okay. But if I understood your testimony, you testified that there was adequate shelter there in January when you were there.
A. Yes.
Q. Okay. So, but you’re saying that this would be inadequate if that’s what was there in January?
A. Not, I wouldn’t say all of them are inadequate but there are a few on there that are.
Q. With the exception of the one on the second, looking on the left side and going down to the second picture, that one on the left you said is fine, it’s the one with the caved in roof that you’d prefer not to have, correct?
A. Right.
Q. And then down on the bottom I think you said that the one on the left was caving in.
A. Mm-Hmm.
Q. And the one on the right was okay.
A. Yes.
Q. And on this one, the structure appears fine, but you would still fill in the holes, so—-
A. I would, but I, well, but I wouldn’t be too concerned about using that as a run-in for a horse.
Q. If you had your own farm, would you have it looking like that?
A. Well, if something happened and it happened to look like that, I would probably—-
Q. That’s not my question.
A. Okay, what is your question?
Q. If you had your farm and you built your farm, would you let it look like that?
A. I would try not to.
Q. Okay.
A. I would try not to.
Q. Was there snow on the ground when you were there in January?
A. There, it was actually during that tiny little warm spell that we had, so I don’t think there was much snow.
Q. Let me ask you, because I’m not sure. There was some snow, but not much?
A. Yeah. I don’t even think there was, I don’t think there was hardly any snow.
Q. Okay.
A. At that point.
Q. Which part of January is this? I don’t know when you guys take your break in January.
A. It was the very beginning of January.
Q. Like going through the first of the year?
A. Like the first, I think it was the first few days in January
Q. First, second or third, or something like that.
A. Yeah, pretty much, mm-Hmm.
Q. I just didn’t know which part.
A. Yeah, it was the very, very beginning.
Q. And how many horses were in the barn when you were there in January?
A. Let’s see, there was, two, three…. I believe there was six, maybe seven horses in the barn. One, two, three, four, five, six. Yeah, six, maybe seven horses in there.
Q. Okay. And what was the breakdown by stalls or..
A. There was one in each stall.
Q. One in—-so there’s six or seven stalls?
A. There were, when you--okay. Coming from the south side of the barn when you walk in.
Q. Okay.
A. Or is there another orientation?
Q. You can do it from the south or from the west.
A. Okay. From the south, let’s do it from the south side. When you walk in, there were three stalls on the right hand side, immediate right hand side. Across from that one big stall and then there’s kind of a larger area to the left of that and that was divided up in stalls.
Q. Okay. And how many horses were in pens?
A. There were, let’s see.. There were four in one pen, there were maybe six, six, maybe seven in another pen. And then there were, in the back paddock were where most of the other horses were, but I, I don’t know if I could quantify how many there were.
Q. Did you see the mare that had the wire in the leg?
A. Which mare had the wire in the leg?
Q. Did you see a mare with wire in the leg or any horse with wire in the leg while you were there?
A. No.
Q. Did you see two skinny mares?
A. No.
Q. Brown colored mares.
A. No. I don’t remember seeing any skinny horses on the farm.
Q. How much did Matt feed out in grain, if you recall?
A. In grain? You know, I don’t recall specifically.
Q. How about in square bales?
A. Square bales, we gave a least two to three, at least two to three to the horses that were in, in the stalls in the barn. And I mean, that was in the evening when we fed. And outside all the horses had round bales to eat from.
Q. Okay. So you don’t recall anything about the grain?
A. As far as what?
Q. Do you recall who he was feeding grain to if you don’t recall how much?
A. I recall feeding grain to the horses that were in the barn and I think that’s all I remember giving grain, yeah, that’s all that I remember giving grain to in January.
Q. Where was he delivering foals?
A. In the stalls in the barn.
Q. And when were the foals being delivered again?
A. Um…
Q. Was this January or before that?
A. It was before that. I wasn’t present for the last year’s foaling.
Q. Okay. How did you make arrangements to go out to the barn?
A. At what point?
Q. Or go out to the farm. When you wanted to go out to the farm.
A. Oh, I would call up Matt. I’m sorry. Did I say that the foalings were before January or after January? What did I just say? I want to make sure I said that correctly.
Q. I don’t recall.
A. The foalings, I was thinking about it. The foalings would happen after January, not before. I think.
Q. Okay.
A. I think. But anyways, I was not there for any of the foalings.
Q. But you had testified about helping with foaling previously.
A. Yes, I had previously, but for the past-—
Q. Okay. But when I’m asking you where the foaling was occurring, I’m asking you when you were there to observe it.
A. That was, I have not been there the last two years for foaling. Before that I have been.
Q. And that was in the stalls in the barn.
A. Yes, yes.
Q. Okay.
A. I’m sorry. I just wanted to clarify that.
Q. That’s okay. Have you been involved with any of the posting on the internet involving this case or involving Matt, James, or the Turn Three Ranch?
A. No.
Q. So you’re not on the Barrel Horse World? Have you ever heard of that web site?
A. I have heard of it.
Q. Have you been there?
A. Maybe once or twice. It’s been quite a while.
Q. When was the last time you were there?
A. Years ago. I don’t frequent that web site.
Q. Were you a registered user ever?
A. No.
Q. Never had a user name on there?
A. I don’t think so, no.
Q. And so you-—
A. If I did it would have been years ago and I never used it because I don’t go on that web site.
Q. So you’re absolutely certain that you’ve made no postings on the internet involving this case?
A. Yes.
Q. Or on any web site anywhere.
A. On any web site anywhere.
Q. Okay. Would you see a problem with doing that?
A. As far as?
Q. An ethical problem.
A. Well, since it’s been in the news I don’t know that I would have a problem.
Q. So you wouldn’t have a problem making any postings about that?
A. I wouldn’t personally post anything about it, but-—
Q. Okay.
A. –-I don’t see—-
Q. That’s what I’m asking you, if you would engage in that kind of behavior.
A. Me? No.
Q. Okay.
A. I would have no reason to put, I mean, I--
Q. I’m talking about your own set of ethics as a veterinary student.
THE COURT: Miss Lamp, is this relevant to something?
MS. LAMP: Okay.
THE COURT: I don’t know that this is relevant.
MS. LAMP: I’ll move on, Your Honor.
THE COURT: Thank you.
BY MS. LAMP:
Q. And did you have any knowledge of any of the people at MSU in the veterinary hospital working on some of the horses in this case?
A. Yes.
Q. Okay. And who did you have knowledge of that was working on the horses in this case?
A. Dr. Marteniuk.
Q. And when did that come to your attention?
A. Usually it was either the day the horse was leaving or sometime afterwards. And--
Q. Well, you’re saying usually, so I don’t understand.
A. Well, not usually. It was, I don’t even remember which horse it was that came in that-—I believe the first-—oh, no, I know when the first time I heard about it was. I heard that some of the students were going with Dr. Marteniuk to go body condition score the horses. That was the first time that I heard that she was dealing with some of the horses.
Q. And did you hear of any other involvement she had in the case?
A. I think I remember hearing that she saw a horse that had a hip problem, but this was, I heard about it, I never got to talk to Dr. Marteniuk about it, so…
Q. But you understood that she had treated a horse with a hip problem through other people.
A. Yes, yeah.
Q. Did you ever discuss the case with Dr. Marteniuk?
A. No.
Q. Why not?
A. Well, I was not around when it happened and I don’t know, I never really wanted to go up to her and get an idea about it because I, I kind of wanted to, we