THE COURT: All right. Now, this appears to me, Mr. Dymond, to be written, typing, in typing, and it states on the bottom, "The arrested person must retain this slip to claim property," it doesn't say what copy he is to retain.
Would you know, Captain, what copy of the report --
THE WITNESS: Yes, sir. He retains the ninth copy.
THE COURT: The ninth, n-i-n-t-h?
THE WITNESS: Yes, sir.
THE COURT: Why not put it in there that the arrested person retains the ninth copy instead of "this slip," which means the original. I suggest that that be amended, this is misleading.
(Whereupon, Mr. Dymond handed a paper to the Court.)
THE COURT: This is a blank form. On the ninth copy, Captain, it has an additional piece of information, it has listed your rights as an arrested person following arraignment decision, and your rights as a defendant --
THE WITNESS: Correct.
THE COURT: -- and this copy is given to the arrested person?
THE WITNESS: That is correct.
THE COURT: I see here, Captain, "Time of arrest 5:20 p.m., time of booking 8:40 p.m." To the best of your knowledge, was that the time that Mr. Shaw was being booked in the Central Lockup?
THE WITNESS: Yes, sir -- I was there, sir -- yes, sir.
THE COURT: Who filled this information in?
THE WITNESS: The booking desk sergeant.
THE COURT: Who would he be?
THE WITNESS: Sergeant Vogt.
THE COURT: Vogt. And where was Mr. Shaw at the time that Sergeant Vogt was typing this report up?
THE WITNESS: Standing right by the booking room.
THE COURT: And then he was fingerprinted afterwards?
THE WITNESS: Yes, sir, after this is completed.
THE COURT: After?
THE WITNESS: Yes, sir.
THE COURT: You are referring to something which occurred, either verbatim or otherwise, before he was fingerprinted? Is that correct, Mr. Dymond?
MR. DYMOND: That is correct.
THE COURT: You think it is relative to the predicate being laid, in view of the fact that the attorneys were present and had advised their client exactly what to do?
MR. DYMOND: That is correct.
THE COURT: Now, Captain Curole, this Field Arrest Report written in longhand, not typed, is this given over to the Fingerprint Department when the man is about to be fingerprinted, or who makes this up and what is its purpose?
THE WITNESS: It is made up by the arresting officer so that we will have the information available to book the man. It does not go into the Fingerprinting Department.
THE COURT: This does not go into the Fingerprint Department?
THE WITNESS: No, sir, it certainly does not.
THE COURT: Would a copy of this be given over to Officer Vogt by Officer Ivon? Would he make this up and give a copy of this to Officer Vogt?
THE WITNESS: Three copies would go to the booking desk sergeant, sir.
THE COURT: It is written all in longhand?
THE WITNESS: It is a form, sir, it comes in five parts it is a five-part form.
THE COURT: And this is --
THE WITNESS: -- the original of that form.
THE COURT: Would one of those forms go to those two persons fingerprinting?
THE WITNESS: No, sir.
THE COURT: Do you know -- there is no time element on this -- do you know what time Officer Ivon wrote up this Field Arrest Report?
THE WITNESS: On the back we usually put the time. However, in this instance the time clock was not working properly. If you will note, it has "February 30, 8:45 a.m.," it should have been March 1, 8:45 p.m.
THE COURT: It should have been March 1?
THE WITNESS: The time clock was not working.
THE COURT: Now, this time of booking is 8:40 by Officer Vogt. He should have had this statement when he was drawing up this Arrest Register?
THE WITNESS: The time placed on the Arrest Register is taken from a different clock.
THE COURT: And this was prepared by Officer Ivon after this was prepared by Officer Vogt (indicating documents)?
THE WITNESS: Before, sir.
THE COURT: (Holding up document) This was prepared before?
THE WITNESS: Yes, sir.
THE COURT: You tell me 8:45?
THE WITNESS: That is what the clock says, I am not saying it is correct, Your Honor.
THE COURT: Oh.
THE WITNESS: I am saying this is the normal procedure to clock in these things. In this particular case the clock had to be wrong.
THE COURT: (Indicating documents) This is 8:40, this is 8:45?
THE WITNESS: Different clocks.
THE COURT: And this is February 30 and this is March 1, 8:45?
THE WITNESS: It can't --
THE COURT: It was prepared prior to the preparation of this form?
THE WITNESS: Yes, sir, it was.
THE COURT: I think I understand what you are saying. What was the question you asked?
I understand your objection, Mr. Alcock. Let me ask you to repeat your question so I will understand. Off the record.
MR. DYMOND: I would like to bring out another question to explain the relevancy, and if the Court is in doubt after that, I will be glad to point it out specifically.
THE COURT: You can ask your question. Let's see what happens.
BY MR. DYMOND:
Q: Captain, when a man is sent in to be fingerprinted, is anything sent into the B of I
room with that man?
A: Two copies of the Arrest Register.
Q: When you say two copies of the Arrest Register would that be two copies of this document marked for identification "D-16"?
A: Parts 2 and 3 of that form.
MR. ALCOCK: This is what my objection is to. Unless these were used as a weapon to force this man to make some statement, they are irrelevant at this time.
THE COURT: I see the relevancy of it, Mr. Dymond. Two copies of that long sheet are sent into the Fingerprint Department to assist and aid him in drawing up, putting this information on this card.
MR. DYMOND: That is correct.
MR. ALCOCK: I agree it may be relevant to the case-in-chief, Your Honor. I see exactly what Counsel is attempting to do -- at least I think I do -- and it is at least premature at this time.
THE COURT: I understand, too.
MR. DYMOND: If the Court please, I can very easily point out the relevancy, if you want me to.
MR. ALCOCK: My objection still stands: Unless it was used as a weapon to force this man to make a statement, at this time it is irrelevant.
MR. DYMOND: Does Your Honor want to rule on the relevancy first or want me to --
THE COURT: I see the relevancy.
MR. DYMOND: Would you rule on the objection then, Your Honor?
THE COURT: I am going to overrule the State. I see the relevancy at this time. You may proceed.
BY MR. DYMOND:
Q: (Exhibiting document to witness) I now show you a document marked for identification
"D-17," and I ask you, will you point out to the Court the copies which are sent with a prisoner to the B of I room when he is sent in there for fingerprinting.
A: This copy, Part 2, and this copy, Part 3.
Q: Would Part 2 and Part 3 contain any information as to aliases?
A: Yes, it would.
Q: It would.
THE COURT: Let me see the original prepared by Officer Vogt.
(Document handed to the Court.)
THE COURT: The original copy has a section which pertains to aliases, too, does it not?
THE WITNESS: This is just a carbon copy.
THE COURT: Whatever is on 2 and 3 would have to be on the original?
THE WITNESS: Yes, sir.
THE COURT: The original has reference to aliases?
THE WITNESS: Right.
THE COURT: Prepared by Officer Vogt. The Jury is out, this is out of the presence, so I am not what you call going outside the record. In other words -- Mr. Dymond, let's bring this thing to a head -- in other words, at the time Officer Habighorst was getting information to print and mug, as we use the term, Mr. Shaw, there was before him a copy of the Arrest Register, which indicated on said Arrest Register that Mr. Shaw was also going under the alias of Clay Bertrand.
MR. DYMOND: That is correct.
THE COURT: Now the question comes up: Whether or not Officer Habighorst asked Mr. Shaw any questions or not, he had this information in front of him from the official police document. Is that correct?
MR. DYMOND: That is correct.
THE COURT: And the next question comes: Did Officer Habighorst violate the rules that were laid down that nobody question your client, and by not questioning Mr. Shaw he took it for granted and put "Clay Bertrand" on the fingerprint card as an alias without questioning Mr. Shaw.
MR. DYMOND: Your Honor is precisely correct in that.
THE COURT: That is the whole point?
MR. DYMOND: No, sir, if the Court please, there is another point. Officer Habighorst testified that he did not have this information available to him.
THE COURT: Yes, sir.
MR. DYMOND: Therefore, this goes to the credibility of Officer Habighorst.
MR. ALCOCK: On a predicate, your Honor, as to whether or not he freely and voluntarily gave it? Are we now abandoning the attack that he did not give this information, that Habighorst copied it from something else, therefore there was no statement given and therefore no need of a predicate? We are solely on the predicate. My only objection -- I follow the Court's reasoning, I follow Mr. Dymond's reasoning -- happens to be that it is contrary to the testimony, however.
THE COURT: I think I understand Mr. Alcock's position. Whether Mr. Habighorst had a printed, typewritten Register or not, your contention is that there was an oral inculpatory statement made by the Defendant irrespective of the --
MR. ALCOCK: That is correct, and it was made freely and voluntarily without any promises or inducements. That is what this hearing is about.
THE COURT: That is what I thought it was.
MR. DYMOND: And in determining that, Officer Habighorst's testimony, his credi- bility is certainly an important issue.
THE COURT: Certainly it is, certainly his credibility is at issue, Mr. Dymond. I believe, Captain Curole, you stated you did not know whether Sergeant Butzman remained with Mr. Shaw during the entire time he was being fingerprinted, because you did not stay there and couldn't therefore testify whether he carried out your orders or not?
THE WITNESS: That is correct, sir.
THE COURT: Let's hear your question one more time.
(Whereupon, the Court Reporter searched the notes but was unable to locate the last question directed to the witness by Mr. Dymond.)
THE COURT: I see the relevancy, it is to the credibility of Officer Habighorst, and I will permit the question to be asked and answered, too.
BY MR. DYMOND:
Q: (Exhibiting document to witness) Now, Captain, I again show you "D-15," and I ask you where the information concerning aliases, which is contained in "D-16," would be
obtained by the author of "D-16."
MR. ALCOCK: Your Honor, are we on speculation or is this what actually was obtained? I thought we were interested in the predicate of March 1, not speculative on what would be obtained.
THE COURT: I understand the legal problem. In other words, he is asking you, Captain, if the information here was typed up by Mr. -- whoever -- after he got this --
THE WITNESS: Yes, sir, it was.
THE COURT: For the record, Mr. Dymond, the report made by Officer Louis Ivon was the first report which indicated that Mr. Shaw had an alias.
MR. DYMOND: Right.
THE COURT: It was given over to Mr. Vogt, who copied it and allegedly was supposed to send copies 2 and 3 to Officer Habighorst.
MR. DYMOND: That is correct.
THE COURT: Whether he did or not I don't know. that is the legal status of it?
MR. DYMOND: That is correct. That is all.
MR. ALCOCK: I have some questions.
THE COURT: All right.
CROSS-EXAMINATION BY MR. ALCOCK:
Q: Captain Curole, can you recall how many times you saw the Defendant Shaw on
that night?
A: The only time I recall seeing him was at the booking window.
Q: At the booking window?
A: Yes, sir.
Q: I take it then by that response you did not see him in the B of I room when he was being fingerprinted?
A: I can't be sure, sir. I may have walked in there and walked right out, I don't remember that.
Q: I take it then you do not know whether Officer Habighorst had the Arrest Register or the Field Arrest Report when he questioned him in connection with the taking of his fingerprints? Is that correct?
A: I would not know that.
Q: Now, did you see anyone on that night beat, strike or in any way physically abuse the Defendant?
A: No, sir.
Q: Did you hear anyone make him any promises of a reward or immunity should he make any statement on that night?
A: No, sir, I did not.
Q: Is it the procedure, Captain, to ask the arrestee whether or not he has any aliases?
A: It all depends on the desk sergeant. Some of the desk sergeants will verify all of the information as a rule. If it is on the Field Arrest Report he will type that information.
Q: I see. Then I take it by your response that this varies from person to person? Is that correct?
A: That is correct, sir.
MR. ALCOCK: No further questions.
MR. DYMOND: One more question.
REDIRECT EXAMINATION BY MR. DYMOND:
Q: Captain, you said you heard nobody threaten or promise this Defendant anything. Did
you or did you not tell his attorney that he could see him after he was finished in the B of I room?
A: I certainly did, yes, sir.
MR. DYMOND: That is all.
MR. ALCOCK: No further questions.
THE COURT: You are still under subpoena.
(Witness excused.)
THE COURT: Do you have any other witnesses?
MR. DYMOND: Yes, we do. Call Sergeant Butzman, please.
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