PERRY RAYMOND RUSSO, after being first duly sworn by the Minute Clerk, testified as follows:
EXAMINATION BY MR. GARRISON:
Q. How old are you?
A. Twenty-five.
Q. I want to ask you a few questions. When I do, speak clearly as you can so the Judges and defense counsel and everybody in the Courtroom can hear you and just relax and I think you will get used to it in a moment.
What is your occupation?
A. I work with Equitable Life Assurance Society, primarily in Baton Rouge.
Q. And what is your education?
A. I completed high school and gone on through five years of undergraduate work at Tulane and Loyola University and I have gone on to one year law school at Loyola University.
Q. Will you speak a little more distinctly so I can hear more in detail, and tell me about the college part of your education?
A. Well, I had completed high school at McDonogh and then went on to Tulane University for two years of undergraduate work in political science. Thereafter, I switched over to Loyola University and finished off my requirements for a degree program which I received from Loyola University in political science. And then I went to Loyola Law School for one year.
Q. Did you get your undergraduate degree?
A. I got a Bachelor of Social Studies in Political Science.
Q. In what year?
A. 1964.
Q. Where were you born?
A. I was born in New Orleans.
Q. Did you ever know a man named David Ferrie?
A. Yes, sir.
Q. If I were to show you some pictures of David Ferrie, do you think you could remember him?
A. Yes, sir.
Q. Remember the man -- I show you a photograph which has been marked for identification, S-10, and I ask you if you can identify the man in this picture?
A. Yes, sir.
Q. Who is this man?
A. Dave Ferrie.
Q. And I show you a photograph which has been marked for identification, S-8, a picture of apparently a dead man on a slab, and I ask you if you can identify that man?
A. Yes, sir.
Q. Who is this man?
A. That's the same Dave Ferrie.
Q. Do you recall approximately when you first met David Ferrie, just approximately?
A. About 1960.
Q. How long did you know David Ferrie?
A. I have known him since, all the way into 1964.
Q. Would you tell us the background of your association with David Ferrie, and, Perry, speak louder and more distinctly?
A. Well, I had occasion to have a friend, who at that time was in the Civil Air Patrol, and he had made mention of --
MR. DYMOND:
I object, Your Honors, between any conversation between this man and his friend.
MR. ALCOCK:
Your Honors, this is a preliminary hearing. Hearsay is admissible in preliminary hearings.
MR. DYMOND:
The new Code upon the trial of a case if it takes place and the witness is out of the State or unavailable, that witness' transcript of testimony is admissible in evidence.
MR. ALCOCK:
Your Honors, I submit we are not trying to find the man guilty or innocent at this time. This is simply a preliminary hearing.
MR. WILLIAM WEGMANN:
As a result of the passage of the Fourteenth Amendment, this is a privilege granted in the Sixth Amendment or which is guaranteed the defendant in the Sixth Amendment and it applies to States, and one of the provisions that is guaranteed by the Sixth Amendment is to be confronted by anyone who is to testify against you which constitutes hearsay basically. I suggest that the Court, before the Court rules, it should read these two cases. One is a Texas case and one is an Alabama case.
JUDGE BAGERT:
Any of those cases, do any of those cases go into the preliminary hearing per se; in other words, is this an appeal from some ruling of the United States Commissioner?
MR. WEGMANN:
I really think the cases should be read by the Court. This is, as I understand, my appreciation of the facts, a man was tried in Texas by a preliminary hearing in a State court and he was bound over, and subsequently there was a trial in which he was convicted. His attorneys appealed based upon the fact that when he had the preliminary hearing he was denied the right of counsel, which I agree is not the basic thing here this morning. The Supreme Court of the United States said that the Fourteenth Amendment has made the Sixth Amendment applicable to State courts, and State courts are bound by the Sixth Amendment, and one of the basic provisions of the Sixth Amendment of the Constitution of the United States is confrontation. There are two cases. One is _________ versus Texas and one is Douglas versus the State of Alabama.
JUDGE BAGERT:
Give them to us and we will read them.
MR. ALCOCK:
That case is solely on the point where the man was not represented at a preliminary hearing. This was a critical stage in the proceedings. He was not represented by counsel. Therefore, he was denied rights under the Sixth Amendment under the United States Constitution. Along those lines I would like to cite Jones versus United States, 362 US 257, a 1960 case, wherein hearsay is admissible in determining probable cause, and that is all this Court is to determine today, that is, probable cause. In this particular case it revolves around into the issuance of a search warrant and the hearsay that might be admissible in that hearing. Hearsay was admissible to determine whether or not the officer at that time had probable cause to bring into play all the knowledge he possessed, whether hearsay or direct observation.
JUDGE O'HARA:
Does that have to do with search warrants issued in that State?
MR. ALCOCK:
Yes, Your Honor.
MR. WEGMANN:
The cases which I cite to the Court state clearly that, as I said before, that as a result of the Fourteenth Amendment, the Sixth Amendment is applicable to the State. It would be illogical to assume or to conclude that only one provision of the Sixth Amendment was applicable and not another provision. And one of the provisions of the Sixth Amendment is clearly stated to be confronted with the witnesses against him, and I have a copy of the Sixth Amendment here which I think the Court should take under consideration. We strongly urge that hearsay is not admissible at a preliminary hearing, particularly, in view of the new Codal provisions that testimony is admissible against the defendant at the trial of his case if the witness is unavailable. When we argued this case originally, the two arguments of the State were that they wanted to perpetuate testimony. If they perpetuate testimony, they cannot perpetuate part of it and not all of it. There is no provision in that Code that says when this case is called for trial that the defense shall have their right to object to part of the testimony and not to all of the testimony. The testimony will be admissible on one showing, and that is the showing by the State that the witness who has previously testified is unavailable to the Court at the time of the trial.
MR. ALCOCK:
Your Honors, the new Codal provisions is not unique. It has always been the case, in a preliminary hearing, that if the State witness or defense witness died, that testimony of the man has been subjected to cross examination and has been admissible on a trial.
JUDGE BAGERT:
I would like to correct something for the purpose of the record. There is no showing anywhere that the reason for this preliminary examination at the request of the State was for the purpose of perpetuating testimony. That is not so. They are entitled to it constitutionally and it was granted. There was no question about perpetuating testimony. The application was made for it, and for what reason I don't know yet, but the application was made and it was granted. I would like to get that corrected for the record factually. That is all.
MR. DYMOND:
May I say this in that connection, that there is no conceivable reason other than the perpetuation of testimony that the State would ask for a preliminary hearing.
JUDGE BAGERT:
That is just conjecture on your part.
MR. DYMOND:
The functions of a preliminary hearing under the circumstances we have here today deal with the possibility of the release of the defendant. How else could he possibly want it.
JUDGE BAGERT:
It was never affirmatively said, no matter what your position is as to this conjecture, I dispute vigorously that it was affirmatively said that the reason for this was for the perpetuation of testimony. That is not true. That is a falsehood. The reason for it, it was asked for and it was granted. No reasons were asked and no reasons were given. It was submitted. It was requested and it was granted. At that time, Mr. Dymond, you were not here in the Courtroom. I don't think Mr. Wegmann was nor do I think his brother, Mr. Wegmann, was in the Courtroom. Mr. [Guy] Johnson was then in the case. Mr. Johnson was here and no reason was given. The motion is there and the motion was granted. I want to make certain that point factually is correct.
MR. DYMOND:
Your Honor, I don't dispute the Court's statement as to what reason was given for the preliminary hearing, but I respectfully call to the Court's attention that the only possible reasons for which a preliminary hearing can be requested is that, one, to perpetuate testimony, and before a bill of information or indictment has been filed is to release the defendant from custody if he is not out on bond and to release him without bond if he isn't. So, it is a simple matter of exclusion to find out why the District Attorney asked for the preliminary hearing.
JUDGE BRANIFF:
That is beside the point. We are in the preliminary hearing. Let's get back to the question whether or not this is hearsay evidence and whether it is admissible.
MR. WEGMANN:
May I make one more statement?
JUDGE BAGERT:
Sure.
MR. WEGMANN:
I think the crux, if it please the Court, of the whole matter is twofold. The first thing is the effect of the new Code of Criminal Procedure. Now, it has been established, not in connection with the new Code of Criminal Procedure, but it has been established with other recodification in the State, the comments which are contained under the Articles formed part of the law in this Code throughout, and it says that certain things have been changed and certain things have not been changed. It seems to me that the Court has to decide today, not necessarily the effect of this testimony today, but it has to decide what is going to happen if a month from now, a year from now, or ad infinitum from now, the testimony of this witness has to be introduced into the trial of the cause, and under which conditions will it be introduced. I think that 295 is what resolves this issue, and 295, in the second paragraph, it says in what language, and I think all encompassing language, it says the transcript of the testimony of any other witness who testified at the preliminary hearing is admissible for any purpose in any subsequent proceeding in the case on behalf of either party, if the Court finds that the witness is dead, too old to testify, even absent from the State, or cannot be found, and that the absence of the witness was not procured by the party offering the testimony. I don't think I need to argue with the Court that hearsay testimony would not be admissible at a trial before a Jury or a trial before a Judge where there was a finding of guilty or a finding of not guilty. But what this Code says, Your Honor, and all we can go by is the written law what this Code says, and that is that if I come in here or the State comes in here a year from now or a month from now and wants to put this man's testimony in the record because he cannot in good faith be found, it goes in the record, and there is nothing the defense attorney can do to keep it out other than to produce the witness. It is an awful burden that is placed, and for that reason a preliminary hearing cannot accept hearsay testimony.
JUDGE BAGERT:
Suppose this was taken by deposition in a civil matter, for instance. Let's remove it from this type of procedure. If there was an objection made and the attorney propounding the question says, "I insist that my question be answered," who rules on that -- nobody. Certainly the reporter doesn't. Certainly this is a matter being taken extra-judicially. Now, isn't that handled when the matter is presented to the Court who has to try the case before a Jury that they then rule on the admissibility of the questions and the testimony.
MR. WEGMANN:
I don't want to quarrel with the Court, Your Honor, but you are mistaken. When you take a deposition in a civil proceeding, you take it for one or two purposes. Either for the purpose of discovery or for the purpose of perpetuating testimony. If you take it for discovery, you can enter into various and sundry stipulations between the parties, and if you take it for perpetuation of testimony and you get in that deposition and you say we are going to object, we instruct the witness not to answer, and if the witness does not answer, you then hike yourself down to the Judge on a rule to show cause, and the Judge says that you got to answer the question or don't have to answer the question, irregardless of the relevancy or whether they are hearsay or admissible. Your remedy is to go to Court and get your relief, and that is where we are today. We say we want our relief, that we want no hearsay.
JUDGE BAGERT:
Right; you are before a magistrate court on a preliminary hearing. That is not the jury.
JUDGE BRANIFF:
What is the authority for the proposition that this entire transcript must go in toto during a trial and that a trial judge cannot rule certain portions of it inadmissible?
MR. WEGMANN:
There is no authority; as I appreciate the law, Your Honor, a Code of Criminal Procedure is a guide by which the Court acts. It has got to follow the law as it is written. You don't look to the Code of Criminal Procedure for escape clauses. You look rather for restrictions that are placed and provisions for the admissibility of testimony. It does not say any part of the testimony. It says the transcript or the testimony of the witness who is not available. It doesn't say that I have the right to object and I submit to the Court that if I was before the Court in the trial of this cause, you would not permit me to object to one question.
JUDGE BAGERT:
I don't subscribe to that. We are confronted with one proposition. We are confronted with the proposition to determine that -- not guilt or innocence. We are confronted with the proposition of determining probable cause and anything that can facilitate us, in my opinion, is admissible. If it is submitted we will entertain it.
MR. WEGMANN:
One of the provisions of the Sixth Amendment is to have the compulsory process for obtaining witnesses in its favor and the final provision, and to have the assistance of competent defense. That is the background of all the series of the cases out of the Supreme Court, and when I cite you this case, it is not necessarily a preliminary hearing, but it happens it was a preliminary hearing in one of them, but what I cited it to you for is the fact that this case says by the Fourteenth Amendment the State courts are bound by the Sixth Amendment, and just like they are bound to have an attorney to represent or they are required to have an attorney to represent him, they are bound to have the witness confronted. That is what the case stands for.
MR. ALCOCK:
The State simply rests upon the fact, as the Court pointed out, we are not trying the innocence or guilt of the defendant at this time. We are only interested in the probable cause. The defense has not cited one case to substantiate their position that hearsay is not admissible. The Court well knows -- may I continue --
JUDGE BAGERT:
Proceed.
MR. ALCOCK:
The Court well knows that the hearsay rule is to keep testimony from the ears of the triers of the fact, that is, the jury at the time of the trial. At this particular time, as I've stated originally, we are not interested in innocence or guilt. This Court should have before it every possible shred of evidence to determine whether or not the State has sufficient cause to bind this man over for trial, and that if it includes hearsay, does not vitiate the preliminary hearing, and they are not entitled to eliminate hearsay from this hearing. They have not cited one case in support of that proposition.
MR. WEGMANN:
Judge, I can only cite to you that we are unable to cite you a case. The inability to cite you a case, it goes two ways. Mr. Alcock cannot cite you a case that says that hearsay testimony is admissible at this preliminary hearing. The problem we have today is we have an article of the Code which became effective on January 1st which is clear, and if you read under the comments, one of the things that it says under the comments is the constitutional right of a defendant not to be witness against himself is not violated by the introduction in evidence of his testimony voluntarily given in a formal legal proceeding, such as a former trial for the same offense, a coroner's investigation, or a preliminary hearing. The reason I cite that to you is that this is a statement by the redactors of the Code to the effect that the evidence is going to be admissible in toto on the subsequent trial of the case, and it seems to me that rather than the defense having to show a case which says they are entitled to have a constitutional right invoked and enforced, that the State is in a position of having to show the defense or the Court a case that says we are not entitled to have our constitutional right of confrontation. This is not a civil proceeding. It is a criminal proceeding. It is not a quasi proceeding. It is a criminal proceeding and one of the basic constitutional privileges is confrontation and it doesn't apply only to juries, but judges as well. If we are trying a misdemeanor before Your Honors, we know we are entitled to have hearsay excluded, and Lord knows, the judges are more qualified than anyone else.
EXAMINATION BY JUDGE BAGERT:
There is a reason, that that proceeding is a conclusive proceeding. This is not a conclusive proceeding.
MR. WEGMANN:
As to the testimony of this witness, it is conclusive.
JUDGE BRANIFF:
Mr. Wegmann, the redactors of the Code in the case of confessions have specifically said that a confession must go in toto or not at all, right?
MR. WEGMANN:
That is correct.
JUDGE BRANIFF:
Now, if they had intended that this transcript should go in toto or not at all, they would have said so, wouldn't they?
MR. WEGMANN:
It says that, Your Honor. It says the transcript of the testimony. It doesn't say that a part of the transcript. It doesn't give you the right to object. Your Honor made the relation to the civil deposition. Now, the civil deposition law definitely sets forth your right to object and so forth at the time of the trial. There is nothing in here that gives me the right in connection with perpetuation of testimony to object at the time of the trial, and what the Court is saying, is that a preliminary hearing is a vehicle that can be used by the State for the purpose of going on a fishing expedition. That is what the Court is saying and I don't believe it was ever intended to be --
JUDGE BAGERT:
Let's get it straight, this is not a fishing expedition, before this thing is concluded.
MR. WEGMANN:
As far as confession, as Your Honor knows, the law insofar as confession was written to conform with the United States Supreme Court decisions. They are trying to make the statutory law conform to the law of the jurisprudence of the country, and the same thing applies here. Hearsay is basically unknown in criminal practice at any stage of the proceedings. The only time that hearsay is noted is in investigative work, not in a hearing before a court. And what happened to the best evidence rule, has it gone out of the window? Where is the man that he is talking about. His duty is to bring those people into court and testify. The best evidence rule is not excluded, I hope, because it is a preliminary hearing. We have not become like a commissioner before the Federal Court.
JUDGE BAGERT:
This is that type of proceeding.
MR. WEGMANN:
There is no authority in the law for this to be a commissioner-type of proceeding.
JUDGE BAGERT:
I would like to invite your attention to the Constitution of the State of Louisiana passed in 1921, which is the existing law of this State and the prevailing documents of this State, the Constitution of 1921, Article 7, Section 83.
MR. WEGMANN:
All I say here, Your Honor, in respect to that, I go back to the case I originally referred you to and which is the crux of my argument. The facts have little to do with it. The point made by the Supreme Court of the United States that Article 6 of the Amendment, the Sixth Amendment of the Constitution of the United States, applies to States whether it is included in the State Constitution or not. That's a United States Supreme Court decision and that is what it says. Just like we are bound by everything else and the Estes rule we are bound here by this rule, and I don't cite it for the similarity of fact. I cite it because the Sixth Amendment says confrontation of witnesses, and strange enough, they applied it to a preliminary hearing in Texas and that is the only two ways I say it is similar. If a man has a right to counsel in a preliminary hearing, he has the right to be confronted by his witnesses. It is basic. That is my argument and I don't say I am not concerned what the Constitution of the State says. It is a fact with all lawyers and all legal minds that they have to recognize that the Supreme Court of this United States has passed decisions in the past ten or fifteen years in the field of criminal procedure which are far-reaching, and this is one of the decisions, that the Sixth Amendment is applicable. And it says very, very clearly that he is to be confronted with the witnesses against him. That is the basic premises upon which hearsay is based.
JUDGE O'HARA:
Mr. Wegmann, how do you account for the fact that there are some United States Supreme Court decisions that state, and I think fairly clearly, that a certain amount of hearsay evidence on the motion to suppress is admissible in evidence?
MR. WEGMANN:
A motion to suppress is an entirely different phase. The motion to suppress is not a prosecutive step. This is a prosecutive step which we are engaged in today, and our Code of Criminal Procedure makes it a prosecutive step.
JUDGE O'HARA:
I am talking about a rule of evidence. What is your explanation for the Supreme Court stating that hearsay is admissible during one procedure? That is what I would like you to answer.
MR. WEGMANN:
My answer is that one is a prosecutive step and the other is not. This is a prosecutive step because the testimony is admissible as to the finding of guilt or innocence on the ultimate trial of this case, whereas in a motion to suppress there is no inditia of guilt or innocence. This particular proceeding there is a possibility of guilt or innocence being determined as a result of this witness' testimony.
JUDGE BAGERT:
The position of the Court is this: We are going to sustain the objection and it is possible that, possible that after the recess, that we may reverse our position. There may be a change in that position later after we have had another opportunity to go to the library and do further research. So, your objection at this time is sustained.
EXAMINATION BY MR. GARRISON:
Q. Perry, I want you to go back to where we were when you were telling me about your relationship with David Ferrie and restrict your testimony to what you actually heard yourself; now, tell us how you first met David Ferrie and what you recall about your relationship with him?
A. Well, a friend of mine had had some trouble with his family and I knew the family on a rather well basis, and through this friend I met Dave Ferrie, who was a friend of his. That was the first acquaintance I had with him, out in the Airline section, or in that Kenner section, out in Kenner at a Civil Air Patrol meeting in which -- whether or not he was a leader, I don't know, but he seemed to be at that time, and he conducted the meeting, and after the formal meeting I was there with some of my friends. Thereafter, he put on certain demonstrations so as to impress me.
Q. Where was the meeting held?
A. I don't know the address. It was out in the Kenner area, that is all I know.
Q. What kind of a demonstration are you talking about?
A. One, he put on a demonstration of his hypnotic abilities. He claimed to have the best of this or he knew more than most people knew, and he used one of the boys there and hypnotized him, and he took a pen or the end of an easel, not an easel, but the thing you draw circles with, with a long point in it, and he used that, and putting, sticking that instrument into the boy's skin and also through his hand. I was highly skeptical about this and I felt the tendons to see if there were any movements, and the boy did not remember anything, and had no experience or recollection of pain. So, I believed Dave Ferrie at that time, at least, for that claim.
Q. Continue to testify about your relationship with Dave Ferrie?
We went on and after a while I alienated this friend from Dave, and at the encounter we had with him, which was on Bourbon Street, Dave happened to bump into us. I was with some other friends of mine. We more or less talked the boy into telling Dave something, that he did not want to see him, which he said. I do not want to see you any more. He says I am through, I don't want to do anything more with the Civil Air Patrol any more. And Dave asked to speak to him alone or almost demanded it. Of course, the people I was with, we already figured out what we were going to do and we said we would be there if this friend had any talking to do. Dave got very angry and told me he would kill me.
MR. DYMOND:
I object to any conversation, Your Honor, under the Court's ruling.
JUDGE BAGERT:
The same ruling.
EXAMINATION BY MR. GARRISON:
Q. Had you ever been to David Ferrie's house?
A. He lived at two different places and I had been to both places.
Q. Which place do you remember?
A. The first time I had seen him was out at the Kenner place; I don't know the address.
Q. Kenner?
A. Yes, sir. And the second or subsequent times I saw him was up on Louisiana Avenue Parkway.
Q. Do you think you could recognize pictures of the place on Louisiana Avenue Parkway if you were to see them?
A. I am sure of it.
Q. Mr. Russo, I show you a picture marked, S-9, which appears to be the exterior of an apartment building, and it is marked 3328-3330 under the door; I ask you if you have ever seen that building before?
A. Yes, sir.
Q. Who lived there?
A. Dave Ferrie lived in the upper section.
Q. He lived in the upper section of this building?
A. Right.
Q. Have you ever been in that building?
A. Yes.
Q. I show you a picture which has been marked, S-5, which appears to be the interior of this apartment, and I ask you if you have ever seen that before?
A. Yes, sir.
Q. Where is that?
A. This is in the hallway facing the street.
Q. The hallway of --
A. Of Dave Ferrie's apartment facing the street.
Q. I show you a picture which is marked, S-6, and ask you if you have ever seen this, the interior of this apartment?
A. Yes, sir, this was Dave Ferrie's, what I call his living room.
Q. I show you a picture marked, S-7, and ask you if you have ever seen this room?
A. Yes, sir. That was what I called Dave Ferrie's dining room. It was adjoining to the living room.
Q. When you say, what I call, you mean it appears to you to be a dining room?
A. That was my terminology for it.
Q. That it was the dining room?
A. Right.
Q. I show you a picture which is marked, S-4, and which also appears to be the interior of the portion of the house and I ask you if you have ever seen that before?
A. Yes, sir.
Q. As what?
A. That is the hallway that led to a back entrance and also to a bathroom.
Q. Whose books are those, to your knowledge?
A. All the material in there I suppose belonged to Dave Ferrie.
Q. Did you ever see those books before?
A. I have seen books of all sorts up there.
Q. And I show you a picture which has been marked, S-3, which appears to be the interior of a house or apartment, and I ask you if this looks familiar?
A. I remember Dave Ferrie's apartment. He had a coffee table, but I'm not absolutely sure that's the same one. He had a coffee table.
Q. But you cannot place that particular coffee table?
A. No, I would not be willing to say that.
Q. Can you tell us the year that you were there?
A. I had gone, he had come to my house and I had gone to his on many occasions during 1963 and some in 1962.
A. Do you recall anything unusual that happened in the fall of 1963?
Q. Well, Dave, during the summer of 1963 -- if I might back up a month or so -- during the summer of 1963, Dave Ferrie had passed over to my house on several occasions late at night, which was his custom, and at that time he had introduced me to some of his friends, which was all right with me, and he also gave me an open book invitation --
MR. DYMOND:
I object to this conversation. It is obviously about to be a statement made by Ferrie to this individual, which certainly comes within the ruling of the Court which has been made.
JUDGE O'HARA:
He didn't get there yet.
MR. ALCOCK:
I think Mr. Dymond again is anticipating the State, anticipating the questions. I think if hearsay is brought up he can make timely objections at that time and the Court can better be qualified to rule on it at that time. I certainly don't think he has the right through objection to attempt to state the way the State is going to ask its questions and to run the State's case.
MR. DYMOND:
Your Honors, I am not trying to run the State's case and not trying to say how the State shall ask the questions.
JUDGE BAGERT:
The ruling of the Court is this: The objection is overruled at this time.
MR. DYMOND:
To which ruling, Counsel respectfully reserves a bill of exceptions, making all the testimony, all the pleadings, the objection, and the ruling of the Court parts of the bill, the objection being made on the grounds that this is hearsay testimony in violation of the rules which has been made by this Honorable Court.
EXAMINATION BY MR. GARRISON:
Q. Perry, continue now from where you are about to proceed?
A. Dave Ferrie had given me an open book, so to speak, invitation to come to his house when I wanted --
MR. DYMOND:
I object again, Your Honor. This is very clearly within the bounds of the Court's ruling. He is trying to say now what Ferrie told him.
JUDGE BRANIFF:
He did not say what Ferrie told him.
MR. DYMOND:
Well, Your Honor, how are you going to get somebody, going to give somebody an open-book invitation to come to your house?
JUDGE BRANIFF:
Maybe he will explain that. Give him a chance.
MR. DYMOND:
Well, Your Honor, if we are going to do that, why have a ruling of the Court.
JUDGE BAGERT:
Well, the ruling is that it is overruled.
MR. DYMOND:
May I ask, is the Court changing its position as to its previous ruling?
JUDGE BAGERT:
Direct your cross examination to the witnesses.
MR. DYMOND:
I just want to know where we stand.
JUDGE BAGERT:
You have been told where you stand. It is overruled. Reserve your bill.
MR. DYMOND:
To which ruling of the Court I would like to reserve a bill, objecting to this testimony on the grounds that it is hearsay testimony in violation of this defendant's rights under the Sixth Amendment, the Federal Constitution, Article 1, of the State Constitution, RS 15:295, and the Louisiana law pertaining to the inadmissibility of hearsay testimony, making all testimony, all the proceedings, the objection and the ruling of the Court parts of the bill.
JUDGE BAGERT:
Gentlemen, we made some announcements before the beginning of this that we will recess on the hour for the convenience of the reporters.
MR. GARRISON:
This witness has just begun his testimony, and if we can have that same break delayed for about fifteen minutes so we can make a little progress, I would appreciate it.
JUDGE BAGERT:
Motion is granted. Proceed.
EXAMINATION BY MR. GARRISON:
Q. Perry, would you just continue what you were about to say and tell us about it?
A. Dave Ferrie and I had an arrangement that we each could come to each other's house, whenever the other was in, and that was the arrangement we were working under. Many of my friends met Dave at my house, and some of my friends went up there with me to his apartment. It was during these months, September and the month before, that he showed to me or what he felt, what he indicated that he was obsessed with Kennedy in one form or another.
Q. Indicated what; can you make that clearer?
A. That he was obsessed with Kennedy?
MR. DYMOND:
I object to that again on two grounds; first of all, it is hearsay again in violation of the Court's ruling. Secondly, that this testimony represents a conclusion by this witness as to the interpretation of whatever Ferrie --
MR. GARRISON:
Without putting your evaluation on it, tell us what Ferrie told you about --
MR. DYMOND:
Your Honor, may I have a ruling on my objection.
JUDGE BAGERT:
Sustained.
EXAMINATION BY MR. GARRISON:
Q. Perry, don't tell me, don't tell us your conclusions as to Ferrie's state of mind, but you can tell us the things he said to you at that time; what did he say to you in that regard?
A. During the summer months --
MR. DYMOND:
I object again, Your Honor, under the hearsay rule and the previous ruling of the Court.
JUDGE BAGERT:
Sustained.
EXAMINATION BY MR. GARRISON:
Q. Now, Perry, I direct your attention to 3330 Louisiana Avenue Parkway, and do you recall anything unusual happening in this apartment in the fall of 1963?
A. I had gone up on several occasions and Mr. Ferrie had some of his friends up there during which time I saw clippings of the President, which Dave carried around with him, and newspaper clippings, pictures of President Kennedy, and there was subsequently, there was much talk and deliberation there.
Q. Do you recall anything unusual happening during a visit on your part to this address in 1963, in the fall?
A. Well, somewhere around the middle of September I had an occasion to go to Louisiana Avenue Parkway, his house at Louisiana Avenue Parkway, and at that time I walked in and there seemed to be some sort of a party that was in progress. That was my estimation. People were sitting around drinking and talking and there were maybe eight or ten people there at that time. Then later on as the party dissipated, some of the people began to leave, and then it narrowed down to three people besides myself who had to remain, because I had no ride, who sat up there, And it seemed it was no longer a party.
Q. Who were those three people besides yourself that remained?
A. There was Dave Ferrie, a person who I had seen in his house on three or four occasions, Leon Oswald.
Q. Would you pronounce that last name again more clearly?
A. Oswald.
Q. Oswald?
A. Yes, sir.
Q. Leon Oswald?
A. Yes, sir.
Q. That is the way he was introduced to you?
A. Yes, that is the way he was introduced to me.
Q. Who was the third party.
A. The third person was Clem Bertrand.
Q. Clem Bertrand?
A. Yes, sir.
Q. Do you see the man you knew as Bertrand in the Courtroom?
A. Yes, sir.
Q. Will you point to him?
A. (Witness pointing to the defendant.)
Q. Describe the color of the coat he has on?
A. Brown.
Q. Will you describe the color of his hair?
A. White.
Q. Who introduced him to you?
A. Dave Ferrie.
Q. What name did he describe this man to you as?
A. Clem Bertrand.
Q. All right; now, going back to the other party who was introduced to you as Leon Oswald, do you think you can recognize pictures of Leon Oswald if you were to see them?
A. Yes, I do.
Q. Perry, I show you a picture which has been marked, S-1, and which has described on the back the name of Lee Harvey Oswald, and I ask you if you have ever seen this man before?
A. Yes, sir.
Q. And when did you see him?
A. I saw him on three or four occasions at Dave's apartment.
Q. And under what name was he introduced to you as?
A. Leon Oswald.
Q. I show you a larger picture which has been marked, S-2, and which is entitled, "Accused assassin of President shot down," and I ask you if you can recognize anybody in S-2?
A. Yes, sir.
Q. Who do you recognize?
A. The man in the middle.
Q. Who is that man?
A. It is the same person that I saw at Dave Ferrie's apartment.
Q. Who was introduced to you as --
A. Leon Oswald.
Q. Would it be correct to say then that after the rest of the party left that you found yourself with three other people and they were David Ferrie, the defendant whom you have identified, and the man introduced to you as Leon Oswald, who you now identify as Lee Oswald?
A. Yes, that was all the people that were present.
Q. Will you then tell us what happened?
A. Ferrie, Dave Ferrie, took the initiative in the conversation and he paced back and forth on the floor. Dave Ferrie began the conversation and after some few things about my presence being there, then he paced back and forth, and he was talking and he talked to both Mr. Bertrand and Mr. Oswald.
Q. Continue.
A. Well, during the discussion, it centered around the fact that in the assassination attempt, they would have to use diversionary tactics and this was Ferrie's favorite expression as he walked at that time. He raised his hand, showing the triangulation of cross fire involved that would have to be required and he pointed to this finger and this finger saying that there would be three people, or at the very minimum, two involved, but necessarily three he felt, and that one of them would shoot a diversionary shot or another, maybe two, one or two, would shoot diversionary shots and the third was the intended direct hit, or the good shot. That is the way he phrased it. Thereafter, one of these three people on the scene would then be, would have to be, you know, termed a scapegoat. He called them that, a scapegoat. In other words, one man had to be sacrificed so the other two or the other one, it just depends, but there necessarily had to be one. That was the point he made.
Q. Did you say he said that one had to be sacrificed?
A. If there were three people, one had to be sacrificed. If there were three people and there could have been one or two people in this, if two people, definitely one had to be sacrificed.
Q. You mentioned triangulation of cross fire; did he indicate what kind of weapon?
A. He didn't talk about weapons as such. He talked about guns, but I mean, no weapons like pistols or rifles or guns, just guns.
Q. Now, who participated in the conversation with David Ferrie about the assassination?
A. Mr. Bertrand and Mr. Oswald.
Q. Is that the same Mr. Bertrand who is sitting here?
A. Yes.
Q. And what did Mr. Bertrand have to say about that?
A. He didn't. He listened during the majority of this conversation. Now, it got to a second phase, my impression, it just changed, the mood a little bit, and Ferrie talked excessively about the availability of exit.
Q. Of exit?
A. Yes.
Q. Exit of what, exit of whom?
A. Once the act had been committed, you had to get out. Now, Ferrie had worked up two proposals. One was that this man -- first of all, I have to back up a little bit -- this man who was to be sacrificed, who was to take the brunt, would give just enough time for these two, or one, whatever the case was, to escape. Ferrie was the pilot, not of this, but he was a pilot in the past, had been at Eastern Airlines.
Q. In the past?
A. Yes, sir. He said that they would either go from where they were at that time to Mexico and refuel, and then on to Brazil, or they would fly directly to Cuba. He talked a while about the risks of flying directly into Cuba, because of the fact that the people there might shoot them down, not knowing who they were, and Mr. Bertrand argued with him about the possibility that as soon as the shot was fired, the world would know about it, and if they attempted to land in Mexico to refuel, that there was no way in the world they could get out, from Mexico.
Q. What did Bertrand suggest.
A. Ferrie offered Bertrand an alternate solution. The alternate solution was that they were to be in the public eye, not necessarily these people, but Mr. Ferrie, Mr. Oswald and Bertrand were to be in the public eye on the day of an assassination, making sure they were making a speech or there was enough people that were around to witness that Dave Ferrie was at such and such a place and at such and such a time.
Q. Did David Ferrie mention where he was going to go?
A. Dave Ferrie said to me about making a speech at Southeastern.
Q. Where is Southeastern located?
A. In Hammond.
Q. In Hammond?
A. Yes, sir.
Q. Did Mr. Bertrand say anything where he was going to go during the assassination?
A. He said that if this is the alternative he will go on business with his company.
Q. Did he indicate where he would go?
A. To the West Coast.
Q. To the West Coast?
A. Yes, sir.
Q. Now, just to make sure, doubly sure, you told us about a man named Bertrand discussing the possible assassination of the President of the United States; would you stand up a minute and come down here?
A. All right.
Q. Now, I want you to go stand behind the man who you saw there and who you are describing as Bertrand, and put your hand over his head, and the man who was discussing the problem of egress, and put your hand over his head?
A. All right. (Witness stepping down and putting his hand over the head of the defendant.)
MR. GARRISON:
Thank you. You can go back to the stand.
MR. GARRISON:
At this point, the Court can now make a break.
JUDGE BAGERT:
Let the record reflect therefore that he held his hand over the head of Mr. Shaw. Let the record reflect that we will be at recess until two o'clock.