EASTERN DISTRICT OF KENTUCKY
PIKEVILLE DIVISION
UNITED STATES OF AMERICA, . Docket No. CR 01-17
.
Plaintiff, . Frankfort, Kentucky
. April 18, 2001
v. . 9:00 a.m.
. April 18, 2001
LEON COMBS . 1:00 p.m.
.
Defendant . VOLUME I OF II
.
. . . . . . . . . . . . . . . . . . . .
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE JOSEPH M. HOOD
UNITED STATES DISTRICT JUDGE
APPREARANCES:
For the Plaintiff: Mr. Roger West
Ms. Teresa Reed
Assistant United States Attorney
110 W. Vine Street, Suite 400
Lexington, KY 40507-1671
For the Defendant: Mr. Derek Gordon
139 Market Street
Lexington, KY 40507
Court Reporter: K. Ann (Edgington) Banta, RPR
330 W. Broadway
Frankfort, KY 40601
(502) 223-3626
Proceedings recorded by mechanical stenography, transcript produced by computer-aided transcription.
Wednesday morning session,
April 18, 2001, 9:00 a.m.
___________________________
THE COURT: Madam Clerk, call the matter on, please.
THE CLERK: Yes, Your Honor, Pikeville criminal action, No. 01-17, United States of America v. Leon Combs, this matter beng called for jury trial, Your Honor.
THE COURT: Let the record reflect that the United States is present in the courtroom by counsel, that the defendant is present in the courtroom with counsel. Ready to proceed, Mr. West?
MR. WEST: May we approach just briefly, Your Honor?
THE COURT: Yes, sir.
(A bench conference was had between the Court and counsel out of hearing of the prospective jurors.)
THE COURT: Good morning. Let the record reflect that the parties are present at the bench outside the presence and hearing of the jury. Yes, sir.
MR. WEST: Good morning, Your Honor. The United States would announce we are ready subject to the appearance of a witness, Joyce Eversole.
She is the cooperating witness in this case. She was served with a subpoena for court. We have had contact with her. She did not make her pickup this morning, and I haven�t heard from her before midnight last night.
I would ask the court for a forthright warrant to bring her to the courthouse.
Mr. Gordon had contact with her yesterday. But we have some concerns if she�s evading the court �
THE COURT: Forthright or forthwith?
MR. WEST: Forthright � forthwith would be good, sir.
THE COURT: Forthright means you are truthful. Forthwith means bring them in. That motion shall be sustained.
MR. WEST: Thank you, sir.
THE COURT: But you can go forward without her?
MR. WEST: Yes, sir, we can.
THE COURT: Anything else?
MR. GORDON: No. One of my witnesses isn�t here either, I don�t know �
THE COURT: I don�t know where they are.
MR. GORDON: Well, we�ll try and subpoena them.
THE COURT: Are you ready?
MR. GORDON: Just to the exception of the one that�s not here.
THE COURT: Are you ready or not ready? If that�s going to require you to get a continuance?
MR. GORDON: No, but we have got to get that person here. I�ll give you the name at the break, and we�ll take care of that.
MR. WEST: Sir, that�s all.
THE COURT: Plaintiff ready?
MR. WEST: Yes, Your Honor.
THE COURT: Is the defendant ready?
MR. GORDON: Yes, Your Honor.
THE COURT: Madam Clerk, poll the jury, please.
THE CLERK: Yes, Your Honor. Ladies and gentlemen, as I call your name and number, if you will stand briefly and answer present. Juror No. 75, Ronda Armstrong.
JUROR NO. 75: Present.
THE CLERK: Juror No. 83, Elinor Shish.
JUROR NO. 83: Present.
THE CLERK: Juror No. 88, Donnie Dawes.
JUROR NO. 88: Present.
THE CLERK: Juror No. 89, Dorothy Tate Juror No. 89, Dorothy Tate. I think she called in sick this morning.
THE COURT: She is sick, yeah.
MR. GORDON: What was that number?
THE COURT: 89. She had an upset stomach and was throwing up all over the place, and I didn�t think it would be a very good idea to have her here.
THE CLERK: Juror No. 95, Eric McMichael.
JUROR NO. 95: Present.
THE CLERK: Juror No. 100, Ryan Osborne.
JUROR NO. 100: Present.
THE CLERK: Juror No. 102, Mabel Hamilton.
JUROR NO. 102: Present.
THE CLERK: Juror No. 110, Janet Hayes.
JUROR NO. 110: Present. It�s Haynes.
THE CLERK: Haynes. Juror No. 115, Tara Mee.
JUROR NO. 115: Present.
THE CLERK: Juror No. 119, Darrell Hardin, Juror No. 119. Darrell Hardin. We have heard nothing from this juror, Your Honor.
THE COURT: Very well, let an order go.
THE CLERK: Juror No. 123, Cathy Spencer.
JUROR NO. 123: Present.
THE CLERK: Juror No. 125, Mac Bell?
JUROR NO. 125: Present.
THE CLERK: Juror No. 136, Melissa Schriff.
JUROR NO. 136: Present.
THE CLERK: Juror No. 138, Gene Fouts.
JUROR NO. 138: Present
THE CLERK: Juror No. 139, Deena Willhoite
JUROR NO. 139: Present.
THE CLERK: Juror No. 143, Jesse Brophy.
JUROR NO. 143: Present.
THE CLERK: Juror No. 148, Shirley Collier.
JUROR NO. 148: Present.
THE CLERK: Juror No. 151, Thad West.
JUROR NO. 151: Present.
THE CLERK: Juror No. 161, Kimberly Moore
JUROR NO. 161: Present.
THE CLERK: Juror No. 164, William Burnett.
JUROR NO. 164: Present.
THE CLERK: Juror No. 167, Gloria Amarello?
JUROR NO. 167: Present.
THE CLERK: Juror No. 169, Alice Strange?
JUROR NO. 169: Present.
THE CLERK: Juror No. 170, Ann Hanley.
JUROR NO. 170: Present.
THE CLERK: Juror No. 171, Angela Searcy.
JUROR NO. 171: Present.
THE CLERK: Juror No. 172, John R. Scott.
JUROR NO. 172: Present.
THE CLERK: Juror No. 173, Goldie Tolbert.
JUROR NO. 173: Present.
THE CLERK: Juror No. 174, Jonathan House?
JUROR NO. 174: Present.
THE CLERK: Juror No. 176, Robert Hughes.
JUROR NO. 176: Present.
THE CLERK: Juror No. 178, Sonya Semones.
JUROR NO. 178: Present.
THE CLERK: Juror No. 179, Bonnie Waldridge.
JUROR NO. 179: Present.
THE CLERK: Juror No. 180, Joann Bray.
JUROR NO. 180: Present.
THE CLERK: Juror No. 181, Jo Ledford.
JUROR NO. 181: Present.
THE CLERK: Juror No. 182. Joann Goodwin.
JUROR NO. 182: Present.
THE CLERK: Juror No. 183. Bobby Glass.
JUROR NO. 183: Present.
THE CLERK: Juror No. 184, Don Scholey.
JUROR NO. 184: Present.
THE CLERK: Juror No. 189, Greg Schields.
JUROR NO. 189: Present.
THE CLERK: Juror No. 190, Brejetta Stidham.
JUROR NO. 190: Present.
THE CLERK: Juror No. 191, Brenda Yewell.
JUROR NO. 191: Present.
THE CLERK: Juror No. 195, Curtis Waters.
JUROR NO. 195: Present.
THE CLERK: Juror No. 197, Russell Perry?
JUROR NO. 197: Present.
THE CLERK: Juror No. 198, Judy Roberts.
JUROR NO. 198: Present.
THE CLERK: And juror No. 199, Luther New.
JUROR NO. 199: Present.
THE CLERK: Forty present.
THE COURT: Forty? Madam Clerk, would you please swear the jury to answer questions?
THE CLERK: Yes, Your Honor. Please stand, raise your right hands to be sworn or make an affirmation.
(Prospective jurors sworn.)
THE CLERK: Thank you.
THE COURT: Miss Yewell?
MISS YEWELL: Yes.
THE COURT: I believe this is your first time here, is that correct?
MISS YEWELL: That�s correct.
THE COURT: Do you remember sometime ago you filled out a jury questionnaire and answered some questions on that questionnaire?
MISS YEWELL: I believe so. It was � yes. A long time ago.
THE COURT: It was a long time ago, and you thought that you had escaped, hadn�t you? Huh?
MISS YEWELL: I knew better.
THE COURT: Okay. Well, let me ask you if your questions [perhaps he said answers] would be the same now as they were then on that questionnaire.
MISS YEWELL: Yes.
THE COURT: How do you know that?
MISS YEWELL: Well, nothing�s changed.
THE COURT: Well, I could ask you a very pertinent question, and I now the answer�s different. Like are you eighteen years of age or older?
MISS YEWELL: Yes.
THE COURT: You still are?
MISS YEWELL: I am older than eighteen.
THE COURT: We all are. Are you still a citizen of the United States?
MISS YEWELL: Yes.
THE COURT: Do you still � have you lived for the past year in this state and in this country?
MISS YEWELL: Yes.
THE COURT: Do you read, write and understand the English language?
MISS YEWELL: Yes.
THE COURT: Do you have any physical or mental disabilities which would interfere with your services as a juror in this case?
MISS YEWELL: No.
THE COURT: Are any charges now pending against you for a violation of State or Federal law punishable by imprisonment for more than one year?
MISS YEWELL: No.
THE COURT: Have you ever been convicted either by your quilty or nolo contendre plea of a crime, State or Federal, for which you could be imprisoned for more than one year?
MISS YEWELL: No.
THE COURT: You are qualified.
MISS YEWELL: Thank you.
THE COURT: You heard the style of this case. Most of you have been here before, with the exception of Mrs. Yewell hasn�t been here before. So you know what we are getting ready to do.
We are getting ready to do what I call �voir dire,� which is to ask you questions touching upon your basic qualifications to serve as jurors in this particular case.
My questions and the questions that will be asked of you by the attorneys are not designed to embarrass you in any form or respect; rather, they are designed to determine whether you have any preconceived notions about this case that would interfere with or impair your ability to render a fair and impartial verdict for both sides in this case.
I will ask you some questions first, then I will ask the lawyers to � to� allow the lawyers to speak to you as well.
When they ask you a question that applies to your situation, do not hesitate to raise your hand, and when called upon to give me your name and juror number.
When the question � if there is some doubt in your mind as to whether the question applies to your individual case, raise your hand and let us determine whether your response would be applicable.
It�s better to be more forthcoming than it is to keep something to yourself that might be important to the lawyers and me, all right?
Now, the style of this case is United States of America v. Leon Combs. The United States is represented by Assistant United States Attorney, Roger West and Teresa Reed.
MR. WEST: Good morning.
THE COURT: Mr. West, if you would stand and introduce yourself, your co-counsel and case agent to the jury.
MR. WEST: I will, sir. Good morning, my name is Roger West. I am assistant U. S. attorney based in London. I also work out of the Lexington Office.
This is Mrs. Reed, she is also assistant United States Attorney.
And Special Agent Paul Hartel of the FBI.
Ms. Julie Osborne is assistant in the office. She will be with us as well.
THE COURT: Thank you. Mr. West. The defendant in this case is Leon Combs. He is represented by Mr. Derek Gordon. Mr. Gordon, would you stand, introduce yourself and your client to the jury?
MR. GORDON: Yes, I am Derek Gordon, and I�m an attorney in Lexington; and this is my client, Leon Combs. Stand up. He is from Hazard, Hazard, Kentucky.
THE COURT: I thank you, Mr. Gordon.
�
(VOIR DIRE EXAMINATION OF JURORS)
THE COURT: The first question that I am going to ask you deals with your knowledge of the parties in this case and their attorneys.
Do any of you know Roger West? I believe Mr. West lives in Madison County.
MR. WEST: No, sir, I live in Laurel County.
THE COURT: Laurel County, okay, lives in Laurel County. Practiced for a long time in Fayette County before he went down to London area to work in the U. S. Attorney�s office. Do any of you know Mr. West? Has he ever represented you or any member of your family?
Mrs. Reed is origninally from Perry County and still lives there. She�s practiced law in Perry County and is now in the United States Attorney�s office as well. Do any of you know Mrs. Reed? Has she ever represented you in private practice or any member of your family?
Special Agent Hartel is with the Federal Bureau of Investigation and is in the Lexington Office, but that office covers the area in Perry County. Do any of you know Mr. Hartel?
Mr. Leon Combs is from Hazard in Perry County. Do any of you know Mr. Combs?
A JUROR: Judge �
THE COURT: Yes, sir.
A JUROR: I am 138, Gene Fouts. I am originally from Hazard but I don�t think I know either the attorney or Mr. Combs.
THE COURT: Okay, but the fact that you are from Perry County and this incident arose in Perry County, would that preclude you from listening to the evidence in this case and rendering a fair and impartial verdict?
MR. FOUTS: I don�t believe so.
THE COURT: That was 136?
MR. FOUTS: 138. Gene Fouts.
THE COURT: Fouts. I can�t even read � okay. Okay. Mr. Gordon is from Lexington, practices in Lexington and all throughout central and eastern Kentucky. Do any of you know Mr. Gordon?
Has he represented you or any member of your family?
The United States Attorney�s office in Lexington and London and Covington � which has branch offices in Lexington and London and Covington � represents the United States � represents the United States Government in a whole range of cases, not just in criminal actions but in a number of civil actions such as in Social Security cases, land condemnation cases and in any cases in which the government is a party. Has the United States Attorney�s office or any of the 35 or so attorneys that are in that office ever represented you on any matter? Or any member of yur family? When I say your family, I mean your immediate family. On the other hand, they also represent the government in a lot of cases where condemnation cases or things of that nature, have they ever sued you or any member of your family?
Special Agent Hartel is with the FBI. Do any of you have a relative that is a member of the Federal Bureau of Investigation? Works for the FBI? He is obviously a law enforcement officer. Do any of you have relatives who � again, when I say �relatives� close relatives who are in law enforcement? Okay. Ma�am?
A JUROR: 182. Joann Goodwin.
THE COURT: Yes, ma�am.
MS. GOODWIN: I am married to a Louisville police officer.
THE COURT: Frankfort police officer?
MS. GOODWIN: Louisville.
THE COURT: Louisville. Louisville, I thought you said local. Well, despite the fact that he is in Louisvile where some Italian basketball coach has turned traitor and gone down there, do you know anything at all about this case?
MS. GOODWIN: No.
THE COURT: Now, obviously you are married to a Louisville police officer. Would that fact make you more likely to credit police officers who testify in a case � give their testimony more credence than you would the testimony of any other witness?
MS. GOODWIN: I don�t think so.
THE COURT: Okay. So you could listen to the evidence in this case, and based on the instructions of the court render a fair and impartial verdict?
MS. GOODWIN: Yes, sir.
THE COURT: Okay, thank you, ma�am. Anyone else have a close relative who is in law enforcement? Oh, there is a couple more hands. Yes, ma�am.
A JUROR: Goldie Tolbert, I am juror 173. My sister works for the State Police but she is not actually law enforcement, she just works there.
THE COURT: Where does she work?
MS. TOLBERT: It�s in communications.
THE COURT: Here in Frankfort?
MS. TOLBERT: Yes.
THE COURT: Dispatcher or something like that?
MS. TOLBERT: She used to be a dispatcher, but now she is in communications with the radios and computers, making sure that they can stay in contact with each other.
THE COURT: Okay, because of that, would you have any reason to credit the testimony of a police officer more so than you would any other witness?
MS. TOLBERT: No, sir.
THE COURT: Have you talked to your sister about this case at all?
MS. TOLBERT: No, sir.
THE COURT: Could you listen to the evidence in this case, Miss Tolbert, and render a fair and impartial verdict based on the instructions of the court?
MS. TOLBERT: Yes, sir.
THE COURT: Okay, thank you. Anyone else? Yes, ma�am.
A JUROR: Kimberly Moore, 161.
THE COURT: Yes, ma�am.
MS. MOORE: I have a cousin that�s a sheriff.
THE COURT: Where is he a sheriff?
MS. MOORE: Shelby County.
THE COURT: Okay. Same kind of question I asked previously, would you tend to give more credence to a police officer�s testimony than you would the testimony of anybody else simply because they are a police officer �
MS. MOORE: No.
THE COURT: � as a result of your relationship?
MS. MOORE: No, sir.
THE COURT: Could you listen to the evidence in this case and render a fair and impartial verdict based on the instructions of the court?
MS. MOORE: Yes, sir.
THE COURT: Thank you. Anyone � yes, ma�am?
A JUROR: Alice Strange, juror 169. I work for the Kentucky State Police records section.
THE COURT: And that�s here in Frankfort?
MS. STRANGE: Yes, sir.
THE COURT: Do you � would you know, by any chance some Kentucky State Policeman named Dan Smoot, for example?
MS. STRANGE: No, sir.
THE COURT: You know of Kentucky State Police � you said you have heard of him?
MS. STRANGE: No, sir, not personally. When we give reports in, they may have an officer�s name and may just recognize the name but �
THE COURT: Okay, have you ever heard of Kentucky State Police trooper by the name of Chris Fugate?
MS. STRANGE: No, sir.
THE COURT: You work for the Kentucky State Police, and there are going to be some Kentucky State Police possibly testify in this case. Would you tend to assign more credence to their testimony than you would the testimony of any other witness simply because of your employment with the Kentucky State Police?
MS. STRANGE: No, sir.
THE COURT: Could you listen to the evidence in this case and render a fair and impartial verdict based on the instructions of the court?
MS. STRANGE: Yes.
THE COURT: Thank you, ma�am. Anyone else have a relative or know anybody that � or works in the law enforcement field?
This case is styled United States of America v. Leon Combs. I am going to first tell you what the indictment charges. Count 1 of this indictment charges that, �On or about November 14, 2000, in Perry County, in the Eastern District of Kentucky, Leon Combs, defendant herein, did knowingly and intentionally possess with intent to distribute and did distribute a measurable quantity of Oxycontin, a Schedule II controlled substance.� Count 2 charges that, �On or about the 22nd � January 22nd , 2001 in Perry County in the Eastern District of Kentucky, Leon Combs, defendant herein, did knowlingly and intentionally possess with intent to distribute a measurable quantity of Oxycontin and Dilaudid, Schedule II controlled substances as listed in Title 21, United States Code. Count 3 charges that, �On or about January 22nd, 2001, in Perry County in the Eastern District of Kentucky, Leon Combs, defendant herein, during and in relation to a drug trafficking crime for which he may be prosecuted in a court of the United States, did possess a .22 caliber Phoenix pistol.� all in violation of Title 18, United States Code Section 924(c). Count 4 of this indictment charges that, �On or about January 22, 2001, in Perry County in the Eastern District of Kentucky, Leon Combs, defendant herein, in furtherance of a drug trafficking crime for which he may be prosecuted in a court of the United States, did unlawfully possess firearms, one Remington .270 rifle, one Remington .22 rifle, and one Remington .22 rifle, all in violation of Title 18, United States Code, Section 924(c).�
MR. GORDON: Judge, if I can just interrupt for a second. If we could approach the bench for one moment.
THE COURT: Yes, sir, approach, please.
(A bench conference was had between the Court and counsel out of the hearing of the prospective jurors.)
MR. GORDON: You were getting ready to read Count 5. I want to make sure, I hadn�t seen anything or heard anything. The guns are stolen, are you alleging they are stolen?
MR. WEST: That�s what the indictment says, Derek.
MR. GORDON: I know what the indictment says, but I haven�t seen anything, heard anything. I don�t want that coming out if there is no proof.
THE COURT: He will have proof. Yesterday he talked about that.
MR. GORDON: Stolen guns?
THE COURT: Yeah.
MR. GORDON: I think the guns my guy had were not stolen.
MR. WEST: No, no, no, these guns listed came from Josh Miller and his father and uncle, and they are the ones that he stole the gun from.
MR. GORDON: Wanted to make sure. Appreciate it. I didn�t mean to interrupt you.
(End of bench conference.)
THE COURT: Count 5 of this indictment charges that �On or about January 22, 2001, in Perry County, in the Eastern District of Kentucky, Leon Combs, defendant herein, did knowingly possess stolen firearms, one Remington .270 rifle, one Remington 9 � or one Remington .22 � 2 � .22 caliber rifle; and one Remington .22 caliber rifle, which have been shipped in interstate commerce, all in violation of Title 18, United States Code, Section 922(j),� end quote.
Now the reason I tell you about this indictment and the charges contained in there, two-fold, the first thing that I want to tell you about it is that these are just charges, nothing more. The indictment against the defendant brought by the government is only an accusation, nothing more. It is not proof of guilt or anything else.
The defendant therefore starts out this trial with a clean slate as he is presumed innocent until proven guilty.
The second thing � reason why I tell you about this indictment is to find out if you obviously know anything about the case.
Now, the indictment just basically outlines the charges, but this case doesn�t necessarily � hasn�t necessarily received any publicity, but it�s part of a number of cases which have received a substantial number of � of � substantial amount of publicity. Have any of you heard of this particular case � this particular case itself? Read anything in the newspaper? Watched anything on TV or listened to anything on the radio touching on this case in any way? This particular case that is set out in these charges?
Do you realize that these charges are just charges and nothing more and that the defendant is presumed innocent until proven guilty? Is there anybody that has any problem with that concept?
Would you all promise me that you would follow that rule as I have stated it to you if you are selected to serve on this jury?
Now, there has been a lot of publicity about Oxycontin in the papers and on television. And I am not going to insult you by telling you � by asking you if you have heard about it, because I am sure you have. The question I am going to ask you is this: Based on what you have heard on TV, if anything, or watched � watched on TV, rather, or heard � read in the newspaper or heard on the radio or heard people on the streets talking about it, have any of you made up your mind or have come to the conclusion that you could not sit on a case involving a charge that somebody was involved in the illegal distribution of Oxycontin? I believe it�s Mr. Bell?
A JUROR: Mr. Bell, juror No. 125. I am a program administrator for the Atate Narcotic Authorities Office in the Division of Substance Abuse. I work closely with DEA monitoring of our narcotic treatment programs. I am also a consultant to the Oxycontin task force appointed by the Governor�s Office and consultant to Eastern District of Kentucky on the dangers of Oxycontin abuse.
THE COURT: All right, so what you are saying is you don�t feel you could be fair and impartial juror in this particular case?
MR. BELL: No, Your Honor.
THE COURT: Objection to excuse him, excusing Mr. Bell?
MR. WEST: No, Your Honor.
MR. GORDON: No, Your Honor.
THE COURT: Okay, thank you, Mr. Bell, you are excused at this time. Anyone else? Do any of you feel that the charges that the drug laws of the United States are too weak, that they should be stronger and should be enforced strictly? Yes, sir.
A JUROR: 189, Greg Shields. I believe that they ought to serve the maximum amount of time. When you deal drugs, to me, there should be no lenience for it, any kind of drugs.
THE COURT: Okay, let me ask you this, though. Do you � could you listen to the evidence in this case and render a fair and impartial verdict based on the instructions of the court to determine whether the defendant in this case violated those laws as he is alleged?
MR. SHIELDS: I am not sure.
THE COURT: Any objection? Thank you, Mr. Shields, you are excused.
MR. GORDON: Shields?
THE COURT: Anyone else? On the other hand, there is the opposite side of � of the picture. There is � is there anybody here that thinks that the government is spending too much time involved in the so-called war on drugs and that they ought to be doing something else and not spending their time and effort on that? In other words, that they � this is just something that should not necessarily be prosecuted? As you can tell, too, from the indictment that I read to you, there are some charges about firearms in here. Now, I know that there area lot of people who believe that the possession of firearms is a legitimate right to each citizen of the United States and that the government should not do anything to impair that right. Is there anybody who feels that the government has no business, absolutely no business being involved in the regulation of firearms? Yes, sir.
A JUROR: Jesse Brophy. Juror No. 143. And I do think that it�s wrong for the government to try to take our firearms away from us. I think it�s our right to be able to bear arms.
THE COURT: All right. Now, do you think it�s wrong, though, for the government to regulate the people who carry firearms?
MR. BROPHY: I think it�s all right to regulate like to carry firearms, not to carry them into banks and things like that. I can understand the reason for that.
THE COURT: Do you think it would be wrong to � to pose (possess) a stolen firearm?
MR. BROPHY: I guess that would probably be wrong.
THE COURT: Well, what about � I mean, in other words � what I am asking you is, while I understand your point that the government shouldn�t try to take our firearms, should the government have the right to make sure that the possession of firearms is done in a legal and authorized manner?
MR. BROPHY: I guess that would be all right.
THE COURT: Okay, in other words, then, could you listen to the evidence in this case and render a fair and impartial verdict based on the instructions of the court?
MR. BROPHY: I don�t think firearms would have anything to do with it, that part of it.
THE COURT: Okay, thank you. Anyone else?
The flip side of that point is obviously there is a lot of people that think that firearms should be strictly regulated and that the government�s not involved enough in regulating firearms. Is there anybody here that feels that way?
In addition to that first rule that I read to you about presumption of innocence, there are several other rules that you should keep in mind in a criminal case.
I told you that the burden of proof is on the government to prove the defendant guilty. That stays on the government until the very end of the case. The defendant has no burden to prove his innocence or to present any evidence or to testify.
Since the defendant has the right to remain silent, the law prohibits you from arriving at your verdict by considering that the defendant may not have testified.
Now, this is kind of important. Well, it is real important, actually, but what I should ask you is this. A lot of times people think that if a defendant doesn�t testify that he must be trying to hide something. In other words, you feel that if it was me, I would want to get up and tell my side of the story; and if I didn�t tell it, then I must not want people to know my side of the story. Do you all understand a defendant doesn�t have to do that? He is presumed innocent, and you can�t even think about the fact that he didn�t testify or present any evidence in arriving at your verdict. In other words, the government has that burden from the start to finish. Do we all understand that? Have any questions about it?
The third rule �
MR. GORDON: Excuse me, Judge. There is a question on the front row here.
THE COURT: Oh, okay. Miss Shish, what�s your number?
MS. SHISH: 83. I know that you say that, but I still have that feeling myself.
THE COURT: Sure, but I mean, you can�t say that just because a defendant doesn�t testify he must be guilty. You wouldn�t say that.
MS. SHISH: No.
THE COURT: I mean, you would wonder why he wouldn�t testify, but you wouldn�t allow that to play a role in making your decision as to whether the government has proven the defendant guilty beyond a reasonable doubt? Is that �
MS. SHISH; Okay.
THE COURT: Okay. Now, the third rule is that the government must prove the defendant�s guilt beyond a reasonable doubt. This is a little bit different standard. I think the last case we had here was a civil case, and it was a preponderance of the evidence. Now, this is a different standard, and I�ll give you instructions on that standard later in the case, but bear in mind that it�s different by more than a preponderance of the evidence is that we have in a civil case. Do we all understand that?
You all give me your assurances that you could follow those rules if you are selected to be jurors in this particular case.
I am going to let the government ask and then Mr. Gordon ask you some questions to follow up on the things that I have asked. If you have any questions or any answers to any of their questions, make sure you raise your hand. Mr. West?
MR. WEST: Thank you, Your Honor. May it please the court, Mr. Gordon? Good morning again, ladies and gentlemen, my name is Roger West. I don�t have a whole lot of questions for you. I know you have been through this process before. Some of my questions are going to be brief and very thorough.
A couple questions I do have based on the charges that are here, the defenses in some point they do cross over. My first question kind of goes to whether or not you could sit as a fair and impartial juror for both sides. The United States has proved this case to you as to each and every count, we prove beyond a reasonable doubt. Could each of you return a verdict of guilty if the charges are proven? Can you do that? All right. Thank you.
A couple legal points. Mr. Combs, the defendant, is presumed innocent, as all defendants are, which is the right each and every one of us has. I am going to ask you right now if Mr. Combs was guilty or not guilty, that�s the way the vote must be, has to be not guilty. And that stays that way during the course of the trial, that presumption, until you are asked to render a verdict by the judge.
Now, he is presumed innocent as he is; that�s your job as a jury to find that he is guilty. Do you understand? All right. The burden of proof is on the United States in this case. We present this case to you through witnesses, exhibits. They will be testifying today and tomorrow for you to weigh that presumption of innocence that we prove our burden beyond a reasonable doubt.
Now, on television things are not always accurate. On television I am sure you have heard the term beyond a shadow of a doubt. Does everybody understand that�s not the term here? It�s proof beyond a reasonable doubt that�s every criminal case from jaywalking up to more serious violations and offenses.
There is two drugs, as you have heard, reading the indictment: One is Oxycontin; the other is Dilaudid. Street name Oxy�s, OC�s. Dilaudid, calls them sometimes K4's and K8's. With that street language, does that ring a bell with anybody here, anybody recognize these substances? Yes, ma�am.
A JUROR: Janet Haynes, juror 110. I am a registered nurse.
MR. WEST: How long have you been a registered nurse?
MS. HAYNES: How long?
MR. WEST: Yes, ma�am.
THE COURT: You don�t need to tell him that.
MR. WEST: Okay, more than two or three years?
MS. HAYNES: Yes.
MR. WEST: So you are familiar with the terms Oxycontin and Dilaudid?
MS. HAYNES: Very much.
MR. WEST: Would that affect your partiality in this case?
MS. HAYNES: No.
MR. WEST: One of the jurors, No. 143, you said something that was real important. You said that the government should not be able to take away firearms. I agree I have firearms myself. But each of you understand that�s not what this case is about. We are not allowed to take firearms from anybody. There is an allegation that the defendant possessed stolen firearms. That�s one of the charges. One of the other charges is that Oxycontin was traded for a firearm. And the third charge involving a weapon was Mr. Combs possessed a pistol in furtherance of drug trafficking violation. Those are the three parts of that. Mr. Brophy, knowing a little bit more, explaining those charges a little bit more to you, does that affect your partiality in any way?
MR. BROPHY: No, sir, that doesn�t. I feel it�s fair to all involved here to say something here.
MR. WEST: We appreciate your honesty.
MR. BROPHY: It hasn�t been too long ago that my own brother was arrested for a drug charge, and it involved possession of a firearm also.
MR. WEST: All right.
MR. BROPHY: And he was prosecuted for it.
MR. WEST: Because he was prosecuted, do you think you harbor any ill feelings toward the officers involved?
MR. BROPHY: The only thing about the deal was I realize what was wrong about the drug trafficking. The possession of the firearm, he was carrying it in his possession. He was on his own property. He was at his home. He was not out in the street. He was at his home, and he was also charged with possession of firearm in that: and I think that was wrong.
MR. WEST: All right. Let me bring you all to another point in this case. There are a number of witnesses for the United States. Have a seat, sir. And I am going to read them to you. I know most of you are from the central Kentucky area, and my practice consists of central Kentucky in the U. S. Attorney�s office. Most of the witnesses are going to be from the Perry County area. I am just going to read them through, see if you recognize any names.
Detective Keith Napier with the Hazard Police Department.
Miss Joyce Eversole.
Trooper Chris Fugate, Kentucky State Police Post in Hazard.
Scotty Sandlin.
Joshua Miller
Irvin Sandlin.
Ed Miller.
Ms. Henry Hayes.
John Harris from the State Police laboratory in London.
And Detective Dan Smoot from the police lab � Kentucky State Police Post in Hazard.
Do any of you recognize those names? There will be one other witness, but we will get this information called stipulation whereas Mr. Gordon and I have agreed a certain fact in regards to this proof, that being the guns were shipped interstate commerce, meaning the guns were manufactured outside of Kentucky. Anybody know any of those names at all?
THE COURT: Mr. �
MR. WEST: Sorry, ma�am.
A JUROR: Again, I work with the Kentucky State Police and I recognize the name, not that I know them personally. Just because I have saw them on reports. I am systems development specialist for the Kentucky State Police, and part of my job duties is to look at a report and see if there was a different procedure that we need to use and to produce the information that we need for statistical information, and I have talked to John Harris on the phone a couple times. Again, I don�t know him personally. Just � just by that.
MR. WEST: His function, he was testing a controlled substance in this case and he was involved i the transaction of the search. Knowing that, would that affect your partiality in any way?
A JUROR: No, sir, not at all.
MR. WEST: Were you involved in this in any way, shape or form about the Oxycontins?
A JUROR: No, sir. All I would be doing would be getting statistics, numbers, you know, some of the people were charged with in trafficking or possession of. No names.
MR. WEST: All right. Thank you. Judge had asked a question, and I am going to spend a little further. Understand I don�t mean to pry in your personal life or � but this is a controlled substance case. I am going to ask this question, and if you feel uncomfortable you can ask the court to approach the bench, if necessary. Is there anyone here who controlled substances have affected your life, family member, close personal friend to such a degree � many of us know people who were addicted or something like that � but have affected you to such a degree that you can�t sit as a fair and impartial juror either for Mr. Combs, the defendant, or the United States? Thank you.
Last couple things I need to talk about, one of the witnesses listed is Mr. Joshua Miller who will testify in this case. Tell you a little bit about him. He is a young man about twenty-two years old. He will tell you he was addicted to Oxycontin. He stole some firearms and was caught, and the weapons have been returned to his father and his uncle. They have decided not to charge him in this case.
I would ask you �
THE COURT: Excuse me, Mr. West, at this time I think it�s important to emphasize to you that while � Mr. Miller, did you say?
MR. WEST: Yes, sir, Joshua Miller.
THE COURT: Is testifying under some limited grant of immunity, and the prosecutor is bringing that to your attention. That is designed solely for you to consider in determining the credibility of this witness and what, if any, role that agreement that his father and uncle, I guess, did play in � in this decision of his testimony, all right. Use it for determining his credibility in that fact only. Do not consider it in any way as to this defendant�s guilt. You may proceed.
MR. WEST: Yes, sir, thank you. And that�s my point. We use the words, �fair and impartial.� What I ask you is not whether or not you believe Joshua Miller or whether you will disbelieve Joshua Miller. I am asking you to listen to what he has to say and base your decision on what weight to give to his testimony, if any, on the whole case.
He�s got a, say, his father, uncles, officers in this case and the searches, can everybody listen to what he has to say fairly and impartially? Anyone who cannot?
Okay, last set of questions I have. Does everybody understand in this case if you feel any sympathy for the witnesses or the defendant or any of the parties involved, you must set that aside in determining the guilt or innocence of this defendant? You can set that aside, does everybody understand that? Can everybody do that? I am not saying you will or you won�t but � Last set of questions. Is anybody sick today, not feeling well, sick child at home, sick spouse, something at work that would affect you from paying attention to this case the next couple of days? Yes, sir, your number?
A JUROR: Juror 151, Thad West. I have kind of a work conflict. I am shorthanded this week, very busy.
MR. WEST: Where do you work at?
MR. THAD WEST: Liberty Telephone. Here in Frankfort.
THE COURT: I have got a note � well, this wouldn�t be any kin to you, would it, Mr. West?
MR. THAD WEST: Yeah, it�s a family-owned business.
THE COURT: Okay, I have got a note from the president, we�ll talk about that later.
MR. THAD WEST: All right.
MR. WEST: Mr. West, you and I aren�t related, are we?
MR. THAD WEST: I don�t think so.
MR. WEST: Mr. Brophy?
MR. BROPHY: 143. I just want to say that I have a brother-in-law that�s on life support. He had a massive heart attack and an aneurism erupted Saturday. He is on life support in Cincinnati.
Something may come up, and I may need to be excused as a juror. This just came up Saturday. He spent all night Saturday and Sunday and last night. He is still on life support.
MR. WEST: Any way of getting paged where you are at?
MR. BROPHY: No, I don�t have a pager or anything like that. My wife knows where I am at. Whether or not she can reach me here, I assume she could.
THE COURT: I assume we have made our telephone bill, so I think you could.
A JUROR: I have a doctor�s appointment Friday.
THE COURT: You are Mr. Scholey?
MR. SCHOLEY: Yes.
THE COURT: I have got you � I have got your note.
MR. SCHOLEY: I had open heart surgery, and he is adjusting my medicine is what it is.
THE COURT: What�s your number, Mr. �
MR. SCHOLEY: 184.
THE COURT: I have a friend, it would be a lawyer here in Frankfort, that they did open heart surgery on; and his partner said the biggest surprise that they found was that he had a heart.
MR. SCHOLEY: I have been told that, too.
THE COURT: I think that�s pretty standard. Yeah, I have got your notice here.
MR. WEST: Yes, sir.
A JUROR: Yes, juror 197, Russell Perry. I have a vacation scheduled for tomorrow through the weekend.
THE COURT: What�s your number, sir?
MR. PERRY: 197.
MR. WEST: Are you going out of town, sir?
MR. PERRY: Yes.
MR. WEST: I won�t ask where you are going? Anyone else? Yes, sir.
A JUROR: William Burnett, 164. I have got a possible work conflict. I am scheduled to attend a training court in West Virginia starting Friday. It�s a nine-hour drive, and I planned to leave tomorrow.
THE COURT: Where in West Virginia?
MR. BURNETT: Shepherdstown.
THE COURT: That�s up in the pan handle, isn�t it?
MR. BURNETT: Yes.
THE COURT: Okay, we�ll check on that.
MR. WEST: Yes, ma�am?
A JUROR: Juror No. 190, Brejetta Stidham. About how long will this trial take?
MR. WEST: United States finishes all of our proof early tomorrow.
MS. STIDHAM: Because I am a full-time student and getting ready to enter finals.
THE COURT: No, if he goes to finals we are going to have a problems with some lawyers.
MR. WEST: We only have ten witnesses, biggest bulk will be today. Anyone else?
Last question I have, and it�s also not to pry into anybody�s life; but is anyone here, because of moral reasons or religious reasons or philosophical reasons, feel that they can�t sit and judge their fellow man? You are sitting back there thinking, �Boy, I wish he would just ask this one question, I want to answer this one question.� Is anybody here waiting for me to ask that one question that you would have an answer to? Do you know of any reason at all that you can�t sit as a fair and impartial jury both for the United States and for the defendant in this case? Thank you.
THE COURT: Mr. � thank you, Mr. West. Mr. Gordon, do you have anything to add? Ask?
MR. GORDON: Yeah, I have got some questions, Judge, thank you. Please the court.
THE COURT: Mr. Gordon.
MR. GORDON: Mr. West.
MR. WEST: Mr. Gordon.
MR. GORDON: Prospective members of the jury. As the court has indicated, my name is Derek Gordon, and I practice in Lexington, Kentucky; and I represent Leon Combs, who you well know, as the court has indicated, is from Perry County in Hazard. Oh, we have got two jurors from Hazard. Hazard?
A JUROR: Yes.
MR. GORDON: Perry County. I am not really from Kentucky, but I have lived here for a good part. I have been to Hazard a few times to see Leon and not to � well, people in Hazard, you know, they live a little different than people that live in, say, California or even in Lexington. It�s a different way of living. That as it be, he�s lived there for his entire life, he is forty-two years old, and unfortunately he sits here today on trial for these charges that they have. Of course, the indictment � Do you want me to move the mike over a little bit?
THE COURT: Well, why don�t you just use the podium?
MR. GORDON: I�ll try to speak up louder. How�s that, Judge?
THE COURT: Why don�t you speak up, Mr. Gordon?
MR. GORDON: So as you know, he has five charges here, and the judge has read each and every one of those; and those charges are separate in and of themselves. So, like any trial, you could �
you can find someone guilty � you could find someone not guilty of all the charges, you can find someone guilty of some of the charges and then not guilty of some and vice versa. There is all sorts of scenarios. Everyone understands that I am sure. Now, one thing that would help me a little bit, doesn�t matter how many times I have stood up here in Federal court; and this ins�t the first case I have tried in Federal court. Your stomach is always moving around kind of a little bit. So if you would occasionally give me a little smile or occasional right hand or something that you understand my question, and that would make me feel a lot better, really would; so I would appreciate that. Plus some of you had an opportunity to stand up to some of the responses you have made to questions. That�s how we learn a little bit about you, and we get a better understanding of you; and it helps us in making a decision as to what fair and impartial jurors we would want, because when I sit down, we don�t have another opportunity. So we both are trying to reach the same goal, so we are not trying to impede on anything; we are just trying to get the answers, so �
Now, as I was saying in regard to the elements of the particular charges here, in order to find in this particular case � and this is the case we are here today on � Mr. Combs guilty of, say, Count 1, which happens to be a drug offence, then you would have to � there is going to be elements of all � all the elements that would have to be proven as they relate to that particular charge. Now in order for you to find Mr. Combs guilty of that particular charge, then you would have to find him guilty of each element beyond a reasonable doubt. Now, does everyone understand that? That may be a simple theory, and I am going to ask how many of you have had an opportunity to sit on a criminal trial. But we want to make sure, it�s important that you � in order to find someone it�s got to be guilt beyond a reasonable doubt, which is our highest burden in the United States of America. And fortunately, and the great thing about Federal court, is that we have a definition. We do not have a definition in State court, but fortunately in Federal court, to assist you all, we do. It also helps you if we tell you what that definition is, and it�s a very strong definition; and it will be, I suspect, no I don�t suspect, I know it will be in our jury instructions that you will be provided to those of you who do have an opportunity to sit on this particular jury.
Now, as it relates to reasonable doubt � and this has been touched on briefly, and I am just going to touch on it again. But Mr. Combs, like any person if you all were here, is innocent, under the law he is innocent, and it�s not until � as the government would suggest � it�s not until they present all the evidence and then all of a sudden he is guilty. That�s not how it works. He is innocent and he remains that way unless they prove their case as to each count [element] beyond a reasonable doubt.
So he remains in that posture, I think, as the judge had indicated � and I love this � is that he is clothed, clothed with a shield of innocence; and that shield of innocence remains upon him, is blessed upon him unless and until the government which, in this case, all them that sit over there on that table, can prove their case as to each element beyond a reasonable doubt.
Now, does anyone have a problem with that theory? Because if you do, let us know now. Anyone have any problem with that? Just a little nod now and then or � okay. All right.
Now, this case, and you know, as I said, first count is drugs, Oxycontin, and I don�t know what the problem is in Frankfort, Kentucky; I am from Lexington, I don�t know anything about Oxycontin. First time I saw Oxycontin was yesterday, here, we had a sharing of information, so we know, you know, about the case a little bit. So but you all know, and as the judge has indicated, there has been a tremendous amount of coverage as it relates to this Oxycontin drug, which I think had been authorized by the American Medical Association, not that many years ago; then all of a sudden there seems to be some abuse of it. You will hear in this case as it relates to Mr. Combs, that � that he � he had a prescription for Oxycontin, but there are different forms of Oxycontin; Oxycontin 20 and Oxycontin 40's, and maybe even more, I don�t know. But you are going to hear testimony that in fact he was involved in an accident and he was prescribed. Now, you are allowed to take, obviously, prescribed medication, but if you have other medication that�s not prescribed, then that could be construed as being illegal. Obviously. We all know that.
So, but I just want you to know that there is going to be some testimony in this case that perhaps would suggest to you there was a prescription, a valid prescription of this Oxycontin which was prescribed by a doctor, and these doctors have been prescribing these Oxycontin pills and would say, you know, it makes you feel a lot better, takes away the pain on a momentary basis or extended period of time. I don�t know what it does, but anyway� but, it�s been a big problem, it�s been a huge problem in eastern Kentucky. Matter of fact, it�s been on the national news, it�s been on the national news because of the people abusing that particular drug. So some of you, I know in this panel, have heard that. You know, you have heard those news clips, and I just want to make sure; and I know this has been touched on, but this is important. I just want to make sure what you have heard, what you know about this particular thing, that some of you may have formed an opinion, that if I hear anyone that may be involved in this Oxycontin, then as far as I�m concerned, I don�t want anything to do with them. And whatever they are involved in, they must be guilty of that kind of stuff. Now, is there anyone who might share that � that type of opinion?
And if you do share that type of opinion, it is going to affect you from being a fair and imparitial juror in this case or would you be able to sit � we all have opinions � would you be able to set aside that opinion and base your decision in this case on what you hear from the witness stand and what the witnesses testify? Would everybody assure me and promise me that you all can do that? Okay, sir?
A JUROR: Juror 183, Bobby Glass. In your statement, you made a statement that Oxycontin yesterday was the first time you had ever seen it or know anything about it. Later on in your statement you talked about the newspaper accounts. Did you have a newspaper account before this trial?
MR. GORDON: Yeah, I�m sorry. I mean physically before I actually saw it. But I appreciate that, Mr. Glass, yes. That doesn�t pose any proem, though, with you?
MR. GLASS: No.
MR. GORDON: Anyone else have any question about that particular thing?
Now, let�s hit the other big issue in this case, and that is guns and firearms. Well, I guess that�s the same thing, but I wouldn�t know because I � as the government has indicated, he has 10 guns. Well, I don�t have any guns. I personally don�t like guns, but people have them and I understand why they have them; and within the law they are allowed, and that�s fine. I don�t have a problem with that. But there are some people that would even take a step further than myself and say that a person should never have a gun, just simply should not have a gun. I think all of you jurors have indicated that that�s not the case for some of you, that you believe it�s all right to carry guns; and I think Mr. Brophy may be even perhaps toward the other side, which is fine, by the way. But we just want to make sure that there is going to be testimony in this particular case concerning firearms, okay? And one of the things I wanted to read to you in regard to � and basically it applies to both of these counts as it relates to the gun, is that on a certain day in Perry County, which the judge indicated in the Eastern District of Kentucky, Leon Combs, during and relation, during and in relation to a drug trafficking crime for which he may be prosecuted, he possessed, you know, this particular weapon. So what I am trying to tell you and I think you will see in the instructions later on, is that the gun is � and I think the instruction will point this out� that in order for a person to be guilty of possessing the gun as it relates to a drug trafficking crime, that it�s obviously not only got to be during and in relation to, but there�s got to be some sort of nexus, it�s got to be in furtherance and embolden that particular transaction, it�s got to help carry it further. There�s got to be a connection. Obviously, if there is no connection with the gun to the drug trafficking transaction, then that�s not what we are talking about here because that may be hard to understand; but does everyone understand what I am trying to talk about? All right. There has got to be some sort of nexus, some sort of connection which I can assume that the government will attempt to prove to you beyond a reasonable doubt and, of course, I will try to suggest otherwise to you all, to prove otherwise.
But speaking of proving otherwise, we, as the defense, do not have to prove anything. The burden is not upon us. We have no requirement under the law to show you, to tell you that we have a parade of witnesses that are forthcoming and what they intend to say. We don�t have to do that. I am telling you at this point that my client is in fact intending to take the stand to testify, and I will tell you that we intend to produce witnesses at this point in the case to prove our case. But the burden is not upon us, and you will see instruction to that effect and that we have no responsibility to prove this particular case. That�s the way the law is, that�s the way it�s always been; and hopefully that�s the way it will always continue to be. Does anyone have a problem with what I just said, and does everyone understand it? All right. No one disagrees with that?
Now, if there is, at any time when I am asking these questions, if there is something that you think might be important that you want to mention to me, but perhaps may be too personal, you know, we can always approach the bench, so don�t let something become so important to you in your mind that you think might affect your impartiality in this case and not say anything because, as I indicated, once I sit down, that is it, okay?
How many of you have had the opportunity to sit on a prior criminal trial? Okay. Let�s have a show of hands for those who have not. It�s about dead even. That�s not good. Usually you can pick one side or the other. Okay, well, let�s � I think the ones that have had an opportunity to sit on a prior criminal trial seem to be a little short. If I could just have the first row for those who have had an opportunity to sit on a prior criminal trial. Give me your number and last name, please.
A JUROR: Burnette, 164.
MR. GORDON: 164. And was that here?
MR. BURNETTE: Yes.
MR. GORDON: In Federal Court?
MR. BURNETTE: Yes, sir.
MR. GORDON: This term? I know you sit on these panels a lot, I mean a long time, put it that way. Yes, ma�am?
A JUROR: 83. S H I S H, Shish.
THE COURT: Juror no. 83.
MR. GORDON: 83, I�m sorry.
A JUROR: 100, Osborne.
MR. GORDON: 100, Osborne. If you would just make sure you speak up, too, because the clerk can�t record it. I think I am doing better. Okay? Yes, ma�am? Anyone in the second row?
A JUROR: 171, Searcy.
MR. GORDON: Okay, thank you, Searcy. All right.
A JUROR: 115. Mee, M E E.
MR. GORDON: All right, third row, for those who have had a prior criminal trial.
A JUROR: 95, McMichael.
MR. GORDON: 95? I didn�t get your last name, sir.
A JUROR: McMichael.
MR. GORDON: Yes, ma�am?
A JUROR: Haynes, 110.
MR. GORDON: You are the nurse. All right. Yes, ma�am �
A JUROR: Talbert, 173.
MR. GORDON: Talbert?
A JUROR: Talbert.
MR. GORDON: Yes, ma�am?
A JUROR: Shirley Collier, 178.
MR. GORDON: 178? I forgot your number. All right. We�ll find it here for you. 148.
A JUROR: 148. Sorry.
MR. GORDON: Collier. All right, thank you, Miss Collier. We are doing a game show on that. All right. Next row? Yes, ma�am?
A JUROR: 136, Scherff.
MR. GORDON: Pardon me?
A JUROR: 136, Scherff.
A JUROR: 123, Spencer.
MR. GORDON: All right.
A JUROR: 75, Armstrong.
MR. GORDON: Okay.
A JUROR: 181, Ledford.
MR. GORDON: I think you all must have decided on the same trial. Sat together.
A JUROR: 170, Hanly.
MR. GORDON: Okay. The last row back here, anyone? Oh, I�m sorry.
A JUROR: Scott, 172. Not in this court, in county court.
MR. GORDON: Yes.
A JUROR: 197, Perry.
MR. GORDON: Okay. All right. Yes, ma�am.
A JUROR: 198, Roberts.
MR. GORDON: Okay. So everyone that raised their hands there has sat on a prior criminal trial, and we know Mr. � is that correct? Okay. And we know Mr. Burnette has sat on a prior criminal trial here during this panel and Mr. Scott has sat on a county case. Now, there � is there a number of you who have also sat on a case on this panel? Okay, all this row, huh?
A JUROR: Yeah.
MR. GORDON: All right. Okay. So have � who has sat on a prior criminal trial not on this particular panel other than Mr. Scott? Okay. So all of your prior experience has been on a prior criminal trial in this court during this term of service; is that right? Okay, and I take it that all of you have, as I said, probably sat on the same trial? Some of you back there as well. Okay. So you all know each other. All right, thank you. And, of course, Mr. West was not � he was not the prosecutor at that time? Okay. Do you remember what case that was that you all sat on?
A JUROR: It was a kidnapping. Firearm.
A JUROR: Drug trafficking.
A JUROR: Pharmacy, insurance.
A JUROR: I don�t remember.
MR. GORDON: You don�t remember? Okay. All right. Suspect that you did deliberate to a verdict in that case; is that right? All right.
And I just want to make sure your experience then as a prior juror in that particular case, was those issues, what they were I don�t know; and the issues here you haven�t heard yet. I want to make sure there was nothing that would prevent you from being able to listen to this case and be a fair and impartial juror, nothing in that case would affect you being a fair and impartial juror on this case, is that accurate? All right.
Miss � this may not be an issue in this case, but I think you were responding to � yeah, I know what you were responding to, and I told you that at this point in the case we intend to testify; so that may not be an issue. But you were talking about the fact that if an individual did not testify that you may tend to think that person was � you had � that�s understandable, I mean, there is a lot of people like that, and we appreciate your candidness. We just want to make sure if that�s the opinion that you have, okay? And would you be able to follow the instructions in this case? As it relates to �
A JUROR: Well, I can say yes. I have ideas �
MR. GORDON: Well, we all have ideas and we all have opinions, and we know what your opinion is regarding this; and there is nothing wrong with that. My question to you is, though, if you have that opinion before you came in here � and you have it right now � would you be able to listen to the case, listen to the evidence in this case and be able to put aside your opinion and be able to base your decision on what you hear from the witness stand, the evidence, and not let that opinion affect your ability to being partial in this case?
A JUROR: I would try.
MR. GORDON: You would try. That�s all I ask. That�s all we can expect. Okay, all right. I am just about done, Your Honor.
THE COURT: I would hope so.
MR. GORDON: Just a couple � just a couple additional things.
The judge and I indicated to you that this right here is an indictment, and it was read to you; and I read a little bit to you, and what this is, is this is a piece of paper, it�s a formal � it�s a piece of paper, a formal way of notifying an individual, in this particular case, notifying Mr. Combs, that he�s been charged. His responsibility up to this point is to appear, okay? That�s all his responsibility is. Simply because he is charged in this big courtroom, facing the government, does not mean anything other than the fact that there are charges against him, everyone understands that; is that right?
Now, one other thing I just want to make sure now that you have had a little bit of opportunity to know about in this case, to see me up here rambling around and knowing what little you know about my client here, Mr. Combs, I just want to make sure there is nothing else that you can think of that may create a problem for you. You know, maybe you � you know, maybe you don�t like my tie, maybe you don�t like the way Mr. Combs looks. I don�t know. But if that is a problem, and that�s fine; we don�t have a problem with that, because there are a few people that don�t like me. So if there is a problem with that or if you have a problem with Mr. Combs, let us know now, not later on. Yes, sir. Mr. Scott.
MR. SCOTT: Has nothing to do with you or Mr. Combs, but I have a friend who is a pharmacist who was robbed about three or four weeks ago, and Oxycontin is what they were looking for. I don�t know that it affects anything here, except to make you aware of that.
MR. GORDON: Okay, okay. I appreciate that. That�s something I would like to know. Thank you. Anything else that � that any of you can think of, and again, I�ll � yes, ma�am?
A JUROR: May I approach the bench?
MR. GORDON: She wanted to approach the bench, Your Honor.
THE COURT: All right.
(A bench conference was had between the Court, counsel and a juror out of the hearing of the prospective jurors.)
A JUROR: I�m sorry.
THE COURT: No problem. What�s your name?
A JUROR: Tara Mee, 115. My husband�s entire family lives in Hazard, and a lot of his relatives have the same name as Mr. Combs. And because Hazard is so small and different than Frankfort, of course, I am a little bit afraid to serve on this jury. Because of my husband�s family is all from Hazard, they live there now, and a lot of his aunts and cousins have the last name of Combs, and I would be afraid �
THE COURT: But you don�t know if they are any kin � Mrs. Reed was a Combs.
MS. MEE: I understand that, and I am not � I am just afraid only because of I know Hazard is a little town. I understand that, I do understand that.
THE COURT: All right.
MR. GORDON: Thank you for your honesty.
(End of bench conference.)
THE COURT: You may proceed, Mr. Gordon.
MR. GORDON: Anything else in regard to that particular question? One thing I kind of � one last thing I failed to mention is that Leon is married, and he is married to Michelle Combs; and they have three children. And this is his wife over here sitting, so she may very well be a witness. I know from time to time he will look over there, and so I wanted to put a name to that face. So I thank you for your time. Oh, yes.
A JUROR: Can I approach the bench?
MR. GORDON: Okay, 83, right?
THE COURT: Let�s wait until everybody gets up here. Then we can all hear it.
(A bench conference was had between the Court and counsel and a juror out of hearing of the prospective jurors.)
A JUROR: The last time I was on jury duty for the drug trial, I am sure you don�t remember. It was three young black men, and there was a kidnapping and they were from Shelbyville.
THE COURT: Yeah.
A JUROR: Well, that�s the first time I have been afraid. I am by myself since my husband died, and it really disturbed me. And �
THE COURT: What are � are you afraid for your safety?
A JUROR: Well, yeah, we are talking about down the road from my house, but all those guns�
THE COURT: Yeah, Okay.
A JUROR: And please, use me as a last resort.
THE COURT: Okay. Thank you.
(Juror excused from the bench conference.)
THE COURT: Anything else? On, since we are all finished, are there any challenges for cause on behalf of the United States?
MR. WEST: Yes, Your Honor. United States would challenge Mr. Brophy.
MR. GORDON: I need to get my list.
THE COURT: Yeah.
MR. GORDON: I�m sorry.
THE COURT: Mr. Brophy? For cause?
MR. GORDON: He said he could listen to the evidence.
THE COURT: No, he didn�t. He said that his brother-in-law or his brother �
MR. GORDON: Yeah, drugs.
THE COURT: � was prosecuted for drugs and firearms, and he thought it was wrong for anybody to be prosecuted for firearms they had in their possession on their property.
MR. GORDON: The question wasn�t asked � the proper question would be if he could listen to � I�ll clear it up if I need to.
THE COURT: I am going to excuse him. He flat said he thought it was wrong.
MR. GORDON: It was never stated he could not listen to the evidence and base his decision.
THE COURT: I did, I asked him that question, then a follow-up question. He volunteered about his brother, and he said he thought it was absolutely wrong for � absolutely�
MR. GORDON: We would object because Mr. Brophy �
THE COURT: You have got your objection.
MR. GORDON: Mr. Brophy is a very good witness [?] for both sides.
THE COURT: You have got your objection. 143 is excused for cause.
MR. WEST: The only other one, Your Honor, I am not deeply committed to this strike for cause, is juror 115, Tara Mee, who indicated her husband is from Hazard who said she was in fear if she sat on the jury.
MR. GORDON: I object to that, you know, not that I � I object to that. Tara Mee.
THE COURT: You object to that?
MR. GORDON: Yeah.
THE COURT: I am not excusing her for cause.
MR. GORDON: You what?
THE COURT: I said I am not excusing her for cause.
MR. GORDON: Judge, I think� let me see my list here. 164. Burnette.
THE COURT: Yeah.
MR. GORDON: He�s got a training course in Shepherdstown for tomorrow � I mean Friday, says he�s got to leave tomorrow.
THE COURT: He says he�s got a nine-hour drive.
MR. GORDON: I don�t know �
THE COURT: Okay.
MR. GORDON: If he�s got that on his mind and �
THE COURT: If you were worried about people with things on their minds, Mr. Brophy has got a brother-in-law on life support and your objection to him being excused.
MR. GORDON: Mr. Brophy is a honest witness[?].
THE COURT: Yeah, he is a witness �
MR. GORDON: Juror, juror.
MR. WEST: Expert witness. I�ll object, he can get there in plenty of time.
THE COURT: Well, Shepherdstown, West Virginia, I think is pretty far away. So I am going to excuse Mr. Burnette, which is 164. I believe. And that takes us down to � I am going to excuse �
MR. GORDON: Also juror no. 197, who is Russell Perry?
THE COURT: Yeah, he�s got �
MR. WEST: I don�t have an objection to that, fine.
THE COURT: He�s got a vacation. See, you won two, Derek. Actually I am going to excuse him because he had a brother on life support.
MR. GORDON: 184 has got to be at the doctor tormorrow�
THE COURT: Firday.
MR. WEST: Friday.
THE COURT: So we will probably be done.
MR. GORDON: Probably be done. I don�t have a problem with that. I guess I have a problem, and I don�t know she would be � she would be harmful to me; necessarily might be just as good. But that last lady that came up here 183�or 83, I�m sorry.
THE COURT: 83, shhhhh.
MR. GORDON: That case she was referring was a bad set of facts, and �
THE COURT: I am going to excuse her.
MR. GORDON: I think that�s probably � I mean, I would like to get that KSP agent out of here, but I don�t know that I can�
THE COURT: What for? Just because you don�t want her, that�s called peremptory challenge.
MR. GORDON: She�s got officers testifying, she knows Officer Harris.
THE COURT: What do you want to challenge that � come on.
MR. GORDON: What about the guy back there that got Oxycontin stolen from his pharmacy? Brother�s pharmacy?
MR. WEST: Friend�s pharmacy.
THE COURT: That�s no reason to excuse him. We are not talking about stealing Oxycontin from a pharmacy.
MR. GORDON: What was his name?
THE COURT: Scott.
MR. GORDON: 172, okay.
THE COURT: That leaves us � I am going to excuse 115, that lady from Perry County, I think that will be it. I am going to excuse her. As much as I hate to, I am going to excuse 151, that�s the boy whose father wrote a letter and said his business is going to suffer.
MR. GORDON: Thad West?
THE COURT: Yeah, Okay, that should give us 32 left, I think?
THE CLERK: 1, 2, 3, 4, 5, 6, 7, 8, from 40 would be 32.
THE COURT: So that�s exactly what it would be. So I�ll go ahead and excuse the ones we have talked about and then you will exercise your challenges: 11 for the defendant and 7 for the government. That should leave us with � if every one�s exercised, that should leave us with a minimum of 14. If there are more than 14, we�ll pull 14 out of the box; and that will give us 12.
MR. GORDON: Fourteen random, they won�t be called�
THE COURT: They will be put in the box, they will be put in the box. Out of that. Okay?
MR. GORDON: Okay.
(End of bench conference.)
THE COURT: Juror no. 143 is excused.
A JUROR: Excuse me?
THE COURT: You are excused, Mr. Brophy. Mrs. Shish, you are excused. Mr. West, you are excused, 197, I can�t remember your name.
A JUROR: Perry.
THE COURT: Where are you going?
A JUROR: We are going to Indiana for just a vacation.
THE COURT: You haven�t even invited me to go. Have a good time.
A JUROR: Thank you, sir.
THE COURT: Mr. Burnette?
A JUROR: Yes, sir.
THE COURT: You are excused. Juror no. 115. Mrs. Mee, you are excused.
It�s going to take some time now for the attorneys to exercise their peremptory challenges which are challenges that are exercised for what they feel to be the appropriate people to sit on the jury in this case. It will take a little bit of time, and it coincides with our morning recess. So I give you this admonition right now. Don�t discuss the case amongst yourselves or allow anybody to discuss it with you. Don�t make up your mind about the case for you haven�t heard all the evidence or the instructions of the court. If anybody does try to talk to you about it � about the case, let one of the court security officers know. Mr. Thompson, the jury may be excused until 10:50.
THE MARSHAL: Yes, sir.
(Prospective jurors excused from the courtroom.)
(The following proceedings were had in open court out of the presence and hearing of the prospective jury.)
THE COURT: Counsel?
MR. GORDON: I was just going to ask Faye something. The problem with this setup is you can�t tell the numbers of the person.
THE COURT: Yeah, you can.
MR. GORDON: How?
THE COURT: You ask them the names.
MR. GORDON: Yeah, but in Lexington you ask them where they sit.
THE COURT: Congratulations. This is Frankfort.
MR. GORDON: Do you have that, Kaye?
THE CLERK: Thirty-two. I don�t write down their seating, though.
MR. GORDON: I was hoping you would.
THE CLERK: No.
THE COURT: But you have talked to them.
MR. GORDON: I know, but there is a few of them that �
THE COURT: Court will be in recess until 10:50.
(Morning recess taken from 10:35 until 10:50 a.m.)
(After recess at 11:05 a.m.)
(The following proceedings were had out of the presence and hearing of the prospective jury and in open court.)
THE COURT: Let the record reflect that the parties are again present in the courtroom by and with counsel, that the jury is not present. Something we need to take up, Mr. Gordon?
MR. GORDON: We do, Your Honor. I wanted to have it placed on the record, my client knows, I told him, but I have been advised by the probation officer pretty much convinced me now, there has been some back and forth a little bit. But I have been advised that if my client was to be convicted by the jury of the � of the two counts of the 924(c), that the second count would have to run consecutive and that that count would be in and of itself a twenty-five year sentence. So I just thought with the magnitude of that particular sentence I would want to make sure that my client understands that and that that�s placed on the record.
THE COURT: Second or subsequent conviction would be twenty years, not twenty-five.
THE PROBATION OFFICER: Your Honor, that�s correct. With the first offense it�s plus five.
MR. GORDON: Okay, it would be a total of twenty-five then, but that second one just carries so much, geez. It�s a lot, you know.
THE COURT: Yes, sir.
MR. GORDON: So I just want to make sure that my client understands that.
THE COURT: I am sure that you have advised him of that.
MR. GORDON: I have.
THE COURT: And, you know, that�s his choice. Do you need time to talk to him about it?
MR. GORDON: On, no, I would just like for you to ask him simply if he does and all that�
THE COURT: It�s said in the record that you have advised him and �
MR. GORDON: Okay.
THE COURT: You know, that�s his choice.
MR. GORDON: Okay.
THE COURT: That�s certainly his choice and � but it�s � that�s the nature of these charges.
MR. GORDON: Yeah. Too much. All right.
THE COURT: Well, I mean, you know, that�s something you go see Congress about, see if you can get that changed, but I doubt if you will.
MR. GORDON: Not today anyway.
THE COURT: Well, no. Probably not. Okay? Anything else?
MR. GORDON: Just one thing. If the government is planning on playing this tape. I just received the tape. I don�t have a machine with me. I don�t know if they can make it available to me so I can listen to it or how we are going to listen to it.
THE COURT: You can listen to it over the noon hour.
MR. WEST: This is the tape of Joshua Miller, Jencks Act? I don�t know the court�s schedule, but will the court be taking testimony before noon?
THE COURT: Probably, depends on how long you talk?
MR. WEST: Not very long, sir.
THE COURT: Okay? Let�s show the jury in.
(Prospective jury resumed their place in the jury box.)
THE COURT: Let the record reflect that the prospective jurors are present in the courtroom. Madam Clerk, put the names in the box and shake them up.
THE CLERK: Yes, Your Honor. Ladies and gentlemen, as I call your name and number, if you will come forward and be seated as directed by Mr. Spencer.
Juror No. 161, Kimberly Moore.
Juror No. 123, Cathy Spencer.
Juror No. 102, Mabel Hamilton.
Juror No. 198, Judy Roberts.
Juror No. 148, Shirley Collier.
Juror No. 167, Gloria Amarello.
Juror No. 190, Brejetta Stidham.
Juror No. 75, Rhonda Armstrong.
Juror No. 179, Bonnie Waldridge.
Juror No. 170, Ann Hanley.
Juror No. 138, Jean Fouts.
Juror No. 95, Eric McMichael.
Juror No. 182 � 182, Joann Goodwin.
And juror No. 88, Donnie Dawes.
Fourteen jurors, Your Honor.
THE COURT: Thank you, Madam Clerk. Mrs. Scherff, you can go back to school.
A JUROR: Thank you.
THE COURT: You are all excused. Thank you for coming, appreciate it. You will be notified as to when your next period of jury service will be.
(Prospective jurors excused.)
THE COURT: Madam Clerk, would you please swear the jury?
THE CLERK: Yes, Your Honor. Ladies and gentlemen of the jury, please stand and raise your right hand to be sworn or make an affirmation.
(Jurors sworn.)
THE CLERK: Thank you.
------INSRUCTIONS----
THE COURT: Ladies and gentlemen of the jury� there for a moment I thought I was just going to be able to say �ladies of the jury.� Now that you have been sworn, it will be my duty to give you some preliminary instructions to guide you in your participation in this trial. It will be your duty to find from the evidence what the facts are. You and you alone are the judges of those facts. You will then have to apply to those facts the law as I give it to you in the course of my instructions. You must follow that law whether you agree with it or not. Nothing I say or do during the course of this trial is intended to indicate or should be taken by you as indicating what your verdict should be. Your verdict is your job, not mine. The evidence from which you find the facts will consist of the testimony of the witnesses, documents and other things received into the record as exhibits and any facts that the lawyers agree to or stipulate to or that I may isntruct you to find. Certain things are not evidence and must not be considered by you. I will list them for you now:
Statements, arguments and questions by lawyers are not evidence.
Two, objections to questions are not evidence. Lawyers have an obligation to their clients to make objections when they believe evidence being offered is improper under the Rules of Evidence. You should not be influenced by the objections or by my ruling on it. If the objection is sustained, ignore the question. If the objection is overruled, treat the answer like any other. If it is � if you are instructed that some item of evidence is received for a limited purpose only, you must follow that instruction.
Three, testimony that I have excluded or told you to disregard is not evidence and must not be considered.
Four, anything you have heard and seen outside the courtroom is not evidence and must be disregarded. You are here to decide this case solely on the evidence presented to you here in this courtroom. There are two kinds of evidence, direct evidence and circumstantial evidence. Direct evidence is direct proof of a fact such as the testimony of an eye witness. For example, if a person came into the courtroom today and testified that it was raining outside and you believed him, that would be direct evidence that it was raining outside. Circumstantial evidence is proof of facts from which you may infer or conclude that other facts exist. I will give you further instructions on this topic later. But circumstantial evidence is, for example, a person coming into the courtroom carrying a wet umbrella and wearing a raincoat covered with drops of water. From those facts you could conclude that it was raining outside. You may consider both direct and circumstantial evidence. It will be up to you to decide which witnesses to believe, which witnesses not to believe and how much of any witness�s testimony to accept or reject. I will give you some guidelines to assist you in evaluating the credibility of witnesses later.
I went through the three rules regrading � that must be kept in mind regarding criminal cases. I won�t repeat them now, but you should keep them clearly in your mind throughout the trial. The trial will begin with the government making an opening statement. An opening statement is simply an outline to help you understand the evidence as it come in. Next, the defendant�s attorney may but does not have to make an opening statement. Opening statements, obviously, are not evidence. The government will then present its witnesses, and counsel for the defendant may cross examine them. The defendant may, if he wishes, present evidence then. After all the evidence � and if the defendant does, the government�s lawyer may cross examine those witnesses. After all the evidence is in, I will give you my instructions on the law. The attorneys will then summarize and interpret the evidence in light of those instructions. After that, you will retire to deliberate on your verdict.
Opening statement on behalf of the United States, Mr. West?
MR. WEST: Thank you, may it please the court.
THE COURT: Mr. West.
MR. WEST: Mr. Gordon.
MR. GORDON: Mr. West.
MR. WEST: Ladies and gentlemen of the jury, I got the impression most of � as you were walking up, most of you have sat in that box together before. Nevertheless your time and attention is appreciated and we appreciate your time and sacrifice over the next couple days.
This case, as you know, is a simple five-count case. A lot of the facts are not going to be disputed and the parties deal with each of those counts. We�ll talk about what we intend to prove to you over the next couple days. First count taking place on November 14, 2000 in the Hazard area in Perry County. On that day, cooperating witness for the Kentucky State Police by the name of Joyce Eversole went to the residence of Leon Combs. Leon Combs lives at a place called Second Hollow in Perry County. She was with Detective Keith Napier. Keith Napier is with the Hazard Police Department. He was assigned as part of the task force and unit that work in the Hazard and Perry County area. He observed Mr. Combs come across the creek, get into the vehicle driven by Miss Eversole. Miss Eversole and Mr. Combs went to a placed called Airport Gardens. At that time, Miss Eversole was provided $1,000 United States money to purchase 25 Oxycontin. As you go through this trial, you will learn more about Oxycontin and Oxycodone and Dilaudid than you ever thought you would.
One of the things that�s going to be important about this trial, Oxycontins, they are going to be called OC�s. They come in many different sizes. One of the sizes is a 20, 20 milligram unit; a 40, which is a 40 milligram unit; and an 80, which is an 80 milligram unit. And they go up higher when you get into liquid form. We are going to be talking about 20's and 40's.
Detective Smoot will tell you the price for a 20 milligram OC in the Hazard area is $20. It�s a dollar per milligram, and $40 for 40 per milligram. In this case Miss Eversole purchased 25 Oxycontin for $1,000. The pills were returned to Kentucky State Police and they were booked into evidence, they were sent out to the State Police lab and tested postive for Oxycontin, which is a trade name for Oxycodone.
Now, on or about January 21, everything concerning this case starts. Young man by the name of Josh Miller lived with his father who�s named Ed Miller. Ed Miller had noticed for some time his son�s behavior had changed. His son was using prescription drugs. Mr. Ed Miller noticed that several of his firearms were missing. Of course, asking his sons what happened to them, it became apparent that Josh Miller told him he had been taking the guns from the house, taking them to Leon Combs� house and trading them for drugs.
Scotty Sandlin, Trooper Scotty Sandlin, is related to Josh Miller and Ed Miller, and he came over and took a statement. Because of the relationship, he took him to Hazard State Police post at which time they talked to Trooper Chris Fugate. Trooper Fugate took a statement, and Josh Miller will testify specifically on January 21st, he took a .270 rifle that belonged to his father over to Leon Combs� place, Second Hollow Road, traded that .270 rifle for a 40 OC and $40. He also said that he had taken numerous other items over there, more guns, some tools that belonged to his folks, some trading cards and knives that belonged to his folks. Search warrant was obtained for the residence of Mr. Leon Combs. Trooper Scotty Sandlin, Detective Keith Napier, Trooper Chris Fugate, several other detectives went to the residence of Leon Combs.
As they pulled into the residence, Mr. Combs was inside the vehicle, got out of the vehicle. Trooper Sandlin will tell you that he saw something being moved around his waist area. When I say �he,� I mean the defendant. Brought the defendant over, placed him on the car and asked to search him. Inside his coat pocket was a .22 caliber semiautomatic pistol. The clip, loaded from the handle, the clip was full.
As they began to pat him down in front, they found a pill bottle. Not a prescription bottle but a Tylenol bottle which contained these 40's, sixteen OC 40's and nine K4 Dilaudids. Most important other part of this case.
Mr. Combs was then taken inside the residence. The officers searched the residence, and as the search started to take place, they found the Remington .270 rifle that Josh Miller had told that he traded to Leon Combs for the pills, the money. They also found a Remington .222 rifle, a Remington .22 rifle that had also been taken from Ed. Miller and I. J. Sandlin, which is Josh Miller�s uncle. Approximately seven firearms total were recovered.
Inside the residence were found seven empty pill bottles, one pill bottle containing 8 yellow capsules which also had OC 20's in it. Give you a chance to look at those pill bottles. Look at them closely. There were listed by the name of Leon Combs for OC 20's. There were no prescription bottle found for OC 40. But in his pocket, when arrested, when stopped, when searched, OC 40. Josh Miller said he traded OC 40's and $40 for them.
The charge on count 2 was possession with intent to distribute Oxycontin, Dilaudid. Detective Smoot will tell you how much that Oxycontin and Dilaudid was worth. He will tell you how Oxycontin and Dilaudid is used.
Count 3, possession of a .22 caliber semiautomatic pistol that was found on him at the time of the search found with the 16 OC�s and the K4 Dilaudid.
Count 4 is trading the OC 40 for the .270 rifle.
And count 5 is possessing stolen firearms that had been shipped in interstate commerce.
I told you earlier Mr. Gordon and I have stipulated to a set of facts regarding the interstate commerce action. That�s kind of a fancy Federal term, but what that means is the items were shipped from some other place in the United States to Kentucky. There is no place in the United States, in Kentucky, that manufactures that wholesale; and that�s interstate commerce.
The items found on Mr. Combs� search and on his physical person and the search of his home sent off to Kentucky State Police lab tested for Dilaudin, Oxycontin, and Hydrocodone. I would ask you to listen to all the evidence of the United States. Please don�t make up your mind until all the evidence is in, but at the conclusion of the evidence tomorrow, we will ask you for a verdict of guilty against Mr. Combs as to all counts. Thank you.
THE COURT: Thank you, Mr. West. Mr. Gordon, do you wish to make an opening statement at this time?
MR. GORDON: I do, Your Honor, thank you. May it please the court?
THE COURT: Mr. Gordon.
MR. GORDON: Mr. West.
MR. WEST: Mr. Gordon.
MR. GORDON: Members of the jury, I was counting over there, looks like about eight of you have had an opportunity to sit on a prior jury. Lot of you don�t even know, some of you don�t, that as the judge has indicated to you, this is � this is our opportunity, Mr. Combs� and I opportunity to give you a preview of what we believe the evidence will be in this particular case. And I want to caution each and every one of you that we do not have an opportunity to put forth our case if in fact we have a case to put forth in terms of witnesses, because we know and as we indicated, there is no requirement upon us. But if we do do that, then that would be at the conclusion of the witnesses that would testify on behalf of the government. And I want you to remember that the � the questions and the responses that are elicited from the witnesses from the government are important, but the cross examination is just as important. So really for both sides, we are asking you to � to keep an open mind, you know, listen to all the evidence and as well as the cross examination of the witnesses that will testify. Now, what I am going to be asking you at some later day is to � is to find in this particular case Mr. Combs not guilty of the count, count 1, count 2, count 3, count 4, and count 5, looking at each and every one of them individually; however, because the government would not � would not and will not prove their case beyond a reasonable doubt.
Now, as you know there are five different counts. And the government has indicated to you that they intend to prove each and every one of those counts, and they listed a number of witnesses for you. And you have to remember, try to remember those counts as best you can and see if in fact the government can prove their case to each and every one of you beyond a reasonable doub.t
So in regard to the first count, they say that the � you know, there was some transaction that took place in November of the year 2000 at some point away from the residence of where � of where Mr. Combs lives. And that they intend to introduce a witness to in fact testify to that.
And you have to see if in fact they can � they can do that, those witnesses come forward and they can prove that. And that�s what you have to decide. And it will be our position that they won�t be able to do that.
Let me tell you a little bit, first of all, about Mr. Combs. As I told you, he is forty-two years of age. He lives in Hazard, Perry County, Kentucky. He has lived there for the majority of his life. Went to, I believe the high down there � because I know we have a juror who is from Perry County � but I believe it�s M. C. Napier. He graduated from there. He generally, he worked in the mines for awhile, he has been a general laborer for the most part. And he wll tell you about this. He will tell you about what he did and where he worked. But he worked at a number of odd jobs back in 1994.
He had been married before, but in 1994 with no children, he married Michelle Combs. And Michelle Combs is not in � in this room right now because in fact she will be a witness that will testify in this particular case. And they will tell you that they lived together for a couple years prior to that, but they got married in 1994, Michelle had already had a child. But they had � had two children and they have three girls in fact, one is, as I said, from a previous marriage; and two, they will tell you their ages and so forth. That in last year of June of last year, he was involved in a serious motorcycle accident, ad I believe it was in Perry County, Kentucky, he will tell you about that.
That as a result of that � and you will notice from time to time that he � when he takes the stand and when he communicates, you will be able to understand him, but he has some sort of � he kind of cringes or so, his face kind of gets a little tighter and so forth, and it�s always as a result of the after effects of the accident and the problems associated with that accident. He does not speak as well as he once did and certainly does not move as well as he once did. As a result of that accident, he went to see some doctors and at one point was prescribed � and I think you will hear testimony concerning such and he will tell you � that he was prescribed Oxycontin 20's. And there is Oxycontin 40's, and you are going to hear about it in this case. And really I don�t know what the effects are of Oxycontin other than I know that they allow you to do things that you normally could not do because of the pain involved, and he will be able to tell you about that.
But you will see, and I believe there will be evidence in this case that in fact there was a prescription bottle with his name with Oxycontin 20 on there. And in fact you will also see that there were other Oxycontin in this case as well as I think the government indicated Dilaudid and so forth. And you are going to have to listen to that testimony and be able to decipher that testimony, and he will tell you that he had that on there.
But what you are also going to hear is that their� the government is � is going to put forth evidence that he was involved in drug trafficking, and that in fact during that drug trafficking that he was also involved in carrying firearms.
Now, you are also going to hear that when he was arrested he had $100 in his pocket. You will also hear, and he will testify that when he was arrested, these narcotics were not bagged up individually into bags. You will hear no testimony like that.
You will not see, nor will you hear any testimony concerning any ledgers of people that may have in fact been so-called buyers of these drugs that he�s alleged to have been selling. There will be no ledgers that were found on his person on January 22, 2001, nor will you hear any testimony of any ledgers nor large amount of money that were located at his residence there at Second Creek or whatever it�s called. You will not hear that testimony. As a matter of fact, nor will you see or hear any testimony of any individuals that will come up here and say that they went to his residence and bought Oxycontin on a regular basis other than one individual who is going to attempt to say that � who we also know from witnesses is going to admit that he stole guns, and that he is going to also attempt to tell you that at times he was � he would buy Oxycontins from Leon Combs.
Now, not once, and we believe the testimony will show you, will reveal that in fact any of these Oxycontins that he allegedly bought from my client during these transactions will be produced for you to see. You will not see anything like that. There will be no evidence like that. And as I told you, and as I believe the evidence will reveal and the court will instruct you later on, these guns. There has got to be some integral part, and you are going to hear testimony about how he got in possession of these guns and what he did. He will tell you that occasionally he sold guns, that he traded them, which is a common practice in Hazard, Kentucky. May not be a common practice here. But he will tell you about that.
You will hear from witnesses that on this particular occasion that I am getting to the January 22 date of 2001 at Second Creek where he lives, his home, his residence in Hazard, Perry County, Kentucky, that in fact this gun, that they are going to say it was involved in drug trafficking that was found on his person that day. He had just picked up that gun some twenty minutes before. He � the only reason he had come back out of the residence � and he will tell you this � was because he had forgotten to pick up his two girls or three girls or however many were not there, he had forgotten. And he will tell you that he does forget occasionally, always as a result of the accident and his medication that he has that he was on at that time.
And you will hear from the witness who said that he had just traded the gun to him some twenty minutes before, that that was the only reason that he had that weapon. It was not on his person for anything other than the fact that he simply had not taken it into the house and dropped it off.
He did take it into the house, but when he arrived at the house� you will hear him testify to this, you will also hear his wife testify � that in fact he did come in the house and that she told him that, �You forgot the girls.� And he said, �Oh, my God, I did.� And went back out, and he just simply did not take the gun out of the pocket.
You are going to hear testimony that in fact he did know Josh Miller. We are not denying that he did know Josh Miller, and we are not denying the fact that he did trade guns. But what he will tell you is that he never, never traded guns with Josh Miller for Oxycontin. And you will � as I said, you will not see any Oxycontin that is produced from this Josh Miller that he alleges was involved in some transaction with Leon Combs.
You will � you will hear the testimony in this case from, as I said, various witnesses, as they relate to all five counts in this particular transaction. And there are guns, there is no question about it. And there is going to be testimony about that. But you have got to decipher the evidence here and determine if in fact any of those guns were in fact used to � to facilitate these particular drug transactions. He has been � he has been involved in guns for some period of time, and he will tell you that, no question about that. But just having guns, as you are going to hear and he will tell you, that�s not what he is on trial here for today. And I want you to know that� that just � just listen to all the evidence and remember that� that we will not have an opportunity, as I said, until we put forth our witnesses; but at the end of this case, I am going to be asking you to return a verdict of not guilty as it relates to the counts in this particular indictment. Thank you.
THE COURT: Thank you, Mr. Gordon.
MR. GORDON: Thank you, Judge.
THE COURT: Ladies and gentlemen of the jury, during your morning or noon recess, remember the admonition of the court. You are not to discuss this case with anyone. You are not to allow anyone to discuss it with you. Don�t make up your mind about the case, for you haven�t heard any of the evidence or the court�s instructions. If anybody does try to talk to you about this case, let one of our court security officers know. Don�t read or listen to anything touching on the case in any way. Do not try to do any research or make any investigation about the case on your own. That�s not your job. And keep an open mind until all the evidence is in, and I�ll see you back here after lunch at 1:00. You may show the jury from the courtroom.
THE MARSHALL: All rise for the jury, please.
(Jury excused from the courtroom.)
THE COURT: Let the record reflect that the jury is out of the courtroom. Anything we need to take up outside the presence of the jury, Mr. West?
MR. WEST: No, sir, I�ll just ask the court to invoke the rule of separation of witnesses.
THE COURT: It�s already been invoked if you would look at the court�s pretrial order.
MR. GORDON: We have already complied.
THE COURT: Anything else, Mr. Gordon, on behalf of the defendant?
MR. GORDON: No, sir.
THE COURT: Okay, see you back in here at 1:00.
(Lunch recess taken from 11:44 a.m. until 1:00 p.m.)
FOR THE BENEFIT OF THE READER OF THIS UNOFFICIAL TRANSCRIPTION�IT IS ONLY AT THIS POINT THAT EVIDENCE BEGINS!
______________________
Wednesday afternoon session,
April 18, 2001, 1:00 p.m.
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THE COURT: Let the record reflect that the parties are again present in the courtroom by and with counsel, that the jury is present; and we�ll waive the poll of the jury.
First witness, please?
MR. WEST: Mr. Ed Miller, please.
(Witness sworn)
THE CLERK: Thank you.
MR. GORDON: Your Honor, if I could get the government just to move one way or the other so I can �
THE COURT: You got to unplug the thing? Can you see it?
MR. GORDON: Yeah, just straighten it out. Well, I guess I can move down there more. Okay.
THE COURT: You may ask.
MR. WEST: Thank you, sir.
MR. WEST: State your name, please, sir?
MR. MILLER: Eddie Miller.
MR. WEST: Mr. Miller, where do you live at, sir?
MR. MILLER: Live at Grapevine in Hazard, Kentucky.
MR. WEST: Is that in Perry County?
MR. MILLER: Perry County.
MR. WEST: Have you lived there all your life, sir?
MR. MILLER: Yes.
MR. WEST: The � how are you related to Josh Miller, Joshua Miller?
MR. MILLER: I am his father.
MR. WEST: How old is Joshua?
MR. MILLER: Twenty-one.
MR. WEST: I am going to assume that Josh lived with you all the time through high school?
MR. MILLER: Yes.
MR. WEST: Since he graduated high school, has he lived with you since that time, too?
MR. MILLER: Yeah.
MR. WEST: Does he live with you now?
MR. MILLER: Yes.
MR. WEST: At some point, sir, in the last few months, did you notice a change in � in � in Josh that drew your attention to him?
MR. MILLER: Yes.
MR. GORDON: Objection to the � I know we are trying to get through the preliminary, but object to the leading.
THE COURT: Was there a change?
MR. WEST: Yes, Your Honor.
THE COURT: Ask the question.
MR. WEST: Was there a change in Joshua Miller in the last few months?
MR. MILLER: Yes.
MR. WEST: What was that change that you noticed, sir?
MR. MILLER: It�s just he wasn�t Josh any more, he was somebody else, I guess.
MR. WEST: How many children do you have?
MR. MILLER: Three.
MR. WEST: All boys?
MR. MILLER: All boys.
MR. WEST: Mr. Miller, did � did all three of your boys live with you?
MR. MILLER: Yes.
MR. WEST: At some point in the last few months did you notice certain items that were missing from your home?
MR. MILLER: Yes.
MR. WEST: Do you recall about when that was, sir?
MR. MILLER: In January, January 20 or something like that.
MR. WEST: You don�t recall the exact date?
MR. MILLER: No, I don�t.
MR. WEST: What did you notice that was missing?
MR. MILLER: Some guns.
MR. WEST: Pistols, shotguns, rifles?
MR. MILLER: Yeah.
MR. WEST: Where were the guns usually kept in your home?
MR. MILLER: Just different places.
MR. WEST: How old are your other two sons?
MR. MILLER: Fifteen.
MR. WEST: When you noticed these guns missing, what did you do, sir?
MR. MILLER: We confronted Josh and � and asked him where the guns were, if he knew; and he said he had them put up. And I said, �No,� I said, �I got to know where the guns are at.�
MR. WEST: Did he tell you what he had done with the guns?
MR. MILLER: Yeah.
MR. WEST: With that information, did you call the State Police there in Hazard?
MR. MILLER: Yes.
MR. WEST: Now, you are related to a few members at the State Police Hazard Post, aren�t you, sir?
MR. MILLER: Yeah.
MR. WEST: Who did you call at the Hazard post?
MR. MILLER: Trooper Sandlin.
MR. WEST: Scotty Sandlin?
MR. MILLER: Scotty Sandlin.
MR. WEST: How is he related to you?
MR. MILLER: Brother-in-law.
MR. WEST: What took place, after you called Scotty, what happened then?
MR. MILLER: We talked to Josh, and Scotty talked to him alone for a little while and just told him that he had to tell me; and we had to do something with his problem and �
MR. WEST: At some point did you do a thorough search of your house?
MR. MILLER: Yes.
MR. WEST: Do you recall how may weapons were missing?
MR. MILLER: Yes.
MR. WEST: How many were there?
MR. MILLER: There were five at that time. Well, there was about seven or eight at that time.
MR. WEST: How many of them � I am going to use the term �long gun,� referring to rifles and shotguns � how many of them were long guns that were missing?
MR. MILLER: Seven.
MR. WEST: After you spoke with Trooper Scotty Sandlin, was that at your residence there in Grapevine?
MR. MILLER: Yes.
MR. WEST: When you spoke with Scotty was it at Grapevine?
MR. MILLER: Yeah.
MR. WEST: Did you go to the State Police post there in Hazard?
MR. MILLR: Yeah.
MR. WEST: At some point were certain of the weapons returned to you?
MR. MILLER: Yes.
MR. WEST: And have you brought those to court with you today, or are they in the presence of the State Police with you today?
MR. MILLER: Yes.
MR. WEST: The marshal has previously checked all the weapons that are in the courtroom. There is a red tag attached. May I ask the witness to identify them?
THE COURT: Yes, sir, you may.
MR. WEST: Mr. Thompson?
MR. WEST: Mr. Miller, can you identify what�s being shown to you, please? What item is that?
MR. MILLER: That�s a Remington.
MR. WEST: Do you know that rifle?
MR. MILLER: Yes.
MR. WEST: And when did you acquire that rifle?
MR. MILLER: When did I �
MR. WEST: When did you get it?
MR. MILLER: Back �
MR. WEST: When you bought it?
MR. MILLER: Oh, it�s been several years back.
MR. WEST: Do you recall how many years it was?
MR. MILLER: I�ll say eight.
MR. WEST: Do you recall how much you paid for it about eight years ago?
MR. MILLER: I think this one here I gave $350 for it then.
MR. GORDON: I can hardly hear the witness.
THE COURT: Yeah, you are going to have to speak into the microphone.
MR. GORDON: I didn�t hear the last question and what the answer was.
MR. WEST: Would you state again how much you paid for that rifle, sir?
MR. MILLER: $350.
MR. WEST: Likewise, sir, can you identify that item, please?
MR. MILLER: Yes, it�s a .22 Remington.
MR. WEST: Is that your rifle also?
MR. MILLER: Yes.
MR. WEST: And when did you get that rifle?
MR. MILLER: Five years ago.
MR. WEST: Do you recall how much you paid for it then?
MR. MILLER: $150.
MR. WEST: Can you identify that item, please?
MR. MILLER: It�s a .222 Remington.
MR. WEST: When did you acquire it?
MR. MILLER: Two years ago.
MR. WEST: Do you recall how much you paid for that?
MR. MILLER: $400.
THE COURT: How much was paid?
MR. WEST: $400, sir.
MR. WEST: Can you identify that, sir?
MR. MILLER: It�s a .50 caliber Remington.
MR. WEST: Is that a black powder rifle?
MR. MILLER: Yes.
MR. WEST: It�s one of those newer models they can inline black powder?
MR. MILLER: Yes.
MR. WEST: When did you acquire that, sir?
MR. MILLER: Three years ago.
MR. WEST: Do you recall how much you paid for it?
MR. MILLER: 375. 30 ot 6 Remington.
MR. WEST: Is that your rifle also?
MR. MILLER: Yes.
MR. WEST: When did you get that?
MR. MILLER: Fifteen years ago.
MR. WEST: Do you recall how much you paid for it then, sir?
MR. MILLER: It was a Christmas gift. I think it was around $4,100 or �
MR. WEST: Sir, were all five of those long guns missing from your home?
MR. MILLER: Yes, they were.
MR. WEST: Were they subsequently returned to you by the Kentucky State Police?
MR. MILLER: Yeah.
MR. WEST: Mr. Miller, I am going to show you what�s marked as Government�s Exhibit 1 through 5, tag is actually on the back of the photographs. Could you look at all those photos for me, please, sir?
MR. MILLER: (Complies)
MR. WEST: Do you recognize those � those long guns in those photos sir?
MR. MILLER: Yeah.
MR. WEST: Are those the five guns that were just shown to you here in court?
MR. MILLER: Yes, they are.
MR. WEST: Were those photos taken to your knowledge?
MR. MILLER: Huh?
MR. WEST: Were those photos taken of the weapons today?
MR. MILLER: I don�t know when they were taken.
MR. WEST: Does it fairly and accurately depict the weapons that you just saw?
MR. MILLER: Yeah.
MR. WEST: Your Honor, rather than introduce the actual long guns into evidence, we move to submit Government�s Exhibits 1 through 5, the photographs.
THE COURT: Any objections?
MR. GORDON: No objections.
THE COURT: Have these long guns been marked for identification?
MR. WEST: I didn�t mark them, sir, as they have been submitted here.
THE COURT: Okay, so the photographs will be marked 1 through 5?
MR. WEST: Yes, sir.
THE COURT: Objection?
MR. GORDON: To the photographs?
THE COURT: Yes, sir.
MR. GORDON: No, sir.
THE COURT: Being marked for identification and substitution in lieu of the actual guns?
MR. GORDON: Right.
THE COURT: All right, let them be filed.
(Exhibits admitted)
MR. WEST: Thank you, sir.
MR. WEST: Mr. Miller, the � when you spoke with your son about the weapons being missing, did you do a thorough search of the house?
MR. MILLER: Yes.
MR. WEST: Did you find any � any controlled substances in the house, any pills or anything like that?
MR. MILLER: No, we didn�t.
MR. WEST: You made a decision, and I have already told the jury what the decision was about your son in regards to these weapons. You chose not to file �
MR. GORDON: Objection, it�s leading, testifying. Let the witness testify. Judge.
THE COURT: Sustain.
MR. WEST: Did you charge your son?
MR. MILLER: No.
MR. WEST: Why is that, Mr. Miller?
MR. MILLER: Because he is my son.
MR. WEST: After this � this incident took place, what did you do with him in regards to his care?
MR. MILLER: I had him put in a rehab. center.
MR. WEST: Does he live at home with you now?
MR. MILLER: Yeah.
MR. WEST: Do you know the defendant who sits here, Mr. Leon Combs?
MR. MILLER: Yes, I do.
MR. WEST: How long have you known him?
MR. MILLER: Oh, fifteen years. He � we worked together for a year, and after that he left, then after that I have not been in contact with him or anything after that.
MR. WEST: Was that working in coal mines?
MR. MILLER: Yeah.
MR. WEST: Did you trade any of those firearms with Mr. Leon Combs?
MR. MILLER: No, I haven�t.
MR. WEST: Did he have your permission to have those firearms in his residence?
MR. MILLER: No, he didn�t.
MR. WEST: One of those weapons was actually recovered from a pawn shop. Did you pawn that weapon at a pawn shop?
MR. MILLER: No, I didn�t.
MR. WEST: One second, please. (Counsel for plaintiff conferring with co-counsel.)
MR. WEST: That�s all of this witness at this time, Your Honor.
THE COURT: Cross, Mr. Gordon?
MR. GORDON: Thank you, Your Honor.
MR. GORDON: Mr. Miller, my name�s Derek Gordon, and obviously I am an attorney; and I represent Leon Combs. I have got some questions for you.
You said that you didn�t give him permission to have those guns. Did you call him up and say, �Hey, you have got my guns. Give them back to me.�
MR. MILLER: No, I didn�t.
MR. GORDON: So you didn�t have any conversation with him?
MR. MILLER: No.
MR. GORDON: And you know that he didn�t come in your house and steal them, don�t you?
MR. MILLER: Yes, I don�t think he did.
MR. GORDON: I mean, as far as you know, your son took those guns?
MR. MILLER: Yeah.
MR. GORDON: All right. Now, these guns, where were they in � in your residence, where were they located?
MR. MILLER: We keep some of them in a gun cabinet, some of them in a closet. Different places. Gun rack.
MR. GORDON: Okay, Are they loaded or �
MR. MILLER: No, no, they are never �
MR. GORDON: You don�t keep them loaded with your children around.
MR. MILLER: Yes.
MR. GORDON: And obviously they have access to them if they are � if they are loaded that wouldn�t be good.
MR. MILLER: No.
MR. GORDON: Okay. Now, these guns that you have � you have testified to, these five guns that you have purchased over a period of time, where did you buy these guns?
MR. MILLER: Just different places. Different people. Friends might have one they want to sell. If they do, and I can afford it, like it, I try to buy it.
MR. GORDON: So if � if � if you � you sell some of them, too?
MR. MILLER: No, I have never hardly sold any.
MR. GORDON: Well, never hardly, have you sold some guns before?
MR. MILLER: Oh, yeah.
MR. GORDON: So you buy and sell sometimes?
MR. MILLER: No, I don�t sell.
MR. GORDON: You just got done testifying that you did.
MR. MILLER: I have never sold guns, I buy them.
MR. GORDON: You are not in the personal business, you have a job.
MR. MILLER: No, I am diabled.
MR. GORDON: Oh, you are disabled. But you have from time to time occasionally sold a gun; is that right, sir?
MR. MILLER: Yes.
MR. GORDON: And that would be to a private person in the community?
MR. MILLER: Yes, more or less.
MR. GORDON: Okay. Now, I believe your � your testimony is that you never saw any � any drugs in your home, is that what you are saying?
MR. MILLER: Yes.
MR. GORDON: From your son: is that right?
MR. MILLER: Yes.
MR. GORDON: Okay, and he informed � well, you discovered that these guns had been stolen on January the 20th?
MR. MILLER: Yeah.
MR. GORDON: About what time?
MR. MILLER: 6:00 in the evening, I guess.
MR. GORDON: What, were you just looking for one or something at that point?
MR. MILLER: Well, I was going through the house, and I noticed some of them were gone from the place they usually � where we usually kept them. Just started looking and found them missing.
MR. GORDON: Okay, and you were at some point informed by someone that those guns, that Joshua stole them, is that right?
MR. MILLER: That he � I thought that he had took them, yes.
MR. GORDON: Okay. All right. At that point he hasn�t told yu that because you hadn�t talked to him.
MR. MILLER: No.
MR. GORDON: All right. And did you call the police at that point or did you talk to your son first?
MR. MILLER: I talked to him first.
MR. GORDON: Okay, and you ultimately found out that they were stolen?
MR. MILLER: I won�t say stolen, he took them. I won�t say stolen.
MR. GORDON: You never pressed charges on your son?
MR. MILLER: No.
MR. GORDON: All right. And you weren�t informed that someone else came in the home and stole them?
MR. MILLER: No.
MR. GORDON: And you called Trooper Sandlin; is that right?
MR. MILLER: Yeah.
MR. GORDON: Now, which one is that? What�s his name?
MR. MILLER: Scotty Sandlin.
MR. GORDON: He � who does he � who does he work for?
MR. MILLER: Kentucky State Police.
MR. GORDON: All right. And is there a Paul Sandlin?
MR. MILLER: Yes.
MR. GORDON: Who is he?
MR. MILLER: His brother-in-law. He is Scotty � (FOR CLARITY TO THE READER�THERE ARE TWO INDIVIDUALS HERE PAUL SANDLIN AND GARY SCOTT SANDLIN�BOTH KENTUCKY STATE POLICE AT POST 13 IN HAZARD, KENTUCKY AND BOTH ARE BROTHER-IN-LAWS TO THE WITNESS AND UNCLES TO JOSHUA RAY MILLER.)
MR. GORDON: Is he a police officer?
MR. MILLER: Yeah.
MR. GORDON: Who is he employed by?
MR. MILLER: Kentucky State Police.
MR. GORDON: Oh, they are both employed by. Okay, so they are both relatives of yours?
MR. MILLER: Yeah.
MR. GORDON: Okay. Both are KSP officers?
MR. MILLER: Yeah.
MR. GORDON: And you reported these guns had been stolen, did you?
MR. MILLER: No, I didn�t report them stolen.
MR. GORDON: Oh, okay, you never reported them stolen?
MR. MILLER: No.
MR. GORDON: What did you report them then?
MR. MILLER: That the guns were missing, and I wanted him to tell me where they were.
MR. GORDON: So you never went down to the police station and filled a stolen police report, I mean, not stolen police report. Stolen gun report?
MR. MILLER: Yeah.
MR. GORDON: Oh, you did?
MR. MILLER: Yeah.
MR. GORDON: When?
MR. MILLER: That I � that same night, around the 20th, I guess. I don�t remember the date.
MR. GORDON: Okay, well, you said that when you first contacted them, you reported them missing, not stolen?
MR. MILLER: Yeah.
MR. GORDON: Are you saying that later that day you reported them stolen?
MR. MILLER: Well, I had to make out � I guess I had to make out a report to enter them stolen before I could get them back. I didn�t know.
MR. GORDON: And did they ask who you thought they might have been stolen by?
MR. MILLER: I thought that Josh had took them.
MR. GORDON: Okay, and did you put him down there?
MR. MILLER: Put him �
MR. GORDON: As the potential suspect?
MR. MILLER: No, not � no,
MR. GORDON: You didn�t put him down?
MR. MILLER: Huh,uh. If I did, I don�t remember.
MR. GORDON: Well, I mean, my question is do you remember if you put down �
MR. MILLER: I don�t remember. I don�t remember.
MR. GORDON: You don�t remember what you put down on the report?
MR. MILLER: No, because I was mad and aggravated, and I just don�t remember. I don�t �
MR. GORDON: What I am getting at is you don�t remember if you put down that the guns were stolen, do you?
MR. MILLER: No.
MR. GORDON: And as far as you know you don�t remember telling the police officer they were stolen either, do you, you told them they were missing?
MR. MILLER: Yes.
MR. GORDON: All right. Now, your� your son, from your observation, was he coming in late a lot of the time?
MR. MILLER: Yes.
MR. GORDON: Did he appear to be under the influence of drugs?
MR. MILLER: It was hard to say. But we started suspecting that, and started trying to find out. And didn�t have any luck, but �
MR. GORDON: Did � did you follow him around a little bit or just watch him in the house?
MR. MILLER: Well, he was working at that time.
MR. GORDON: Okay, where was he working?
MR. MILLER: Truss Joist.
MR. GORDON: And did you go over there to see him over there at work occasionally?
MR. MILLER: No.
MR. GORDON: Did you ever follow him to work?
MR. MILLER: Yes.
MR. GORDON: You did?
MR. MILLER: Yes.
MR. GORDON: Did you ever follow him anywhere else?
MR. MILLER: No.
MR. GORDON: How long a period of time did you have him under surveillance?
MR. MILLER: Well, I just followed him a couple times, and maybe a couple weeks that lasted.
MR. GORDON: So you followed him to work occasionally and watched to make sure he went to work and so forth?
MR. MILLER: Once or twice.
MR. GORDON: Now, you said you knew Mr. Combs, who is sitting behind me here. When was the last time, with the exception of, you know, during this period of time, that you saw him?
MR. MILLER: Eight years ago.
MR. GORDON: Okay. So you didn�t see him � you didn�t see him at � at the Truss Joist when you went over there?
MR. MILLER: No.
MR. GORDON: You didn�t see him when you followed him over there to the store and you followed your son over there, did you?
MR. MILLER: No.
MR. GORDON: 27 � the .270 Remington �
MR. GORDON: May I approach the �
THE COURT: Yes, sir.
MR. GORDON: �clerk there?
THE COURT: Yes, sir, you may?
MR. GORDON: I am not familiar with the numbers on these guns, so maybe you could tell me which one the .270 is?
MR. MILLER: That one (indicating.)
MR. GORDON: That was � the .270 � well, no, I don�t need it. But if you will look at that, the .270 was the first gun you testified about, is that right sir?
MR. MILLER: I guess, yeah.
MR. GORDON: And how much did you pay for that?
MR. MILLER: Around 350.
MR. GORDON: How much is that gun worth?
MR. MILLER: It�s worth about 500 now.
MR. GORDON: Worth about 500, the .270 Remington? Okay, and you paid 350 when?
MR. MILLER: It�s been several years back.
MR. GORDON: All right. But you estimate the value of that to be about $500 today?
MR. MILLER: Around that, yeah.
MR. GORDON: Just have one moment, Your Honor.
THE COURT: Okay, sir.
(Counsel for the defendant conferring with the defendant.)
MR. GORDON: I think that�s all, Your Honor.
THE COURT: Redirect, Mr. West?
MR. WEST: Yes, Your Honor.
MR. WEST: Mr. Miller, would you accept $40 for that .270? For that .270, if somebody offered you 40 bucks, would you take it?
MR. MILLER: No.
MR. WEST: If they offered you 80 bucks?
MR. MILLER: No.
MR. WEST: Mr. Gordon asked you a question about Josh Miller taking the guns, whether or not they were stolen. My question to you is did Josh Miller have your permission to remove those guns from your residence?
MR. MILLER: No.
MR. WEST: That�s all of this witness.
THE COURT: Redirect or cross, Mr. Gordon?
MR. GORDON: Well, if he didn�t have your permission, then they were stolen?
MR. MILLER: I won�t say my son stole them, no.
MR. GORDON: All right, and that�s why you didn�t tell the police they were stolen, right?
MR. MILLER: Yes.
MR. GORDON: That�s all.
THE COURT: Mr. West?
MR. WEST: Nothing further, sir, of this witness.
-----------------
THE COURT: Okay, thank you, Mr. Miller. You may stand aside. Next witness, please.
MR. WEST: Mr. I. J. Sandlin, please.
THE CLERK: Please raise your right hand.
(Witness sworn.)
THE CLERK: Thank you.
THE COURT: You may ask.
MR. WEST: Thank you, sir.
MR. WEST: Would you state your name, please?
I. J. SANDLIN: Irvin James Sandlin.
MR. WEST: You go by I. J. Sandlin?
I. J. SANDLIN: Yes.
MR. WEST: Where do you live at, Mr. Sandling?
I. J. SANDLIN: Hazard, Kentucky.
MR. WEST: Have you lived there all your life?
I. J. SANDLIN: Yes.
THE COURT: So far. You haven�t lived all your life yet, have you?
I. J. SANDLIN: Right, right.
MR. WEST: The man who was just in here, Mr. Ed. Miller, how is he related to you?
I. J. SANDLIN: Brother-in-law.
MR. WEST: And do you know a Joshua Miller?
I. J. SANDLIN: Yes.
MR. WEST: How is he related to you all, sir?
I. J. SANDLIN: My nephew.
MR. WEST: Sir, at some point � well, where do you I�ve in regards to where Mr. Ed. Miller and Mr. Joshua Miller live?
I. J. SANDLIN: How far away? Approximately 400 yards.
MR. WEST: Do you all regularly visit each other�s houses?
I. J. SANDLIN: Yes.
MR. WEST: Has Josh Miller been in your house say, for instance, on a weekly basis, how often would he be there?
I. J. SANDLIN: Not as much recently as he used to be, but at least twice, two or three times a week.
MR. WEST: When you say recently, you mean since January 22nd, end of January?
I. J. SANDLIN: Last year.
MR. WEST: Sir, at some point inside your residence did you notice any items that were missing?
I. J. SANDLIN: Yes.
MR. WEST: And what did you notice that was missing?
I. J. SANDLIN: I noticed a pistol, a .38 Smith & Wesson pistol that I always kept on top of the dresser.
MR. WEST: What else did you notice was missing?
I. J. SANDLIN: .870 Wingmaster, .28 shotgun.
MR. WEST: What else?
I. J. SANDLIN: And a .243 ruger rifle.
MR. WEST: Do you recall about when you noticed those items missing?
I. J. SANDLIN: Pardon me?:
MR. WEST: Do you remember when you first noticed those things being gone?
I. J. SANDLIN: Somewhere around January the 19th, 20th.
MR. WEST: You noticed them gone, what did you do, sir?
I. J. SANDLIN: Well, I noticed the pistol gone first, and I didn�t really think too much about it. I just � I figured it had got misplaced. But when I went to work, my son called and asked me if I had � if I had done something with his guns, the guns that he had in his room. I told him no. He said they were missing, so I told him to go ahead and call State Police.
MR. WEST: The � the guns that you talk about, the Ruger and the .28 shotgun, where were they kept in your home, were they kept in a gun cabinet or gun safe?
I. J. SANDLIN: They were kept in the closet in Justin�s room, my son�s room.
MR. WEST: Do you know the defendant who sits here, Leon Combs?
I. J. SANDLIN: No.
MR. WEST: Your Honor, likewise with these next two firearms, they have been checked and cleared with the marshal.
THE COURT: All right.
MR. WEST: Sir, you are being shown a weapon, I am going to ask you if you can identify that weapon, sir?
I. J. SANDLIN: Yes.
MR. WEST: What is that?
I. J. SANDLIN: It�s a Remington Wingmaster, .28 pump shotgun.
MR. WEST: Is that your firearm?
I. J. SANDLIN: Yes.
MR. WEST: Do you recall about when you got that gun?
I. J. SANDLIN: Approximately three years ago.
MR. WEST: Do you remember how much you paid for it?
I. J. SANDLIN: I think I gave $175 for it.
MR. WEST: You are also being shown another firearm, sir, can you identify that gun?
I. J. SANDLIN: Yes.
MR. WEST: What is that?
I. J. SANDLIN: That�s a Ruger .243, hunting rifle with a scope.
MR. WEST: And when did you get that gun? Well, first let me ask you, is that your firearm?
I. J. SANDLIN: Yes, that�s�
MR. WEST: When did you get that firearm?
I. J. SANDLIN: I got that firearm three years ago.
MR. WEST: Do you recall how much you paid for it then, sir?
I. J. SANDLIN: $620 for it with the scope.
MR. WEST: Have you fired both of these weapons, sir?
I. J. SANDLIN: Yes.
MR. WEST: Do they both function properly?
I. J. SANDLIN: Yes.
MR. WEST: Mr. Sandlin, you are being shown photographs marked Exhibit No. 6 through 7, can you identify those photos, sir?
I. J. SANDLIN: Yes.
MR. WEST: Okay, what are those photos?
I. J. SANDLIN: They are the same two weapons I just saw.
MR. WEST: That we just showed you?
I. J. SANDLIN: Yes.
MR. WEST: Your Honor, likewise with these two exhibits, 6 and 7, we would introduce those in lieu of the firearms themselves.
THE COURT: Objection?
MR. GORDON: No objection.
THE COURT: Let them be filed in lieu of the firearms.
(Exhibits admitted.)
MR. WEST: Sir, do you remember when you got those items back, those guns back?
I. J. SANDLIN: I got the � two of them back on January the 26th, and one back I think it was around the 21st.
MR. WEST: That�s all of this witness, Your Honor.
THE COURT: Cross, Mr. Gordon?
MR. GORDON: Thank you, Your Honor.
MR. GORDON: So after you discovered missing on or about January 20th, you got one of them back the following day, didn�t you?
I. J. SANDLIN: Yes, sir.
MR. GORDON: Then you got the other two back in about five days or something thereafter?
I. J. SANDLIN: Yes.
MR. GORDON: So up until today� well, did you again, at some point, lose the guns? I mean, obviously they are here. Did they� did somebody come get them?
I. J. SANDLIN: Yes.
MR. GORDON: When?
I. J. SANDLIN: This morning.
MR. GORDON: Who came and got them this morning?
I. J. SANDLIN: State Police.
MR. GORDON: From your residence?
I. J. SANDLIN: Yes.
MR. GORDON: So after they� so after these guns had been picked up, they � they brought them home to you then, right?
I. J. SANDLIN: Do you mean after �
MR. GORDON: I mean, after they got them on the 21st of January, you have had it, you have had one gun, and on January 26th, you had the other two guns.
I. J. SANDLIN: Yes.
MR. GORDON: Okay, and, of course, now we are here in April the 18th, so you have had these guns the entire time; is that right?
I. J. SANDLIN: That�s right.
MR. GORDON: Did they not tell you they needed to hold them as evidence or something?
I. J. SANDLIN: No.
MR. GORDON: They weren�t � they weren�t use in a � they weren�t going to be used as part of a crime or what?
MR. WEST: Objection, Your Honor, relevance.
THE WITNESS: No.
THE COURT: Sustained.
MR. GORDON: Did you ever report any one of these guns stolen?
I. J. SANDLIN: Yes.
MR. GORDON: Which ones?
I. J. SANDLIN: The Ruger rifle.
MR. GORDON: Okay.
I. J. SANDLIN: The Remington shotgun and the pistol, .38 Smith & Wesson.
MR. GORDON: All three yours?
I. J. SANDLIN: Yes.
MR. GORDON: You reported them stolen when?
I. J. SANDLIN: Approximately on the 19th or 20th, the day I discovered them missing.
MR. GORDON: All right, did you go down to the police station?
I. J. SANDLIN: No, I had my son call. I was at work, he called them; they came out.
MR. GORDON: Who is your son?
I. J. SANDLIN: Justin Sandlin.
MR. GORDON: Did you fill the report out?
I. J. SANDLIN: No, I didn�t.
MR. GORDON: Who did?
I. J. SANDLIN: I don�t think there was a report filled out.
MR. GORDON: All right, no report filled out. So as far as you know there was no report filled out the guns were stolen then, were there?
I. J. SANDLIN: Correct.
MR. GORDON: You never signed any documents to that effect, did you?
I. J. SANDLIN: Nope.
MR. GORDON: Matter of fact, you never even had any conversation with anybody that the guns were stolen, did you?
I. J. SANDLIN: Not that night, but I did later.
MR. GORDON: When?
I. J. SANDLIN: The next day.
MR. GORDON: With who?
I. J. SANDLIN: State Police.
MR. GORDON: Who?
I. J. SANDLIN: Paul Sandlin.
MR. GORDON: Your brother-in-law?
I. J. SANDLIN: No.
MR. GORDON: Is he related to you?
I. J. SANDLIN: Yes.
MR. GORDON: How is he related?
I. J. SANDLIN: Brother.
MR. GORDON: On, he is your brother?
I. J. SANDLIN: Yes.
MR. GORDON: All right, so you were just having a little casual conversation?
I. J. SANDLIN: Yes.
MR. GORDON: Okay. It wasn�t official business that he came over to see you or you went over to see him, was it?
I. J. SANDLIN: I called him.
MR. GORDON: You called him. About � to talk just about some general stuff or what?
I. J. SANDLIN: No, I called him about the guns.
MR. GORDON: Okay, and did he tell yu to come over there, �You want to fill out a report?�
I. J. SANDLIN: No.
MR. GORDON: Did you � did you tell him who you thought it was, you know, that you thought had stolen these guns?
I. J. SANDLIN: No, I didn�t. He told me who he thought it was.
MR. GORDON: Okay, and that was Josh Miller?
I. J. SANDLIN: Yes.
MR. GORDON: Okay. But you never filled � you never, at any time, either that day or after that day or prior to that day, filled out a report that Josh Miller stole those three guns, did you?
I. J. SANDLIN: No.
MR. GORDON: Now, these guns, I notice one that you said you had some three years ago.
I. J. SANDLIN: Yes.
MR. GORDON: Where did you buy it at?
I. J. SANDLIN: I got it from my dad.
MR. GORDON: Okay. What about the other two guns?
I. J. SANDLIN: The other one, the Ruger rifle I bought it at Sonny�s Gun Shop in Irving, Kentucky. And the pistol I traded, I traded for it about twenty-five years ago.
MR. GORDON: All right, and are these � are these the only three guns that you have ever had in the last, say, ten years?
I. J. SANDLIN: No.
MR. GORDON: You have had other guns?
I. J. SANDLIN: Yes.
MR. GORDON: So you buy and sell guns occasionally?
I. J. SANDLIN: Well, the guns I have got, I have had most of them a long time.
MR. GORDON: Okay, so other guns that you have had in the house that weren�t removed?
I. J. SANDLIN: Yes.
MR. GORDON: Have you ever sold guns?
I. J. SANDLIN: No.
MR. GORDON: You never sold any gun that you have ever had?
I. J. SANDLIN: Never sold one.
MR. GORDON: You just buy them and collect them?
I. J. SANDLIN: Trade occasionally.
MR. GORDON: Okay, trade. All right. Now, when you say trade, who did you trade with?
I. J. SANDLIN: Mostly family members.
MR. GORDON: Mostly family members. Did you ever trade with an ordinary citizen in the community?
I. J. SANDLIN: No, I can�t recall anytime I ever did.
MR. GORDON: All right. Have you ever bought them from just an ordinary citizen in the community?
I. J. SANDLIN: Yes.
MR. GORDON: All right. And you � you pay them money or maybe you trade with them, whatever the case may be. Now, you know a little bit about the law from your � from your brother, and is Paul Sandlin, is he related to you, too?
I. J. SANDLIN: That�s the one we have been talking about.
MR. GORDON: Oh, okay, I�m sorry, the other Sandlin then?
I. J. SANDLIN: Yes.
MR. GORDON: And his name is Scotty Sandlin, isn�t it?
I. J. SANDLIN: Yes.
MR. GORDON: Is he related to you?
I. J. SANDLIN: Yes.
MR. GORDON: Who is he?
I. J. SANDLIN: Brother.
MR. GORDON: Oh, okay, both of them are your brothers then?
I. J. SANDLIN: Yes.
MR. GORDON: All right. And you know that � that if you are a convicted felon, you can�t have a gun, can you?
MR. WEST: Objection as to relevanc. He is not an expert.
THE COURT: Sustain.
MR. GORDON: I didn�t say he was.
THE COURT: Sustain. He is not an expert. He is not a lawyer.
MR. GORDON: I didn�t know we were experts either. Okay, I�ll withdraw that question.
THE COURT: Well, you don�t have a chance to withdraw it, I sustained the objection.
MR. GORDON: It�s already been withdrawn. Thank you, Your Honor.
MR. GORDON: When the guns � when the guns were returned to you, did you know that you would � that they would eventually be brought back or not?
I. J. SANDLIN: No.
MR. GORDON: Okay. I mean, you were free to do with whatever you wanted to do with that particular gun; is that right?
I. J. SANDLIN: Right.
MR. GORDON: What I am getting at is when the guns were brought to you, the one gun on the 21st of January, the other guns on the 26th day of January, you were not informed that you couuld not do anything with those guns: is that right?
I. J. SANDLIN: That�s right.
MR. GORDON: Okay. Now, I believe you indicated that your nephew, prior to the end of last year sometime, whenever that was, what did you say November, or we need to put a time frame on it, as far as visiting you three times a week or so?
I. J. SANDLIN: I said a year or so ago.
MR. GORDON: Oh, it was over a year ago? So up until Aril or something of the year 2000, your nephew visited you frequently?
I. J. SANDLIN: Yes.
MR. GORDON: And then that frequent visiting stopped?
I. J. SANDLIN: Yes, he was working pretty much, and he would come over when my son was home and my son was going to college, they didn�t spend any time together.
MR. GORDON: They didn�t get to spend as much time?
I. J. SANDLIN: That didn�t work out because both of them wasn�t there like they was when they was younger.
MR. GORDON: Did you notice anything unusual about your nephew, his behavior or anything?
I. J. SANDLIN: I had, yes, and I had heard rumors about him.
MR. GORDON: That he might be under the influence of something?
I. J. SANDLIN: Yes.
MR. GORDON: But you never noticed anything in terms of what you may have seen, in terms of any physical �
I. J. SANDLIN; No, I never saw him do anything.
MR. GORDON: Just have a moment, Your Honor?
THE COURT: Yes, sir.
(Counsel for the defendant conferring with the defendant.)
MR. GORDON: Just one other question. I. J. right? I. J. Sandlin?
I. J. SANDLIN: Right.
MR. GORDON: Any particular reason why you didn�t press charges?
I. J. SANDLIN: Yes, he is � I am real close to Josh. My whole family was. We are family, you know, I didn�t want to see him getting into trouble. I knew if he had a problem, which he did I just wanted to see him get straightened out.
MR. GORDON: Okay, and I take it that�s what you told your brothers, too?
I. J. SANDLIN: Yes.
MR. GORDON: Okay, and so that�s why there was never an official stolen report of guns from you?
I. J. SANDLIN: Yes.
MR. GORDON: All right.
MR. GORDON: That�s all.
THE COURT: Mr. West?
MR. WEST: No redirect, sir.
THE COURT: Mr. Sandlin, you may be excused, thank you. Next witness, please.
MR. WEST: Mr. Joshua Miller, please.
THE CLERK: Please raise your right hand.
(Witness sworn.)
THE CLERK: Thank you.
THE COURT: You may ask.
MR. WEST: Thank you, Your Honor.
- - - - - - - - - - - - - - - - - - -
MR. WEST: State your name, please, sir?
JOSH MILLER: Joshua Miller.
MR. WEST: Mr. Miller, how old are you?
JOSH MILLER: Twenty-two.
MR. WEST: The two men that were just in here, I. J. Sandlin, how is he related to you?
JOSH MILLER: I. J. is my uncle.
MR. WEST: What about Ed Miller?
JOSH MILLER: That�s my father.
MR. WEST: Mr. Miller, where do you reside at?
JOSH MILLER: In Chad East (ACTUALLY THIS SHOULD BE CHAVIES.)
MR. WEST: Is that with your parents?
JOSH MILLER: Yes, sir.
MR. WEST: You said you are twenty-two now, sir?
JOSH MILLER: Yes, sir.
MR. WEST: And you have resided with your parents your entire life?
JOSH MILLER: Yes, sir.
MR. WEST: And as I understand it you have two brothers?
JOSH MILLER: Yes, sir.
MR. WEST: Mr. Miller, in the latter part of the year 2000, were you working somewhere?
JOSH MILLER: Yes, sir, I was working at Truss Joist McMillen.
MR. WEST: Where is that located?
JOSH MILLER: That�s in Chad East (CHAVIES).
MR. WEST: Ask you to take a look over here, counsel table, do you recognize that person?
JOSH MILLER: Yes.
MR. WEST: Who is that?
JOSH MILLER: That�s Leon Combs.
MR. WEST: How long have you known Leon Combs?
JOSH MILLER: Around seven, eight months.
MR. WEST: Do you recall about when you first met him? Was it winter or was it fall of last year?
JOSH MILLER: Around the fall months.
MR. WEST: Do you recall where you met him?
JOSH MILLER: Yes, sir.
MR. WEST: Where is that, sir?
JOSH MILLER: It was at a Ashland Station, Combs, Kentucky.
MR. WEST: At a gas station?
JOSH MILLER: Yes, sir.
MR. WEST: At that time that you first met him, did you know where he lived at?
JOSH MILLER: No, sir.
MR. WEST: When do you think the first time was that you went to his residence?
JOSH MILLER: I had probably known him for about a month and a half when I went to his place of residence.
MR. WEST: Where is his residence in general terms from where you live at Chad East? (CHAVIES)
JOSH MILLER: How many miles?
MR. WEST: How many miles does it take to get there?
JOSH MILLER: It�s about a twenty-minute drive.
MR. WEST: Mr. Miller, at some point in your life, did you begin using a drug called Oxycontin or OC�s?
JOSH MILLER: Yes, sir.
MR. WEST: When do you recall your first time using that?
JOSH MILLER: About a year and a half ago.
MR. WEST: How much when you first started using it, how much were you using at a time?
JOSH MILLER: Whenever I first started probably around 20 milligrams a day.
MR. WEST: And how much did you pay for a 20 milligram tablet?
JOSH MILLER: $20.
MR. WEST: How did you use it, Mr. Miller?
JOSH MILLER: When I very first started out, I would take them orally.
MR. WEST: Swallow them?
JOSH MILLER: Swallow them. As my problem progressed, I would start snorting them or sniffing them or inhaling them.
MR. WEST: How did you break down the pill to where you could snort it?
JOSH MILLER: You take the coating off of it and just bust it.
MR. WEST: How do you take the coating off?
JOSH MILLER: Put it in your mouth and it will just dissolve.
MR. WEST: When you bust it up, just run it in your hand or hard object?
JOSH MILLER: Yes.
MR. WEST: When you used to snort it, what did you use to snort it with?
JOSH MILLER: Straw.
MR. WEST: During the time that you were using � I am going to use the term OC because it�s easier to say.
JOSH MILLER: Yeah.
MR. WEST: Where � how much were you using the most, what would yu get up to on a daily basis?
JOSH MILLER: Around 120 milligram a day.
MR. WEST: And you mentioned 20 milligram tablets what you first started out at, right?
JOSH MILLER: Yes.
MR. WEST: Did you ever buy higher dosage amounts like a 40 or an 80?
JOSH MILLER: Yes, sir.
MR. WEST: How much is a 40 milligram tablet sold for?
JOSH MILLER: $40.
MR. WEST: How long did you work at Truss Joist there?
JOSH MILLER: It�s close to three years.
MR. WEST: When did you last work there?
JOSH MILLER: I think I quit around the middle of November, last November.
MR. WEST: Did you take up employment at some other place?
JOSH MILLER: I hit (HELPED) my mother and father at a Chevron station a little bit, but it wasn�t much.
MR. WEST: Was it steady work, was it 40 hours a week?
JOSH MILLER: No, sir.
MR. WEST: Were you paying your parents rent or anything while you were staying there?
JOSH MILLER: No, sir.
MR. WEST: During the time that you were � you said your max was 120 milligrams a day, so it was $120 that it was costing you a day to use that substance, right?
JOSH MILLER: Right.
MR. WEST: When you got up to $120 a day, were you still working at Truss Joist?
JOSH MILLER: That was right about the time I quit, when I had people coming, used to �
MR. WEST: Working at your folks� filling station, were you making 120 bucks a day?
JOSH MILLER: No, sir.
MR. WEST: How did you support your habit, Mr. Miller?
JOSH MILLER: I would trade, trade guns for pills or �
MR. WEST: You pointed to the floor here. And we are going to go through those in just a moment here. Did you ever buy OC�s from Mr. Leon Combs, the defendant?
JOSH MILLER: Yes, sir.
MR. WEST: Do you recall about when you made your first purchase from him?
JOSH MILLER: It was right about seven � seven months ago.
MR. WEST: Around September, October, last year?
JOSH MILLER: Yeah, right.
MR. WEST: Where did that first purchase take place?
JOSH MILLER: At the Ashland Station in Combs.
MR. WEST: Is that the first time you met him?
JOSH MILLER: Yes, sir.
MR. WEST: So the first time you met him you bought how many OC�s from him?
JOSH MILLER: One.
MR. WEST: Could you see where he had got the OC from?
JOSH MILLER: Out of a pill bottle, Tylenol bottle out of his pocket.
MR. WEST: There is � there is a difference between a prescription bottle which is usually kind of brown-yellow, and the kind you buy �
MR. GORDON: Objection.
THE COURT: Testify.
MR. WEST: Describe the Tylenol bottle, please?
JOSH MILLER: It�s about this tall (indicating), white, kind of like a blue label on it. Tylenol.
MR. WEST: Were you able to read any letters on it?
JOSH MILLER: I wasn�t close enough to it to, you know, get � tell excatly what it said at the time, I could read Tylenol.
MR. WEST: Do you recall when your next purchase was from Mr. Leon Combs?
JOSH MILLER: Just a day or two later.
MR. WEST: And where was that at?
JOSH MILLER: At the Ashland Station.
MR. WEST: Was he working there?
JOSH MILLER: No, sir.
MR. WEST: Did you make contact with him ahead of time by telephone or �?
JOSH MILLER: No, sir, just showed up and did that.
MR. WEST: Did you ever purchase from Mr. Leon Combs� residence there?
JOSH MILLER: Did I ever purchase from his house?
MR. WEST: Yes, sir.
JOSH MILLER: Yes, sir.
MR. WEST: Is there a street or road name?
JOSH MILLER: Upper Creek.
MR. WEST: Do you recall the first time you purchased from his home?
JOSH MILLER: It was probably four, four and a half months ago, five months.
MR. WEST: Maybe late November, early December?
JOSH MILLER: Right.
MR. WEST: Do you recall if it was before Thanksgiving or after Thanksgiving?
JOSH MILLER: It was probably after Thanksgiving.
MR. WEST: You pointed to the weapons that are on the floor in the courtroom. Did you trade any weapons for OC�s on or cash to any persons?
JOSH MILLER: Yes, sir.
MR. WEST: Who was � tell me who was one of those people?
JOSH MILLER: Leon Combs.
MR. WEST: Do you recall the first weapon that you took to him?
JOSH MILLER: First weapon, I believe, was the .22 pump, if I am not mistaken.
MR. WEST: Showing you the firearm, sir, that�s previously been identified as a .22 caliber rifle?
JOSH MILLER: Yes, sir.
MR. WEST: Can you identify that, sir?
JOSH MILLER: Yes, sir.
MR. WEST: What is that?
JOSH MILLER: It�s a .22 caliber pump rifle, Remington.
MR. WEST: Have you seen that rifle before today?
JOSH MILLER: Yes, sir.
MR. WEST: Where did you see it?
JOSH MILLER: It was at my house.
MR. WEST: Who does that gun belong to?
JOSH MILLER: My father.
MR. WEST: Your father is Ed Miller?
JOSH MILLER: Yes, sir.
MR. WEST: Did you have his permission to take that gun out of the house.
JOSH MILLER: No, sir.
MR. WEST: Did you tell him you were taking the gun?
JOSH MILLER: No, sir.
MR. WEST: Where did you take the gun after you removed it from yur house?
JOSH MILLER: To Leon Combs.
MR. WEST: You can put that down, Marshal, thank you.
MR. WEST: Was that up on Second Hollow Road?
JOSH MILLER: Yes, sir.
MR. WEST. Do you recall what � what you were given in exchange for that gun?
JOSH MILLER: Oxycontin, 40 milligram tablet.
MR. WEST: Just one?
JOSH MILLER: Yes.
MR. WEST: Were you given any other items, any cash or anything else for that weapon?
JOSH MILLER: No, sir.
MR. WEST: And you said that was approximately about four and a half months ago?
JOSH MILLER: Yes, sir.
MR. WEST: What was the next item that you took over to Mr. Combs?
JOSH MILLER: I am really not for sure in which order I took the guns.
MR. WEST: Okay, which guns� if it�s easier, which guns did you take over there?
JOSH MILLER: All the guns that�s right here present.
MR. WEST: Let me ask you about this one. Previously been identified as a .50 caliber inline black powder rifle, can you identify that, sir?
JOSH MILLER: Yes, sir.
MR. WEST: What is that?
JOSH MILLER: It�s a .50 caliber black powder rifle.
MR. WEST: Have you seen that prior to today?
JOSH MILLER: Yes, sir.
MR. WEST: Where did you see it?
JOSH MILLER: At my home.
MR. WEST: Who does that gun belong to?
JOSH MILLER: This gun belongs to me.
MR. WEST: Did you pay for that yourself?
JOSH MILLER: No, sir, that was a gift.
MR. WEST: Gift from who?
JOSH MILLER: My father.
MR. GORDON: What gun was that?
MR. WEST: .50 caliber black powder.
MR. WEST: Mr. Miller, do you recall how much that was traded for?
JOSH MILLER: 80 milligrams of Oxycontin.
MR. WEST: Was that one pill, two pills?
JOSH MILLER: It was two Oxycontin 40 tablets.
MR. GORDON: I would like to approach the bench for a moment if I could, Your Honor.
THE COURT: Yes, sir, Mr. West, counsel.
(A bench conference was had between the Court and counsel out of the hearing of the jury.)
MR. GORDON: I think the witness ought to be shown the pictures to identify them. That�s why I didn�t want these guns sitting out there. It�s obvious he can�t identify those sitting out there. He�s got to be shown the pictures to identify them.
THE COURT: He can identify the picture if he can identify the gun.
MR. GORDON: The guns aren�t in evidence though.
THE COURT: The guns have been put into evidence.
MR. GORDON: No, they have only been shown as a helpful hint, that�s all.
THE COURT: They have been put into evidence.
MR. GORDON: They haven�t been introduced into evidence.
THE COURT: They have been introduced into evidence and the pictures have been substituted for the guns.
MR. GORDON: No, I am objecting to the guns being introduced into evidence. Those were just used as an aid, and the pictures were identified as an exhibit number and then introduced.
THE COURT: Yeah, the pictures were � the guns were introduced into evidence. The people held them, they talked about them, they said, �These are the guns.� Then he asked if the gun � if the pictures could be substituted. �
MR. GORDON: Well, that was the agreement that we made prior �
THE COURT: Pictures could be substituted for the guns. But the fact of the matter is what we don�t want to do is the guns going back to the jury room.
MR. WEST: Absolutely.
MR. GORDON: No, no, I understand that.
THE COURT: So the pictures go back but the guns don�t The pictures are substituted for the guns.
MR. GORDON: Well, I didn�t know the guns were introduced in any evidence. I thought we were just using them for assistance.
THE COURT: Well, what we did with them � the guns are the evidence. The pictures are what go back to the jury room.
MR. GORDON: So you are saying that �
THE COURT: There is no law against a picture� possessing pictures of guns. The law is against possession of the guns.
MR. GORDON: I know but �
MR. WEST: They are contraband, Derek, not the photos.
THE COURT: Yeah, what they have done is they have introduced the guns into evidence, then they have asked that the pictures be substituted for the guns. The guns are still the evidence. But the pictures �
MR. GORDON: That�s not what I was � I understand what you are saying.
THE COURT: Yeah, okay.
MR. GORDON: That�s not what the � but� that�s fine.
THE COURT: Okay.
(End of bench conference.)
THE COURT: You may resume, Mr. West.
MR. WEST: Thank you, Your Honor.
MR. WEST: Mr. Miller, can you identify that third weapon you are being shown?
JOSH MILLER: Yes, sir.
MR. WEST: What is that?
JOSH MILLER: It�s a Remington .222.
MR. WEST: Have you seen that weapon prior to today, sir?
JOSH MILLER: Yes, sir.
MR. WEST: Where at?
JOSH MILLER: My house.
MR. WEST: And who does that weapon belong to?
JOSH MILLER: My father.
MR. WEST: Ed Miller?
JOSH MILLER: Yes, sir.
MR. WEST: Did you have his permission to remove that from your home?
JOSH MILLER: No, sir.
MR. WEST: What did you do with that weapon, sir.
JOSH MILLER: Traded for Oxycontin.
MR. WEST: To who?
JOSH MILLER: Leon Combs.
MR. MILLER: About how many � how many Oxycontin did you trade them for?
JOSH MILLER: 40 milligrams.
MR. MILLER: Just one 40?
JOSH MILLER: Yes, sir.
MR. GORDON: Objection to the � he should ask how many. That�s the second time he�s inserted the word, the number without the � you know, objection.
MR. WEST: I�ll rephrase it.
THE COURT: Sustain, Rephrase your question.
MR. WEST: How many OC�s, Mr. Miller?
JOSH MILLER: One, 40.
MR. WEST: Mr. Miller, can you identify that fourth one please, sir?
JOSH MILLER: Yes.
MR. WEST: What is that?
JOSH MILLER: It�s a Remington model 700, .270 caliber.
MR. WEST: Have you seen that prior to today?
JOSH MILLER: Yes, sir.
MR. WEST: Where did you see that?
JOSH MILLER: My home.
MR. WEST: Who does that rifle belong to?
JOSH MILLER: My father, Eddie Miller.
MR. WEST: What did you do with that weapon, sir?
JOSH MILLER: I traded for Oxycontin. And $40 worth of cash. On this gun here I got one Oxycontin 40 tablet, $40 cash.
MR. WEST: And who did you get that from?
JOSH MILLER: Leon Combs.
MR. WEST: Now, do you recall about when that was, sir, that you traded that .270 to him?
JOSH MILLER: This was the last gun that I traded to Leon. That was probably right around January � January 19th, 20th, something like that.
MR. WEST: Now, these weapons that you spoke of, you said that you traded them all to Leon Combs. Where were they all traded at? What exact location did you do the exchange for it?
JOSH MILLER: One or two of the guns were traded at the Ashland Station but the rest of them were traded at his home.
MR. WEST: Where was the .270 specifically traded at?
JOSH MILLER: At his residence.
MR. WEST: You said a � you traded it for 40 milligram, how many 40 milligrams?
JOSH MILLER: Just one.
MR. WEST: Or was it two twenties?
JOSH MILLER: No.
MR. WEST: On this occasion where the .270 was traded for the 40 milligram, where in regards to Mr. Combs� residence, his house, where did the actual exchange take place?
JOSH MILLER: In the dining room part of his home.
MR. WEST: Did you see where the OC 40 came from?
JOSH MILLER: It came from the building outside Leon�s home.
MR. WEST: How do you know that?
JOSH MILLER: I seen Leon go outside and bring the pill back.
MR. WEST: Were � how were the pills packaged?
JOSH MILLER: In a bottle, Tylenol bottle.
MR. WEST: Did you see how many or if there were more than one in that Tylenol bottle?
JOSH MILLER: No, sir. On this I think maybe one or two was all that he had.
MR. WEST: Mr. Miller, this weapon here, can you identify that, please, sir?
JOSH MILLER: Yes.
MR. WEST: What is that?
JOSH MILLER: That�s a Remington 30 ot 6.
MR. WEST: Have you seen that prior to today?
JOSH MILLER: Yes, sir.
MR. WEST: Where have you seen it at?
JOSH MILLER: My house.
MR. WEST: Who does that weapon belong to?
JOSH MILLER: My father, Eddie Miller.
MR. WEST: What did you do with that weapon, sir?
JOSH MILLER: I pawned it.
MR. WEST: Where did you pawn it?
JOSH MILLER: Double E Pawn Shop.
MR. WEST: Do you recall how much you got for it?
JOSH MILLER: 120 � hundred bucks. $100.
MR. WEST: Do you recall about � that�s five weapons total, sir. Do you recall about where within those five weapons this one that you pawned to the pawn shop, was that first, second, thrid, fourth, fifth?
JOSH MILLER: Probably the third one that I had taken.
MR. WEST: Now, you said that you pawned this one. And you took the other guns to Leon Combs. Why take this one to the pawn shop?
JOSH MILLER: I needed some cash.
MR. WEST: Why not take it to Leon Combs?
JOSH MILLER: I needed cash instead of pills at the time.
MR. WEST: Why not take the � the other four firearms that you have mentioned to the pawn shop? Seems like you were getting a better price for them? It�s your testimony you got $40 for the ot 6. Why not take it to the pawn shop?
JOSH MILLER: Couldn�t get pills at the pawn shop.
MR. WEST: Now, in addition to these other items that we have mentioned, did you take some other items from your home?
JOSH MILLER: Yes, sir.
MR. WEST: What did you take?
JOSH MILLER: Taken some knives, Karaoke machine, some jewelry. I think several items.
MR. WEST: Did you take any weapons from any other residence?
JOSH MILLER: Yes, sir.
MR. WEST: Whose was that?
JOSH MILLER: My uncle, I. J. Sandlin.
MR. WEST: What did you do with the Karoke machine and the knives and the jewelry? I think you said jewelry. What did you do with those items, sir?
JOSH MILLER: I traded all those.
MR. WEST: To who?
JOSH MILLER: Leon.
MR. WEST: For what?
JOSH MILLER: For Oxycontin.
MR. WEST: Mr. Miller, when you traded the ot to the pawn shop, please explain what, in your mind, you understood a pawn of the gun to be at the pawn shop, what�s a pawn to you?
JOSH MILLER: Pawn to me is if I take a gun to the pawn shop, I trust the guy that if he lends me $100 toward the gun, that he is going to give me, say, thirty days to come back and redeem him for a gun.
MR. WEST: Did you have any relationship to what you mentioned other than Mr. Leon Combs with the pawn shop?
JOSH MILLER: No, sir.
MR. WEST: This last transaction involving the .270, do you recall about what time during the day or night that took place?
JOSH MILLER: That was about 1:00 in the morning.
MR. WEST: Was anyone else present during the exchange between you and Mr. Combs?
JOSH MILLER: No, sir.
MR. WEST: At some point did guns being missing, were you confronted with that?
JOSH MILLER: Yes, sir.
MR. WEST: Who confronted you?
JOSH MILLER: My father.
MR. WEST: Ed Miller?
JOSH MILLER: Right.
MR. WEST: What did you tell him, sir?
JOSH MILLER: I had to tell him the truth.
MR. WEST: At some point did you discuss the matter with members of the Kentucky State Police?
JOSH MILLER: Yes, sir.
MR. WEST: Mr. Miller, what happened to you after the search warrants at Mr. Combs� place? Did you keep your job with your parents?
JOSH MILLER: No, sir.
MR. WEST: What happened?
JOSH MILLER: I went to a drug rehabilitation center.
MR. WEST: How long were you there?
JOSH MILLER: I stayed five days in Corbin, back to Central Treatment Center, stayed five days there, and went to rehab. Called Croosroads Corbin, that�s a thirty-day treatment center.
MR. WEST: Sir, during the time that you had relationship with Leon Combs up until January the 22nd, how often were you buying OC�s from Mr. Leon Combs?
JOSH MILLER: Every day or every other day.
MR. WEST: What do you think your largest purchase from Mr. Combs was?
JOSH MILLER: About 160 milligrams.
MR. WEST: How was that broken up?
JOSH MILLER: Like four OC 40's.
MR. WEST: You have mentioned the Ashland Station and Mr. Combs� residence on Second Hollow Road. Were there any other locations where exchanges took place?
JOSH MILLER: Between me and Mr. Combs?
MR. WEST: Yes.
JOSH MILLER: No, sir.
MR. WEST: the other two guns that you mentioned that you said you took from your uncle, what did you do with those guns, sir?
JOSH MILLER: I traded for Oxycontin.
MR. WEST: When did you get out of the last rehabilitation center, Mr. Miller?
JOSH MILLER: It was about a month and a half ago.
MR. WEST: Are you undergoing any supervision at this time?
JOSH MILLER: No.
MR. WEST: Still live at home with your father and your mother, brother?
JOSH MILLER: Yes, sir.
MR. WEST: One second, please.
(Counsel for plaintiff conferring with counsel for defendant.)
MR. WEST: Mr. Miller, you had described an item that Mr. Combs had in regards to a � a container. Would you describe that again for the jury, please?
JOSH MILLER: It was a Tylenol bottle, looked to be about this tall (indicating), sort of blue label. Pretty sure.
MR. WEST: You said your last transaction took place on the 20� around the 21st of Janurary?
JOSH MILLER: Yes, somewhere around that date.
MR. WEST: Do you recall seeing the bottle on that date or did you not see it on that date?
JOSH MILLER: Yes, sir.
MR. WEST: Show you what is marked as Government�s Exhibit No. 8. Mr. Miller, can you compare that Government�s Exhibit No.8 with what you saw in Mr. Combs� possession?
JOSH MILLER: Yes, sir.
MR. WEST: How does it compare with that?
JOSH MILLER: From � real similar.
MR. WEST: How so?
JOSH MILLER: It�s same height, blue label, Tylenol bottle.
MR. WEST: That�s fine, just put it up there.
MR. WEST: Mr. Miller, you have not been charged with those firearms offenses, have you, sir?
JOSH MILLER: No, sir.
MR. WEST: The OC 40 that you received in exchange for the .270 rifle there, what did you do with that?
JOSH MILLER: I snorted it.
MR. WEST: Where did you snort it?
JOSH MILLER: At Leon�s place of residence.
MR. WEST: Did you ever take any OC�s into your house?
JOSH MILLER: Yes, sir.
MR. WEST: Did you snort them or swallow them in your house?
JOSH MILLER: Both.
MR. WEST: At the time of your father confronting you about the missing weapons, did you have any OC�s in your residence?
JOSH MILLER: No, sir.
MR. WEST: Ever keep OC�s for any purpose other than taking them? Would you sell them?
JOSH MILLER: No, sir.
MR. WEST: That�s all of this witness at this time, sir.
THE COURT: Again, I remind you, ladies and gentlemen of the jury, the fact that he has received some agreed leniency as a result of � regarding the weapons charges, that�s to be considered by you in determining his credibility and for no other purpose.
Cross, Mr. Gordon?
MR. GORDON: Oh, yeah, thank you, Your Honor.
MR. GORDON: Josh, my name is Derek Gordon, and I represent Mr. Combs here. I have got some questions for you, okay?
JOSH MILLER: All right.
MR. GORDON: Toward the tail end of your testimony you said that you were buying up to how many?
JOSH MILLER: I was � about 120 milligrams a day. Most I ever got from Leon was 160 milligrams, which was four OC 40's.
MR. GORDON: And that would have been about what period of time, what month?
JOSH MILLER: Couple months ago. Do you want the month?
MR. GORDON: Yes.
JOSH MILLER: It was right around November to right around the end of November.
MR. GORDON: Okay, well, that wouldn�t be a couple months ago because we are now in April, so are we talking five months ago or �
JOSH MILLER: That�s a couple months.
MR. GORDON: Oh, okay. So five, six months ago is a couple months then is what you are saying?
JOSH MILLER: Yes, sir.
MR. GORDON: Okay. That may be the way you make reference to it, that�s fine. And so did you build up then, I guess? You started off low and then eventually you built up, maybe buy four at a time?
JOSH MILLER: Yes, sir.
MR. GORDON: What was that, because your system �
JOSH MILLER: Tolerance.
MR. GORDON: Yeah, immune system kind of broke down and so forth?
JOSH MILLER: Right.
MR. GORDON: And when did you lose your job?
JOSH MILLER: Right around the end of November.
MR. GORDON: How were you getting the money to pay for all that?
JOSH MILLER: I was from � at the time I was working.
MR. GORDON: Well, you quit your job, when mid-November?
JOSH MILLER: Right.
MR. GORDON: How were you getting the money to pay for these Oxycontins?
JOSH MILLER: I wasn�t.
MR. GORDON: You weren�t?
JOSH MILLER: I was helping � I wasn�t able to support my habit.
MR. GORDON: How were you supporting your habit?
JOSH MILLER: I was trading.
MR. GORDON: Well, if you added up all the money that you were trading, you weren�t getting very much for it, were you?
JOSH MILLER: No, sir.
MR. GORDON: Well, then, how were you doing Oxycontin then?
JOSH MILLER: I mean, you know, my folks �
MR. GORDON: If you totaled it up here, you might have $300. But how does that keep you alive in Oxycontin for two months?
JOSH MILLER: Are you asking me if I took them guns every � I don�t understand the question.
MR. GORDON: What I am asking is how did you support your habit of being able to pay for all these Oxycontins if you were doing � you got yourself up to four Oxycontins a day, how could you �
JOSH MILLER: I said the most I got was four Oxycontin a day. I never said I was doing four Oxycontin a day. I said the most I was receiving was four a day.
MR. GORDON: You were doing them every day, though, weren�t you?
JOSH MILLER: Yes, sir, I was doing them every day.
MR. GORDON: My question is � we put a value on these guns, there wasn�t much money there. Okay?
JOSH MILLER: Okay.
MR. GORDON: $30, $40. How were you able to pay for at least one Oxycontin a day and you weren�t working?
JOSH MILLER: I would trade weapons or knives �
MR. GORDON: Oh, so there was other weapons than these, is what you are saying?
JOSH MILLER: Besides the guns laying here?
MR. GORDON: Yes?
JOSH MILLER: I traded knives and jewelry. Yes, sir, I did.
MR. GORDON: So you traded other things?
JOSH MILLER: Yes, sir, I did.
MR. GORDON: How many pieces of jewelry?
JOSH MILLER: Couple, two or three.
MR. GORDON: So, okay, so that�s two or three Oxycontins. How many knives?
JOSH MILLER: Four.
MR. GORDON: Okay, that�s four, so that�s seven pieces, so that�s seven days. That�s one week out of eight weeks. And these didn�t take long. That�s another week. So what about the other six weeks. How did you pay for Oxycontin then?
JOSH MILLER: I would get money from my folks, or get out and earn money. Do something.
MR. GORDON: You said you weren�t working at this time.
JOSH MILLER: I said I was helping my folks at the Chevron Station.
MR. GORDON: But you weren�t making enough money to support your habit then, right?
JOSH MILLER: Right.
MR. GORDON: Well, then how did you get them? You have come in here and you have testified that he�s been selling you Oxycontin?
JOSH MILLER: Yes, sir.
MR. GORDON; At least one a day. For a period of about two months, okay? We can figure out what you have been making. We know what the value of the guns were. You told us about that.
JOSH MILLER: Yes, sir.
MR. GORDON: How did you get all these Oxycontins that you told us about?
JOSH MILLER: By trading and from getting money from my parents.
MR. GORDON: How much were they giving you, $50 a day?
JOSH MILLER: No, mostly 20, $30 a day.
MR. GORDON: You were given $20 or $30 a day?
JOSH MILLER: If I asked my folks for money, you know, they would �
MR. GORDON: They were giving you twenty or thirty dollars a day?
JOSH MILLER: Not a day.
MR. GORDON: Well, how often?
JOSH MILLER: Every couple days, Three or four days maybe.
MR. GORDON: Oh, three or four days.
JOSH MILLER: Right.
MR. GORDON: Okay. Well, then how were you getting Oxycontin every day?
JOSH MILLER: Okay, say if today I took Leon this Remingtn .22 pump right here.
MR. GORDON: Uh-huh?
JOSH MILLER: Okay, I would take and I would trade him that for a 40 milligram Oxycontin.
MR. GORDON: Okay.
JOSH MILLER: Tomorrow I decided I wanted another one. I would take a gun of greater value to Leon, and I would get this, say, .22 back plus Oxycontin pills.
MR. GORDON: Okay.
JOSH MILLER: Then next day, say, I wanted something. I would take him the .22 back. Trade with him again. On the same gun.
MR. GORDON: Okay, now wait a minute. On one day you would take the Oxycontin over there. Oxycontin. You would take the gun over there, you would get an Oxycontin for it, okay?
Now, how did you get the gun back?
JOSH MILLER: If I want � if I took him this .22. If I took the gun, say I got one 40.
MR. GORDON: Yeah, right.
JOSH MILLER: Then later I decided I wanted the gun back. I would take a gun of greater value to him and trade for pills.
MR. GORDON: And the gun?
JOSH MILLER: To try to get the gun back.
MR. GORDON: So you got it back.
JOSH MILLER: Yes, sir.
MR. GORDON: You got some of these guns back. So you took them over there two or three different times, then, is what you are testifying to?
JOSH MILLER: No, sir, no.
MR. GORDON: Well, how many times then:?
JOSH MILLER: Maybe once.
MR. GORDON: No, it had to be more than once, you just got done saying you traded the gun, you eventually would get it back, then you traded it back over there again. So that�s twice. How many times did you take these guns back and forth over there?
JOSH MILLER: I don�t � I don�t understand what you are asking.
MR. GORDON: You told me that you would take the .22 over there.
JOSH MILLER: Uh-huh?
MR. GORDON: You would get an Oxycontin for it?
JOSH MILLER: Right.
MR. GORDON: Then you would take a better gun, take it over there, get another Oxycontin plus that gun back so you could trade it again, if you wanted to, right?
JOSH MILLER: Right, if he still had that.
MR. GORDON: Right. How many times did you take a particular gun over there? What was the most you ever took a gun over there?
JOSH MILLER: Twice.
MR. GORDON: Twice? Well, that�s what I asked you. So you would sell it twice. Anybody with you?
JOSH MILLER: No, sir.
MR. GORDON: Ever take any pictures of these guns when you were over there?
JOSH MILLER: No, sir.
MR. GORDON: Anyone ever go � go with you to his residence when you bought Oxycontin?
JOSH MILLER: Could you repeat the question, please?
MR. GORDON: Did anyone go with you when you bought Oxycontin at this residence?
JOSH MILLER: Yes, sir.
MR. GORDON: Okay, who?
JOSH MILLER: One of the guys that I used to work with.
MR. GORDON: Who is that?
JOSH MILLER: Do I have to mention names?
THE COURT: Yes, sir.
JOSH MILLER: Jason Combs.
MR. GORDON: Did he buy some, too?
JOSH MILLER: I am not for sure if he did or not.
MR. GORDON: So you don�t know if he ever bought any Oxycontin?
JOSH MILLER: No, sir.
MR. GORDON: Does he know if you bought any?
JOSH MILLER: Yes, sir.
MR. GORDON: He does?
JOSH MILLER: Yep.
MR. GORDON: What, he was standing there?
JOSH MILLER: He was in the vehicle with me.
MR. GORDON: Oh, so now you bought Oxycontin while in the vehicle?
JOSH MILLER: No, sir. He rode there with me. He was there with me.
MR. GORDON: Oh, so did he go in the residence with you?
JOSH MILLER: He got out of the vehicle, yes.,
MR. GORDON: Did he go into the residence with you?
JOSH MILLER: No, sir.
MR. GORDON: Did you go in and see Leon in the residence?
JOSH MILLER: Yes, sir.
MR. GORDON: He remained in the vehicle?
JOSH MILLER: No �
MR. GORDON: I�m sorry, he got out of the vehicle but didn�t go inside the residence?
JOSH MILLER: Yes, sir.
MR. GORDON: When you were there did he go in the residence?
JOSH MILLER: No, sir.
MR. GORDON: All right, then how did he � how would he possibly ave bought an Oxycontin if he didn�t go in the residence?
JOSH MILLER: I told you I didn�t know for sure if he had or not?
MR. GORDON: You just told me you don�t know if he had, but if he never went into the residence to see Leon, how would he have bought an Oxycontin off him?
MR. WEST: Objection, asked and answered.
MR. GORDON: No, it�s not.
THE COURT: He said he didn�t know.
MR. GORDON: Well, I am just asking �
THE COURT: Yeah, he said he didn�t know.
MR. GORDON: Yeah, but my question is, Judge, how wouldn�t he know if he didn�t go inside the home?
MR. WEST: I�ll object again, speculative.
THE COURT: He said he didn�t know if he bought anything or not.
MR. GORDON: But as far as you know, he never went in the residence?
JOSH MILLER: Yes, sir.
MR. GORDON: Did anyone ever go into the residence with you when you supposedly bought these Oxycontin?
JOSH MILLER: No, sir.
MR. GORDON: Did you ever take any of these Oxycontin that you purchased and give them to the police?
JOSH MILLER: No, sir.
MR. GORDON: No. You did them all?
JOSH MILLER: Yes, sir.
MR. GORDON: And you did them all by yourself?
JOSH MILLER: No, sir, not always.
MR. GORDON: Have you rid yourself of this drug problem?
JOSH MILLER: Yes, sir.
MR. GORDON: Did you ever go to any of the after care at Crossroads?
JOSH MILLER: AA meetings?
MR. GORDON: After care. Six-month program, they have after care at Crossroads in London, Kentucky?
JOSH MILLER: I went to Crossroads for a thirty-day treatment center.
MR. GORDON: Did you go to the six-month after care program they had?
JOSH MILLER: No, sir.
MR. GORDON: So you just assumed you were fine after thirty days?
JOSH MILLER: Yes, sir.
MR. GORDON: After having an Oxycontin at least once a day, snorting some of them, you just made it upon yourself that you are fine now?
JOSH MILLER: Yes, sir.
MR. GORDON: Okay. Did you ever tape any of these conversations that you had, or any of these meetings that you had with Mr. Combs?
JOSH MILLER: No, sir.
MR. GORDON: All right. That Exhibit No. 8 that you � that you saw there, have you � have you ever been shown that particular bottle, do you know?
JOSH MILLER: He hasn�t shown me the bottle, but I have seen him with the bottle. I have seen him get pills out of this bottle.
MR. GORDON: Oh, so now you are saying that this is the bottle?
JOSH MILLER: I have seen Leon get pills out of a bottle that looks like this.
MR. GORDON: Are you saying that is the bottle?
JOSH MILLER: No, I am not going to say this is the bottle Mr. Combs �
MR. GORDON: Have you been shown that particular bottle prior to today?
JOSH MILLER: I have seen a bottle like this one.
MR. GORDON: Have you seen a bottle like that since January 22nd or earlier, in between that period of time and today, has any police officer showed you anything like that?
JOSH MILLER: No, sir.
MR. GORDON: Have you ever seen anything like that?
JOSH MILLER: No, sir.
MR. GORDON: Have you ever talked to any police officer about that particular thing?
JOSH MILLER: No, sir.
MR. GORDON: Have you ever talked to anybody about a Tylenol bottle? Is this the first time you have been asked any questions about that particular bottle?
JOSH MILLER: No, sir. No.
MR. GORDON: Haven�t you met � haven�t you met with one of these folks here?
JOSH MILLER: Yes, sir.
MR. GORDON: Haven�t you been asked about that particular bottle?
JOSH MILLER: About, this�
MR. GORDON: Yes, sir?
JOSH MILLER: Only thing I was told was to get up here and tell the truth.
MR. GORDON: That�s not my question. You talked to those folks about that particular bottle. It�s either a yes or a no?
JOSH MILLER: Yes, sir.
MR. GORDON: Okay. That�s all I want to know. When?
JOSH MILLER: Yesterday.
MR. GORDON: Okay. With who? Smoot?
JOSH MILLER: I can�t hardly remember that, sir.
MR. GORDON: Was he an officer? Well, he wasn�t some guy out in the community, was he? He was some police officer, wasn�t he?
JOSH MILLER: Sir, I can�t remember.
MR. GORDON: Did he identify himself as a detective, �I want to talk to you about your testimony.�
JOSH MILLER: No, sir.
MR. GORDON: Oh, so he just came up and started talking to you about a Tylenol bottle?
JOSH MILLER: No, sir, I am just saying that I don�t know. I can�t remember who it was that I was talking to.
MR. GORDON: So you can�t remember if it was a police officer either?
JOSH MILLER: Right.
MR. GORDON: Was it an attorney?
JOSH MILLER: I can�t remember.
MR. GORDON: Was it either one of those two individuals?
MR. WEST: Objection, Your Honor, he said he can�t remember three times now.
MR. GORDON: I didn�t ask him specifically one of these three people.
THE COURT: Do you recognize any of those specific people sitting at the table as being someone you talked to?
JOSH MILLER: No, sir.
MR. GORDON: Okay.
MR. GORDON; Were you actually shown that bottle yesterday?
JOSH MILLER: No, sir.
MR. GORDON: All right. Let me ask you a little bit about these � these guns. And by the way, when you were � when you were apparently taking these guns and trading and then sometimes retrieving them back, what, did you take them back to your father�s hose and stick it back up where it was?
JOSH MILLER: Yes, sir.
MR. GORDON: You would put it right back where it was?
JOSH MILLER: Yes, sir.
MR. GORDON: So that was like a pawn shop over there, too, then, wasn�t it?
JOSH MILLER: If I would go like with the .22 that I mentioned a while ago?
MR. GORDON: Yes?
JOSH MILLER: Yes, sir, if I got that gun back and took it home, I would put it right back up.
MR. GORDON: You would put it back up, and your dad never noticed it missing until the day in question, right?
JOSH MILLER: Yes, sir.
MR. GORDON: And that would have been on or about January the 20th or 21st of �
JOSH MILLER: Yes, sir.
MR. GORDON: So prior to that you were lucky, right?
JOSH MILLER: Yes, sir.
MR. GORDON: Okay. Of course, you never � you never considered that stealing guns though, did you?
JOSH MILLER: No, sir, I never � no, sir.
MR. GORDON: I mean, you were borrowing them with the anticipation of returning them, is that right?
JOSH MILLER: No, sir, I knew that whenever I took the guns that �
MR. GORDON: That you may not get them back?
JOSH MILLER: That I may not get them back.
MR. GORDON: Now, of the five guns that came from your home, okay? The five guns that came from your home, not talking about the ones that came from your uncle�s home. There was a Ruger, I think, right?
JOSH MILLER: That came from my uncle�s home?
MR. GORDON: No, there was one that � there was a black something, a .50 power something, .50 powder � well, I don�t know; .50 powder?
MR. GORDON: Are you familiar with that one?
JOSH MILLER: Yes, sir.
MR. GORDON: Which one is that one?
JOSH MILLER: That�s the end.
MR. GORDON: At the end of the black one?
JOSH MILLER: Yes, sir.
MR. GORDON: That came from your father�s home?
JOSH MILLER: Yes, sir.
MR. GORDON: Whose gun is that?
JOSH MILLER: That belongs to me.
MR. GORDON: That gun belongs to you?
JOSH MILLER: Yes, sir.
MR. GORDON: So that gun is not your father�s gun?
JOSH MILLER: No, sir.
MR. GORDON: So if that was one of the five guns that was apparently missing from his home, it really wasn�t missing because that was your gun, that�s not his gun, right?
JOSH MILLER: Yes, sir.
MR. GORDON: Right?
JOSH MILLER: Yes, sir.
MR. GORDON: Did he think that was his gun perhaps?
JOSH MILLER: Yes, sir. He wanted to know where that gun was at.
MR. GORDON: Why? It�s not his. He didn�t have a claim to it, really, though, did he?
JOSH MILLER: All the guns me and my father have. You know, like I might take a claim on this one, but if my father wants to use it, he can use it. And I am the same�
MR. GORDON: But that gun was your gun?
JOSH MILLER: Yes, I consider this my gun.
MR. GORDON: And really you could do whatever you wanted with that gun according to you?
JOSH MILLER: I thought so.
MR. GORDON: Okay. And what about the other � the other guns, you had a little � those are in question?
JOSH MILLER: Yes, sir.
MR. GORDON: Did you � when you talked with the police, did you tell them that those guns wer stolen?
JOSH MILLER: No, sir, I took � I told them that I had taken these guns from my home.
MR. GORDON: You didn�t say they were stolen, right?
JOSH MILLER: No, sir.
MR. GORDON: Did you tell anyone they were stolen, anyone other than the police?
JOSH MILLER: No, sir.
MR. GORDON: And in fact was there � was there periods of time when in fact you told people that they were not stolen?
JOSH MILLER: No, sir.
MR. GORDON: Weren�t you asked from time to time by � by various people if those guns were in fact stolen?
JOSH MILLER: No, sir.
MR. GORDON: You never were?
JOSH MILLER: No, sir.
MR. GORDON: So you never had a reason to tell anybody they were stolen because nobody asked you?
JOSH MILLER: Right.
MR. GORDON: And to the best of your recollection, then, that topic of conversation never came up?
JOSH MILLER: No, sir.
MR. GORDON: Now, this .22 pump, you sold that for how much?
JOSH MILLER: 40 � one OC 40.
MR. GORDON: Where did you buy that at?
JOSH MILLER: Off Mr. Leon Combs.
MR. GORDON: Did you buy that at Mr. Combs� house or Mr. Campbell�s house?
JOSH MILLER: Excuse me?
MR. GORDON: Did you buy that at Mr. Combs� house or � I�m sorry, did you trade that at Mr. Combs; house or Mr. Campbell�s house?
JOSH MILLER: Mr. Combs�.
MR. GORDON: Do you know Shawn Campbell?
JOSH MILLER: Yes.
MR. GORDON: Did you buy drugs off him?
JOSH MILLER: I have.
MR. GORDON: You have?
JOSH MILLER: Yes, sir.
MR. GORDON: Oxycontin?
JOSH MILLER: Yes, sir.
MR. GORDON: You trade guns with him, too?
JOSH MILLER: No, sir.
MR. GORDON: No, you just buy them. Now, were you buying drugs off him at the same time, during the same period of time?
JOSH MILLER: If I had � if I had some money and I couldn�t deal with Mr. Leon Combs, yes, sir, I would.
MR. GORDON: How were you getting the money? Because you said you didn�t trade any guns with him. How were you getting the money to buy Oxycontin off him?
JOSH MILLER: Just anyway that I could come up with some money.
MR. GORDON: How did you do that, were you stealing?
JOSH MILLER: No, any way I could come up with some money?
MR. GORDON: Were you taking money over to Shawn Campbell?
JOSH MILLER: No, sir.
MR. GORDON: Taking anything else over to that house where you lived and taking them over to Shawn Campbell for Oxycontin?
JOSH MILLER: No, sir.
MR. GORDON: Were you buying Oxycontin off anybody else during this period of time?
JOSH MILLER: Besides Leon Combs?
MR. GORDON: And Shawn Campbell, or whatever his first name is. It is Shawn?
JOSH MILLER: Yeah.
MR. GORDON: Okay?
JOSH MILLER: Yes.
MR. GORDON: Anybody else:
JOSH MILLER: Yes, sir.
MR. GORDON: How many other people? I am not interested in names?
JOSH MILLER: Maybe two or three people.
MR. GORDON: How many?
JOSH MILLER: Maybe two or three people.
MR. GORDON: How much were you buying off those people?
JOSH MILLER: If I could hook up with Leon or Shawn. I had four or five people that I would�
MR. GORDON: Four or five people? How were you paying them?
JOSH MILLER: Cash, if I could get the cash.
MR. GORDON: How were you getting cash, your cash was depleted at this point?
JOSH MILLER: Just any way I could get it. My parents were giving me some. I would work some.
MR. GORDON: Were you selling some drugs, too?
JOSH MILLER: No, sir.
MR. GORDON: You weren�t?
JOSH MILLER: No, sir.
MR. GORDON: Just buying?
JOSH MILLER: Yes, sir.
MR. GORDON: Okay, and this went on for � we know it went on from mid-November up until January. I take it you were buying them prior to mid-November too, is that right?
JOSH MILLER: Yes, sir.
MR. GORDON: How far back was that?
JOSH MILLER: I was on Oxycontin about a year and a half.
MR. GORDON: Okay, and were you doing one Oxycontin a day at least?
JOSH MILLER: Yes, sir. At least one 20, maybe one and a half.
MR. GORDON: For a year and a half?
JOSH MILLER: I am not going to say I had one every day. There were times I would go two or three days without having one, yes, sir.
MR. GORDON: Just incidentally, were you working 40 hours a week at this � what was that placed called?
JOSH MILLER: Joist Truss?
MR. GORDON: Yes, sir. Is that a gas station?
JOSH MILLER: No, sir, that�s an engineering wood company.
MR. GORDON: How much were you making there?
JOSH MILLER: I was making around eight hundred to nine hundred dollars every two weeks.
MR. GORDON: Okay. All right, about $400 a week then?
JOSH MILLER: Yes, sir.
MR. GORDON: Gross?
JOSH MILLER: No, sir, that was clear.
MR. GORDON: that was your net?
JOSH MILLER: Yeah.
MR. GORDON: Okay. Then you just quit that job in mid-November?
JOSH MILLER: Yes, sir.
MR. GORDON: Would you say you quit or got fired?
JOSH MILLER: I quit.
MR. GORDON: Any particular reason why you would quit that job?
JOSH MILLER: Drug problem was getting too bad. Mom asked me to quit.
MR. GORDON: You weren�t showing up and stuff?
JOSH MILLER: No, I always showed up for work.
MR. GORDON: But felt terrible and everything?
JOSH MILLER: Yes.
MR. GORDON: Did you ever tell Leon Combs that any of those guns were ever stolen?
JOSH MILLER: No, sir.
MR. GORDON: Did he ever ask you?
JOSH MILLER: No, sir.
MR. GORDON: Did you know he traded in guns?
JOSH MILLER: Did I know he traded guns?
MR. GORDON: Yes, sir.
JOSH MILLER: No, sir.
MR. GORDON: You didn�t?
JOSH MILER: No, sir.
MR. GORDON: All right. Do you trade in guns?
JOSH MILLER: I � yes, sir, I have.
MR. GORDON: But I mean you trade outside � you used to trade before you got addicted to drugs?
JOSH MILLER: No, sir.
MR. GORDON: You know Leon was involved in an accident, don�t you?
JOSH MILLER: No, sir.
MR. GORDON: You didn�t know he was involved in a motorcycle accident in June of last year?
JOSH MILLER: No, sir.
MR. GORDON: You didn�t know he was in any kind of pain?
MR. WEST: Objection, Your Honor, that�s not relevant. He�s already said he doesn�t know.
THE COURT: That�s facts not in evidence, Mr. Gordon.
MR. GORDON: Excuse me?
THE COURT: Facts not in evidence.
MR. GORDON: Did you notice anything unusual about his ability to communicate?
JOSH MILLER: What are you asking?
MR. GORDON: Well, did he have contortions in his face, I guess, when he spoke?
JOSH MILLER: Yes, sir, I guess you could � yeah
MR. GORDON: Did he appear like he was in pain?
JOSH MILLER: I noticed a couple times he had wore a back brace.
MR. GORDON: Did he tell you how he hurt his back?
JOSH MILLER: No, sir.
MR. GORDON: Did it appear that his back was hurt?
JOSH MILLER: Yes, sir, I assumed it was hurt since he was wearing a back brace.
MR. GORDON: All right. That�s � that�s good. You got confronted by your father when, about these guns?
JOSH MILLER: Around the 21st of January.
MR. GORDON: Okay, and � and did you know prior to that day the Mr. Combs had a prescription of Oxycontin?
MR. WEST: Objection, Your Honor, facts not in evidence.
MR. GORDON: I just want to know if he knew.
THE COURT: Overrule.
JOSH MILLER: Could you repeat the question?
MR. GORDON: Did you know prior to the 21st day of January if Mr. Combs had a prescription for Oxycontin?
JOSH MILLER: No, sir, I wasn�t aware if he had a prescription for them or not.
MR. GORDON: You were not aware of that. All right. When you met him some seven months ago� is that how long you said it was?
JOSH MILLER: Yeah, I had known Leon about seven months.
MR. GORDON: Where did you meet him at?
JOSH MILLER: Ashland Station in Combs.
MR. GORDON: You just saw him up there one day?
JOSH MILLER: I was introduced to Leon.
MR. GORDON: That�s when you bought your first Oxycontin?
JOSH MILLER: Yeah.
MR. GORDON: Never been to his residence prior to that?
JOSH MILLER: No, sir.
MR. GORDON: Who introduced you up there?
JOSH MILLER: Jason Combs.
MR. GORDON: Oh, is this the guy in the car?
JOSH MILLER: Yes, sir.
MR. GORDON: All right. Now, any of this money that you would receive from Mr. Combs, like, for instance, I think on the 20th you said you got some money, didn�t you? The 20th of January or something?
JOSH MILLER: For the .270?
MR. GORDON: Yes, sir.
JOSH MILLER: Forty and $40 cash.
MR. GORDON: Yes, sir.
JOSH MILLER: Yes, sir.
MR. GORDON: How much was that .270 worth?
JOSH MILLER: Probably three, four hundred bucks.
MR. GORDON: Why would you trade a $400 rifle for $40 and $40 in cash?
JOSH MILLER: I was wanting a pill.
MR. GORDON: You were wanting what?
JOSH MILLER: A pill.
MR. GORDON: So you were desperate?
JOSH MILLER: Yes, sir.
MR. GORDON: Okay. During this period of time you were getting these drugs from three different people, you were really desperate; and it didn�t matter what you had to trade as long as you could get some Oxycontin; is that right?
JOSH MILLER: Most of the time, yes, sir.
MR. GORDON: Okay. Now this cash that you got, did you get it in forms of tens, twenties, fives, ones, how was it?
JOSH MILLER: Sir, I can�t remember.
MR. GORDON: Was that the day you called the police?
MR. WEST: Objection, Your Honor, there is no testimony he called the police.
THE COURT: Sustained.
MR. GORDON: Okay.
MR. GORDON: Did you ever give any of the money that you received from Mr. Combs to the police?
JOSH MILLER: No, sir.
MR. GORDON: Did you ever � no, I have already asked you about that. When you � when your father approached you January 20th or something, about the guns, you knew you were in trouble, didn�t you?
JOSH MILLER: Yes, sir.
MR. GORDON: You knew you had kind of run� your road had come to an end there?
JOSH MILLER: Yes, sir.
MR. GORDON: And the majority of those guns, if not all those guns, your testimony is that you traded them.
JOSH MILLER: Yes, sir.
MR. GORDON: And you traded those to Leon Combs; is that right?
JOSH MILLER: Yes, sir.
MR. GORDON: And, of course, you knew Leon Combs still had some of those guns, didn�t you?
JOSH MILLER: At the time that my father questioned me about it?
MR. GORDON: Yes, sir.
JOSH MILLER: Yes, sir.
MR. GORDON: And at the same time that�s when he called the police, didn�t he?
JOSH MILLER: Yes, sir.
MR. GORDON: And, at that point you told him you had a problem?
JOSH MILLER: Yes, sir.
MR. GORDON: With drugs, right?
JOSH MILLER: Yes, sir.
MR. GORDON: Right. And did any of the other weapons that you trade, did you have any of those with anyone else in the community?
JOSH MILLER: I don�t understand the question.
MR. GORDON: Did any of the other guns that you traded over a period of time, were any of those other guns with anyone? Did you have any with Shawn Campbell, did you have any with this other guy that you mentioned; were any of these guns anywhere else other than with Mr. Combs?
JOSH MILLER: Did I myself trade with anybody else?
MR. GORDON: Yes. Yes, sir.
JOSH MILLER: Yes, sir.
MR. GORDON: There was someone else that you traded with for pills?
JOSH MILLER: Yes, sir.
MR. GORDON: Where were they?
JOSH MILLER: There was one more guy.
MR. GORDON: Okay, and did you go retrieve that one?
JOSH MILLER: Yes, sir, yeah.
MR. GORDON: Did you tell the police about that?
JOSH MILLER: Yes, sir.
MR. GORDON: You did?
JOSH MILLER: Yes, sir.
MR. GORDON: Did you give the name of that individual?
JOSH MILLER: Yes, sir.
MR. GORDON: Who was that?
JOSH MILLER: Audie Sholt [OTTIE SHORT]
MR. GORDON: Audie Sholt [OTTIE SHORT]?
JOSH MILLER: Yes, sir.
MR. GORDON: And you told them that he was selling the Oxycontin, too?
JOSH MILLER: Yes, sir. Pretty sure.
MR. GORDON: Okay. You think you told them about the same time?
JOSH MILLER: The same time as I told, what, Mr. Combs?
MR. GORDON: Uh-huh?
JOSH MILLER: Yes, sir.
MR. GORDON: Now, these guns that you made reference to in this case, just the trading back and forth with these guns, there were no threat of any gun from you to him or from him to you, you never felt threatened by these guns, did you?
JOSH MILLER: Threatened?
MR. GORDON: Yeah, from Mr. Combs, he never threatened you with any of these guns, did he?
JOSH MILLER: What do you mean �threatened?�
MR. GORDON: Pick one up right now and aim it at you?
JOSH MILLER: No, sir.
MR. GORDON: And were any of the guns loaded when you all were talking trading back and forth?
JOSH MILLER: No, sir.
MR. GORDON: Did you ever see any of these guns being fired?
JOSH MILLER: No, sir.
MR. GORDON: You never saw any of these guns ever being used when you were over there, did you?
JOSH MILLER: No, sir. He had mentioned the .22 �
THE COURT: Objection, objection. Approach.
(A bench conference was had between the Court and counsel out of the hearing of the jury.)
THE COURT: He did say�
MR. GORDON: Huh?
THE COURT: He did say that he traded them. He borrowed them.
MR. GORDON: I didn�t know�
THE COURT: You asked him used. You said had he ever saw them being used.
MR. GORDON: That�s what his testimony is.
THE COURT: Fine. Rephrase your question.
MR. GORDON: Thank you.
(End of bench conference.)
MR. GORDON: You never saw any of them being fired; is that right?
JOSH MILLER: Yes, sir. No, I never saw any.
MR. GORDON: You never saw them being fired. Now, you are saying when you went to this residence, would you always go in the residence?
JOSH MILLER: Not always.
MR. GORDON: Sometimes you would just stand outside?
JOSH MILLER: Yes, sir.
MR. GORDON: Okay. But without incident, with the exception of that one or two times this Jason Combs fellow went in there with you, you would always just go over by yourself?
JOSH MILLER: Yes, sir.
MR. GORDON: Okay, and then ne or two times if Jason Combs went with you, you said you went inside the house, inside the residence.
JOSH MILLER: Yes, sir.
MR. GORDON; So the only person that � that would have witnessed this transaction, obviously, would have been you and him, is that right?
JOSH MILLER: Myself and Leon?
MR. GORDON: Yeah?
JOSH MILLER: Yes, sir.
MR. GORDON: Now, when you would meet him or want to get together with him, would you call him on the phone?
JOSH MILLER: Yes, sir, I called him couple times.
MR. GORDON: Okay, and would you call him from your residence?
JOSH MILLER: Yes, sir.
MR. GORDON: To his phone?
JOSH MILLER: Yes, sir.
MR. GORDON: Do you know what his phone number is offhand?
JOSH MILLER: Not now I don�t.
MR. GORDON: You don�t. And � but it would be on your phone bill?
JOSH MILLER: Yes, sir.
MR. GORDON: And did the police ever ask you about that?
JOSH MILLER: No, sir.
MR. GORDON: Never asked you about any phone calls?
JOSH MILLER: No, sir.
MR. GORDON: Did you ever conduct a transaction in a motel room or anything?
JOSH MILLER: No, sir.
MR. GORDON: Did you ever � when you conducted these transactions at, say, the gas station, Ashland gas station, did you ever make any phone calls from that Ashland gas station?
JOSH MILLER: Yes, sir.
MR. GORDON: To who?
JOSH MILLER: I would stop there and call Leon�s home.
MR. GORDON: All right. What about when you and Leon were up there together, did you ever make any phone calls?
JOSH MILLER: Wouldn�t have to.
MR. GORDON: When you were over at Leon�s residence from time to time, did you ever make any phone calls from there?
JOSH MILLER: No, sir.
MR. GORDON: Did he ever call you?
JOSH MILLER: No, sir.
MR. GORDON: Never?
JOSH MILLER: No, sir.
MR. GORDON: Not once?
JOSH MILLER: No, sir.
MR. GORDON: So you would call. It he wasn�t there, then you would just keep calling back?
JOSH MILLER: No, sir.
MR. GORDON: You would just forget about it?
JOSH MILLER: If I called and he wasn�t home, I would drive to the Ashland station. If he wasn�t there �
MR. GORDON: Would he just sit up there at the Ashland station waiting for you?
JOSH MILLER: No, sir. He hung out there a lot, though.
MR. GORDON: Okay. Do they serve lunch up there?
JOSH MILLER: No, sir.
MR. GORDON: You would agree with me that a lot of these guns, just to get your habit entertained, would - you would � you sold a lot of them for under the price, didn�t you?
JOSH MILLER: Yes, sir.
MR. GORDON: Just to support your habit?
JOSH MILLER: Yes, sir.
MR. GORDON: You � you could have traded, according to you, anything that had any kind of value, right, for these Oxycontins, I mean, if you had a beat up vehicle, you could have maybe traded that, right?
JOSH MILLER: Yes, sir.
MR. GORDON: I mean, it just so happens that you had� that you had these guns, right?
JOSH MILLER: Yes, sir.
MR. GORDON: There was no significance to these guns, right?
JOSH MILLER: Significance?
MR. GORDON: Well, I mean in terms of what was going on, you just happen to have them, they had some value and you gave them to him?
JOSH MILLER: Yes, sir, I traded them for Oxycontins.
MR. GORDON: There was no conversation about firing these guns or taking them out back and shooting them, was there?
JOSH MILLER: There was talk about the .22, shooting real good.
MR. GORDON: All right, you had that one time or something?
JOSH MILLER: Yes, sir.
MR. GORDON: Was that on another day that you went over there or what?
JOSH MILLER: Yes, sir, I went over there, and he was talking about it.
MR. GORDON: Yeah, it wasn�t the day that you traded it, though, right?
JOSH MILLER: No, sir.
MR. GORDON: Let me just have a moment, Your Honor.
THE COURT: Yes.
(Counsel for the defendant conferring with the defendant.)
MR. GORDON: What did you keep those guns for at your home? This one particular gun, what did you keep it for?
JOSH MILLER: What one particular gun?
MR. GORDON: Well, this gun that you owned. Would you go out and shoot with it occasionally or something?
JOSH MILLER: The .50 caliber black powder?
MR. GORDON: Yeah, yeah.
JOSH MILLER: Just to deer hunt.
MR. GORDON: Okay, so that�s what its purpose was.
JOSH MILLER: Yes, sir.
MR. GORDON: You didn�t use it as protection or anything, did you?
JOSH MILLER: No, sir.
MR. GORDON: And as a matter of fact, all these guns that you traded, they weren�t protection for anybody, were they? I mean, that�s not what you traded them for, to protect you or to protect somebody else, you were just in the business of trading; is that right?
JOSH MILLER: I took him these guns and traded for pills.
MR. GORDON: For pills?
JOSH MILLER: Yes, sir, I wasn�t no gun trader, I just took him the guns and traded them for pills.
MR. GORDON: Okay.
MR. GORDON: That�s all.
THE COURT: Redirect, Mr. West?
MR. WEST: Yes, Your Honor.
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MR. WEST: Mr. Miller, is it a long distance phone call from your house to Mr. Combs�?
JOSH MILLER: No, sir.
MR. WEST: That pill bottle that�s been up there the whole time, Government�s Exhibit No. 8, prior to January 21 that�s when you told the police what happened and you were brought in the courtroom today to testify; is that correct?
JOSH MILLER: Yes, sir. Yes, sir.
MR. WEST: Between the time that you spoke to the State Police up until the time that you walked in the courtroom, have you seen that pill bottle or any like bottle, like that?
JOSH MILLER: January 21 to this date?
MR. WEST: Yes, sir.
JOSH MILLER: No, sir.
MR. WEST: Any police officer pull that out of an evidence bag, or prosecutor, and say, �Is this the bottle?�
JOSH MILLER: No, sir.
MR. WEST: That�s all, no further questions, Your Honor.
THE COURT: Redirect or recross?
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MR. GORDON: Have you testified in any proceeding under oath other than this proceeding right here? Did you testify in front of the grand jury?
JOSH MILLER: No, sir.
MR. GORDON: Did you testify in any previous proceeding under oath?
JOSH MILLER: No, sir.
MR. GORDON: Okay.
MR. GORDON: Prior to the time that you met with the � the � whoever you met with yesterday, some person that we don�t know who he is � maybe it was a she, I don�t know � had you met with any police officers prior to yesterday in this case?
JOSH MILLER: On the 21st, whenever my father called and met with them �
MR. GORDON: You met with who?
JOSH MILLER: Kentucky State Police.
MR. GORDON: Who were they?
JOSH MILLER: Who were they?
MR. GORDON: Yes, sir.
JOSH MILLER: Chris Fugate.
MR. GORDON: Is he Kentucky State Police?
JOSH MILLER: Yes, sir.
MR. GORDON: And after that day up until yesterday did you meet with anybody?
JOSH MILLER: No, sir.
MR. GORDON: No, sir. Have any conversation with anybody on the phone?
JOSH MILLER: No, sir.
MR. GORDON: All right. Never talked to anybody about this case?
JOSH MILLER: No, sir.
MR. GORDON: Did you ever receive a subpoena on it?
JOSH MILLER: No, sir.
MR. GORDON: Well, how did you know to, come, then if you never talked to anybody?
JOSH MILLER: My folks told me that I needed to be here today.
MR. GORDON: Your father told you that?
JOSH MILLER: Yes, sir.
MR. GORDON: And these � these police officers, you know, I think Paul Sandlin �
THE COURT: Beyond the scope, Mr. Gordon.
MR. GORDON: I�ll cut it off. Thank you.
THE COURT: Redirect?
MR. WEST: Nothing further of this witness, Your Honor.
THE COURT: May this witness be excused?
MR. WEST: As far as the United States is concerned.
THE COURT: All right, thank you, Mr. Miller, you are excused.
Ladies and gentlemen of the jury, during your afternoon recess, remember the admonition of the court. Do not discuss the case amongst yourselves or allow anybody to discuss it with you. Don�t make up your minds about the case for you haven�t heard all the evidence or the instructions of the court. Mr. Thompson � by the way, there is two Mr. Thompsons in here now, do you recognize that? We have the old dog and the pup. You may show the jury from the courtroom.
THE MARSHAL: All rise for the jury.
THE COURT: They will be excused until 3:00.
(Jury excused from the courtroom.)
THE COURT: Let the record reflect the jury is out of the courtroom. Can I see counsel in� at the bench here for a moment? On the record. Please be seated.
MR. WEST: Yes, sir.
(Bench conference was had between the Court and counsel out of the presence and hearing of the jury.)
THE COURT: We have one examiner?
MR. WEST: There is two, sir, John �
THE COURT: Is there any reason to �
MR. WEST: To what?
THE COURT: To have the lab examiners come?
MR. WEST: Probably so, sir, at least one of them, to explain what these things are, OC 20's and OC 40's and how you can differentiate them.
I would advise the court Miss Eversole has been located and is en route to the courthouse. We may have to keep her overnight and provide her lodging.
THE COURT: They found her. That�s a good �
MR. WEST: I don�t want your pager.
MR. GORDON: You can have it if you want it.
MR. WEST: I don�t want it.
MR. GORDON: I talked to her. I didn�t talk to any witness.
THE COURT: Sure you are, exactly. I think I can assure you I wasn�t part of that statement.
MR. WEST: One where she said she had been threatened? We realize that.
MR. GORDON: We have authority?
THE COURT: Yeah, around there because I have a preliminary injunction hearing.
MR. GORDON: I have a hearing tomorrow at Federal Court. I have to call them. It�s not in front of Judge Forester, though.
THE COURT: It�s a good thing, but he is in Washington.
MR. GORDON: Despite that, I think I should call.
THE COURT: Yes, I think that would be a sterling idea. As they say, you�re Dilla Terry Penski (phonetically) on very thin ice.
Court will be in recess until 3:00.
(End of bench conference.)
(Afternoon recess taken from 2:52 to 3:00 p.m.)
THE COURT: Let the record reflect the parties are again present in the courtroom by and with counsel, that the jury is present in the courtroom, and we�ll waive the poll of the jury.
Next witness?
MR. WEST: Trooper Chris Fugate, please.
(Witness sworn.)
THE CLERK: Thank you.
THE COURT: You may ask.
MR. WEST: Thank you, sir.
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MR. WEST: Would you state your name and occupation, please, sir?
CHRIS FUGATE: Chris Fugate. I am a trooper with the Kentucky State Police in Hazard.
MR. WEST: How long have you been with the Kentucky State Police?
CHRIS FUGATE: About seven years.
MR. WEST: And have you been assigned to the Hazard post the entire time?
CHRIS FUGATE: Yes, sir, I have.
MR. WEST: Around the 21st, 22nd of January of this year, did you become involved or participate in an investigation which involved Joshua Miller?
CHRIS FUGATE: Yes, sir, I did.
MR. WEST: Do you recall approximately what time you became involved in that investigation?
CHRIS FUGATE: It was around 7:00 p.m. in the evening.
MR. WEST: Now, during the course of your investigation, did you have the opportunity to interview Mr. Miller?
CHRIS FUGATE: Yes, I did.
MR. WEST: After the interview was concluded, what did you do with the information that your received, Mr. Fugate, from Mr. Miller?
CHRIS FUGATE: After the information, I received a search warrant for the residence of Mr. Leon Combs.
MR. WEST: Where is that location?
CHRIS FUGATE: In Upper Second Creek Road in Perry County.
MR. WEST: Perry County has an odd shape kind of like a crescent, I think. How far is it from Hazard State Police post?
CHRIS FUGATE: It�s approximately 4 �, 5 miles.
MR. WEST: Now, when the search warrant was being executed, were you present when the search warrant was executed?
CHRIS FUGATE: Yes, sir, I was.
MR. WEST: I am going to assume that you all drove in separate vehicles?
CHRIS FUGATE: Yes, sir.
MR. WEST: Tell the jury, please, what happened when you first approached the residence of Mr. Combs.
CHRIS FUGATE: Okay, we pulled up. I was riding in a white Chevrolet Blazer with Sergeant Keith Miller with the Hazard Police Department, and a couple other troopers were in the back.
As we pulled up in the driveway of Mr. Combs� residence, we crossed a little concrete bridge to his residence. Leon was sitting in his vehicle, and as we pulled up, he got up out of the vehicle and came toward our Blazer; but I didn�t stop and talk to him myself. And Trooper Miller went on inside the residence.
MR. WEST: I am going to ask you to take a look at counsel table to my right, please, Can you identify someone sitting there?
CHRIS FUGATE: Yes, sir.
MR. GORDON: We�ll stipulate, Judge.
THE COURT: Let the record so reflect.
MR. WEST: All right.
MR. WEST: You went into the residence. Tell us, then, what happened, sir?
CHRIS FUGATE: We began� we knocked on the door and announced � and went on in the residence and announced ourselves as State Police, and we had a search warrant for the residence; and we found Leon�s wife in the back bedroom of the trailer, double-wide.
MR. WEST: Was anyone else inside the structure there?
CHRIS FUGATE: No, sir.
MR. WEST: Did you participate in a search of that structure?
CHRIS FUGATE: Yes, sir.
MR. WEST: Do you recall what was � what was located inside the residence, please?
CHRIS FUGATE: We located several guns that had been reported stolen, and also some case knives that were in cases; we located baseball cards, and we located some pill bottles in the kitchen area. One pill bottle had nine OC 20's in the � or Oxycontin 20 milligrams in the pill bottle.
MR. WEST: Now, you had � your search warrant and the information from Mr. Miller, did it mention weapons in there?
CHRIS FUGATE: Yes, sir.
MR. WEST: Were they specifically identified?
CHRIS FUGATE: Yes, sir.
MR. WEST: Trooper, you are going to be shown four weapons here. One at a time. Take a look at that, please.
CHRIS FUGATE: Yes, sir.
MR. WEST: On the day the search warrant was executed, what day was that again, sir?
CHRIST FUGATE: It was on the 22nd day of January.
MR. WEST: Do you recall seeing that weapon on that day?
CHRIS FUGATE: Yes, sir.
MR. WEST: Where was that located, if you can recall?
CHRIS FUGATE: It was in the residence, I am not sure exactly what � either in the living room � most of the guns were taken from the living room of Mr. Combs� residence.
MR. WEST: Was there a gun cabinet or gun safe or anything of that nature in the living room area?
CHRIS FUGATE: No, they were just located like behind the couch in the corners, just around the residence. There was also two, I believe it was two rifles that were located in the kitchen. There is a diningroom/kitchen area like made together, and two rifles were leaned up in the corner of that � of that room.
MR. WEST: Just for the record, please, would you specifically identify the make and model of that weapon?
CHRIS FUGATE: That is a Remington .50 caliber.
MR. WEST: Is that black powder?
CHRIS FUGATE: Black powder rifle, yes, sir.
MR. WEST: Same questions to you, Trooper, can you identify that item, please?
CHRIS FUGATE: Yes, sir. That is a .222 rifle, Remington rifle.
MR. WEST: Okay, was that recovered on January 22nd?
CHRIS FUGATE: Yes, it was.
MR. WEST: Was it recovered at the same location that you just mentioned?
CHRIS FUGATE: Yes, sir.
MR. WEST: Identify that one, please.
CHRIS FUGATE: That is a .22 long rifle, Remington. Model 572.
MR. WEST: Was that recovered on January 22 also from Leon Combs� residence?
CHRIS FUGATE: Yes, sir. Yes, sir, it was.
MR. WEST: Likewise identify make and model, please.
CHRIS FUGATE: This is a Remington .270 rifle.
MR. WEST: Where and when was that recovered, please?
CHRIS FUGATE: That was located on the 22nd, also, of Mr. Combs� residence.
MR. WEST: Trooper Fugate, in addition to drafting the search warrant, you have a specific duty as the person who drafted the search warrant; is that correct?
CHRIS FUGATE: Yes, sir.
MR. WEST: What is that duty?
CHRIS FUGATE: That is to take all the evidence located at the scene and to log it into the evidence room and to make sure it�s sent to the KSP lab for identification and analysis on the pill.
MR. WEST: Regards to the four or five firearms that were given to you, did you take custody of those items on that day?
CHRIS FUGATE: Yes..
MR. WEST: And what was done with those?
CHRIS FUGATE: They were released to the owners. They were taken to the State Police post where the owners were later contacted, and they came and signed a form releasing those weapons to them.
MR. WEST: Now, you have previously stated when you first got there Mr. Combs was outside and you went into the residence.
CHRIS FUGATE: Right.
MR. WEST: Was there other officers outside with Mr. Combs?
CHRIS FUGATE: Yes, sir.
MR. WEST: Did you participate in the search of Mr. Combs at all?
CHRIS FUGATE: No, not in the body search, no, sir.
MR. WEST: The officers that were there, were you broght any evidence?
CHRIS FUGATE: Yes, sir.
MR. WEST: And what were you brought?
CHRIS FUGATE: They brought a pill bottle that contained some Oxycontin 40 milligrams, 20 milligrams; and then some little yellow pills which were K4 Dilaudid pills, and also a small semiautomatic handgun.
MR. WEST: Mr. Marshal, if you would show him Government�s Exhibit 8 and 9.
MR. WEST: Begin with Exhibit No. 8, can you identify that, sir?
CHRIS FUGATE: This is a pill bottle, Tylenol PM pill bottle that Trooper Sandlin, I believe Trooper Sandlin located this in Mr. Combs� crotch.
MR. WEST: And Exhibit No. 9, you can open the pouch if you need to, there is an evidence sheet on the back. What is Exhibit No. 9, please?
CHRIS FUGATE: Exhibit No. 9 is all the pills that were located there at the residence on that evening and also on Mr. Combs� person.
MR. WEST: So regards to Exhibit No. 9, those were the pills taken out of his pocket, they were not recovered from the residence itself?
CHRIS FUGATE: There are some Oxycontin, Exhibit No. 9 contains Oxycontin 40 milligrams which were located in the Tylenol PM bottle. There were ten of those. There were also six Oxycontin 20 milligram located in the Tylenol PM bottle in his crotch, and then these are the �
THE COURT: How many?
CHRIS FUGATE: Six of the OC 20's, Oxycontin 20's. And then there is 9 yellow pills, which are K4 Dilaudid pills. They were located, also, in the pill bottle.
MR. WEST: So that would be a total of 25 pills altogether?
CHRIS FUGATE: Yes, sir. And then inside there are the OC 20 milligrams that were located inside the residence.
MR. WEST: And how many of the OC 20's were found inside the residence?
CHRIS FUGATE: Nine.
MR. WEST: Would you repackage those back in the box or package, please, for Exhibit No. 9?
(Witness complies.)
MR. WEST: Trooper Fugate, you are being shown what�s marked as Government�s Exhibit No. 10 and 10A. I�ll ask if you can identify these two exhibits, please?
CHRIS FUGATE: Yes, sir, this is the weapon that Trooper Sandlin located on Mr. Combs� body, on his person.
MR. WEST: And what is 10A, please?
CHRIS FUGATE: This is a .22 long rifle pistol. It is a Phoenix arms brand.
MR. WEST: And what is that item in you right hand?
CHRIS FUGATE: This is a magazine that was located in the pistol, and it was fully loaded; the magazine was fully loaded.
MR. WEST: Being shown Exhibit. No. 11, please. Identify Exhibit No. 11.
CHRIS FUGATE: This is a number of prescription � empty prescription pill bottles we found inside the residence.
MR. WEST: Now, you have previously testified that you have found nine OC 20's inside the residence; is that correct, sir?
CHRIS FUGATE: Yes, sir.
MR. WEST: Were they found in one of those pill bottles?
CHRIS FUGATE: Yes, sir.
MR. WEST: How many pill bottles altogether did you say?
CHRIS FUGATE: There is a total of seven. Pill bottles.
MR. WEST: So six were have � I�m sorry, one of those contained the OC pills?
CHRIS FUGATE: Right, yes, sir.
MR. WEST: Of all those items mentioned there, Exhibit No. 9, 10, 10A, and 11, did you take custody of those items on that day?
CHRIS FUGATE: Yes, sir, I did.
MR. WEST: What did you do when you took custody of those items?
CHRIS FUGATE: We took them to post. I took them to post, and we logged them into the evidence locker that night.
MR. WEST: Did you fill out any documentation in regards to the controlled substances?
CHRIS FUGATE: Yes, sir. We filled out a case B41. [Wonder if this could be KSP 41?]
MR. WEST: What is a case B41?
CHRIS FUGATE: It is a evidence log in evidence property sheet that we have to fill out on all evidence that we obtain.
MR. WEST: And do the numbers on the property sheet correspond to the numbers you have assigned to this case and those exhibits?
CHRIS FUGATE: Yes.
MR. WEST: And did you send the items to the State Police laboratory for analysis of the controlled substances?
CHRIS FUGATE: Yes, sir, I did.
MR. WEST: Trooper Fugate, you said you participated in the search of the residence itself; is that right?
CHRIS FUGATE: Yes.
MR. WEST: As the person who takes control of the evidence and as the custodian, is there a central location within the residence that you set up to do the logging and booking of these items?
CHRIS FUGATE: They � once they got all the evidence that we took, there was a little bar inside the kitchen area, and everybody just brought all the evidence to that central point. And then all the guns were put in the corner by the door as we came out, and we took them all to the cruiser and laid them in the back seat
MR. WEST: You mentioned also some knives that were found?
CHRIS FUGATE: Yes, sir.
MR. WEST: Did you take control of those also?
CHRIS FUGATE: Yes, sir, we did.
MR. WEST: In addition to the knives and the guns that you mentioned, what other items did you find that you used?
CHRIS FUGATE: There was like a karaoke machine that you sing with, there was like some baseball, basketball cards and the two knives; I really can�t remember, the guns, I can�t remember anything else�
MR. WEST: What was done with the knives, baseball cards and Karaoke machine?
CHRIS FUGATE: They were released to the owner at post.
MR. WEST: And who is the owner?
CHRIS FUGATE: Eddie Miller.
MR. WEST: Is that Joshua�s father?
CHRIS FUGATE: Yes, it is.
MR. WEST: Trooper Fugate, at the same time you were searching the residence or logging these items did the defendant, Leon Combs, come into the structure?
CHRIS FUGATE: Yes, sir, he did.
MR. WEST: Did you have occasion to be present to interview him or ask him any quesitons?
CHRIS FUGATE: Yes, sir.
MR. WEST: What questions did you ask?
CHRIS FUGATE: We � he came in, and I knew Leon prior to this, and just � I knew who he was.
MR. WEST: Right.
CHRIS FUGATE: And we sat down in the dining room area of the kitchen.
MR. GORDON: Just note by objection, Your Honor, as to this aspect of it.
THE COURT: Sustained.
CHRIS FUGATE: And I asked him, I said, �Leon, why are you selling these pills? You knew we were going to catch you sooner or later if you didn�t quit.� He said he knew what he was going was wrong, but he had to sell them so he could make a living for his family because he only drew a small amount of money from the government. [NOTE THAT THIS RUNS COUNTER TO ALL TESTIMONY DURING THE SUPPRESSION HEARING IN WHICH CHRIS FUGATE DID NOT EVEN TESTIFY!]
MR. WEST: Trooper, if you would, would you repackage those items there, please.
MR. WEST: Mr. Marshal, if you would, please. That�s all of this witness at this time.
THE COURT: Cross?
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MR. GORDON: Officer Fugate, my name is Derek Gordon. I represent Leon Combs. Of course, we � we had conversation, I think, during the lunch hour, so you remember who I am.
CHRIS FUGATE: Yes, sir.
MR. GORDON: You � you were the � you were the trooper who applied and got the search warrant in this case, did you not?
CHRIS FUGATE: Yes, sir, I did.
MR. GORDON: Okay, and, of course, you are familiar with the affidavit and so forth.
CHRIS FUGATE: Yes, sir.
MR. GORDON: Yeah. And what I want to ask you, first of all, in regard to that affidavit is you � you put some things down there that were in there from a Josh Miller: is that right?
CHRIS FUGATE: Yes, sir.
MR. GORDON: And you mentioned some guns.
CHRIS FUGATE: Yes, sir.
MR. GORDON: Some of these guns here that you were able to identify. Now, is there anything in this affidavit that you put that those guns were stolen?
CHRIS FUGATE: I am not for sure.
MR. GORDON: Because you did mention that someone told you they were stolen, didn�t you?
CHRIS FUGATE: Yes, sir.
MR. GORDON: But do you remember putting that down in the affidavit that the guns were stolen?
CHRIS FUGATE: I don�t remember if I put it down in that or not.
MR. GORDON: Is that something that would be relevant or not?
MR. WEST: Objection, Your Honor, show him the affidavit.
MR. GORDON: Fine, fine. Show him the affidavit. May I?
THE COURT: Yes, sir, you may.
CHRIS FUGATE: In the actual reading at the bottom of the affidavit, no, I didn�t mention they were stolen. But in the box above it, it says �stolen property.� I did check that box�
MR. GORDON: Okay, that �
CHRIS FUGATE: � of the �
MR. GORDON: Could I have that returned to me then?
MR. GORDON: Well, any particular reason why you would not have put that in there? And how are we supposed to know what that makes reference to there? Is that what you were referring to now is what you are saying?
CHRIS FUGATE: At that time, I was just saying any stolen property.
MR. GORDON: Oh, any stolen property?
CHRIS FUGATE: Yes, sir, including the weapons.
MR. GORDON: Had you been informed that weapons may have been stolen?
CHRIS FUGATE: Yes, sir.
MR. GORDON: From who?
CHRIS FUGATE: From Josh Miller.
MR. GORDON: Josh Miller told you the guns were stolen?
CHRIS FUGATE: Yes, sir.
MR. GORDON: When?
CHRIS FUGATE: Prior to interviewing him at post. And then also from Trooper Sandlin.
MR. GORDON: Josh Miller told you that those guns � these guns were stolen?
CHRIS FUGATE: He didn�t say all those � he didn�t say that all those guns that are laying on the floor there, he didn�t give me make and serial number of all of them. He told me that he had traded a .270 Remington rifle to Mr. Combs, and that they were taken from Eddie Miller�s residence.
MR. GORDON: Eddie Miller being his father?
CHRIS FUGATE: Yes, sir.
MR. GORDON: Okay, well, he didn�t tell you � he didn�t tell you that they were stolen then, did he?
CHRIS FUGATE: During the taped interview he may not have come right out and said, �I stole these guns,� no.
MR. GORDON: Did he tell � did he tell, as far as you know, Leon Combs that they were stolen?
CHRIS FUGATE: I don�t know.
MR. GORDON: Okay.
CHRIS FUGATE: According to Mr. Combs he said Josh had told him that they were not stolen.
MR. GORDON: Was not stolen?
CHRIS FUGATE: That�s right.
MR. GORDON: Okay. Now, in this affidavit or in the search warrant itself, I notice that � and you read over the affidavit, I am sure, because you signed it, did you not?
CHRIS FUGATE: Yes, sir.
MR. GORDON: And I am sure you looked at what the search warrant said as well, right?
CHRIS FUGATE: Yes, sir.
MR. GORDON: Okay, and it said that you were � any and all persons located inside the residence, in looking for the following described property, you talked about these weapons. You also indicated that some things you might be looking for is any ledgers or records of illegal drug sales. Find anything like that, sir?
CHRIS FUGATE: No, sir, I did not.
MR. GORDON: Any United States currency which would be proceeds of illegal drug transactions? Did you find any United States currency that would be proceeds of illegal drug transactions?
CHRIS FUGATE: No, sir.
MR. GORDON: As a matter of fact, on the day in question that you came upon this fellow here, how much money did you find upon him?
CHRIS FUGATE: I don�t remember how much money. It was not a lot.
MR. GORDON: Couldn�t have been significant, right?
CHRIS FUGATE: Right.
MR. GORDON: Matter of fact, did you take it or give it back to him?
CHRIS FUGATE: I gave it back to him.
MR. GORDON: Gave it back to him. So it wouldn�t have been an amount that was of any evidentiary value?
CHRIS FUGATE: It was probably less than $100.
MR. GORDON: All right. And did you find any U. S. currency known to officers as �buy money�?
CHRIS FUGATE: No, sir.
MR. GORDON: And, of course, that is information � well, that is evidence that would be of evidentiary value had you found anything like that; is that right, sir?
CHRIS FUGATE: That�s right.
MR. GORDON: All right, and when you searched the residence, did you find anything�anything in the residence that would have been of any ----in terms of any money, did you find any money in there?
CHRIS FUGATE: No, sir.
MR. GORDON: All right. Now, are you familiar � well, you are familiar with these guns, obviously?
CHRIS FUGATE: Yes, sir.
MR. GORDON: In terms of what they are?
CHRIS FUGATE: Yes, sir.
MR. GORDON: Now, is there a .38 down there?
CHRIS FUGATE: No, sir.
MR. GORDON: No. .38?
CHRIS FUGATE: No, sir.
MR. GORDON: What about a .243?
CHRIS FUGATE: There is � if I can look at them to see, I could tell you if there was a .243.
MR. GORDON: Okay, well �
CHRIS FUGATE: I am not a gun expert by any means, I can�t tell by just looking what a gun is.
MR. GORDON: Do you know if there was a .38 that was returned to the family?
CHRIS FUGATE: There was a .38 that was brought to, I believe, Sergeant Sandlin about a week later. And he gave it back to the family or signed it back over to the family.
MR. GORDON: Okay, so I take it that .38 returned to what family?
CHRIS FUGATE: To the I. J. Sandlin family, I believe that�s who owned the gun.
MR. GORDON: Okay, and was that .38 found in the residence on Second Creek that you searched?
CHRIS FUGATE: No, sir.
MR. GORDON: Okay, so there was a weapon that was supposedly taken from the Sandlin family that was not found in this residence; is that right?
CHRIS FUGATE: That�s right.
MR. GORDON: All right. And was there any other weapon that was returned that was not found inside the residence?
CHRIS FUGATE: I believe there was, but I am not----
MR. GORDON: Was that a .243?
CHRIS FUGATE: I am not familiar with what other kind of weapon it was, but I know there was a couple guns that was returned by Mr. Combs.
MR. GORDON: All right. Now, you were one of the officers that came upon the scene on the 22nd day of � of January of the year 2001, is that right, sir?
CHRIS FUGATE: Yes, sir.
MR. GORDON: And at that point you saw Leon Combs?
CHRIS FUGATE: Yes, sir.
MR. GORDON; And he � he had some jacket on, I guess, and, of course � now, did you have him under surveillance just prior to that?
CHRIS FUGATE: No, sir.
MR. GORDON: Okay, so what he may have been doing twenty minutes prior to that you wouldn�t know.
CHRIS FUGATE: No, sir, I wouldn�t know.
MR. GORDON: If he had been at the residence ten minutes before you wouldn�t know?
CHRIS FUGATE: No, sir.
MR. GORDON: How he got that gun on his person, you wouldn�t know?
CHRIS FUGATE: No idea.
MR. GORDON: Did you ultimately determine that in fact he had a prescription for Oxycontins?
CHRIS FUGATE: He did have a prescription for Oxycontin 20s, 20 milligrams.
MR. GORDON: Oxycontin prescribed by a doctor?
CHRIS FUGATE: Yes.
MR. GORDON: And do you know what those might have been for?
CHRIS FUGATE: I believe because of a wreck he was in for back pain or something.
MR. GORDON: Were you able to observe in fact he may have been in some pain?
CHRIS FUGATE: Yes, sir.
MR. GORDON: And would that have been attributable to probably his back area?
CHRIS FUGATE: Yes, sir.
MR. GORDON: And you have got no reason to doubt he has a bad back?
CHRIS FUGATE: No, sir.
MR. GORDON: All right. I mean, his � his actions, his maneuvers were consistent with some sort of pain; is that right?
CHRIS FUGATE: Yes, sir.
MR. GORDON: All right. Now, I believe that you said you did an interview and you were � you were phoned by a Josh Miller at 7:00 p.m. on the night prior to the incidents in question; is that right?
CHRIS FUGATE: No, sir, I met Josh Miller at �
MR. GORDON: I�m sorry.
CHRIS FUGATE: � the State Police post at 7:00 that night.
MR. GORDON: But there would been a phone call made by Josh Miller?
CHRIS FUGATE: No, sir.
MR. GORDON; Someone had made a phone call to the State Police post?
CHRIS FUGATE: Yes, sir.
MR. GORDON: And you met Joshua Miller at the State Police post?
CHRIS FUGATE: Yes, sir.
MR. GORDON: And you asked him about what was going on?
CHRIS FUGATE: Yes, sir.
MR. GORDON: And you asked him if he had any proof of these Oxycontins that he ways he was allegedly buying or allegedly receiving in some form or fashion from Leon Combs?
CHRIS FUGATE: No, sir. I asked him about the guns, about the theft complaint that had been called in.
MR. GORDON: Okay.
CHRIS FUGATE: And �
MR. GORDON: So at that point he knew that � that obviously his father had known because he talked to his father, as far as you knew?
CHRIS FUGATE: Yes, sir.
MR. GORDON: And obviously the police knew because his father had called you?
CHRIS FUGATE: They made � actually he had called Trooper Sandlin, who is a relative of Josh Miller.
MR. GORDON: Right.
CHRIS FUGATE: And Trooper Sandlin, because he is family, he called post and asked that myself or another trooper on duty work the case.
MR. GORDON: Okay, did he � he wanted � didn�t want any kind of conflict?
CHRIS FUGATE: Right.
MR. GORDON: So when that phone call was made to your department there, and ultimately reported to you as the � turned out to be the case agent, I guess �
CHRIS FUGATE: Yes, sir.
MR. GORDON: ----so to speak, you were under the impression it was an investigation concerning some missing guns?
CHRIS FUGATE: Yes, sir.
MR. GORDON: Anything told to you at that point about the Oxycontin?
CHRIS FUGATE: Not until I started interviewing.
MR. GORDON: Not until you started interviewing? And at that point his father knows, the State Police knows that he is in trouble, perhaps?
CHRIS FUGATE: Yes, sir.
MR. GORDON: And then all of a sudden at that point you are asking him about these guns?
CHRIS FUGATE: Yes, sir.
MR. GORDON: And for the first time he says something about these Oxycontins to you?
CHRIS FUGATE: I am familiar with Josh, and I knew he had a drug problem.
MR. GORDON: Okay.
CHRIS FUGATE: And, therefore, I asked him why he had taken the guns, and � and he told me he had been trading them for the Oxycontin
MR. GORDON: My question to you, then, is did you ask him if he had any Oxycontin on him?
CHRIS FUGATE: No.
MR. GORDON: Did he inform you that he allegedly had made a trade just the night before?
CHRIS FUGATE: Yes, sir.
MR. GORDON: Okay, did you ask him for that particular Oxycontin?
CHRIS FUGATE: Did I ask him for the Oxycontin that he had gotten th night before? No, sir.
MR. GORDON: That he said he had gotten?
CHRIS FUGATE: No, sir. I didn�t.
MR. GORDON: Any particular reason why you didn�t?
CHRIS FUGATE: I figured he probably took it.
MR. GORDON: Did you ask him if he took it?
CHRIS FUGATE: No, sir.
MR. GORDON: Did you ask him if he had received any money the night before?
CHRIS FUGATE: No, sir.
MR. GORDON: Any particular reason why you didn�t do that?
CHRIS FUGATE: I figured he probably spent it on �
MR. GORDON: Did you ask him?
CHRIS FUGATE: No, sir.
MR. GORDON: Because that�s the kind of evidence that would have been evidentiary value, isn�t it?
MR. WEST: Objection, Your Honor.
THE COURT: Overruled.
CHRIS FUGATE: It could be, yes, sir, it could be.
MR. GORDON: Did you ask at any time where any of these alleged transactions took place if anyone was present when they took place?
CHRIS FUGATE: Yes, sir.
MR. GORDON: And what did he tell you?
CHRIS FUGATE: He said that � actually I asked him if anybody else in the residence had made any transactions �
MR. GORDON: Okay.
CHRIS FUGATE: �And he said no, that Leon was the only one.
MR. GORDON: Did you ask him if there was any people that were with him to observe these �
CHRIS FUGATE: No, sir.
MR. GORDON: You didn�t ask him that?
CHRIS FUGATE: No, sir.
MR. GORDON: Would not that have been important to you?
CHRIS FUGATE: Yes, sir, it probably would have been.
MR. GORDON: Okay, but you just chose not to ask that?
CHRIS FUGATE: Yes, sir.
MR. GORDON: Did you ask him if he had any � any pictures of these alleged transactions?
CHRIS FUGATE: No, sir, I didn�t.
MR. GORDON: Did you ask him if he � once you started asking about these Oxycontins and named Leon Combs, did you ask if he had any proof of any phone calls that he had made, long distance, local, whatever?
CHRIS FUGATE: No, sir, I didn�t.
MR. GORDON: You know what I am getting at by the phone calls?
CHRIS FUGATE: Yes.
MR. GORDON: Phone calls. Have you done drug investigations, sir?
CHRIS FUGATE: Few.
MR. GORDON: Phone calls of any relevance to you during these investigations?
CHRIS FUGATE: I have never � in my investigations I have never done any phone calls.
MR. GORDON: Well, I don�t mean wire tap, but once you arrest someone that has cooperating information, don�t you go back and try to get some phone calls that have been made?
CHRIS FUGATE: I never have, no, sir.
MR. GORDON: But you are familiar with what I am referring to, are you not?
CHRIS FUGATE: Yes.
MR. GORDON: Now, you said that when you placed, � well, when you came up to Mr. Combs, at some point you suggested that he should go into the house with you; is that right?
CHRIS FUGATE: No, sir, they brought Mr. Combs into the house while I was �
MR. GORDON: You were already in the house?
CHRIS FUGATE: Yes, sir.
MR. GORDON: All right, and in terms of who was asking him questions or so, was that you or Detective or Officer Sandlin � I mean Officer Napier?
CHRIS FUGATE: Actually we were all standing around, we were finished searching the residence, and Leon set in one chair; and I sat in the other across from him and Officer Sandlin and Sergeant Napier. And actually there were some more in there, and we all, we was just sitting there talking actually.
MR. GORDON: So just � you don�t know who asked that?
CHRIS FUGATE: I know what I asked him, you know. I knew Leon from � from before.
MR. GORDON: Okay.
CHRIS FUGATE: You know? And I was just talking to him, just casual talk.
MR. GORDON: All right? Now, these guns that were located, where were they?
CHRIS FUGATE: They were all through the house. There was two, like I said, I think it was two in the kitchen dining room area in a corner, leaned up in the corner. And then there was � I think there was one in the living room, one in the bedroom. They were just all over the house.
MR. GORDON: And were they loaded do you know?
CHRIS FUGATE: No, sir. I don�t believe any of the guns were loaded.
MR. GORDON: Have you fired any of these guns to see if in fact they were?
CHRIS FUGATE: No, sir.
MR. GORDON: Do you know � so you don�t know if they were or not?
CHRIS FUGATE: No, sir.
MR. GORDON: Do you know if anyone has tried them?
CHRIS FUGATE: I don�t know. I don�t think so.
MR. GORDON: Did you at some point go back over to that residence, or was that the only time you have been there?
CHRIS FUGATE: That�s the only time I went.
MR. GORDON: Never went back over there four or five days later�?
CHRIS FUGATE: I have not been back since.
MR. GORDON: All right. The gun that was found on his person on the day in question, did you� not that you would have needed to but I am just wondering, did you check for any fingerprints on that gun?
CHRIS FUGATE: No, sir.
MR. GORDON: It was never sent off for any fingerprints?
CHRIS FUGATE: No sir, it was not.
MR. GORDON: Just have a moment, Your Honor?
THE COURT: Yes, sir.
(Counsel for the defendant conferring with the defendant.)
MR. GORDON: That�s all.
THE DEFENDANT: Derek.
THE COURT: Redirect?
MR. GORDON: Just one second, Judge?
(Counsel for the defendant conferring with the defendant.)
MR. GORDON: Okay, that�s fine.
THE COURT: Redirect?
MR. WEST: Yes, sir.
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MR. WEST: Trooper Fugate, the � Mr. Gordon asked you a question concerning what Josh Miller said he traded the .270 rifle for?
CHRIS FUGATE: Yes, sir.
MR. WEST: What did he say to you he traded the .270 rifle for?
CHRIS FUGATE: He told me he got $40 and an Oxy 40.
MR. WEST: Mr. Gordon also asked you about any pictures that Josh Miller had or any audiotapes Josh Miller had from making buys from Leon Combs?
CHRIS FUGATE: YES.
MR. WEST: You said you have been a trooper for seven years?
CHRIS FUGATE: Yes.
MR. WEST: In your experience did you have audios or anything from someone buying drugs themselves?
CHRIS FUGATE: No, sir.
MR. WEST: In your description you said buying description for Oxy 20's? [Questionable transcription of this question!]
CHRIS FUGATE: No, sir.
MR. WEST: And for 40. Find any description for K4 Dilaudids? [Questionable transcription!]
CHRIS FUGATE: No, sir. I didn�t.
MR. WEST: Were any needles or syringes found?
CHRIS FUGATE: No, sir.
MR. WEST: Any pill crushers or splitters or snorters found inside the residence of Mr. Combs?
CHRIS FUGATE: No, sir.
MR. WEST: Was there any residue where the pills were made or crushed?
CHRIS FUGATE: No, sir.
MR. WEST: That�s all of this witness.
THE COURT: Recross, Mr. Gordon?
- - - - - - -
MR. GORDON: Your testimony is he was taking OC 20's or he was prescribed?
CHRIS FUGATE: He was prescribed Oxycontins.
MR. GORDON: So there was no question he was taking them? I mean, as far as you know?
MR. WEST: Objection, that calls for speculation.
THE COURT: It�S speculation.
MR. GORDON: You were asked have you ever been involved in an investigation for seven years. I mean in the seven years you have been a trooper, did you find any pictures or something taken of people who may be partying or any drug deals going on? In your seven years, have you ever come across that?
CHRIS FUGATE: After that we had made a buy?
MR. GORDON: Yes, sir.
CHRIS FUGATE: Yes, sir.
MR. GORDON: What about any ledgers of records that you may have found of drug sales?
CHRIS FUGATE: Yes, sir.
MR. GORDON; What about U. S. currency that may have been proceeds of drug sales?
CHRIS FUGATE: Yes, sir.
MR. GORDON: That�s all.
MR. WEST: Nothing further.
THE COURT: Redirect?
MR. WEST: No, sir.
THE COURT: Okay, may this trooper be finally excused?
MR. WEST: Yes, sir.
THE COURT: Thank you, Trooper Fugate, you may be excused. Next witness, please.
MR. WEST: Trooper Scotty Sandlin, please.
(Witness sworn.)
THE CLERK: Thank you.
THE COURT: You may ask.
MR. WEST: Thank you, Your Honor.
- - - - - - -
MR. WEST: Would you state your name and your occupation, please?
SCOTTY SANDLIN: Gary Scott Sandlin. I am employed with the Kentucky State Police.
MR. WEST: How long have you been with the State Police?
SCOTTY SANDLIN: Five months.
MR. WEST: What is your current assignment, sir?
SCOTTY SANDLIN: I am assigned to Post 13, Hazard, Kentucky as a trooper.
MR. WEST: Do you know Josh Miller?
SCOTTY SANDLIN: Yes, sir.
MR. WEST: How is he related to you?
SCOTTY SANDLIN: He is my nephew.
MR. WEST: On or about January 21 of this year, did you have occasion to receive a phone call from Josh Miller�s father, Ed Miller?
SCOTTY SANDLIN: Yes, sir.
MR. WEST: When you received the call, what steps did you take during the course of your occupation as a state trooper?
SCOTTY SANDLIN: My sister called, asked if I could come by, there were having a problem with Josh. So when I got down there, they told me what was going on with Josh, what Josh had been doing; taking some guns from the house.
MR. WEST: Did you call your supervisor in?
SCOTTY SANDLIN: Yeah, I called my supervisor, Joe Mack Allen.
MR. WEST: Was another trooper assigned to the case?
SCOTTY SANDLIN: Yes, sir.
MR. WEST: Who was that trooper?
SCOTTY SANDLIN: Trooper Chris Fugate.
MR. WEST: Were you assigned to another police post?
SCOTTY SANDLIN: Yes, sir.
MR. WEST: On January 22 did you assist to the search warrant of Leon Combs?
SCOTTY SANDLIN: Yes, sir.
MR. WEST: Tell the jury what you first saw when you approached the residence?
SCOTTY SANDLIN: As we crossed the bridge going to Mr. Leon Combs� residence, sir, he was sitting outside his residence in his car. As I got out of the car �
MR. WEST: Was his vehicle running, if you know, sir?
SCOTTY SANDLIN: Yes, sir, it was. As I got out of the Blazer and started toward his car, Mr. Combs got out and started walking towards us, he had his hands down in his pants like he was adjusting his pants or trying to conceal something. At that point I asked Mr. Combs to put his hands on the top of the Blazer and did pat-down search.
MR. WEST: What did you discover during the pat-down search?
SCOTTY SANDLIN: I found a .22 revolver or semi .22 automatic pistol in his right front pocket, some cash money. After that I asked him to step back from the Blazer because he was pressed up against it and asked him to undo his britches; and when he undid his britches, I pulled his underwear out, and down in the crotch was a white bottle. I asked him to remove it. When he did, I opened it up; and inside the bottle was 25 white pills.
MR. WEST: You are being shown what�s marked as Government�s Exhibit No. 8. Trooper Sandlin, after you � at some point when you came into contact with Mr. Combs, did you advise him of his rights?
SCOTTY SANDLIN; Yes, sir, after I searched him I advised him of his rights.
MR. WEST: Did he indicate to you he understood his rights?
SCOTTY SANDLIN: Yes, sir.
MR. WEST: Showing you Government�s Exhibit No. 8, can you identify that for me, please?
SCOTTY SANDLIN: Yes, sir, that was the bottle that was down inside his pants.
MR. WEST: Being shown what is marked as Government�s Exhibit No. 10 and 10A. Can you identify those items, please?
SCOTTY SANDLIN: Yes, sir, that�s the pistol that was in his right front coat pocket.
MR. WEST: And the smaller item, what is that, please?
SCOTTY SANDLIN: That�s the magazine that was in the pistol.
MR. WEST: At the time that you recovered that pistol from Mr. Combs� coat pocket, what was the condition of the clip?
SCOTTY SANDLIN: Inside the � inside the gun.
MR. WEST: Did it have rounds in it?
SCOTTY SANDLIN: Yes, sir, the magazine was loaded.
MR. WEST: For the record, is the individual that you searched in the courtroom?
SCOTTY SANDLIN: Yes, sir. (Indicating.)
MR. WEST: For the record, we would ask that the record reflect Trooper Sandlin has identified Mr. Combs.
THE COURT: Let the record so reflect.
MR. WEST: Trooper Sandlin, you said that 25 pills were recovered from inside the pill bottle?
SCOTTY SANDLIN: Yes, sir.
MR. WEST: What did you do with the 25 pills in the pill bottle and the gun and magazine after you located it?
SCOTTY SANDLIN: We escorted Mr. Combs inside the residence, and I gave the pills and gun to Trooper Fugat.
MR. WEST: Do you know what the makeup of those pills were, what different kinds they were?
SCOTTY SANDLIN: I believe they were Oxycontin 40's, Oxycontin 20's; and I am not sure what the other one was. It�s a Dilaudid pill. First time I ever saw it.
MR. WEST: This is marked as Govrnment�s Exhibit No. 9, if you would reach inside there and get some of the items out that are in there, please. There are several different packages there, is that correct?
SCOTTY SANDLIN: Yes.
MR. WEST: How many are there altogether?
SCOTTY SANDLIN: Five.
MR. WEST: Can you differentiate amongst those five packages the ones that came from inside the mobile home?
SCOTTY SANDLIN: Those. Those and those. These two were not in there (indicating).
MR. WEST: Of those three pill bottles, when you gave the pill bottle to Trooper Fugate, were the pills still located inside?
SCOTTY SANDLIN: Yes.
MR. WEST: Would you please box those small packages back in Exhibit No. 9?
(Witness complies.)
MR. WEST: Your Honor, for the record, we would move to enter into evidence Exhibit No. 8 which is the pill bottle. Exhibit No. 10 and 10A, please.
THE COURT: Objection?
MR. GORDON: No, sir.
THE COURT: Let them be filed.
(Exhibits admitted.)
MR. WEST: Trooper, when you went � brought Mr. Combs inside the residence, was there a particular area where everyone was located?
SCOTTY SANDLIN: Mostly everyone was just scattered out throughout the house searching the house.
MR. WEST: Was there a particular area that you brought Mr. Combs into?
SCOTTY SANDLIN: Yes, sir, we took him into the living room.
MR. WEST: At some point in time that you were with Mr. Combs inside the residence, did you hear him make any statements?
SCOTTY SANDLIN: Yes, sir.
MR. WEST: What did you hear him say?
SCOTTY SANDLIN: After we had been searching the house for awhile, we moved him back into the kitchen and him and Trooper Fugate and Officer Napier and myself; and I think there was a couple more officers in there, but I am not sure exactly. They were talking to Mr. Combs, and they asked Mr. Combs � I believe it was Officer Napier that asked Mr. Combs why he was selling pills. And Mr. Combs� answer was, �I sell them just to support my family because I only draw about $400 a month, and it�s hard to make ends meet.� [Note that in the suppression hearing it was testified to that he volunteered this statement that no one asked him.]
MR. WEST: Marshal, if you would, please, hand those back. Just the Exhibit No. 9, please.
MR. WEST: Did you participate in the search of the residence at all Trooper?
SCOTTY SANDLIN: Pardon me?
MR. WEST: Did you participate in the search of the residence?
SCOTTY SANDLIN: Yes, sir, I did.
MR. WEST: During the course of the search, what did you find, sir?
SCOTTY SANDLIN: In a, like a curio cabinet, there was a knife. I believe it was a Moby Dick type, the knife, a case, double X9, inside the curio cabinet. And outside the residence in a building was a weed eater, and I think that�s all that I located. [If the weed eater was taken it was not shown on the police report!]
MR. WEST: That�s all of this witness, Your Honor.
THE COURT: Trooper Sandlin, you said that pistol was loaded. Was there a round in the chamber?
SCOTTY SANDLIN: I do not remember if there was a round in the chamber, but the magazine was loaded.
THE COURT: Cross?
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MR. GORDON: Did you check to see if the � if there was a bullet in the chamber or not?
SCOTTY SANDLIN: I do not remember if I did or not, sir.
MR. GORDON: Now, you are saying that you specifically remember that in regard to a question that you believe Officer Napier may have asked that he did it to support his family because he only made $400 a month, only got $400 a month?
SCOTTY SANDLIN: Yes, sir, that was his statement, he only drew about $400 a month and it was hard to make ends meet on that, that�s why he was selling pills.
MR. GORDON: Okay, so the $400, you remember that now?
SCOTTY SANDLIN: Yes.
MR. GORDON: And that was the statement and an amount that the others heard too, right, that were there?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: Now, his wife was there at some point, too, was she not?
SCOTTY SANDLIN: Yes.
MR. GORDON: She would have been in the living room, is that right, at this time?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: And, of course, we � we talked a little bit about this yesterday, did we not?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: And his wife, she � okay, well, first of all, there was no door between the kitchen and the living room, is there?
SCOTTY SANDLIN: No----there is a doorway.
MR. GORDON: Well, yeah, yeah, but there is no hinges with a door?
SCOTTY SANDLIN: No, sir, not that I recall.
MR. GORDON: There is no door to open and close because there is no door?
SCOTTY SANDLIN: Right.
MR. GORDON; And his wife may or may not have been able to see everybody, but she could certainly have seen some people; is that right?
SCOTTY SANDLIN: Yes.
MR. WEST: I�ll object, that�s speculative.
THE COURT: He doesn�t know what she could have seen.
MR. GORDON: He said �Yes.�
MR. GORDON: Now, when you � when you approached the � the residence, you said that Mr. Combs was in his vehicle?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: Was his vehicle running?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: Did he appear that he was going somewhere?
SCOTTY SANDLIN: I cannot answer that. I do not know.
MR. GORDON: You couldn�t tell if he had just arrived or was leaving?
SCOTTY SANDLIN: No, sir.
MR. GORDON: But when you pulled up he got out?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: I think you said he dropped his arms down?
SCOTTY SANDLIN: Yeah, when he got out, he put them down in front of his waistband.
MR. GORDON: Well, he put them down so you could see, right?
SCOTTY SANDLIN: I can�t answer that, I don�t know if that�s what he was doing.
MR. GORDON: You didn�t draw your gun on him or anything, did you?
SCOTTY SANDLIN: No, sir.
MR. GORDON: Did anyone draw a gun on him?
SCOTTY SANDLIN; Yes, sir, I believe Officer Napier did.
MR. GORDON: He didn�t make any threat at you?
SCOTTY SANDLIN: No, sir.
MR. GORDON: He was cooperative with you?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: And you said you read him his rights?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: You didn�t place him under arrest at that point though?
SCOTTY SANDLIN: No, sir.
MR. GORDON: And I believe we talked about this. You didn�t think he was free to go, but you never placed him under arrest?
SCOTTY SANDLIN: No.
MR. WEST: Objection, that�s not relevant.
MR. GORDON: No, Your Honor, I am not asking for that.
THE COURT: That is not relevant. Objection is sustained.
MR. GORDON: I�ll move along.
MR. GORDON: You didn�t give a written statement in this case, did you Officer Sandlin?
SCOTTY SANDLIN: No, sir.
MR. GORDON: And I take it as part of the search that you � you got some items and then brought them back to Chris Fugate, is that right, who would have been�
SCOTTY SANDLIN: These items.
MR. GORDON: Yeah, those were the ones you found?
SCOTTY SANDLIN: On Mr. Combs, yes.
MR. GORDON: Right.
SCOTTY SANDLIN: Outside the residence. Inside the residence I located some items.
MR. GORDON: Right.
SCOTTY SANDLIN: We kind of just put them all in one general location.
MR. GORDON: You put them in a collection bag, and Officer Fugate marked it off who got it; who gave it to him?
SCOTTY SANDLIN: I assume so, yes.
MR. GORDON: Now, when the phone call was made to you from your brother, was it your brother?
SCOTTY SANDLIN: My sister.
MR. GORDON: Your sister? Is that I. J.�s wife?
SCOTTY SANDLIN: No, it was Ed�s wife. Josh�s mother called me.
MR. GORDON: Did you know there was some problem with your nephew?
SCOTTY SANDLIN: No, sir.
MR. GORDON: That came as a shock to you?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: You didn�t know he had a drug problem?
SCOTTY SANDLIN: No, sir.
MR. GORDON: You hadn�t read that?
SCOTTY SANDLIN: I had not heard that, nope.
MR. GORDON: Are you at the same post that the officer just testified here before you is, Christ Fugate?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: Okay, do you � and you do the same kind of work he does, right?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: But yet you didn�t hear he had a drug problem?
SCOTTY SANDLIN: No, sir.
MR. GORDON: He didn�t tell you about it, Chris Fugate, that your nephew might have a drug problem?
SCOTTY SANDLIN: Prior to that?
MR. GORDON: Yes, sir.
SCOTTY SANDLIN: No, sir.
MR. GORDON: You were totally dumbfounded by it all?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: These guns here, did you actually retrieve any of those?
SCOTTY SANDLIN: Inside the residence?
MR. GORDON: Yes, sir.
SCOTTY SANDLIN: No, sir, I think the other officers �
MR. GORDON: I am just asking you if you did.
SCOTTY SANDLING: No, sir, I didn�t.
MR. GORDON: Okay. Did you ever fire any of those?
SCOTTY SANDLIN: No, sir.
MR. GORDON: Just have a moment, Your Honor.
(Counsel for the defendant conferring with the defendant.)
MR. GORDON: That�s all.
THE COURT: Redirect, Mr. West?
MR. WEST: Yes, Your Honor.
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MR. WEST: Trooper Sandlin, you said you have been off five months?
SCOTTY SANDLIN: Yes.
MR. WEST: When have you been at the police academy?
SCOTTY SANDLIN: June of last year to November.
MR. WEST: No further questions.
THE COURT: Recross, Mr. Gordon?
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MR. GORDON: From November 16 to January 21 or 22, where were you � where were you loacted?
SCOTTY SANDLIN: I was assigned to Breathitt County.
MR. GORDON: In Breathitt County?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: Where were you living?
SCOTTY SANDLIN: In Perry County.
MR. GORDON: Okay, are you out at � is there one post for all of you there, or what is that?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: Where is that?
SCOTTY SANDLIN: Post 13.
MR. GORDON: Hazard?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: Is that the same post Fugate�s at?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: Would you have seen your nephew during this period of time?
SCOTTY SANDLIN: I am sure I did, yes, sir.
MR. GORDON: You seen your sister during this period of time?
SCOTTY SANDLIN: Yes, sir.
MR. GORDON: So you visited with your nephew?
SCOTTY SANDLIN: Yes.
MR. GORDON: All right. Been over to the house?
SCOTTY SANDLIN: Yes.
MR. GORDON: He had been over to your home?
SCOTTY SANDLIN: Can�t recall him coming to my home, no.
MR. GORDON: But you visited with him at his home?
SCOTTY SANDLIN: Yes.
MR. GORDON: That�s all.
THE COURT: Recross or redirect?
MR. WEST: No, sir.
THE COURT: May this witness be finally excused?
MR. WEST: Yes, Your Honor.
THE COURT: Okay, thank you, Trooper. You are excused. Ladies and gentlemen of the jury, during your evening recess, remember the admonition of the court. Don�t discuss this case amongst yourselves or allow anybody to discuss it with you. Don�t make up your mind about the case for you haven�t heard all the evidence or the instructions of the court. Don�t read anything in the newspaper, listen to anything on the radio, watch anything on the television touching on this case in any way; and I�ll see you back here tomorrow morning at 9:00. You may show the jury from the courtroom.
THE MARSHAL: All rise for the jury.
(Jury excused.)
THE COURT: Let the record reflect that the jury is out of the courtroom. Anything we need to take up outside the presence of the jury at this time, Mr. West?
MR. WEST: Your Honor, just advise the court Miss Eversole has been located. She will be spending the night at the Franklin County jail. Anticipate her testimony in the morning. I need a few moments with her.
THE COURT: Anything, Mr. Gordon?
MR. GORDON: No.
THE COURT: Court will be in recess until 9:00 � or until 4:10. This matter will be in recess until 9:00 tomorrow morning.
(Evening recess taken at 3:59 p.m. until 9:00 a.m. April 19, 2001.)
[NOTE INDEX OF THESE PROCEEDINGS AND A LIST OF THE EXHIBITS FOLLOWED BUT WERE NOT INCLUDED IN THIS UNOFFICIAL TRANSCRIPTION]
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VOLUME II OF II
Thursday morning session,
April 19, 2001, 9:00 a.m.
THE COURT: Mr. Thompson got himself locked out.
Let the record reflect that the parties are present in the courtroom by and with counsel, that the jury is in the box. We�ll waive the poll of the jury. Next witness, Mr. West.
MR. WEST: Detective Keith Napier, please.
THE CLERK: Please raise your right hand.
(Witness sworn.)
THE CLERK: Thank you.
THE COURT: You may ask.
MR. WEST: Thank you, Your Honor.
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MR. WEST: Would you state your name and your occupation, please, sir?
KEITH NAPIER: Keith Napier, police officer, City of Hazard.
MR. WEST: How long have you been with the Hazard Police Department?
KEITH NAPIER: Approximately nine years.
MR. WEST: And what is your current rank at the Hazard PD?
KEITH NAPIER: Detective sergeant.
MR. WEST: And in the latter part of the year 2000, did you begin work with the Kentucky State Police post there in Hazard?
KEITH NAPIER: Yes, sir, I did.
MR. WEST: What was your function with that group?
KEITH NAPIER: We were doing a joint effort investigation into the illegal sale of drugs in Perry County.
MR. WEST: Pursuant to that investigation, did you have an opportunity to come in contact with the name of anybody by the name of Joyce Eversole?
KEITH NAPIER: I did.
MR. WEST: Do you recall about what date you came in contact with Joyce Eversole began in this case, please?
KEITH NAPIER: I believe it was in November of 2000.
MR. WEST: Did Miss Eversole � what was to be her role in your work with her?
KEITH NAPIER: She was a confidential witness.
MR. WEST: Okay, what does that mean?
KEITH NAPIER: She was cooperating with � with us in purchasing illegal drugs in Perry County.
MR. WEST: Detective, on or about November the 14th , did you have occasion to come into contact with Miss Eversole directly, please?
KEITH NAPIER: Yes, I did.
MR. WEST: And what was to be the function of your operation on that evening?
KEITH NAPIER: She was supposed to purchase Oxycontin from Leon Combs.
MR. WEST: Now, about what time of the day did this operation begin?
KEITH NAPIER: I think we actually purchased the Oxycontin around 7:00 or 7:30 in the evening.
MR. WEST: Now, tell the jury, please, what happened on that night. I guess you all stayed in a certain location; is that correct?
KEITH NAPIER: Yes, we did.
MR. WEST: Tell us what happened from the time you staged up until the time you first made contact?
KEITH NAPIER: We were supposed to meet Leon Combs up on Second Creek Road. We waited at that location until he arrived at the location.
MR. WEST: When you say �we� who do you mean?
KEITH NAPIER: Me and Joyce Eversole.
MR. WEST: Were you on foot, were you in a vehicle?
KEITH NAPIER: We were in a vehicle.
MR. WEST: What vehicle was that?
KEITH NAPIER: It was a white Chevrolet.
MR. WEST: Is that a police vehicle?
KEITH NAPIER: Yes, it is.
MR. WEST: And who was driving?
KEITH NAPIER: I was.
MR. WEST: About how far from the Hazard State Police post is that residence of Mr. Combs there on Second Creek?
KEITH NAPIER: I would estimate about 3 miles.
MR. WEST: Tell the jury, please, what happened when you first got there.
KEITH NAPIER: When we got to the location, I gave Joyce Eversole $1,000 and installed a recording device on her, and we met Mr. Combs. He pulled up and she got in the vehicle with him and left.
MR. WEST: Was this during daylight hours or was it already nighttime?
KEITH NAPIER: It was nighttime.
MR. WEST: When Mr. Combs pulled up, I assume he was in a vehicle also?
KEITH NAPIER: Mr. Combs?
MR. WEST: Yes.
KEITH NAPIER: Yes, sir, he was.
MR. WEST: Do you recall what kind of vehicle that was?
KEITH NAPIER: It was a gold, I believe Chevrolet.
MR. WEST: From where you were parked, how did Mr. Combs� vehicle wind up in connection to where your vehicle was parked?
KEITH NAPIER: His vehicle was behind mine.
MR. WEST: Did it pull up directly behind or a distance behind or how far?
KEITH NAPIER: It was fairly close to the rear of my vehicle.
MR. WEST: What distance in regards to an object in this courtroom, if you could just kind of �
KEITH NAPIER: Approximately from here to the podium where you are standing.
MR. WEST: Was there anything in between your vehicle and his vehicle that pulled behind him?
KEITH NAPIER: No, sir.
MR. WEST: Did you look at the driver of this vehicle?
KEITH NAPIER: I did.
MR. WEST: Could you identify him?
KEITH NAPIER: I later learned what his name was?
MR. WEST: Let me ask you if you see that person in the courtroom today?
MR. GORDON: Objection.
THE COURT: Overrule.
MR. GORDON: Well �
THE COURT: Overrule.
MR. GORDON: He indicated when � may we approach then?
THE COURT: Yes.
(A bench conference was had between the Court and counsel out of the hearing of the jury.)
THE COURT: You haven�t told me about Texas. [What the hell does this mean?]
MR. GORDON: We don�t know where he stands from what he said because there is nowhere to stand in the Federal Court. [AND WHAT THE HELL DOES THIS MEAN?]
THE COURT: It�s not a distance like Texas. I hate to tell you this, Dorothy, but this isn�t Kansas.
MR. GORDON: Texas.
THE COURT: Or Texas. Dorothy in Kansas, you know.
MR. GORDON: The witness was asked to identify, �Were you able to tell who, were you able to identify distance.� �I learned later who he was.�
MR. WEST: What his name was.
MR. GORDON: What his name was.
THE COURT: Then he says, �Can you identify the person who you saw.�
MR. GORDON: I think he should clear that up later.
THE COURT: Well, the fact that he said, �I later learned what his name was,� doesn�t mean that he can�t identify him.
MR. GORDON: Maybe I misunderstood.
THE COURT: I thought so.
(End of bench conference.)
THE COURT: You may resume.
MR. WEST: Thank you, Your Honor.
MR. WEST: Detective, do you see that person in this courtroom that you saw on that evening?
KEITH NAPIER: Yes, sir, I do.
MR. WEST: Would you point him out for this jury, please?
KEITH NAPIER: He is sitting next to Mr. Gordon.
MR. WEST: May I ask that the record reflect the detective has identified the defendant, Leon Combs.
THE COURT: Let the record so reflect.
MR. WEST: Detective Napier, about how long were you at that location there on Second Creek?
KEITH NAPIER: Approximately twenty minutes.
MR. WEST: After Mr. Combs pulled up in his vehicle � in his vehicle, did he get out of his vehicle?
KEITH NAPIER: No, sir, he did not.
MR. WEST: What happened?
KEITH NAPIER: Joyce Eversole got in the vehicle with him and they � they left.
MR. WEST: Did you stay at that Second Creek location?
KEITH NAPIER: Yes, sir, I did.
MR. WEST: When was the next time that you came into contact with Miss Eversole?
KEITH NAPIER: Approximately twenty minutes later when she returned.
MR. WEST: Did she return to the same location?
KEITH NAPIER: Yes, sir.
MR. WEST: What took place then?
KEITH NAPIER: She exited the gold Chevrolet and got back in my vehicle.
MR. WEST: Was that the same gold Chevrolet as before?
KEITH NAPIER: Yes, sir.
MR. WEST: And who was driving that gold Chevrolet?
KEITH NAPIER: Mr. Combs.
MR. WEST: After she got back in your vehicle, what happened then, sir?
KEITH NAPIER: She gave me 25 Oxycontin, 40 milligrams, which she � she had just purchased, and I stopped the reporting device and took the reporting device from her.
MR. GORDON: Ask him to speak up a little bit, please, Judge. I can�t hear him.
THE COURT: If you would sit a little closer to the microphone.
KEITH NAPIER: I removed the reporting device from her and stopped it at that time.
MR. WEST: Detective Napier, you are being shown what�s marked as Government�s Exhibit No. 12, ask if you could open that item, please?
KEITH NAPIER: (Complies)
MR. WEST: Did you have an opportunity to look at those, Detective?
KEITH NAPIER: Yes, sir.
MR. WEST: Can you identify them, please?
KEITH NAPIER: They are Oxycontin, 40 milligrams.
MR. WEST: And how many are there there? Or rather than tearing the whole bag open, let me ask you this. Are those pills that Miss Eversole gave you?
KEITH NAPIER: They are packaged the same way that they were given to me.
MR. WEST: What did you do with those pills after you received them from Miss Eversole?
KEITH NAPIER: I gave them to Detective Dan Smoot.
MR. WEST: And who is he?
KEITH NAPIER: He is a detective with the Kentucky State Police in Hazard.
MR. WEST: Would you place those back in the bag for me, please, sir?
KEITH NAPIER: Yes.
MR. WEST: Detective, on January 22nd of the year 2001, did you have occasion to participate in the execution of a search warrant Second Creek Road at the residence of Mr. Leon Combs?
KEITH NAPIER: I did.
MR. WEST: Tell the jury, please, what you first saw when you got there?
KEITH NAPIER: When we arrived at the residence, Mr. Combs was in a vehicle leaving; and as we approached he got out of his vehicle, and he � he was searched. We found Oxycontin in a pill bottle down in his pants and also a Phoenix arms .22 in one of his coat pockets.
MR. WEST: Now, did you personally do the search there yourself?
KEITH NAPIER: I was present, but I did not actually do the search of Mr. Combs.
MR. WEST: Was this � was this vehicle, was it the same vehicle that you saw earlier when the buy took place?
KEITH NAPIER: No, sir, it was a different vehicle.
MR. WEST: After this � Mr. Combs was searched outside the residence on the 22nd , what was done with him then?
KEITH NAPIER: He was taken inside the residence. We went inside.
MR. WEST: Just � just for clarity, was this the same location that you and Miss Joyce Eversole met Mr. Combs down at Second Creek Road?
KEITH NAPIER: It was just across the street and down the street just a short distance from the residence.
MR. WEST: All right. Now, while you were inside the � Mr. Combs� residence, who all was in there other than the law enforcement officers?
KEITH NAPIER: I believe Mr. Combs� wife was there.
MR. WEST: During the course of the time that you were inside the residence, did you have an occasion to listen or hear Mr. Combs make any statements?
KEITH NAPIER: Yes, sir. I did.
MR. WEST: What did Mr. Combs state that you can recall?
KEITH NAPIER: He said that he only sold pills to support his family, that he did not have � he only had $400 a month coming in, and he couldn�t live off of that amount of money.
MR. WEST: One second.
(Counsel for plaintiff conferring.)
MR. WEST: That�s all at this time, Your Honor.
THE COURT: All right. Cross?
MR. GORDON: Yes, Your Honor.
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MR. GORDON: Officer Napier, my name�s Derek Gordon, and, of course, you know my name. I noticed you said it there. And I represent Leon Combs, as you well know. Let me ask you first about the statement at the very end there. You testified two days ago about this statement, didn�t you, you said something about it?
KEITH NAPIER: Yes, sir.
MR. GORDON: And you also made a report on the night in question, did you not?
KEITH NAPIER: A report �
MR. GORDON: You made a report subsequent to your investigation, did you not?
KEITH NAPIER: A supplement �
MR. GORDON: Yeah?
KEITH NAPIER: Yes, sir.
MR. GORDON: Okay, and I notice that � I don�t see anything in there about the $400, that you said that, �I only make � I only get $400 from the government and, therefore, that�s not enough.�
KEITH NAPIER: Uh-huh.
MR. GORDON: I notice that�s not in your report. Any particular reason why that wouldn�t be? Seems to be something that you remember now.
KEITH NAPIER: Sir, I guess that I just omitted it from the report.
MR. GORDON: Do you�
KEITH NAPIER: I do recall that statement being made at that time.
MR. GORDON: Do you recall making that statement on Tuesday or did you � did you omit it then, too?
KEITH NAPIER: I am not sure if I made it Tuesday or not.
MR. GORDON: Okay, well, I don�t remember you making it but �
KEITH NAPIER: Okay.
MR. GORDON: You are saying now that you remember?
KEITH NAPIER: I believe he said that he only had $400 per month and �
MR. GORDON: Uh-huh? Now, when you did this report though, it would have been closer in time to the � to the arrest; is that right?
KEITH NAPIER: Sir, is there a date on that report?
MR. GORDON: Yeah, there is. Yeah, it�s 1-22, the date of arrest. Didn�t you arrest him on 1-22?
KEITH NAPIER: No, sir, I did not arrest him.
MR. GORDON: I�m sorry?
KEITH NAPIER: I did not arrest him.
MR. GORDON: Do you go out to the scene and he was arrested �
KEITH NAPIER: Yes, sir, I was present on that day.
MR. GORDON: On 1-22. Your report was made on the day he was arrested; is that right?
KEITH NAPIER: I am not sure.
MR. GORDON: Okay, let me show you then.
MR. GORDON: May I approach the witness, Your Honor?
THE COURT: Yes, sir.
MR. GORDON: You are Detective Keith Napier, right?
KEITH NAPIER: Yes, sir.
MR. GORDON: Down there at the bottom?
KEITH NAPIER: Sir.
MR. GORDON: Pardon me?
KEITH NAPIER: Return it to you, sir?
MR. GORDON: Did you look at the date there?
KEITH NAPIER: It�s � the date reflects 1-22.
MR. GORDON: You didn�t put that in your report. Have you talked to Officer Sandlin from the Kentucky State Police after he testified?
KEITH NAPIER: We have spoke, yes, we have, sir.
MR. GORDON: Did you talk about the $400?
KEITH NAPIER: I don�t remember discussing the $400 with him.
MR. GORDON: Did you all discuss the statement that you all apparently heard that day?
KEITH NAPIER: I believe we � we may have discussed it.
MR. GORDON: Okay, after he testified?
KEITH NAPIER: I don�t remember if it was before or after he testified, sir.
MR. GORDON: Do you know that you are not supposed to talk about testimony after a witness testifies?
KEITH NAPIER: I � yes. I don�t know if we discussed it before or after.
MR. GORDON: You would agree with me that the $400 is not mentioned in your report?
KEITH NAPIER: Yes, sir. I do.
MR. GORDON: You saw that?
KEITH NAPIER: Yes, sir. I do.
MR. GORDON: Now, you are saying that you do remember that being made?
KEITH NAPIER: Yes, sir, I believe he did make that.
MR. GORDON: Who � who asked that statement?
KEITH NAPIER: The �
MR. GORDON: You know, who got the response? Was it you or was it Sandlin, do you know? Or was it Fugate, do you know?
KEITH NAPIER: We were all present at that time, I believe, in the kitchen, I think. And I believe I said, �Leon, you know better than this,� then he made the statement.
MR. GORDON: Okay. Now, you said that you came to know who this person was later on? Were you able to identify this person or did you � I mean, you obviously can identify the person now, he is sitting here. You know this case is the United States v. Leon Combs. It�s obvious that � to everyone, you know, who the defendant is. At what point were you able to identify this person? Did you know�could you tell who he was that night?
KEITH NAPIER: I knew for sure that it was Leon Combs. Physically I could � by his looks, I could recognize him again. I knew for a fact that it was Leon Combs when we executed the search warrant at the residence.
MR. GORDON: Did you � when you were � were you the driver of your vehicle that night, sir?
KEITH NAPIER: Which night, sir?
MR. GORDON: The night of November 14th of the year 2000?
KEITH NAPIER: Yes, sir, I was.
MR. GORDON: Were you � okay. Did you look this way and turn completely around, or did you look this way and turn completely around (demonstrating)?
KEITH NAPIER: I could look over both shoulders from where he was parked. I also could look over the left shoulder as he was leaving.
MR. GORDON: Okay.
KEITH NAPIER: And �
MR. GORDON: Were his windows tinted?
KEITH NAPIER: I don�t remember if the windows were tinted or not.
MR. GORDON: How dark was it that night? What time was it?
KEITH NAPIER: I believe it was about 7:00 p.m., sir.
MR. GORDON: Was it dark that night, sir?
KEITH NAPIER: Yes, it was.
MR. GORDON: On November the 14th? So it was dark, you are not sure if the windows were tinted?
KEITH NAPIER: The door was open on the vehicle that � that he was in. It was opened.
MR. GORDON: The driver�s door or the passenger door?
KEITH NAPIER: The passenger door, and I could see through into the vehicle.
MR. GORDON: Okay. Well, you have got � you have the vehicle here, and then are you saying that � that the other vehicle was right behind you?
KEITH NAPIER: Which vehicle are we referring to, and which location, sir?
MR. GORDON: We are only talking about two vehicles.
KEITH NAPIER: Yes, sir.
MR. GORDON: On 11-14 of the year 2000. Your vehicle was in front of this other vehicle that you have referred to as the driver being Leon Combs, all right?
KEITH NAPIER: Right. Yes, sir.
MR. GORDON: The government asked you the position of the vehicles?
KEITH NAPIER: Right.
MR. GORDON: All right? Your vehicle is in front, the other vehicle almost directly behind or�
KEITH NAPIER: It was behind my vehicle.
MR. GORDON: Behind your vehicle?
KEITH NAPIER: Uh-huh.
MR. GORDON: Okay. So if � if you are looking behind �
KEITH NAPIER: If you are turning around like that, you can see through the light of the passenger door and be able to identify or at least get the physical description of the person behind the wheel; is that what you are saying?
KEITH NAPIER: I could tell he had long hair and a goatee, sir.
MR. GORDON: Okay, but you don�t remember if � if the windows were tinted?
KEITH NAPIER: I can�t remember.
MR. GORDON: Okay.
KEITH NAPIER: I don�t remember that.
MR. GORDON: But � okay, but did you � okay, when you saw this person, were you able to put a name to that person that evening?
KEITH NAPIER: At that time I did not know definitely that he was Leon Combs.
MR. GORDON: All right. You obviously know that is Leon Combs now as he sits here.
KEITH NAPIER: Yes, sir.
MR. GORDON: Right?
KEITH NAPIER: Yes, sir.
MR. GORDON: Okay. Now did you have these phone calls monitored?
KEITH NAPIER: The phone calls �
MR. GORDON: The phone calls from this Joyce Eversole to one Leon Combs that you say that � I mean, there had to be some contact, you didn�t just meet somewhere, did you?
KEITH NAPIER: I believe she contacted him by phone.
MR. GORDON: Okay, my question is were those phone calls monitored?
KEITH NAPIER: Monitored or recorded, sir? Just someone present when the phone call was made?
MR. GORDON: Right.
KEITH NAPIER: Yes, sir.
MR. GORDON: They were?
KEITH NAPIER: Yes, sir.
MR. GORDON: How many phone calls did she make?
KEITH NAPIER: I believe she called two times when I was present with her and he � Mr. Combs � wasn�t there, and the third time she called I believe he was there.
MR. GORDON: Okay, the third time that she called you believe he was there. Were you present?
KEITH NAPIER: Yes, sir, I was.
MR. GORDON: How many other times did she call when you weren�t present?
KEITH NAPIER: I have no idea, sir.
MR. GORDON: Okay.
KEITH NAPIER: Those are the phone calls that I am aware of that we were speaking of.
MR. GORDON: Right. So you don�t know if she called six or seven times before that, do you?
KEITH NAPIER: I don�t know that, sir.
MR. GORDON: These are calls, I guess, from the station?
KEITH NAPIER: I believe they were made from a cell phone, sir.
MR. GORDON: From your cell phone?
KEITH NAPIER: I believe so.
MR. GORDON: Well, what do you mean you believe so?
KEITH NAPIER: I am trying to recall. They were definitely made from a cell phone.
MR. GORDON: Okay, and this � this meeting place, which you say took place down from Secnd Creek, who � who set that up, Joyce?
KEITH NAPIER: I believe Mr. Combs told her to � Mr. Combs told her to meet him there.
MR. GORDON: Did you ever see the residence that evening?
KEITH NAPIER: Mr. Combs� residence?
MR. GORDON: Yes, sir.
KEITH NAPIER: No, sir.
MR. GORDON: You did not?
KEITH NAPIER: I didn�t.
MR. GORDON: Okay, and did she ask for, what, OC�s or something?
KEITH NAPIER: She asked for OC�s during the phone call.
MR. GORDON: Specifically asked for OC�s?
KEITH NAPIER: I believe she did.
MR. GORDON: Okay. 40's, 20's, what did she ask for?
KEITH NAPIER: I can�t remember the � I am not sure the milligram that she asked for.
MR. GORDON: Well, why didn�t she just go over to the residence and pick them up over there?
KEITH NAPIER: I don�t know why she didn�t go over to the residence.
MR. GORDON: You didn�t get them at that residence, did you?
KEITH NAPIER: No, we did not purchase the � the November buy was not made from the residence.
MR. GORDON: Okay, and you didn�t see the � the purchase go down, did you, because you weren�t there?
KEITH NAPIER: No, sir, I wasn�t.
MR. GORDON: But you can tell us that � that they � that they were gone for twenty minutes, right?
KEITH NAPIER: Yes, sir.
MR. GORDON: That you know that it did not occur at Second Creek, right?
KEITH NAPIER: I am not an eye witness to it occurring at Second Creek.
MR. GORDON: All right. And that you gave her $1,000, right?
KEITH NAPIER: Correct.
MR. GORDON: Okay. Was it marked money?
KEITH NAPIER: No, sir.
MR. GORDON: Was it buy money?
KEITH NAPIER: It was �
MR. GORDON: It was buy money, but it wasn�t marked money?
KEITH NAPIER: Correct.
MR. GORDON: Did you search her?
KEITH NAPIER: I did a visual search of her, had her pull her pants legs up and those types of things.
MR. GORDON: Did a visual search?
KEITH NAPIER: Yeah.
MR. GORDON: What�s a visual search?
KEITH NAPIER: Always like have them pull their � you have them like pull their pockets out or pull their pants legs up and their socks.
MR. GORDON: Did you make her take her pants down?
KEITH NAPIER: No, sir, I did not.
MR. GORDON: Did you make her take her shoes off?
KEITH NAPIER: No, sir, I did not.
MR. GORDON: You would agree with me those OC�s there can be placed inside your � your undergarments, in your shoes, in your socks, correct? I mean, we are not talking about some big bulk, you know, we are not talking about a computer or something that we are trying to hide in a sock; we are talking about those little things out there. You would agree with that?
KEITH NAPIER: They could.
MR. GORDON: Did you check �
KEITH NAPIER: She had always been reliable in the past, the amounts always worked out the way they were supposed to. [THIS STATEMENT WOULD SUGGEST THAT OTHER VICTIMS COULD VERY WELL HAVE BEEN INVOLVED IN THIS KEITH NAPIER/JOYCE EVERSOLE SITUATION!]
MR. GORDON: All right, but I am asking about this night in question, you didn�t check her in those areas?
KEITH NAPIER: No, sir, I did not.
MR. GORDON: All right. She comes back at some point and she�s got $1,000, is that right? Did you ask anything about any guns or anything, any weapons or anything?
KEITH NAPIER: Did I?
MR. GORDON: Yes, sir.
KEITH NAPIER: No, sir.
MR. GORDON: Was there any mention of any weapons?
KEITH NAPIER: No, sir.
MR. GORDON: Did you take any pictures that night?
KEITH NAPIER: I did not.
MR. GORDON: Had she been doing drugs that evening?
KEITH NAPIER: To my knowledge she had done no drugs at all.
MR. GORDON: Was she in trouble? Had she gotten in some trouble?
KEITH NAPIER: I am not sure if � what type of trouble she was in.[SUCH AN ANSWER WOULD SUGGEST HE KNEW SHE WAS IN SOME KIND OF TROUBLE THOUGH.]
MR. GORDON: It wasn�t over a check or something?
KEITH NAPIER: Could have been.
MR. GORDON: What do you mean �it could have been�?
KEITH NAPIER: I really � to be honest with you, I don�t know. I did not � she was interviewed by someone else, and then I was assigned that night to go with her.
MR. GORDON: Well, the information that � that was � that was learned in the debriefing from the detective who interviewed her, was that not passed on to you?
KEITH NAPIER: There was details discussed about her, but as far as if she was � what type of trouble she was in or something, I was not aware of that.
MR. GORDON: Not aware of it?
KEITH NAPIER: No, sir, I am not.
MR. GORDON: So if she would have had a drug problem, that would not have been a concern, that would not have been passed on to you as well?
KEITH NAPIER: I believe if she had had a drug problem or had been a serious addict I would have been made aware of it.
MR. GORDON: And you were not aware of it?
KEITH NAPIER: I was not aware that she had been � well, no I wasn�t.
MR. GORDON: Now, those pills, you can�t say for sure those are the pills that evening, right? They just appear to be the ones because they are packaged about the same, is that what you are saying?
KEITH NAPIER: They are packaged the same way that they were given to me by Miss Eversole that night.
MR. GORDON: Okay. You said that they were gone for about twenty minutes; is that right?
KEITH NAPIER: Approximately twenty minutes.
MR. GORDON: Okay. Now, in regard to the � the search of the residence which occurred? Two months later, about seven weeks thereafter, you � you came upon the residence, which was not where the � these earlier pills had been purchased and not where you went that evening; is that right?
KEITH NAPIER: Correct, sir.
MR. GORDON: Referring to November the 14th. And at some point you went inside of the residence; is that right?
KEITH NAPIER: Some � yes. Went inside the residence.
MR. GORDON: With Fugate, with Sandlin, and a bunch of other people?
KEITH NAPIER: Yes, sir.
MR. GORDON: Okay, and that�s when I was talking to you at the very beginning, that�s when you heard this particular statement that was made?
KEITH NAPIER: Yes, sir.
MR. GORDON: And you would agree with me that his wife was in there; is that right?
KEITH NAPIER: She was in the house.
MR. GORDON: Yeah, was she in the living room?
KEITH NAPIER: I am not sure where she was at in the house. She could have been �
MR. GORDON: There is no door between the kitchen and the living room, is there?
KEITH NAPIER: Seems like � seems like there is just a doorway maybe.
MR. GORDON: A doorway?
KEITH NAPIER: Yes, sir, I believe there is a doorway with no door.
MR. GORDON: So you can see in, right?
KEITH NAPIER: Depending on where you are in the kitchen, probably.
MR. GORDON: Sure. And you can hear, correct? Providing the person is within some, you know, some proximity?
KEITH NAPIER: I would think so.
MR. GORDON: Okay. Now, you have been sitting back in this back room back here, have you not?
KEITH NAPIER: Yes, sir.
MR. GORDON: Okay, and all the witnesses have been sitting back there; is that right?
KEITH NAPIER: Actually I think I have been in the U. S. Attorney�s office, not this particular back room.
MR. GORDON: I didn�t mean this back room. I meant the back room over there. Not referring to the back room here, over there?
KEITH NAPIER: Yes, sir.
MR. GORDON: And all the witnesses are sitting back there, right?
KEITH NAPIER: Some are in there, some are in here.
MR. GORDON: Yeah. When you had this conversation with � with Sandlin, did that take place back there in the U. S. Attorney�s room, back there?
KEITH NAPIER: I am not sure if we were in the U. S. Attorney�s room or not, I really don�t remember�
MR. GORDON: Was anyone else present when you were talking about it?
KEITH NAPIER: I---- I don�t know, I am not ---- not sure.
MR. GORDON: Just have a moment, Your Honor.
THE COURT: All right, sir.
(Counsel for the defendant conferring with the defendant.)
MR. GORDON: That�s all, Your Honor, thank you.
THE COURT: Redirect, Mr. West?
MR. WEST: Yes, sir.
- - - - - - -
MR. WEST: Detective Napier, that package there that we talked about with the pills in it, when you received the pills from Miss Eversole, did you repackage them, put them in any other package to put them in that?
KEITH NAPIER: No, sir.
MR. WEST: When you gave them to Detective Smoot did you observe them in any other package?
KEITH NAPIER: No, sir, I observed them in this package and when I gave them to Detective Smoot.
MR. WEST: Did you open them up at all between the time Miss Eversole gave them to you and the time you gave them to Mr. Smoot?
KEITH NAPIER: No, sir.
MR. WEST: You did a visual search. Why do a visual search with a cooperating witness?
KEITH NAPIER: Just to check Miss Eversole best I could.
MR. WEST: For what?
KEITH NAPIER: Make sure she had no drugs on her.
MR. WEST: And were you satisfied on that day that she had no drugs or other items on her?
KEITH NAPIER: I was.
MR. WEST: Mr. Gordon also asked you about Mr. Combs� wife inside the residence when the statement was made. If I recall your testimony correctly, the statement that you attributed to Mr. Combs was in the kitchen, correct?
KEITH NAPIER: That�s correct, sir.
MR. WEST: Was his wife any � in any part of that conversation in the kitchen?
KEITH NAPIER: No, sir, she was not.
MR. WEST: Mr. Thompson, if you would?
MR. WEST: Mr. Gordon asked you about the statement about the $400. I would show you your report. I have bracketed the last sentence. Do you see the brackets there, sir?
KEITH NAPIER: Yes, sir.
MR. WEST: Is that the report that Mr. Gordon was referring to?
KEITH NAPIER: Yes, it is.
MR. WEST: What is the date at the bottom of that report, please?
KEITH NAPIER: 1-22-01
MR. WEST: Would you read what that says?
KEITH NAPIER: �Mr. Combs stated to Detective Keith Napier that he only sold pills to support his family, that he could not live on the amount of money that he received from the government.�
MR. WEST: And you recall today that amount of money being $400?
KEITH NAPIER: I believe that � I believe he said $400.
MR. WEST: And then, of course, you admit that $400 is not mentioned there?
KEITH NAPIER: Yes, sir, it�s not mentioned.
MR. WEST: Other than that, is that statement accurate?
KEITH NAPIER: Yes, sir.
MR. WEST: And the exhibit, too, Mr. Thompson. That�s all of this witness, Your Honor.
THE COURT: Recross, Mr. Gordon?
MR. GORDON: No, Your Honor.
THE COURT: May this witness be finally excused?
MR. GORDON: Well, let me just ask one thing, Judge.
THE COURT: One thing?
MR. GORDON: One. One extended thing, perhaps, try to make it short here.
THE COURT: Brief.
- - - - - -
MR. GORDON: And how long have you been a detective?
KEITH NAPIER: How long have I been �
MR. GORDON: Yeah. Well, let me just ask you, how long have you been doing drug investigations, or was this just a �
KEITH NAPIER: I have been doing them full time for about nine months.
MR. GORDON: Okay.
KEITH NAPIER: And I have been doing them over the years that I have been employed as a police officer.
MR. GORDON: So you have been doing them for the past nine months?
KEITH NAPIER: Yes, sir.
MR. GORDON: Approximately nine months you have worked with other informants I take it?
KEITH NAPIER: Yes, sir, I have.
MR. GORDON: Do you always do a visual search?
KEITH NAPIER: Yes.
MR. GORDON: Never do a strip-search?
KEITH NAPIER: I have never strip-searched.
MR. GORDON: There is � there are more thorough ways to do a search, are there not, than a visual search?
KEITH NAPIER: Yes, sir.
MR. GORDON: And do you do that occasionally?
KEITH NAPIER: A more thorough search than a visual search?
MR. GORDON: Yes?
KEITH NAPIER: Usually with males we do it. [Discrimination!!!]
MR. GORDON: With the males you do?
KEITH NAPIER: It�s a lot more thorough search.
MR. GORDON: That�s all.
THE COURT: Redirect?
MR. WEST: Nothing further of this witness.
THE COURT: Okay, thank you, Detective, you may stand aside. You are excused. Next witness, please.
MR. WEST: Your Honor, may Mr. Gordon and I approach the bench before this next witness is �
THE COURT: Yes, sir.
(A bench conference was had between the Court and counsel out of the hearing of the jury.)
THE COURT: I have to commend � off the record.
(A discussion was had between the Court and counsel off the record and out of the hearing of the jury.)
THE COURT: Let�s go on the record.
MR. WEST: Yes, sir, next witness is Miss Joyce Eversole. As the court knows, she was brought here wearing ankle and wrist bracelets. She�s indicated to me she is afraid but has indicated no direct threats being made from the defendant or his family. I don�t intend to elicit any of that testimony, only to advise the court that�s her impression she is afraid; but she is prepared to testify this morning.
THE COURT: Okay.
MR. GORDON: I am not going to get into that obviously.
THE COURT: I would hope not.
MR. GORDON: It�s not something that needs to be brought up. Of course, when you don�t show up for a subpoena, they all say the same thing, �I was threatened.�
MR. WEST: That�s right.
THE COURT: I suspect that�s what they say, so let�s have her testify. Let�s bring her in.
MR. WEST: Yes, sir.
(End of bench conference.)
THE COURT: Next witness, please.
MR. WEST: Miss Joyce Eversole.
THE CLERK: Please raise your right hand.
(Witness sworn.)
THE CLERK: Thank you.
THE COURT: You may ask, Mr. West.
MR. WEST: Thank you, Your Honor.
- - - - - - -
MR. WEST: State your name, please.
MS. EVERSOLE: Joyce Eversole.
MR. WEST: Miss Eversole, there is a microphone right in front of you. Scoot forward, please. Miss Eversole, do you live in Perry County?
MS. EVERSOLE: Yes. I do.
MR. WEST: Do you actually live in Hazard or one of the smaller communities?
MS. EVERSOLE: Outside of Hazard.
MR. WEST: Do you work, Miss Eversole?
MS. EVERSOLE: No.
MR. WEST: Are you married?
MS. EVERSOLE: No.
MR. WEST: On or about November of last year, did you have an occasion to work for the Kentucky State Police Detective Dan Smoot and with Detective Keith Napier from the Hazard Police Department?
MS. EVERSOLE: Yes.
MR. WEST: At that time, were you facing any charges for � have anything outstanding that brought you to work for them?
MS. EVERSOLE: Yes, I have bad checks.
MR. WEST: How many checks did you have out?
MS. EVERSOLE: It was three or four. Two, or something like that. I can�t remember exactly what it was.
MR. WEST: Were those checks in Perry County or �
MS. EVERSOLE: Yeah.
MR. WEST: What was the � do you remember how many those checks were for total?
MS. EVERSOLE: No.
MR. WEST: Ask you to take a look at the defendant, please, who sits there. Do you recognize anybody who sits at that table?
MS. EVERSOLE: Yes.
MR. WEST: Who do you recognize?
MS. EVERSOLE: Leon.
MR. WEST: Leon who?
MS. EVERSOLE: Combs.
MR. WEST: How long have you known Leon Combs?
MS. EVERSOLE: Probably ten, twelve years.
MR. WEST: Do you know where he lives?
MS. EVERSOLE: Yes.
MR. WEST: And where does he live at?
MS. EVERSOLE: Lives in Upper Second Creek.
MR. WEST: How far is that from the City of Hazard?
MS. EVERSOLE: Same place I live, on Upper Second Creek.
MR. WEST: On or about November the 14th, did you have an occasion to work with Detective Dan Smoot and Detective Keith Napier in regards to Mr. Leon Combs?
MS. EVERSOLE: Yes.
MR. WEST: Do you recall about what time of the day that you first started working with Detective Smoot?
MS. EVERSOLE: No.
MR. WEST: What was to be your � your goal, your objective that day what was going to happen?
MS. EVERSOLE: They was wanting me to help them, and they said that they would help me so �
MR. WEST: Help you on your check charges?
MS. EVERSOLE: Yeah.
MR. WEST: Now, what was the � what was going to happen to Leon Combs, what did they want you to do with Mr. Combs?
MS. EVERSOLE: They wanted me to buy off him, but I didn�t buy off him. He took me to get them.
MR. WEST: Let me ask you this. Did you place any phone calls?
MR. GORDON: Wait, I didn�t understand her response. I am having a tough time hearing her.
THE COURT: Okay, if you would speak up, speak into the microphone, Miss Eversole.
MS. EVERSOLE: Okay.
MR. WEST: All right, just listen to my questions then you answer them. Did you place any phone calls that day to Mr. Combs�s residence, his house?
MS. EVERSOLE: Yes, I did.
MR. WEST: Where did you make the phone calls from, do you recall?
MS. EVERSOLE: I believe I called from my house and on a cell phone, too.
MR. WEST: All right. Do you recall did you get Mr. Combs on the phone the first time, or were there several calls before you got a chance to talk to him?
MS. EVERSOLE: I can�t remember. I called him so much.
MR. WEST: Okay. Now, what happened after you talked to him on the phone? Tell us what the conversation was.
MS. EVERSOLE: I asked him could he help me get something. He said, �Yeah.�
MR. WEST: Get some what?
MS. EVERSOLE: Get some Oxycontin, OC�s.
MR. WEST: Did you tell him how many you wanted?
MS. EVERSOLE: I just told him I had $1000.
MR. WEST: Did you say what kind of OC�s?
MS. EVERSOLE: I can�t remember if I did or not.
MR. WEST: Do you know if OC�s come in different sizes or different kinds?
MS. EVERSOLE: Yeah.
MR. WEST: What do you know they come in?
MS. EVERSOLE: 20's, 40's and 80's.
MR. WEST: I�ll ask you a question. You know what I am going to ask you. Have you ever used OC�s yourself?
MS. EVERSOLE: Yes, I have.
MR. WEST: How often have you used them?
MS. EVERSOLE: I use them quite often.
MR. WEST: Now, where did you get the $1000 from?
MS. EVERSOLE: Keith Napier.
MR. WEST: Now, do you recall about what time you were supposed to meet Mr. Combs?
MS. EVERSOLE: Right around after dark.
MR. WEST: That being in November, dark around 6:00 maybe?
MS. EVERSOLE: Somewhere around there.
MR. WEST: Where were you supposed to meet at?
MS. EVERSOLE: Went up there, came to a little wide spot there off the road on the holler, pull off.
MR. WEST: Wide spot, is that on Second Creek?
MS. EVERSOLE: Yeah.
MR. WEST: How far is that from Mr. Combs� house?
MS. EVERSOLE: I don�t know miles or anything.
MR. WEST: Tell us in minutes driving?
MS. EVERSOLE: Probably five minutes.
MR. WEST: And in whose vehicle did you go to that place, to the wide spot?
MS. EVERSOLE: Keith Napier, a white Blazer.
MR. WEST: Tell the jury, please, what happened when you got there with Keith Napier?
MS. EVERSOLE: He put the wire on me, and I got out and got in the car with Leon. We went on down Second Creek �
MR. WEST: Let me ask you this first, was Leon already there when you got there?
MS. EVERSOLE: No, I didn�t think he was. I think I flagged him down.
MR. WEST: All right. Was there anyone else in the vehicle with Mr. Combs?
MS. EVERSOLE: No.
MR. WEST: So you get out of Keith Napier�s, the Blazer. You go into the other vehicle. Do you recall what kind of vehicle it was?
MS. EVERSOLE: It was a brown Station Wagon.
MR. WEST: And where did you go from there?
MS. EVERSOLE: We go down to the end of the holler.
MR. WEST: And where did you go after that?
MS. EVERSOLE: To wait on somebody, Brian Fields.
MR. WEST: And where was this exact location at?
MS. EVERSOLE: There right at the railroad tracks at the mouth of the holler.
MR. WEST: They call it a certain location, called something?
MS. EVERSOLE: I don�t know. All I know is it�s railroad tracks.
MR. WEST: Tell us, did you still have the $1000 on you when you got into the car?
MS. EVERSOLE: Yeah.
MR. WEST: Then you get down to the bottom of the hill there, how far is that from the wide spot?
MS. EVERSOLE: Probably about ten � about six, seven-minute drive.
MR. WEST: All right, was the person already there when you got there?
MS. EVERSOLE: No.
MR. WEST: How long� how long did you have to wait?
MS. EVERSOLE: We didn�t wait, we just � well, we passed them out there, turned around; came back up there to where the church was at at the railroad tracks.
MR. WEST: Explain that a little bit more. You passed who?
MS. EVERSOLE: I don�t know who it was.
MR. WEST: How did you know you passed the person there?
MS. EVERSOLE: Because he said, �There he goes,� and we turned around.
MR. WEST: When you say �he� said it, was that Leon Combs that said it?
MS. EVERSOLE: Yeah.
MR. WEST: When he says this, do you still got the money on you, the $1000?
MS. EVERSOLE: Yeah.
MR. WEST: Then you go up to where, the church?
MS. EVERSOLE: Church.
MR. WEST: What church is that?
MS. EVERSOLE: It�s a holiness church, I can�t remember the name of it.
MR. WEST: Is that Pentecostal Holiness church?
MS. EVERSOLE: Yeah.
MR. WEST: Pull into the church? Big parking lot, little parking lot?
MS. EVERSOLE: Up at the top of the hill is the parking lot. You can�t go over in the bottom or anything.
MR. WEST: Just that area, it was just the one car that you passed?
MS. EVERSOLE: Yeah, and two more detectives seen the transaction there that we passed.
[THIS UNSOLICITED BIT OF INFORMATION WOULD SEEM TO SUGGEST THAT THIS WITNESS WAS TUTORED AS TO WHAT TO SAY. FIRST, THEY WERE NOT WHERE THEY SUPPOSEDLY HAD INTENDED TO MEET AS HER TESTIMONY SUGGESTS THEY WERE ENROUTE BUT TURNED AROUND PRIOR TO GETTING TO THEIR DESTINATION THUS IT WOULD NOT SEEM TO BE PRUDENT TO THINK THAT TWO DETECTIVES COULD HAVE BEEN STATIONED AT AN UNSUSPECTING SPOT TO WITNESS THE TRANSACTION�ALSO NOTE THAT THE DETECTIVES WHO TESTIFY THAT THEY WITNESSED THE TRANACTION INDICATE IT TOOK PLACE AT AIRPORT GARDENS WHICH IS A NUMBER OF MILES AWAY FROM THE RAILROAD TRACKS AT THE MOUTH OF THE HOLLER AND THE HOLINESS CHURCH.]
MR. WEST: All right, so how far did Mr. Combs� car come from this other person�s car?
MS. EVERSOLE: I don�t know.
MR. WEST: Distance, they didn�t drive side by side and throw stuff out the window at each other, did they?
MS. EVERSOLE: No, they pulled off behind.
MR. WEST: All right, then what happened?
MS. EVERSOLE: I laid down in the back seat, he got out of the car and come back.
MR. WEST: All right, did you give him the money before you got out of the car?
MS. EVERSOLE: Yes, I did.
MR. WEST: Did you tell him how many you wanted at that point?
MS. EVERSOLE: No, I just said, �I want $1000 worth is all.�
MR. WEST: Now, you said you laid down in the floorboard? Why is that?
MS. EVERSOLE: Where they wouldn�t see me.
MR. WEST: Did anybody tell you to do that, or did you just do that on your own?
MS. EVERSOLE: I asked him, I said, �Would it be better if I lay down or sit up?�
MR. WEST: What did he say?
MS. EVERSOLE: I don�t remember what he said.
MR. WEST: How long was he out of the vehicle before he got back in?
MS. EVERSOLE: It wasn�t that long.
MR. WEST: Just a minute, two minutes, three minutes?
MS. EVERSOLE: About three minutes at the most.
MR. WEST: All right, what happened when he got back inside the vehicle?
MS. EVERSOLE: He give me the pills, and I took them to Keith.
MR. WEST: Did you know how many pills there were?
MS. EVERSOLE: No, I just figured � well, we had added up to be 25 of them.
MR. WEST: All right, were they handed you just loosely like poured out in the hand?
MS. EVERSOLE: No, they were wrapped up in something.
MR. WEST: Wrapped up in what, do you know?
MS. EVERSOLE: I can�t remember.
MR. WEST: Miss Eversole, showing you what�s marked as Government�s Exhibit 12. Inside this is a little item. I want you to pull that out, please. Do you see that there?
MS. EVERSOLE: Yeah.
MR. WEST: How long have you been using OC�s, ma�am?
MS. EVERSOLE: Probably ever since they came out. Ever since I knowed about them.
MR. WEST: How long has that been?
MS. EVERSOLE: Probably two or three year.
MR. WEST: Do you recognize those pills there?
MS. EVERSOLE: Yeah.
MR. WEST: What are they?
MS. EVERSOLE: OC 40's.
MR. WEST: On that day when you received items back from Mr. Combs, could you tell what kind of OC�s they were?
MS. EVERSOLE: Yeah.
MR. WEST: What were they?
MS. EVERSOLE: Well, I can tell the difference in 40's and 20's.
MR. WEST: What did you get that day, 40's or 20's?
MS. EVERSOLE: 40's.
MR. WEST: Do you recall what kind of wrapping they were in?
MS. EVERSOLE: No, I didn�t remember that.
MR. WEST: In looking at those items there, can you identify that kind of wrapping?
MS. EVERSOLE: Yeah, look familiar. I pack them all the time.
MR. WEST: Now, you said after � after the buy took place, you all go ahead and leave. Did you ever see who it was in the other car?
MS. EVERSOLE: No.
MR. WEST: You had no idea who that was?
MS. EVERSOLE: (Shakes head.)
MR. WEST: All right. Did anybody else get back in the car with Mr. Combs?
MS. EVERSOLE: Huh-uh.
MR. WEST: Where did you go after you leave that location, the church, the holiness church?
MS. EVERSOLE: Well, then he dropped me back off at Keith�s.
MR. WEST: At the wide spot there?
MS. EVERSOLE: Yeah.
MR. WEST: And about how long do you think altogether that you were gone from that location, Miss Eversole?
MS. EVERSOLE: Gone ten, fifteen minutes most.
MR. WEST: After you got back to the wide spot there where Keith Napier was at, what took place?
MS. EVERSOLE: I gave Keith the pills, and we went back to the police barracks.
MR. WEST: Did you have any money left out of the $1000 he gave you?
MS. EVERSOLE: No.
MR. WEST: Did you have any OC�s on you before you went to that location with Keith Napier?
MS. EVERSOLE: No.
MR. WEST: Did you take any out of the 25 that you got from the defendant, Leon Combs?
MS. EVERSOLE: No.
MR. WEST: You said you have known Leon Combs a long time?
MS. EVERSOLE: Yeah.
MR. WEST: Your Honor, I just ask the record reflect Miss Eversole has identified the defendant, Leon Combs.
THE COURT: Let the record so reflect.
MR. WEST: Miss Eversole, what happened to those four checks that you have there, bad checks?
MS. EVERSOLE: Got them paid.
MR. WEST: Paid them all off?
MS. EVERSOLE: Uh-hun.
MR. WEST: What happened with it when you went to court?
MS. EVERSOLE: They just � they told me to pay the checks off, and if I pay the checks off, you know, it would go; and I would get in no more trouble is what he told me. So I paid the checks off and took the receipts to him.[WONDER IF THE HIM IS MONTE GROSS?]
MR. WEST: Were the charges dismissed? Is that what you are saying?
MS. EVERSOLE: Yeah.
MR. WEST: One second.
(Counsel for plaintiff conferring.)
MR. WEST: That�s all of this witness at this time.
THE COURT: Cross, Mr. Gordon?
MR. GORDON: Thank you.
- - - - - -
MR. GORDON: Miss Eversole, I am Derek Gordon and I represent Mr. Combs, okay?
Got a few questions for you. You said you had, what, four bad checks?
MS. EVERSOLE: Yeah.
MR. GORDON: What was the value of those checks?
MS. EVERSOLE: Well, altogether it was under $300.
MR. GORDON: Under $300? Okay. Is that all you had?
MS. EVERSOLE: Yeah.
MR. GORDON: And they did pay those off for you?
MS. EVERSOLE: No, I did.
MR. GORDON: Pardon me?
MS. EVERSOLE: I paid them off.
MR. GORDON: Did they give you money though?
MS. EVERSOLE: The law?
MR. GORDON: Yeah.
MS. EVERSOLE: No, they didn�t give me the money to pay the checks off.
MR. GORDON: Okay, well, what were you worried about then if they didn�t give you any money and you � what was the � what were you worried about?
If they didn�t help you in any way � how did they help you I guess is what I am asking.
MS. EVERSOLE: To me, they did help me; I am off OC�s.
MR. GORDON: Well, did they help you � did they help you financially?
MS. EVERSOLE: Well, yeah, they gave me some money, you know �
MR. GORDON: That�s what I want to know. How much did they give you?
MS. EVERSOLE: I can�t remember exactly how much they give me.
MR. GORDON: Well, did you fill out a sheet when they gave you money?
MS. EVERSOLE: Yeah.
MR. GORDON: Have you got those sheets there?
MR. WEST: I�ll ask the detective.
MR. GORDON: How many times did you get paid?
MS. EVERSOLE: Probably about three times, I guess, for the three times.
MR. GORDON: How much?
MS. EVERSOLE: Well, let�s see, they paid me $100 every time I made a buy.
MR. GORDON: So did you take that money and pay those checks off?
MS. EVERSOLE: Oh, yeah.
MR. GORDON: Okay, well, that�s what I asked you. Did they help you pay the checks off? Who paid the checks off? Without the money you wouldn�t have been able to pay them off, right?
MS. EVERSOLE: No.
MR. GORDON: But every time � did every time that you got money from the government, did you fill out a voucher?
MS. EVERSOLE: No, I signed a piece of paper for it.
MR. GORDON: That�s what I am referring to when I say �voucher.� Did every time you receive money, did you fill out a piece of paper?
MS. EVERSOLE: Yeah.
MR. GORDON: Every time?
MS. EVERSOLE: (Nods head.)
MR. GORDON: And that�s all the problems you had, right? Just those three checks, four checks, whatever it was?
MS. EVERSOLE: Yeah.
MR. GORDON: Did you have a � a doctor bill in the amount of about $6,000 that you had to pay off?
MS. EVERSOLE: Yeah, but I still ain�t got it paid off.
MR. GORDON: How much have you paid of that?
MS. EVERSOLE: I pay $25 a month on it.
MR. GORDON: Did you pay any of it up front?
MS. EVERSOLE: No.
MR. GORDON: Now, you said that you made a number of phone calls, some you made from your home, right? Some you made from your cell phone, correct?
MS. EVERSOLE: Not my cell phone, but I made it from a cell phone.
MR. GORDON: Okay, whose cell phone?
MS. EVERSOLE: Keith Napier�s.
MR. GORDON: How many phone calls did you make from your home?
MS. EVERSOLE: Honey, I don�t know. I called him every day, four or five times a day.
MR. GORDON: For how many days?
MS. EVERSOLE: I have done that for ten years.
MR. GORDON: Well, okay.
MS. EVERSOLE: It�s hard to count.
MR. GORDON: All right. During this period of time how many times were you calling him asking him for, you know, these drugs that you say you called about?
MS. EVERSOLE: I don�t remember that.
MR. GORDON: Quite a few?
MS. EVERSOLE: Well, I would say I probably did, but, you know, I can�t say I did too, because I don�t remember.
MR. GORDON: Well, you were pretty � you were pretty whacked out during this period of time, weren�t you? I mean, you were � you were high, weren�t you, whatever those things do to you.
MS. EVERSOLE: Yeah, I would say I was.
MR. GORDON: I mean, you were doing Ocs?
MS. EVERSOLE: Yeah, I ain�t lying, I done them.
MR. GORDON: You were doing OC�s every day, weren�t you?
MS. EVERSOLE: If I could get ahold of them I would.
MR. GORDON: Sure. As a matter of fact, sometimes when you met Keith Napier, you were doing OC�s, too, weren�t you?
MS. EVERSOLE: Yeah, I was.
MR. GORDON: And on the � on the day in question that you � that you did this, were you doing OC�s as well?
MS. EVERSOLE: No, not that day.
MR. GORDON: Are you sure?
MS. EVERSOLE: Well, I don�t kow if I done one that day or not.
MR. GORDON: All right.
MS. EVERSOLE: Back then I couldn�t hardly get ahold of anything, so it wasn�t very often when I could get them; and when I did get them, yeah, I done them.
MR. GORDON: Did Detective Napier ask you if you were doing OC�s when he met you that day?
MS. EVERSOLE: No, not that I recall.
MR. GORDON: All right. Did you at any time that evening, did you tell Detective Napier who that person was in the� in the car behind you?
MS. EVERSOLE: No, because I didn�t know who it was.
MR. GORDON: No, no, no. Okay. Let�s go to the - the - when � you said you were driving down the road and you flagged down you believed to be Leon Combs; isn�t that right? You said that you flagged him down?
MS. EVERSOLE: Yeah.
MR. GORDON: Okay. Now, did he pull up behind you or how did that happen? What happened after you flagged him down?
MS. EVERSOLE: I got out and talked to him.
MR. GORDON: Right, but how were the cars positioned is what I�m asking, were they side by side or what?
MS. EVERSOLE: God, I don�t know.
MR. GORDON: But you remember it was dark?
MS. EVERSOLE: Yeah, it was around dark, yeah.
MR. GORDON: All right. So there is a lot of things you don�t remember at all about it.
MS. EVERSOLE: Lot of things.
MR. GORDON: Okay. How did you remember about the $1000 that � you know, you were given $1000, how did you remember that so clearly?
MS. EVERSOLE: I don�t know, I guest I just �
MR. GORDON: You talked to Detective Napier about � about your testimony?
MS. EVERSOLE: No.
MR. GORDON: You haven�t talked to anybody about your testimony here today?
MS. EVERSOLE: No.
MR. GORDON: You haven�t met with any of these three individuals?
MS. EVERSOLE: I met that one guy there.
MR. GORDON: Pardon me?
MS. EVERSOLE: The one on the end there.
MR. GORDON: When?
MS. EVERSOLE: This morning when I got � came up from the jail.
MR. GORDON: Did he talk to you about what you were to say?
MS. EVERSOLE: I didn�t talk about what to say.
MR. GORDON: Did he tell you what to say?
MS. EVERSOLE: He just told me it would be about fifteen minutes that I had to testify. They were very angry because I didn�t show up yesterday.
MR. GORDON: Have you met with Detective Smoot at all?
MS. EVERSOLE: No.
MR. GORDON: Now, you say you got � you got in the vehicle. Now, when you called him to purchase some OC�s, why didn�t you just go over to his residence and get them?
MS. EVERSOLE: Because he didn�t have them. I ain�t got none off of them at his home or out of his pocket, he�s always went and got them for me.
MR. GORDON: You have never got them over at his house, right?
MS. EVERSOLE: No.
MR. GORDON: You have been over to his house, haven�t you?
MS. EVERSOLE: Yeah.
MR. GORDON: And he never sold you any drugs over there, did he?
MS. EVERSOLE: No.
MR. GORDON: You � have you seen guns over there before?
MS. EVERSOLE: Yeah, him and my boyfriend trade guns all the time.
MR. GORDON: They trade them all the time, don�t they? That�s just what they do, don�t they?
MS. EVERSOLE: Yeah.
MR. GORDON: I mean, lot of people do that down there in Hazard, don�t they? They don�t use them as some sort of barter for drugs, do they, they just trade them?
MS. EVERSOLE: Oh, my boyfriend, yeah, they just trade them guns.
MR. GORDON: Been doing it for years?
MS. EVERSOLE: (Nods head.)
MR. GORDON: As a matter of fact, on the night in question we are referring to on November the 14th of � of last year, and that�s the night that � that you came over there or that you were down the street or soemthing. You didn�t see any guns that evening, did you?
MS. EVERSOLE: Huh-uh.
MR. GORDON: Leon didn�t have a gun?
MS. EVERSOLE: No, I didn�t see none.
MR. GORDON: Now, when you got in the � did you go back and get in the vehicle or did you go up, or how did you get in the vehicle?
MS. EVERSOLE: Which vehicle?
MR. GORDON: Leon�s. I mean, you have testified that you got in it?
MS. EVERSOLE: Yeah.
MR. GORDON: How did you get in it?
MS. EVERSOLE: Well, as it was going down the road I got in it. He stopped there when I flagged him down, I got in and went with him.
MR. GORDON: So his vehicle was on the road, then you just hopped in?
MS. EVERSOLE: No, he pulled off the side of the road.
MR. GORDON: Did you get in the passenger side, door side or what?
MS. EVERSOLE: Passenger side.
MR. GORDON: Did you open the door?
MS. EVERSOLE: Yeah.
MR. GORDON: So the door wasn�t already open?
MS. EVERSOLE: No.
MR. GORDON: Do you know if a light came on or do you remember?
MS. EVERSOLE: I don�t remember that.
MR. GORDON: Does he have tinted windows or do you know?
MS. EVERSOLE: Yeah, he has tinted windows.
MR. GORDON: He�s got tinted windows? Okay, and it was dark that night/
MS. EVERSOLE: It was kind of dark.
MR. GORDON: I mean, it was 7:00 in November. How many OC�s were you doing during this period, a day, if you could get ahold of them?
MS. EVERSOLE: If I could get ahold of them, I would do as many as I could, until I fall over.
MR. GORDON: How many would it take for someone like you to fall over?
MS. EVERSOLE: Quite a few.
MR. GORDON: Well, I mean, is that four, four 40's or what?
MS. EVERSOLE: No, four 40's won�t kill me, because I done them one day.
MR. GORDON: So you were pretty addicted to them?
MS. EVERSOLE: (Nods head.)
MR. GORDON: You have known Leon for how long?
MS. EVERSOLE: About ten, twelve years.
MR. GORDON: You like him, don�t you?
MS. EVERSOLE: Yeah, he�s always been a good friend.
MR. GORDON: And you knew when you called during that period of time when you kept calling him, you knew that he couldn�t get them; they weren�t coming from him, were they?
MS. EVERSOLE: No.
MR. GORDON: You knew that?
MS. EVERSOLE: I knew that.
MR. GORDON: And you knew that you couldn�t just go over to his residence and get them, you knew that?
MS. EVERSOLE: Right.
MR. GORDON: Right?
MS. EVERSOLE: Right.
MR. GORDON: But you knew perhaps that � perhaps he might be able to help you by going to someone that might be able to get them for you; is that right?
MS. EVERSOLE: Uh-huh.
MR. GORDON: And you even consider as him not being the one who actually sold them to you, don�t you?
MR. WEST: Objection.
THE COURT: Sustain.
MR. GORDON: And you can�t tell us how many�how many times you called him during this period of time, can you?
MS. EVERSOLE: No.
MR. GORDON: Just a moment, Your Honor.
MR. GORDON: One thing you testified to is that they helped you get off OC�s. Are you off them now?
MS. EVERSOLE: Yeah.
MR. GORDON: How did you get off them?
MS. EVERSOLE: Went cold turkey because nobody would �
MR. GORDON: Becasue what now?
MS. EVERSOLE: Went cold turkey. Nobody would seel to me.
MR. GORDON: Oh, okay. Did you go to a treatment center?
MS. EVERSOLE: Yeah, but that was way before this. That was in I think �97, �96, �95, somewhere around in there.
MR. GORDON: Okay, I am just talking about this period of time, did they help you get in a rehab center?
MS. EVERSOLE: What � no, I signed my own self into a dry out center back then.
MR. GORDON: No, I am talking about you now say you are off OC�s, that they helped you quit, right? Did they help you get into a rehab?
MS. EVERSOLE: No, I ain�t been to no rehab or nothing.
MR. GORDON: You just cold turkeyed it?
MS. EVERSOLE: Just �
MR. GORDON: Even though you have been doing drugs for many years, you just all of a sudden cold turkey and got off of them?
MS. EVERSOLE: Uh-huh. At this time, you know, not that I want to stay off them, but now I am.
MR. GORDON: Right, okay. The phone calls that you made at your home there, did you tell Keith Napier about those or you just made those on your own?
MS. EVERSOLE: I don�t know, I called him so much and � every day, you know, I can�t remember every phone call.
MR. GORDON: That�s all.
THE COURT: Redirect, Mr. West?
MR. WEST: Yes, Your Honor.
- - - - - - -
MR. WEST: Miss Eversole, you said you called him every day?
MS. EVERSOLE: Yeah, I called him every day probably ten year, ever since he�s had a phone and I have had a phone.
MR. WEST: You would have considered yourself, at least before this in November, you would consider yourselves friends?
MS. EVERSOLE: Yeah.
MR. WEST: In fact you said just a moment ago in response to one of Mr. Gordon�s questions that he�s always been a good friend to you.
MS. EVERSOLE: Yeah.
MR. WEST: You also said that he�s always went to get the pills for you?
MS. EVERSOLE: Yeah, if I asked him he would do anything I asked him to do.
MR. WEST: Wre they OC�s?
MS. EVERSOLE: Yeah, if I wanted OC�s.
MR. WEST: How many times did he go get the OC�s for you?
MS. EVERSOLE: Probably one or twice he went to get them.
MR. WEST: What about heroin.
MR. GORDON: Objection.
MR. WEST: I�ll withdraw the question.
MR. WEST: On this day the $1000 was used when you bought the OC 40's. How much would you buy? One thousand dollars seems quite a bit high.
MS. EVERSOLE: Normally more than I have.
MR. WEST: How much would you pay for a 40?
MS. EVERSOLE: I pay 40 for a 40.
MR. WEST: That�s all.
THE COURT: Redirect?
MR. GORDON: No, Your Honor.
THE COURT: May this witness be excused?
MR. WEST: Yes, Your Honor.
THE COURT: All right, thank you, Miss Eversole. Next witness, please.
MS. REED: Could you see if John Harris is here, please?
THE COURT: John Harris?
MS. REED: John Harris.
THE MARSHAL: Not here yet.
THE COURT: Not here yet.
MS. REED: Henry Hayes.
THE MARSHAL: Not here.
MR. WEST: Call Detective Dan Smoot, please.
(Witness sworn.)
THE CLERK: Thank you.
THE COURT: You may ask.
MR. WEST: Thank you, Your Honor.
- - - - - - -
MR. WEST: Would you state your name, please, and your occupation.
DAN SMOOT: Dan Smoot, detective, Kentucky State Police.
MR. WEST: How long have you been with the Kentucky State Police?
DAN SMOOT: Twenty years.
MR. WEST: And what�s your current assignment, sir?
DAN SMOOT: I do narcotics in the Hazard post district.
MR. WEST: How long have you been working narcotics?
DAN SMOOT: Twelve years.
MR. WEST: If you would, would you describe your experience in regards to narcotics investigations to the jury?
DAN SMOOT: Basically we average about 100 narcotics cases a year, so over the � at least the past ten years I have approximately been involved in or been the case officer in approximately 1,000 narcotics investigations.
MR. GORDON: Your Honor, I would like to approach the bench, please.
THE COURT: Okay.
(A bench conference was had between the Court and counsel out of the hearing of the jury.)
MR. GORDON: My objection is that I don�t understand the relevancy of this � this witness, what his testimony will be. He wasn�t � he wasn�t Mr. Combs� witness, I don�t believe he testified about it. To get up here and talk about his drug involvement, he had nothing to do with this case. Objection.
MR. WEST: It certainly is relevant. He is laying the foundation based on his experience was to what those were. The jury asked him what the law was, educated on things he used, he used OC�s, and sell 40 in individual quantities and bulk quantity.
MR. GORDON: That�s already been testified to. So I have never � I have never contradicted anybody in regard to what they were.
MR. WEST: Doesn�t matter whether it�s been contradicted or not.
MR. GORDON: All this guy is coming in as some sort of corroborating witness.
THE COURT: He is an expert in his experience as a narcotics officer in sales�
MR. GORDON: Point�s already made, though, no point in trying to compound it.
THE COURT: Yeah, corroborate their testimony. I understand your objection. It�s overruled.
(End of bench conference.)
MR. WEST: Detective Smoot, I�ll just clarify, that�s 100 narcotics cases. Is that just for the Hazard post?
DAN SMOOT: Yes.
MR. WEST: How long have you worked at the Hazard State Police post?
DAN SMOOT: My whole career over � first eight years I was a road trooper, last twelve years in narcotics.
MR. WEST: And that�s narcotics specifically in the Hazard post jurisdiction?
DAN SMOOT: Well, occasionally I�ll go to other post districts and work some investigations, but the majority of the cases have been in the Hazard district which is five counties.
MR. WEST: What five counties are covered?
DAN SMOOT: Breathitt, Letcher, Leslie, Perry, and Knott Counties.
MR. WEST: The jury�s heard some questions concerning a drug sweep that took place recently centered around the Hazard post. Were you part of that investigation?
DAN SMOOT: I was the state coordinator.
MR. WEST: During the course of your twenty years as a state trooper, specifically last twelve as narcotics detective, have you had occasion to act as an undercover officer yourself and actually purchase narcotics?
DAN SMOOT: Numerous times.
MR. WEST: Would you tell the jury, please, what substances you have purchased in undercover capacity?
DAN SMOOT: Marijuana, cocaine, methamphetamine, probably every prescription pills, all the prescription pills, Oxycontins, Tylox, Loretab, Lorecet, Valium, Xanax, some of their generic equivalents; most all prescription medications that are popular.
MR. WEST: Would it be fair to say that you work on a daily basis in the Hazard post sometimes including Saturdays and Sundays?
DAN SMOOT: Yes.
MR. WEST: With that knowledge and working on such a close basis, are you aware of the appearance of different drugs that come within different communities?
DAN SMOOT: Yes.
MR. WEST: the drug we have talked about for the last day and a half, Oxycontin, OC�s, when did that first begin to make an appearance, to your knowledge, in the Hazard post area?
DAN SMOOT: Probably a year ago, eleven months, somewhere in that neighborhood.
MR. WEST: And in that time period since they first made an appearance up until now have you had occasion to purchase OC�s yourself or be involved in the purchase of OC�s?
DAN SMOOT: Yes.
MR. WEST: What quantities or what types of OC�s are distributed on the street level and the mid-level there at the Hazard post district?
DAN SMOOT: You got the 20 milligram, 40 milligram, 80 milligram and there is a 160 milligram; however, we never purchased any 160's.
MR. WEST: And what is the going price of a 20, 40, and 80 milligram?
DAN SMOOT: It�s a dollar a milligram, so if you bought a 40 milligram Oxycontin it would cost $40 per pill.
MR. WEST: In your experience, if you were to purchase one 20 and one 40, it would be $20 and $40 per tablet; is that correct?
DAN SMOOT: Exclusively. We never paid under what was marked on the pill, and we never paid over.
MR. WEST: What about if you bought in bulk; say if you wanted a hundred of them?
DAN SMOOT: We never got a cut. You paid per milligram, dollar per milligram.
MR. WEST: Did you become involved in this case on November the 14th of last year in regards to Mr. Combs?
DAN SMOOT: Yes.
MR. WEST: Tell the jury, please, what your involvement was on the November 14th purchase.
DAN SMOOT: Basically I am responsible for what we call the buy money. State Police buy money. I signed the buy money out: gave it to Detective Napier. At the conclusion of the buy, the pills were given back to me; they were booked into evidence by me.
MR. WEST: Showing you what�s marked as United States Exhibit No. 12, ask if you can identify that, please?
DAN SMOOT: These are the Oxycontin 40 milligrams that were � that the informant purchased from Mr. Combs.
MR. WEST: Did you have contact with those items on the 12th or shortly there afterwards?
DAN SMOOT: Yeah, they were brought straight back to me to place in this container and sent to the State Police crime lab in London for analysis.
MR. WEST: Who did you get those pills from?
DAN SMOOT: These?
MR. WEST: Yes.
DAN SMOOT: Detective Keith Napier.
MR. WEST: All right.
MR. WEST: Were you involved in the search warrant on the 22nd of January at the residence of Mr. Leon Combs?
DAN SMOOT: No, sir, I was not.
MR. WEST: Were you involved in looking at or evaluating the evidence afterwards?
DAN SMOOT: Yes, every � every case that come in in that eleven-month period, basically I would examine the evidence and the cases.
MR. WEST: Detective, in you summary of the substances you have purchased or been involved with, do they also include Dilaudid?
DAN SMOOT: Yes, sir, K4 Dilaudid.
MR. WEST: Have you purchased Dilaudid yourself or been present when Dilaudid was purchased by a cooperating witness?
DAN SMOOT: Both ways.
MR. WEST: The term has been used K4 Dilaudid, what is K4 Dilaudid?
DAN SMOOT: K4 is a Scheduled II pain reliever most often prescribed to post-surgery type patients. It�s a very strong pain medication. The reason it�s called K4, when you examine the pill itself, it�s a small yellow pill, and it has �K4" on the pill, just as the OC has �OC� on it. So we refer to them as K4's.
MR. WEST: What is the going price or what was the going price in January of this year of one K4 Dilaudid?
DAN SMOOT: The last K4 I personally purchased, I paid $80 per pill.
MR. WEST: Now, show you what�s marked there, the one pill bottle is United States Exhibit No. 8, do you see that, sir?
DAN SMOOT: Yes, sir.
MR. WEST: If you would, open up Exhibit No. 11, please. Have any occasion prior to today to look at those�those different pill bottles there, sir?
DAN SMOOT: Yes, sir, I have examined each one.
MR. GORDON: Objection.
THE COURT: Approach.
(A bench conference was had between the Court and counsel out of the hearing of the jury.)
MR. GORDON: I don�t believe there has been any testimony as to where all these pill bottles come from. Secondly, to have them all sitting out there like that, looks terrible.
THE COURT: Not necessarily, there was testimony these pill bottles were seen from the residence of Mr. Leon Combs on January 22nd. The proof purpose of these pill bottles is to show that none of them are Oxycontin 40.
MR. GORDON: What is he � Oxycontin 40's?
THE COURT: Yeah.
MR. GORDON: What does he need to do that for? He is not involved in this case?
THE COURT: He is case agent.[Didn�t Chris Fugate testify that he was the case agent?]
MR. GORDON: He is bolstering the testimony of the officers.
THE COURT: No, he is the case agent. He says he is responsible for the case, he was in possession of them, and he�s testified it is also his experience as a person buying Oxycontin.
MR. GORDON: I have seen his name on some grand jury testimony as the case agent, that it�s contained misrepresentation in there.
THE COURT: You can ask him about that.
MR. GORDON: I understand that. He doesn�t know anything about this case.
MR. WEST: Yes, he does.
MR. GORDON: If he does he needs to get his facts right because, according to the grand jury, they are very wrong.[Yet the appointed attorneys would not request a copy of the grand jury minutes and/or present it to Leon. And Judge Hood denied Leon�s request which I made through a Limited Power of Attorney.]
THE COURT: You can ask him about that. He can testify to where they got them.
MR. GORDON: He is an expert because he bought some drugs�
THE COURT: People�
MR. GORDON: �over time?
THE COURT: Yeah, twelve years. He�s done narcotics for twelve years, that makes him� he�s been a street narcotics officer, he�s worked for the State Police, he�s made both buys, undercover and monitored buys. That makes him an expert in purchase and sale of �
MR GORDON: My entire objection goes to the fact this witness is here nothing more than to bolster the testimony of these other officers. The evidence is already in. He is doing nothing to add to the case �
THE COURT: The other officers haven�t said anything about the street level Oxycontin.
MR. GORDON: He doesn�t know that.
THE COURT: No, it�s not, because the cost of the drug would indicate that they are selling this pill illicitly and the fact that he�s got 40 of them on him, 20 of them on him, that�s why he is in here, to get the money.
MR. GORDON: We can sit them on that table over there down by the prosecution.
THE COURT: I am doing pretty good, aren�t I? But you are arguing, I am making the ruling according to the law�
MR. GORDON: He�s added nothing to the case, the testimony has already been in. I don�t know that we want to refute that, and he is just in here bolstering he testimony; and I think it�s wrong and irrelevant.
THE COURT: You have made you objection.
(End of bench conference.)
MR. WEST: Detective, I�ll repeat the question. You have seen those seven bottles there to your right before this courtroom today?
DAN SMOOT: Yes.
MR. WEST: Can you identify where � what has been told you where they came from?
DAN SMOOT: The residence of Leon Combs.
MR. WEST: Looking at all those bottles there, give you a chance to examine every one of the labels on there?
DAN SMOOT: Except for this one which was unlabeled, I did.
MR. WEST: Other than the pill bottles, have you seen any prescription bottles there for the OC�s?
DAN SMOOT: Yes.
MR. WEST: How many of those prescription bottles contain OC labels?
DAN SMOOT: These three.
MR. WEST: Did the prescription bottle, prescription label contain a milligram quantity for those specific bottles?
DAN SMOOT: Yes, sir. They do.
MR. WEST: Would you identify for the jury the milligram bottle for each of those bottles, please?
DAN SMOOT: They are all 20 milligram.
MR. WEST: Are there any 40 milligram bottle units identified in those three or the other four?
DAN SMOOT: No, sir.
MR. WEST: Detective, are you familiar with the amount of OC�s and K4 Dilaudid�s that were recovered from Exhibit No. 8 which is the Tylenol bottle there?
DAN SMOOT: Yes, I believe there were ten OC 40's, six OC 20's, then the rest were Dilaudid, I believe. I know there was 20's, 40's and Dilaudid.
MR. WEST: Total of 25 pills?
DAN SMOOT: Yes.
MR. WEST: Upon your previous testimony, it�s been ten OC 40's. What would be the approximate street value in Perry County in January of this year of the OC 40's?
DAN SMOOT: Again, it would be a dollar a milligram. Ten times $40.
MR. WEST: $040? [$400]
DAN SMOOT: Correct.
MR. WEST: And the street value of OC 20's in January of this year in Perry County?
DAN SMOOT: It would be the same, $20 a pill to purchase.
MR. WEST: If there were six of them, that would be $120?
DAN SMOOT: Correct.
MR. WEST: With the nine K4 Dilaudids, would you just tell again how much the K4 Dilaudid was worth?
DAN SMOOT: Last one I purchased was $80 per milligram.
MR. WEST: And nine of those times 80 being 720?
DAN SMOOT: If that�s what your math comes out to.
MR. WEST: If my math is correct, shows a street value, based on your testimony, of $1,240?
DAN SMOOT: That�s the amount of money it would have took to purchase the contents of this bottle.
MR. WEST: The � on your experience also, are you familiar with different items that people will utilize to ingest OC�s and Dilaudid?
DAN SMOOT: There are basically three ways to ingest OC pills. That�s taking �
THE COURT: I don�t think this is necessary.
MR. GORDON: Objection.
THE COURT: Sustain.
MR. WEST: I�ll rephrase the question.
MR. WEST: Are you familiar with all the items taken from both the search of Mr. Combs and the search of his residence on January 22nd?
DAN SMOOT: I have seen the return of the search warrant, yes.
MR. WEST: Have you had a chance to view all that evidence prior to coming to court today?
DAN SMOOT: I did.
MR. WEST: In viewing all that evidence, did you find any items consistent with the use of OC�s?
MR. GORDON: Objection.
THE COURT: Overruled.
DAN SMOOT: No, sir, I did not.
MR. WEST: I�ll rephrase the question now and ask again.
THE COURT: Yeah, I believe � rephrase your question.
MR. WEST: Yes.
THE COURT: Sustain the objection. I understand the objection. Sustain it, rephrase your question.
MR. WEST: In viewing all the evidence taken from Mr. Combs� person and from his residence on that day, did you find any or see any syringes or needles?
DAN SMOOT: Did not.
MR. WEST: Did you find any pill cutters or see any pill cutters or pill splitters?
DAN SMOOT: No, sir.
MR. WEST: What are pill cutters and pill splitters?
DAN SMOOT: Basically it�s a little plastic instrument with a razor blade in it. You put in, say, an OC 40, you place it in there, you close the top and pull it back up. The razor blade will have perfectly split the pill into two halves. None were located at the residence.
MR. WEST: To your knowledge, then, in viewing all the evidence, did you find or see any snort tubes or rolled up straws or plastic straws or anything that may be used to snort controlled substances?
MR. GORDON: Objection. This witness was not there.
THE COURT: Sustain.
MR. WEST: Detective, you are familiar with a weapon that has been identified and taken off Mr. Combs that day?
DAN SMOOT: That�s right.
MR. WEST: If you would, please, put the dark-colored pill bottles back in Exhibit No. 11.
DAN SMOOT: (Complies.)
MR. WEST: Your Honor, if not previously so moved, I would so move to enter into evidence United States Exhibit No. 11, please.
THE COURT: 11? Objection? Other than previously stated. Let it be filed.
(Exhibit entered.)
MR. GORDON: Same objections with regards to �
THE COURT; Yeah, I said any objections other than that previously stated.
MR. GORDON: Yeah, but also saying regard to even this as well, same objection.
THE COURT: That�s what 11 was.
MR. GORDON: Oh, I thought that was 10 and 10A.
THE COURT: No, 10 and 10A, � oh, okay. Overruled. Okay, next.
MR. WEST: Did you have contact with that pistol prior to coming to court today?
DAN SMOOT: Yes, sir. I have.
MR. WEST: At my request, did you determine whether or not that pistol functions properly?
DAN SMOOT: Yesterday morning I test-fired this weapon.
MR. WEST: And did it fire the projectile?
DAN SMOOT: It did.
MR. WEST: Likewise, Detective, there are three firearms on the floor of the courtroom which have been previously identified as a .22 rifle, semiautomatic; .270 model 700 rifle; and a .223 Remington rifle. Also prior to coming to court today, did you have contact with those weapons?
DAN SMOOT: Yes, sir. I did.
MR. WEST: At my request, did you determine whether or not those weapons function properly?
MR. GORDON: Objection. Could we ask when he determined?
THE COURT: Sustained.
MR. WEST: When did you determine that these weapons functioned properly?
DAN SMOOT: Last night at about 7:00.
MR. GORDON: Then I object to any further testimony with regard to that.
THE COURT: Overrule.
MR. GORDON: There has been a break, Judge.
THE COURT: Overrule.
MR. WEST: How did you determine that they function properly?
DAN SMOOT: Shot them.
MR. WEST: Did all three weapons fire projectiles out of them?
DAN SMOOT: Yes, sir, they did.
(Counsel for plaintiff conferring.)
MR. WEST: Detective Smoot, in the Oxycontin, I guess, number of cases that you have done over the last year, have you been physically present when individuals were searched?
DAN SMOOT: Numerous, numerous times.
MR. WEST: Can you tell the jury about if it is common, and if so, how common it is to find firearms or pistols on persons?
DAN SMOOT: Very rarely will you find it on their person. A lot of times you will find one in the vehicle or in the home, but as far as physically concealed on an individual, it is fairly rare.
MR. WEST: Of those individuals and persons that during the past year specifically as to Oxycontin that were found in possession of pistols, did they also possess controlled substances?
MR. GORDON: I am going to object to the relevancy, Your Honor.
THE COURT: Overruled.
DAN SMOOT: Would you please restate that?
MR. WEST: It�s � I�ll rephrase based on what your last response was. You said it�s not common to find them on persons.
DAN SMOOT: The pistols, yes.
MR. WEST: During the course of your experience, those people that you have found with pistols on their persons, were they also found with controlled substances on their persons?
DAN SMOOT: Yes.
MR. WEST: In your experience, why would a person have the pills in a � or a controlled substance in a bottle other than the original prescription container bottle?
DAN SMOOT: Of course, most people that receive a prescription have it in their labeled, proper bottle which they got from the pharmacy. If you do not� if you didn�t receive a prescription for that specific medication and you have no labeled bottle, then you have to carry it in something else. If you put it in something like a Tylenol bottle and put it in your dashboard and are routinely stopped for the police for a minor traffic refraction, they are not going to go through a Tylenol bottle.
MR. GORDON: I am going to object to this.
THE COURT: Overruled.
DAN SMOOT: Therefore, it�s quite common we see these things in these types of bottles. Not necessarily Tylenol bottle, but these types of bottles are used to store drugs.
MR. WEST: And on the first item that we talked about, of course, your testimony on the OC 40, the package that was given to you was a clear cellophane package, wasn�t it?
DAN SMOOT: Yes, sir.
MR. WEST: Was there any accompanying pill bottle?
DAN SMOOT: No, sir.
MR. WEST: Or prescription bottle?
DAN SMOOT: No, sir.
MR. WEST: Is that consistent with the way you have received other controlled substances as being not in a prescription bottle?
DAN SMOOT: Yes, sir. I can never remember receiving Oxycontin 40's like in someone�s labeled bottle.
MR. WEST: Retrieve those from him, Mr. Marshal. That�s all of this witness at this time.
THE COURT: Ladies and gentlemen of the jury, during your morning recess, remember the admonition of the court. Do not discuss the case amongst yourselves or allow anybody to discuss it with you. Don�t make up your minds about the case for you haven�t heard all the evidence or the instructions of the court. Mr. Thompson, you may show the jury from the courtroom. They will be excused until 10:50.
THE MARSHAL: Yes.
(Jury excused.)
THE COURT: Let the record reflect that the jury is out of the courtroom. Court will be in recess until 10:50.
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THE COURT: Let the record reflect that the parties are present in the courtroom by and with counsel, the jury is present; and we�ll waive the poll of the jury. Detective Smoot, your previous oath will cover your testimony at this time. Cross, Mr. Gordon?
MR. GORDON: Thank you, Judge.
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MR. GORDON: Detective Smoot, I have said it every other time, I�ll just go ahead and say it again. I am Derek Gordon, I represent Mr. Combs. I know you.
DAN SMOOT: Yes.
MR. GORDON: Of course, I have got some questions for you. There are � there are a number of ways to do OC. I mean, you have talked about them, you can put them in something and then shoot them up, I guess, right? That�s one way?
DAN SMOOT: I think what we discussed was splitting them. Of course, that�s not an injection form, but that is a way to break the pill in half.
MR. GORDON: So you do a half at a time?
DAN SMOOT: For example, if you have OC 80, of course, it�s too strong to take for some people, so what they will do is cut it into halves, and you will have the equivalent of two OC 40's; or cut it into fours and have the equivalent of for OC 20's.
MR. GORDON: And then you digest them� or ingest them, I should say?
DAN SMOOT: The three or four methods I know �
MR. GORDON: Well, you can digest them, can you not? You can simply put your finger down in the pill bottle, right, pull one out and stick it in your mouth, right?
DAN SMOOT: Sure.
MR. GORDON: If you did it that way then you wouldn�t have needles there, would you?
DAN SMOOT: No, sir.
MR. GORDON: Okay. And you wouldn�t have one of those pill splitters, whatever you call them, you wouldn�t have one if, say, you had 20's and that�s all you ever did? You would simply put your finger down in the pill bottle and eat them, right? You would have no need for a pill splitter?
DAN SMOOT: No need for a pill splitter.
MR. GORDON: No need for needles and other substances if you ate them the proper way, which that is the proper way, is it not?
DAN SMOOT: Oh, yes, sir.
MR. GORDON: Okay, and when a person has them in a container, which is not in the container they should be in, such as a Tylenol PM bottle, there is a charge for that, is there not?
DAN SMOOT: It�s prescription medication not in proper container.
MR. GORDON: Not in proper container. It�s a State charge?
DAN SMOOT: Not in proper container.
MR. GORDON: So that person may be driving around, even though the police may not detect it, that is a charge, right?
DAN SMOOT: Correct.
MR. GORDON: And in fact that � okay, do you know that my client has had a � has a back injury?
DAN SMOOT: Yes, sir. I was made aware of the fact that he does have a back injury.
MR. GORDON: Okay, and you don�t dispute that he was involved in some sort of accident in June of last year?
DAN SMOOT: No, sir. I don�t.
MR. GORDON: Okay, and you don�t dispute the fact that he has been prescribed OC 20's?
DAN SMOOT: No, sir.
MR. GORDON: At some point?
DAN SMOOT: No, sir, I do not dispute it.
MR. GORDON: Because you have seen that prescription bottle, have you not?
DAN SMOOT: That�s correct.
MR. GORDON: And do you know that he has never been prescribed OC 40's? Do you know if he was ever prescribed a prescription for OC 40's?
DAN SMOOT: I do not know.
MR. GORDON: Okay. Do you know if he was ever prescribed a prescription for K4's?
DAN SMOOT: I do not.
MR. GORDON: AKA Dilaudids?
DAN SMOOT: I am not aware of them.
MR. GORDON: You don�t know if he was or he wasn�t, right?
DAN SMOOT: Correct.
MR. GORDON: You didn�t do any checkup, did you?
DAN SMOOT: I know that we did not find any proper containers for K4, Dilaudid.
MR. GORDON: Inside the home?
DAN SMOOT: Or him or � the vehicle.
MR. GORDON: Right. But you don�t know that doctor so-and-so may not have prescribed something for him, say, couple years back or six months back? You don�t know that, do you?
DAN SMOOT: No, I don�t.
MR. GORDON: Did you investigate that?
DAN SMOOT: No.
MR. GORDON: Okay. So it�s conceivable, it�s possible that he had a prescription and that some of those pills were not in the proper� well, they obviously were not in the proper container?
DAN SMOOT: Were not.
MR. GORDON: Right. We know that.
DAN SMOOT: Yes, sir.
MR. GORDON: Now, you have tried to suggest that � or you were asked some questions concerning this � this� the fact that there were no syringes, the fact that there was no pill splitters, the fact that there was no currency that would indicate that perhaps he has a possessor problem, that he is a user, so to speak. Let�s talk about things that perhaps would suggest, then, to go along with your theory about his drug sales that � that� . Now, I have noticed on here, on his search warrant, for instance, and you are familiar with the search warrant, aren�t you?
DAN SMOOT: I am.
MR. GORDON: Did you find any ledgers or records inside the residence of any illegal drug sales?
DAN SMOOT: There were none located.
MR. GORDON: Did you find any U. S. currency which would be proceeds from illegal drug transactions?
DAN SMOOT: To the best of my knowledge there was none taken.
MR. GORDON: Did you find any U. S. currency know to officers as buy money?
DAN SMOOT: No.
MR. GORDON: All right. Now, those are the kind of things that would suggest perhaps that a person might be involved as opposed to a user, more of a seller, correct?
DAN SMOOT: Sure.
MR. GORDON: And you found none of those.
DAN SMOOT: No.
MR. GORDON: Okay. Do you know where this alleged sale took place in November of the year 2000?
DAN SMOOT: I believe it was Airport Gardens.
MR. GORDON: At where?
DAN SMOOT: Airport Gardens in Perry County.
MR. GORDON: Okay, didn�t take place at the residence?
DAN SMOOT: No, sir.
MR. GORDON: Well, why � do you remember testifying in front of the grand jury on January 25 of the year 2001?
DAN SMOOT: Yes, sir.
MR. GORDON: Okay. You were asked, because you are the � you are the witness who testified in front of the grand jury in an effort to get an indictment in this case, did you not?
DAN SMOOT: Basically we had 52 cases, and we just divided them even, and all officers had the case reports; and Mr. Leon Combs is one of them. [ATTEMPT TO EVADE]
MR. GORDON: It was your case?
DAN SMOOT: It was one of mine to present that day. [HE�S NO LONGER WANTING TO BE THE CASE MANAGER]
MR. GORDON: And you studied all the stuff prior to the grand jury that morning?
DAN SMOOT: I have read the case report, discussed it with the officers.
MR. GORDON: Beginning with count one on November the 14th of 2000, �Would you tell us about Leon Combs, please.� Answer: �We had informant driven by state police officer go to the residence of Leon Combs, and we purchased a large sum of Oxycontin, controlled substance.� Now, when did the police officer go to the residence of Leon Combs in this case?
DAN SMOOT: I believe that�s a � basically it�s a paraphrase. Sergeant or Detective Napier drove the informant down to the residence�
MR. GORDON: Down to the residence.
DAN SMOOT: I believe that�s it.
MR. GORDON: Well, do you know or � did you not talk to your officers in this case about what�s going on in this case?
DAN SMOOT: Sure.
MR. GORDON: Okay.
DAN SMOOT: But there is a lot of information there to ingest.
MR. GORDON: I understand.
DAN SMOOT: As you are aware.
MR. GORDON: But you read the case reports?
DAN SMOOT: Yes.
MR. GORDON: You talked to the officers?
DAN SMOOT: It was my understanding that Detective Napier drove Miss Eversole downto Leon�s where Miss Eversole got out, got in with Leon, went to the Airport Gardens, purchased the pills, brought the pills back; Miss Eversole gave them to Detective Napier, and he gave them to me.
MR. GORDON: Okay, do you agree with me that what you said there is that you said, �We had an informant driven by the State Polcie go to the residence of Leon Combs?�
DAN SMOOT: They did go there.
MR. GORDON: They never went there. Never went to his residence.
DAN SMOOT: They made several attempts that day. They went to his residence on several occasions that day.
MR. GORDON: Oh, they went there on other times?
DAN SMOOT: Earlier that day, yes, sir.
MR. GORDON: Earlier that day.
DAN SMOOT: Yes.
MR. GORDON: When? What time?
DAN SMOOT: I don�t know the exact time. I think they went two other times earlier that day.
MR. GORDON: Well, let�s assume they did go there. Was there a large sum of Oxycontin purchased from that residence?
DAN SMOOT: Not from it, not to my knowledge.
MR. GORDON: Okay, so that�s not a correct statement then?
DAN SMOOT: Well, can you tell me exactly where it is, sir?
MR. GORDON: Yes, sir. It�s on page 2.
DAN SMOOT: Okay. I see it.
MR. GORDON: Yeah.
DAN SMOOT: Basically, if you break it down, �We had an informant driven by the State Police officer go to the residence of Leon Combs, and we purchased a large sum of Oxycontin.� It could appear by that that it was purchased there but I didn�t mean for it to appear it was purchased there because obviously I knew it wasn�t purchased right at the house.
MR. GORDON: Did you explain that to the grand jury when you attempted to get an indictment in this case?
DAN SMOOT: No, sir.
MR. GORDON: No. You just left it at that?
DAN SMOOT: Well, I din�t see anything wrong with it and basically still don�t. �We had an information driven by state police officer go to the residence of Leon Combs.� �which we did��and we purchased a large sum of Oxycontin.� �which we did.
MR. GORDON: All right. You don�t see any problem with that?
DAN SMOOT: No, sir. I mean, the facts are the facts. �We purchased the drugs, and we had been to the residence. I think all the facts are there.
MR. GORDON: Well, the � the facts are not all there because by looking at that, it appears that you are trying to suggest with what you testified to as to the � to the government, that he had sold some of these Oxycontin out of his home that day.
DAN SMOOT: I think, as you are aware, if we buy them in the house or buy them in the yard or buy them down the street, it doesn�t matter where we purchase them, it�s still trafficking.
MR. GORDON: I am not denying that. What I am trying to say, is that there was no Oxycontin purchased from the residence that day?
DAN SMOOT: That�s correct.
MR. GORDON: Okay.
DAN SMOOT: Yes, sir.
MR. GORDON: I want to straighten that part out.
DAN SMOOT: That is correct.
MR. GORDON: All right.
MR. GORDON: Also on the next page, page 3, the third line down where it says, �We located his son and the son admitted that he was trading weapons that he had stolen from his parents and his uncle.� Now, who do you admit that he stole these weapons from?
DAN SMOOT: His father and his uncle.
MR. GORDON: He admitted to his father and his uncle that he stole them?
DAN SMOOT: He admitted to his father originally. He had told his uncle that he bought them from somebody else, but later he told the truth.
MR. GORDON: Did he � was a report filed that these guns were ever stolen?
DAN SMOOT: The ones from his uncle, there was a State Police did an investigation. Trooper Shana Long.
MR. GORDON: Trooper who?
DAN SMOOT: Shana Long. She is a road trooper with the Hazard State Police.
MR. GORDON: She didn�t testify in this case, did she?
DAN SMOOT: Not that I know of, no, sir.
MR. GORDON: So you are saying he told her that they were stolen?
DAN SMOOT: Mr. Sandlin did. Mr. Sandlin reported � when he noticed the guns were gone, Mr. Sandlin called State Police. State Police sent Trooper Long to his residence, and she did a report, first degree burglary report.
MR. GORDON; So there was a report filed?
DAN SMOOT: Yes, sir.
MR. GORDON: Do you have a copy of that report?
DAN SMOOT: No, sir.
MR. GORDON; So it was a burglary report?
DAN SMOOT: I�m assuming the charge would have been burglary first, that�s the standard.
MR. GORDON: Oh, so somebody broke into the house with the intent to commit a felony then?
DAN SMOOT: Well, they would have been in the house�
MR. GORDON: He broke into his own home?
DAN SMOOT: Who�
MR. GORDON: Burglary?
DAN SMOOT: Do what?
MR. GORDON: He broke into his own home?
DAN SMOOT: Who did?
THE COURT: You are misstating what he said, Mr. Gordon. You are saying that Mr. Sandlin reported a burglary and that Trooper Long went out to inspect �
MR. GORDON: Okay.
MR. GORDON: So you are saying the nephew broke into his uncle�s home?
DAN SMOOT: Whether or not he broke in, I don�t know. I know that if he was there on a visit or � or he, you know, went in when they were gone and took the guns, I am not sure how; but it would still be classified as a burglary first. If he was there to commit a crime and stole the guns, it still would be the charge of burglary first.
MR. GORDON: When he � when � when Mr. Combs was arrested that day, did they find any of these indicia of trafficking such as what I had mentioned to you earlier, the ledgers, the buy money, U. S. currency, anything like that? Did they find anything like that on him?
DAN SMOOT: Yes.
MR. GORDON: What did they find?
DAN SMOOT: The sheer volume of pills would indicate trafficking that he had on him.
MR. GORDON: Did they find the things I just asked about, the U. S. currency, the buy money, anything like that?
DAN SMOOT: We didn�t expect to find buy money, I guess it�s possible, but�
MR. GORDON: Can you answer yes or no? Then you can explain yourself.
DAN SMOOT: No, they did not.
MR. GORDON: You weren�t there, were you?
DAN SMOOT: No, sir.
MR. GORDON: Some of those bottles that were up there that you were testifying about, a lot of these � well, strike that.
These guns that � that� well, for instance, these guns here that you said that you went out and shot last night into the � hunting rifles, is that what you call them?
DAN SMOOT: One�s a .22, one�s a .270 and one�s a .222. I would consider the .22 and .270 used for hunting.
MR. GORDON: And they were working last night?
DAN SMOOT: Yes, sir, all three were fired and worked as they should.
MR. GORDON: Now, those guns would be � have those guns been held in evidence since the arrest?
DAN SMOOT: I have had them. They have been in the evidence locker. Oh, excuse me, the .22 has.
MR. GORDON: I am asking about those guns there?
DAN SMOOT: Right, those guns were returned to their owners.
MR. GORDON: They had been returned?
DAN SMOOT: Yes, then the guns were brought by the owners and released to me prior to court.
MR. GORDON: All right. What you are making reference to is that you held this gun in evidence?
DAN SMOOT: The Phoenix arms .22 that was located on Mr. Combs.
MR. GORDON: Right.
DAN SMOOT: Has been in possession of the State Police.
MR. GORDON: You have testified to that already, but that�s fine. Now, again, when � when he was � when he was located at the residence, you weren�t there, were you?
DAN SMOOT: I was not.
MR. GORDON: And, of course, everything that you are reporting is what you have been told; is that right?
DAN SMOOT: Well, what I have been told and what I have observed and �
MR. GORDON: Things you observed?
DAN SMOOT: Well, I saw the evidence that evening and have seen it since and fired the weapons, you know, things that I was told and have done, observed.
MR. GORDON: Okay. Now, have you had any � have you � have you specifically talked to Josh Miller yourself?
DAN SMOOT: No.
MR. GORDON: You have not?
DAN SMOOT: No, sir.
MR. GORDON: Okay. Have you talked to any of the witnesses yourself?
DAN SMOOT: No, sir.
MR. GORDON: I mean, you have talked to them?
DAN SMOOT: Not about the case.
MR. GORDON: Right.
DAN SMOOT: I don�t talk.
MR. GORDON: Okay.
MR. GORDON: Just a moment, Your Honor.
(Counsel for the defendant conferring with the defendant.)
MR. GORDON: That�s all, Your Honor.
THE COURT: Redirect, Mr. West?
MR. WEST: Yes, Your Honor.
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MR. WEST: Detective Smoot, Mr. Gordon mentioned several things, buy money, ledgers, U. S. currency that were all listed on the search warrant?
DAN SMOOT: Right.
MR. WEST: And called those inditia of trafficking. Asked you a question of whether or not any buy money was found, and you started to say is you didn�t expect to find. Would you finish your response, please?
DAN SMOOT: Right, Well, I don�t know the exact day of the buy. I think it was sometime in November. Several months had lapsed. Therefore, of course, there is the possibility that some of the buy money could have been located but�
MR. GORDON: Objection. Objection.
THE COURT: Overrule.
DAN SMOOT: But as each day goes by past the time you make a buy, your chance of actually recovering the buy money is slim.
MR. WEST: Another response I�ll let you finish in this case, you were asked what indicias of trafficking were found in this case by Mr. Combs. Would you tell the jury what indicias of trafficking were found on knowledge of your experience?
DAN SMOOT: As I said to Mr. Gordon, basically the amount of pills. If a doctor prescribing you pills, and let�s say you are going to take a trip to the corner market or something, obviously you would take your medication earlier that day or before you went. There would be no need to pack 25 pills with you.
MR. GORDON: Objection, this is speculation. Your Honor.
THE COURT: Overrule. Overrule.
DAN SMOOT: There would be no need to pack that amount of pills with you to, you know, to go to the corner or go down the street. If you have a medication, you take it as needed, and, of course, you leave it at your house.
MR. WEST: In this case, based on your knowledge and experience, what inditia is the presence of the firearm on Mr. Combs� person?
DAN SMOOT: It�s been my experience that �
MR. GORDON: Objection.
THE COURT: Overrule.
DAN SMOOT: �that people that traffick in illegal controlled substances will carry a gun either as a scare tactic or to protect their product.
MR. WEST: That�s all of this witness, Your Honor.
THE COURT: Recross?
MR. GORDON: Yes.
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MR. GORDON: Well, he was at home that day, wasn�t he, Smoot � Officer Smoot?
DAN SMOOT: He was in his car getting ready to leave.
MR. GORDON: Well, was he getting ready to leave or was he coming, or do you know? Officer Sandlin didn�t know that?
DAN SMOOT: I just remember to what he � I am not sure I can answer that.
MR. GORDON: You don�t know, do you?
DAN SMOOT: No, I know the answer, but I am not sure that I can � that I can answer it how I know it.
DAN SMOOT: Okay. It would be probably hearsay is what you are trying to say?
DAN SMOOT: No, it wouldn�t be hearsay, but I am afraid it would create a mistrial situation.
THE COURT: Speak to Mr. West.
(Counsel for the plaintiff and counsel for the defendant conferring.)
MR. WEST: May I approach the witness, Your Honor.
THE COURT: Yes, sir.
(Counsel for plaintiff and the witness conferring.)
DAN SMOOT: If you would, please, repeat the question.
MR. GORDON: Okay, my question was you didn�t know if he was coming or going from his home?
DAN SMOOT: I have no personal knowledge.
MR. GORDON: Right. And you would agree with me that � that he was on his � his property where his residence is located; is that right?
DAN SMOOT: That is correct.
MR. GORDON: Okay, and you or any of your associates, as far as you know, he was not under surveillance the twenty minutes prior to that, before he � before you came upon the property?
DAN SMOOT: He was not.
MR. GORDON: He was not? So, therefore, what he was doing, where he was or where he had been or what have you; you would have no personal knowledge of that?
DAN SMOOT: No, sir, I would not.
MR. GORDON: That�s all.
THE COURT: Redirect?
MR. WEST: Nothing else, Your Honor, thank you.
THE COURT: Thank you, Detective Smoot. Next witness, please.
MR. WEST: The United States would ask the court to take judicial notice that Perry County is within the confines of the Eastern District of Kentucky, please.
THE COURT: Objection?
MR. GORDON: Well, I would like to, but I don�t know that �
THE COURT: That�s pretty much�
MR. GORDON: I wouldn�t want to show my brain power if I objected to that one, Judge. I�ll just leave it alone.
THE COURT: Okay, Perry County is in � in Title 28, United States Code, Section 97(a), is listed the counties which comprise the Eastern District of Kentucky. Perry County is one of those counties. I told you yesterday in my preliminary instructions that you could consider the facts that I had judicially noticed. I am taking judicial notice that Perry County is within the Eastern District of Kentucky. Mr. Gordon has said, as he said, that�s something that he is not going to argue because everybody knows basically that Perry County is in the Eastern District, and that�s a fact that we can take judicial notice. You can consider that along with all the other evidence in the case. Next witness.
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MR. WEST: The next matter, the parties have a stipulation that the three firearms mentioned in count 5 of the indictment, the .270, .22 rifle, and the .222 were manufactured outside the State of Kentucky and, therefore, shipped in interstate commerce.
THE COURT: Is that so stipulated, Mr. Gordon?
MR. GORDON: Yes, Your Honor, we have agreed on that.
MR. WEST: Miss Reed has the next witness, Your Honor.
THE COURT: That�s another fact that you can judicially notice or that you can consider in your � in your deliberations is the fact that these firearms � it�s stipulated that these firearms were manufactured outside the State of Kentucky because of the stipulation of the parties.
Next witness?
MS. REED: John Harris.
(Witness sworn.)
THE CLERK: Thank you.
THE COURT: You may ask, Ms. Reed.
MS. REED: Thank you, Your Honor.
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MS. REED: Would you state your name, please?
JOHN HARRIS: John Harris.
MS. REED: Who are you employed by?
JOHN HARRIS: I am employed by the Kentucky State Police Laboratory in London, Kentucky, as analytic chemist and also supervisor. I guess you could say I am a forensic chemist, and I deal with legal evidence.
MS. REED: What are some of your duties and responsibilities as a forensic chemist?
JOHN HARRIS: Main duty at present and really for the last twenty-nine years has been to �
to analyze drugs that are submitted to me, pills, tablets, capsules, powders, plants, material � and determine whether or not they are controlled under both Kentucky or Federal statute. What it is determines whether it�s controlled or not, controlled by chemical compound. Then I write a report detailing what I found, and if necessary, I come to court, like today, and I testify to my results.
MS. REED: That leads me to my next question, have you ever testified before?
JOHN HARRIS: I have probably testified close to 1,000 times or more over the past � I was originally hired by the Kentucky State Police Laboratory here in Frankfort in December 1971 and probably first testified in �72 late �72; and I have been testifying regularly ever since, a number of times a year. I have testified in the Eastern District of Kentucky and several � most of the courts. I haven�t been to this one yet and testified. I think it was here once, I have testified in the Western District Federal Court, Western District of Kentucky, one of the districts in Texas and one in Florida. I have testified most of the Circuit Courts and District Courts around the State of Kentucky.
MS. REED: Have you had an occasion to receive a sample concerning Case No. 13-00-2954?
JOHN HARRIS: Yes, ma�am, I did.
MS. REED: Who did you receive it from?
JOHN HARRIS: Detective Dan Smoot.
MS. REED: On what date?
JOHN HARRIS: I received it on the 17th day of November of last year, 2000.
MS. REED: I am going to show you what�s previously been marked as Government�s Exhibit No. 12. I would ask if you will identify it, please.
JOHN HARRIS: Yes, ma�am, this is the evidence that I just testified that I received from Detective Smoot.
MS. REED: And what specifically is it?
JOHN HARRIS: Well, inside this brown envelope � which was sealed with this tape when I got it, and after I tested it I sealed it back up with my own evidence tape and marked the laboratory numbers and my initials; that�s the way I identify it, with laboratory number and my inititals.
Inside is clear, plastic cigarette wrap; and inside that wrapper is 25 yellow coated tablets marked OC on one side and 40 on the other side which I know from examing literally thousands of these tablets in the past to be a brand of Oxycodone known as Oxy 10 and made by the Fredericks Pharmaceuticals Company. It was received �
MS. REED: After you received �
JOHN HARRIS: �by me. Go ahead.
MS. REED: After you received that sample, what did you do with the pills?
JOHN HARRIS: I marked the outside of the evidence, and I had it logged in, the lab number, assigned a lab number and marked it with that lab number. Then I placed it in my evidence locker for � until the 22nd. I have an evidence locker that only I have access to in our drug evidence room, and on the 22nd of November, I tested it at that time.
MS. REED: What tests did you perform?
JOHN HARRIS: I performed several different chemical instrumental tests and in addition to that, the first thing I did is look up the drug, even though I have looked it up a thousand times before in a medical or pharmaceutical data base that they have available to us called the Demographs. And it tells me who makes it, what the brand name is and how much the � the generic drug is in there and the amounts and that sort of thing. I then took one of the tablets and confirmed that that�s what was in it, and that what it was. I tested it by dissolving part of the tablet with wood alcohol, methyl alcohol, which is a solvent that will dissolve the chemical ingredient in those tablets away from fillers and coatings and that sort of thing. I then took the outer part of that out of that and tested it on an instrument called a mass spectrum�excuse me, mass spectroscopy, mass spectrometer; and this test was positive for Oxycodone. It�s basically like a chemical fingerprint of the drug. And I tested it on another instrument, separate instrument called a gastromatograph; and this actually has two different columns or detectors in it specific with the different conditions on it, so it�s two tests in one. It�s actually two gastromatograph tests, and both of these tests were positive for Oxycodone. And this led me to conclude that the drug I was testing was Oxycodone. I pretty much knew before I started, but I am a chemist, hired by the Kentucky State Police and asked by the courts to do this type of scientific analysis and confirm it.
MS. REED: These tests you performed, are they standard procedure in your laboratory?
JOHN HARRIS: They are at my laboratory and within our state laboratory system. We have five other labs that use the same tests, and I am a memeber of the Southern Association of Forensic Scientists and the American Association of Crime Laboratory Directors, and I get to go to meetings; and I have been doing this for, like I say, thirty some years and have been trained in this field, and I know and have talked to my colleagues in other states; and I know these are the type of procedures they use also.
MS. REED: Which basically you have answered my next question which is are the tests readily accepted in the scientific community?
JOHN HARRIS: They certainly are.
MS. REED: And did you perform � did you perform, did you write or create a lab report that set forth the results of your tests?
JOHN HARRIS: Yes, I did. I caused one to be created.
MS. REED: I am going to show you what has previously been marked as Government�s Exhibit No. 13 and ask if you could identify it, please.
JOHN HARRIS: Yes, this appears to be a true and accurate copy of the laboratory report I created in this case�
MS. REED: And that�s your signature on it?
JOHN HARRIS: �telling my results. It is my signature, copy of my signature, yes, ma�am.
MS. REED: And this report was performed in the ordinary course of duties there at the lab?
JOHN HARRIS: At the Southeastern Kentucky State Police Laboratory, that�s correct.
MS. REED: At this time, Your Honor, I would move to admit Government�s Exhibit No. 13.
THE COURT: Objection?
MR. GORDON: No.
THE COURT: Let it be filed.
(Evidence admitted.)
MS. REED: Mr. Harris, what were the results of your test, specifically?
JOHN HARRIS: I found the tablets contain Oxycodone which is a Schedule II narcotic.
MS. REED: What does Schedule II mean?
JOHN HARRIS: Schedule II is the way both the Federal and State laws classify controlled substances. Drugs that are � have a potential for abuse are � are classified as controlled substances. A Schedule I drug has a high potential for abuse and no accepted medical use. Schedule II drug would have equally high potential for abuse�
MR. GORDON: I am going to object. I am going to object.
THE COURT: Overrule.
JOHN HARRIS: Schedule III drug would have somewhat lesser potential for abuse, and there is also something in there about physical addiction, that type of thing.
MS. REED: What did you do with � with those pills after you finished testing them?
JOHN HARRIS: I put them back in my evidence locker and held them until they were picked up by the property officer from Post 13, Sergeant Roark, on the 15th day of December of last year.
MS. REED: And are these pills that were contained in that exhibit the pills you have just testified about were the ones you tested�
JOHN HARRIS: Right. They appear to be. My seal is still intact at the bottom of the piece�they have been opened here, but the little piece of tape I put around them to seal them there has my laboratory number and my initials on it and they certainly appear to be the same tablets.
MS. REED: At this time, Your Honor, I would move to admit Government�s Exhibit �
MS. REED: I�m sorry, what was the number of that exhibit? Just look on the back.
JOHN HARRIS: This is Exhibit 12 and this is 13.
MS. REED: All right, I�ll move to admit Government Exhibit No. 12.
THE COURT: Objection?
MR. GORDON: No objection.
THE COURT: Let the exhibit be filed.
(Exhibit admitted.)
MS. REED: Nothing further.
THE COURT: Cross, Mr. Gordon?
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MR. GORDON: Nice seeing you, John.
JOHN HARRIS: You, too.
MR. GORDON: No, that�s all.
THE COURT: Thank you, Mr. Harris.
JOHN HARRIS: Thank you, Your Honor.
THE COURT: Next witness, please?
MS. REED: Henry Hayes.
(Witness sworn.)
THE CLERK: Thank you.
THE COURT: You may ask, Ms. Reed.
MS. REED: Thank you, Your Honor.
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MS. REED: State your name.
HENRY HAYES: Henry Hayes.
MS. REED: Who are you employed by?
HENRY HAYES: Kentucky State Police, Southeastern Regional Crime Laboratory.
MS. REED: What is your title?
HENRY HAYES: Drug chemist.
MS. REED: What are your duties and responsibilities?
HENRY HAYES: I receive suspected drug evidence, analyze it, prepare a report of my findings, and then testify on that report if necessary.
MS. REED: Have you testified before?
HENRY HAYES: Yes.
MS. REED: How many times?
HENRY HAYES: Approximately 15.
MS. REED: Have you had an occasion to receive a sample concerning Case No. 13-01-0261 through 0263?
HENRY HAYES: Yes.
MS. REED: And who did you receive it from?
HENRY HAYES: From Sergeant Roark.
MS. REED: And what date did you receive that?
HENRY HAYES: On February 1st , 2001.
MS. REED: I am going to show you what�s previously been marked as Government�s Exhibit No. 9 and ask you if you can identify it, please?
HENRY HAYES: Yes, this has my lab number o it and the case number from the officer also on it.
MS. REED: So that is the sample from the case no. that I just mentioned?
HENRY HAYES: Yes.
MS. REED: And what specifically is inside that envelope?
HENRY HAYES: Five exhibits here, each containing a Ziploc bag each containing tablets.
MS. REED: What did you do with these tablets after you received them?
HENRY HAYES: When I received them, I placed them in my drug locker until I am ready to work with them.
MS. REED: And did you then perform any tests?
HENRY HAYES: Yes, I did.
MS. REED: What tests did you perform?
HENRY HAYES: I perform gastromatography and � gastromatography and mass spectrometry.
MS. REED: And what were the results of those tests?
HENRY HAYES: Exhibits 1, 2, and 5 were found to contain Oxycodone.
MS. REED: Could you just hold these up for the jury as you say them?
HENRY HAYES: These three exhibits were found to contain Oxycodone.
MS. REED: What is the prescription name for Oxycodone?
HENRY HAYES: These particular preparations are called Oxycontins.
MS. REED: Are those particular ones in different strengths?
HENRY HAYES: These two are the same. These are 20 milligram tablets, and these are 40 milligram tablets.
THE COURT: Which is which? No. 1, for example, what is it?
HENRY HAYES: No. 1 is the 40 milligram preparation. Exhibits 2 and 5 are 20 milligram preparations.
THE COURT: Thank you.
MS. REED: And you can refer to your lab report if you need to. How many of the � of the pills were 40's and how many were 20's? Going by exhibit number.
HENRY HAYES: Exhibit 1, there were then 40 milligram ones; Exhibit 2, there were six 20 milligram ones; and Exhibit 5, there were also nine 20 milligram.
MS. REED: All right, continue, what were the others?
HENRY HAYES: Exhibit 3 contained 7 white tablets. They were found to contain Aprasalam.
MS. REED: What is Aprasalam? Is there a way � a lay term for Aprasalam?
HENRY HAYES: These particular ones are a generic preparation of Xanax tablets.
MS. REED: I forgot to ask you, is Oxycodone a controlled substance? Does it go with a schedule, I or II or III or IV?
HENRY HAYES: Oxycodone is a Schedule II narcotic.
MS. REED: And what about the Aprasalam?
HENRY HAYES: Aprasalam is a Schedule IV.
MS. REED: What does that mean?
HENRY HAYES: Drugs are controlled substances placed in schedules based on their potential for abuse and whether or not they have an accepted medical use. There is five schedules. Schedule I has a high potential for abuse and doesn�t have an accepted medical use, and Schedule V has a relatively low potential for abuse and a lot of medical usage; and everything in between kind of falls within the grade.
MS. REED: Very well. I am sorry to have to interrupt you. What was the last one?
HENRY HAYES: Exhibit 4, there were nine yellow tablets here that were found to contain Hydromorphone.
MS. REED: In lay terms what is that?
HENRY HAYES: Those are Dilaudid tablets.
MS. REED: Is that a schedule substance?
HENRY HAYES: That is Schedule Ii narcotic also.
MS. REED: Were these tests that you performed then during the ordinary course of business there at the lab?
HENRY HAYES: Yes.
MS. REED: And are these tests readily accepted in the scientific community as being proper tests to use for testing controlled substances?
HENRY HAYES: Yes.
MS. REED: I am going to ask you now if you created a lab report as a result of the tests that you performed?
HENRY HAYES: Yes, I did.
MS. REED: And I�ll show you what�s previously been marked as Government�s Exhibit No. 14 and ask if you can identify it, please?
HENRY HAYES: Yes, this is an accurate copy of my lab report.
MS. REED: Concerning these substances you just talked about?
HENRY HAYES: Correct.
MS. REED: Is that your signature at the bottom?
HENRY HAYES: Yes, it is.
MS. REED: And is this lab report performed in the ordinary course of business there at the lab?
HENRY HAYES: Yes.
MS. REED: At this time, Your Honor, I would move to admit Government�s Exhibit.
MS. REED: What is on that?
HENRY HAYES: This is 14.
MS. REED: 14.
THE COURT: Objection?
MR. GORDON: No, sir.
THE COURT: Let it be filed.
(Exhibit admitted.)
MS. REED: What did you do with the pills after you tested them?
HENRY HAYES: After I completed my examination, I sealed the package back and placed it back in the drug locker until Sergeant Roark picked it up from the lab.
MS. REED: And are these pills the ones you tested, the ones that you testified about and the ones that are concerning this case?
HENRY HAYES: Yes, they are.
MS. REED: At this time, Your Honor, I would move to admit Government�s Exhibit No. 9, I believe. If you would check that for me sir?
THE COURT: Yes.
MS. REED: Yes.
THE COURT: Objection?
MR. GORDON: No, sir.
THE COURT: Let it be filed.
(Exhibit admitted.)
MS. REED: That�s all the questions I have.
THE COURT: Cross?
MR. GORDON: No cross.
THE COURT: Thank you, Mr. Hayes, you are excused. Next witness, please.
MR. WEST: You Honor, I believe all item Exhibits 1 through 14 have been identified and admitted into evidence; is that correct?
THE COURT: Is that correct, Madam Clerk?
THE CLERK: Yes, Your Honor.
MR. WEST: Your Honor, all witnesses for the United States have testified. We would close proof at this time.
THE COURT: All right. Ladies and gentlemen of the jury, during your lunch recess, remember the admonition of the court. Do not discuss the case amongst yourselves, all anybody to discuss it with you. Don�t make up your mind about the case, for you may not have heard all the evidence or the instructions of the court. Don�t read anything in the newspaper, listen to anything on the radio or watch anything on television touching on this case in any way. If anybody does try to talk to you about it, let one of our court security officers know, and I�ll see you back here at 12:45. Mr. Spencer, you may show the jury from the courtroom.
THE MARSHAL: All rise for the jury.
(Jury excused.)
THE COURT: Let the record reflect that the jury is out of the courtroom. Please be seated.
At this time, Mr. Combs, I make it a point to address the defendant on the record and go over some things with the defendant. You have heard me tell the jury, during the course of our preliminary instructions and during voir dire, that you absolutely have the right to remain silent and that you have no obligation to present any testimony or to testify or present any evidence and that they can�t consder that fact in making their decision as to whether the government has proven these charges against you beyond a reasonable doubt.
There is a � there is obviously a flip side to that coin. You have the absolute right to testify and to present evidence. If you do testify, your testimony will be subject to cross examination just like that of any other witness, and the jury wil be able to consider it in arriving at its verdict. Now, that�s something that you and your attorney need to discuss, and I am sure you have done that from what Mr. Gordon has said; but that�s something you need to discuss and make up your mind whether you are going to � to testify in this matter.
If you are not satisfied with � with the decision that you and your attorney have made and need to speak to me about it, I�ll be more than willing to hear you outside the presence of the jury and outside the presence of the prosecutor. But that, again, is something you need to make your mind up one way or another based on your advice of counsel. Do you understand that, sir?
LEON COMBS: Yes, sir.
THE COURT: I�ll see counsel in chambers briefly. If you would bring your instructions that I laid on your desk. Court will be in recess until 12:45.
(Lunch recess at 11:39 a.m. until 12:45 p.m.)
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Thursday afternoon session
April 19, 2001, 12:45 p.m.
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(The following proceedings were had in open court out of the presence and hearing of the jury.)
THE COURT: Let the record reflect the United States is present in the courtroom by counsel, that the defendant is present in the courtroom with counsel; that the jury is not present.
There is something we need to take up at this time, Mr. Gordon?
MR. GORDON: There is, Judge. Having heard the government, you know, close their proof, we need to make a motion.
THE COURT: Oh, sure. Rule 29 motion?
MR. GORDON: That�s � that�s correct. Your Honor.
THE COURT: Okay.
MR. GORDON: Let me, without I guess talking too long on it, because I think some of it is probably not worth making too much of an argument on; but I need to make it for the record, obviously.
But in regard to Count 5, Judge, I haven�t heard anything, first of all, to indicate that the � that the weapons were in fact stolen. Secondly, that � that to the contrary, that my client was informed that in fact they weren�t stolen, specifically told they weren�t stolen. That�s what the witness said. But there never was � I mean, you know, there was never any report that we can tell from � from the father of the � of the alleged perpetrator, nor the uncle, who actually � they may have made a phone call, but there was never any filed report by either one of those individuals who would be the victim in this offense, that have filed a stolen report. Never, you know, never produced anything. There is just nothing in the record to suggest that these weapons were stolen. And to take it even further, even � there is no knowledge upon my client that in fact he knew that the guns were stolen. So I think the evidence is clear on that particular count that there is no proof and, therefore, I think the court should enter a judgment of acquittal in regard to count 5.
In regard to the other four counts, Judge, I could sit up here and tell you why, but I am not going to argue that; and I think there is probably enough there, you know, to submit those to the jury although I do think, you know, I got an argument with regard to the guns a little bit. But I�ll just make my motion for purposes of the record that there has not been sufficient proof to take the additional counts of the indictment, count 1, count 2, count 3, and count 4 to the jury, Your Honor.
THE COURT: Okay, thank you, Mr. Gordon. As to count 5?
MR. WEST: Yes, Your Honor, the issue as to whether or not the defendant knew the weapons were stolen is an issue for the jury. The defendant�s state of mind is a fact that the jury should determine. Additionally, instruction no. 15 says know or having reasonable cause to believe that the firearms were stolen. Certainly taking the three firearms there and the fourth firearm, black powder rifle, with the other items found inside Mr. Combs� residence, the Karaoke machine and the knives, could give a jury a reasonable cause to believe that those firearms were stolen. Additionally, both Ed Miller, the father �
THE COURT: It�s not the jury that has the reasonable cause to know, it�s the defendant.
MR. WEST: Yes, Your Honor. Also Ed Miller and Josh Miller both stated that Josh Miller did not have permission to remove the firearms from the residence. The father did not want to say that his son stole the gun, using the word �stole.� But not having permission to take the firearms, is consistent enough with stealing the firearms is our position.
MR. GORDON: Josh Miller, you know, I specifically asked him, �Did you � did you tell anyone, you know, that the guns were stolen.� and his answer was no. I mean, there is no�you know, there is no proof, Judge. That would be a travesty of justice to have it submitted to the jury and have them come back and find him guilty of something there is no record on.
THE COURT: Well, the proof in the record is that these guns were stolen in the latter part of January, 19� or 2001. That they found themselves in Mr. Combs� possession. The possession of recently stolen property is an indication that the defendant know that they were stolen. The biggest factor, though, is the value of the weapons, testimony�there was testimony elicited that these weapons, some of which had a value in �
MR. GORDON: The .270 �
THE COURT: The .270 he said he wouldn�t take more than 500 for. He paid 350 for it. The shotgun was � the .22, rather, was worth $150 when he bought it five years ago. The .222 Remington was paid � bought for 400 two years ago. So a lot of these firearms that were found in Mr. Combs� possession were purchased either for a single OC 40, or in the case of the .22 for an OC 40 and $40, that would indicate that they were being sold at a very advantageous price; which is another indicator or inditia of the fact that they were stolen. You know? It�S like you buy the $50,000 Mercedes for $250, that should give you some idea that there is something reasonably wrong, so for that reason the motion is denied, as to count 5.
As to the other counts� and I have to look at this, and you know the standard, I have to look at this evidence in light most favorable to the government and make a determination as to whether a rational trier � fact finder could find the defendant guilty on each of the elements of that offense. And I think in that circumstance, given the way I have to find the evidence as this point in time, that a rational fact finder could do just exactly that. The same standard applies to count 1 through 4. Count 1, Joyce Eversole said that he took her to a place, took the $1000 and brought her back the Oxycontin. That�s sufficient to go to the jury on count 1. Count 2 is the Oxycontin which was found in Mr. Combs� pants, and secreting that and the amount of it could lead a reasonable fact finder to � the amount and his actions in regard thereto could lead a reasonable fact finder to conclude that he possessed that Oxycontin and Dilaudid with intent to distribute it. Count 3, because he had the .22 pistol in his pocket at the time that he possessed the Oxycontin and Dilaudid, could lead to somebody�a rational juror to believe that he carried the gun to � in using the term �emboldened him,� to �embolden him� if he were to protect his drugs. I think that�s a reasonable conclusion that a rational jury could find. In count 4, he was in possession of these weapons which young Miller said he traded for him to obtain Oxycontin and that�s use of a firearm as an element of barter in a drug trans � transaction under the Supereme Court�s decision. I can�t remember the name of it. [This appears to be an error in reference to the Bailey Opinion. Secondly, Leon was not charged with �use and carry� he was charged with possession.]
It is sufficient to establish all of the elements of a 924 charge, so in that regard, count 4 is sustained�or is sufficient to go to the jury. Anything else?
MR. GORDON: No, you just � no. Only two motions so far that � I have won two motions I think so far. Two objections, I should say. At the very beginning when I said these may be the only two; you said one. I said no, it may be the only two. So far you are right. [THIS STATEMENT WOULD LEAVE ONE WITH THE OPINION THAT THIS CASE WAS PREDETERMINED AND THE TRIAL WAS SIMPLY AN ACT OR PERHAPS MORE CORRECTLY PUT �A MOCKERY.�]
THE COURT: Are you keeping score?
MR. GORDON: No, no, no. I just � no, I mean �
THE COURT: I am not.
MR. GORDON: Oh, I am not saying it�s not right. I am just saying you were right, though.
THE COURT: You are not saying I was right. You are saying I�m wrong.
MR. GORDON: I am just saying I haven�t done � I haven�t done that well in my objections so far.
THE COURT: The cards, you know, are dealt from a deck, and you know it�s a five card stud; and when you turn them over, that�s what you got.
MR. GORDON: I need an ace of spades, Your Honor.
THE COURT: It may be. You want to show the jury in? Or before �just a second. Have you all decided what you are going to do?
MR. GORDON: Yeah, we have, Judge, and I have discussed that with him, and he is not going to take the stand.
THE COURT: Not going to take the stand?
MR. GORDON: Not going to take the stand.
THE COURT: All right, is that your desire, Mr. Combs?
LEON COMBS: Yes.
THE COURT: I know this get up, sit down is almost as bad as a Catholic church. Then I�ll have to change my instructions accordingly?
MR. GORDON: Right.
THE COURT: Okay? And I�ll again instruct the jury that they should not take any � that will be in my instructions, all right?
MR. GORDON: All right, Your Honor.
THE COURT: You may show the jury in.
(Jury resumed)
THE COURT: Please be seated. Let the record reflect that the jury is in the courtroom. We�ll waive the poll of the jury. First witness, Mr. Gordon?
MR. GORDON: Michelle Combs, Your Honor.
THE CLERK: Please raise your right hand.
(Witness sworn.)
THE CLERK; Thank you.
THE COURT: You may ask, Mr. Gordon.
MR. GORDON: Thank you, Your Honor.
- - - - - - - -
MR. GORDON: State your full name for the court, please.
MICHELLE COMBS: Michelle Alice Combs
MR. GORDON: And where do you live, Miss Combs?
MICHELLE COMBS: 201 High Rock Road, Hazard, Kentucky
MR. GORDON: And how long have you resided in that area there?
MICHELLE COMBS: We have � we have lived there in that house for four years.
MR. GORDON: Four years. Now, that is � as you said, in Hazard, Kentucky.
MICHELLE COMBS: Yes, it is.
MR. GORDON: And is that any � you hear these words quite often � in a �holler�?
MICHELLE COMBS. Yes, it�s in a hollow.
MR. GORDON: What is a hollow anyway?
MICHELLE COMBS: It�s a small rural � what you would consider a rural route road that is kind of between the mountains.
MR. GORDON: Okay. Okay. Just what it�s � just how you say it?
MICHELLE COMBS: Yeah, it�s a little �holler� between the mountains.
MR. GORDON: I have heard that word before, really didn�t know what it was.
THE COURT: Actually it�s hollow.
MICHELLE COMBS: Yeah, it�s spelled hollow, but it�s commonly pronounced �holler.�
MR. GORDON: Oh, all right. So you have lived there for four years?
MICHELLE COMBS: Yes.
MR. GORDON: And I take it that you live there with your husband?
MICHELLE COMBS: Yes.
MR. GORDON: And your husband is Leon Combs?
MICHELLE COMBS: Yes.
MR. GORDON: Sitting behind me here?
MICHELLE COMBS: Yes, he is.
MR. GORDON: And do you have any children?
MICHELLE COMBS: Yes. I have four children. My oldest lives in Michigan with her father, and I have a twelve-year old that lives with us; and we have two daughters together.
MR. GORDON: All right. And how long have you been married to Leon Combs?
MICHELLE COMBS: We have been married �it will be seven years May 23.
MR. GORDON: All right, And did you live together for a period of time prior to that?
MICHELLE COMBS: Approximately two years.
MR. GORDON: So you are � your courtship is going on about nine years?
MICHELLE COMBS: That�s how long we have been together, yes.
MR. GORDON: Okay. Now are you in school, are you employed, what do you do?
MICHELLE COMBS: I am a full-time mom, a full-time wife, and a full-time student at the Hazard Community College.
MR. GORDON: Okay, and what are you attempting to become?
MICHELLE COMBS: A social worker.
MR. GORDON: Okay. And you say you have three children living at the home, is that right?
MICHELLE COMBS: Yes, we do.
MR. GORDON: Okay, Now you � does your husband work?
MICHELLE COMBS: No, he doesn�t, he is disabled.
MR. GORDON: Okay, and he is � he�s been disabled for how long?
MICHELLE COMBS: Well, he was originally hurt in December of 1991 n a mine injury. And he was able to go to work somewhat mostly doing contract labor after that, but in June of 2000, June 23, he was in a motorcycle accident; and he was severely injured.
MR. GORDON: Okay, and that would have been June 23rd of the year 2000?
MICHELLE COMBS: Yes.
MR. GORDON: Okay, and I take it he went to the hospital?
MICHELLE COMBS: YES.
MR. GORDON: Okay, and prior to that accident in June of � of 2001, we know he had some problems as a result of the mining accident, but did he � basically, was he able to get around pretty well?
MICHELLE COMBS: Yes, he was able to get around.
MR. GORDON: Do you know if he was on any prescriptio at that time prior to June of 2001?
MICHELLE COMBS: No, he wasn�t.
MR. GORDON: Or June of 2000. After the accident, you say that � well, did he get disability prior to that?
MICHELLE COMBS: No, he didn�t.
MR. GORDON: Okay, did disability come as a result of the accident in 2001?
MICHELLE COMBS: Yes.
MR. GORDON: Okay, and as a result of that accident, did he � did he go on any medication?
MICHELLE COMBS: Yes, he did.
MR. GORDON: Okay. What did he go on?
MICHELLE COMBS: Oxycontin.
MR. GORDON: Oxycontin 20's?
MICHELLE COMBS: They originally started him with 40's.
MR. GORDON: Originally they started him with 40's?
MICHELLE COMBS: Yes, they did.
MR. GORDON: And so at some point he had a prescription for 40's?
MICHELLE COMBS: Yes, he did.
MR. GORDON: And I take it at some point he had a prescription of 20's?
MICHELLE COMBS: Yes, he did.
MR. GORDON: You don�t do Oxycontin?
MICHELLE COMBS: No, I don�t.
MR. GORDON: You are not on any medication, are you?
MICHELLE COMBS: No, I am not. Oh, wait a minute, I�m sorry, I do take prescription Elavil.
MR. GORDON: Elavil?
MICHELLE COMBS: Uh-huh.
MR. GORDON: Now, did there come a time when your husband was � well, is he in pain?
MICHELLE COMBS: Yes.
MR. GORDON: Have to go to the hospital occasionally, with doctors occasionally?
MICHELLE COMBS: He has to take regular trips to the doctors. He comes to a doctor in Lexington at least every two months, and the family doctor sees � he was seeing every once a month, but now he generally sees him every two months after he�s gone to the other doctor.
MR. GORDON: Okay. Now, since he was involved in this accident then and he got prescribed OC 40's and OC 20's, did he begin to take those on a regular basis?
MICHELLE COMBS: Yes, he did.
MR. GORDON: Did it come at some point when he perhaps started to abuse those?
MICHELLE COMBS: Yes, he did.
MR. GORDON: Now, let me take you back a little bit and ask you about is he also involved �okay, what else does he do? Does he do anything on the side?
MICHELLE COMBS: Workwise?
MR. GORDON: Yes.
MICHELLE COMBS: He trades guns.
MR. GORDON: He trades guns. Has he traded guns for some period of time?
MICHELLE COMBS: When we met twenty-four years ago, that�s what he was doing.
MR. GORDON: When you met how many years ago?
MICHELLE COMBS: Twenty-four years ago.
MR. GORDON: Twenty-four years ago, okay. Where did you meet at?
MICHELLE COMBS; At my grandfather�s house.
MR. GORDON: Oh, okay. So this is a relationship that stirred up after you all had been away from each other for awhile?
MICHELLE COMBS: Right.
MR. GORDON: Oh, okay. Now, in regard to these guns, what did he do with these guns?
MICHELLE COMBS: Well, generally he would buy them or � he would buy them for a lower price if � and then sell them for a higher price and make some money on them.
MR. GORDON: Sure. And since you have been married with him, had he been doing this on a regular basis?
MICHELLE COMBS: He�s done this off and on for as long as we have ben together. I mean, sometimes we would go for a long period where there wouldn�t be and nobody would want one. Sometimes�and somebody would come and say, �Do you know anybody that has a � �some kind of special gun, I didn�t know anything about guns, you know, they would ask him; and he would look around for it.
MR. GORDON: And you knew that he was involved in � in trading guns occasionally?
MICHELLE COMBS: Yes.
MR. GORDON: And I take it that you met people that he traded guns with?
MICHELLE COMBS: Most of the time. Well, some of the time. Not always.
MR. GORDON: Okay, well, would some of them come over to the house occasionally or�?
MICHELLE COMBS: Sometimes.
MR. GORDON: All right.
MICHELLE COMBS: A lot of times it was people that we knew, I mean, people from around the area, so �
MR. GORDON: Right. Have you ever� have you ever seen him shoot any guns or anything?
MICHELLE COMBS: Yeah, I have seen him target shoot.
MR. GORDON: Okay, were any of the guns loaded at the house there?
MICHELLE COMBS: No, we don�t keep them loaded.
MR. GORDON: Okay, that�s because you have kids �
MICHELLE COMBS: Right.
MR. GORDON: � obviously, and you wouldn�t want them � you never saw a gun loaded then?
MICHELLE COMBS: No, I did not.
MR. GORDON: Now, up until and bringing your attention until � to January of the year 2001. Specifically, we talked about the 22nd day of January. That�s an event that you probably remember?
MICHELLE COMBS: Oh, yes, I remember it well.
MR. GORDON: Okay, and that was the day that you were � you were visited by a number of police officers?
MICHELLE COMBS: Yes, we were.
MR. GORDON: And that was the day that they executed a search warrant on your residence?
MICHELLE COMBS: Yes.
MR. GORDON: And you were home that day?
MICHELLE COMBS: Yes, I was.
MR. GORDON: And was your husband home?
MICHELLE COMBS: He had just come in prior � just before they came in, he had just came in and he had gone back outside, he was going to go pick up our daughters.
MR. GORDON: Where had he been?
MICHELLE COMBS: He had been to pick � when he left, he had left to go pick up kerosene, we needed some kerosene.
MR. GORDON; Kerosene at the gas station?
MICHELLE COMBS: Yes.
MR. GORDON: And did he � was he successful in getting his kerosene?
MICHELLE COMBS: Yes, he did bring the kerosene back.
MR. GORDON; And did he � of course, at the time, you didn�t know what else he may have had, you just knew he was gone for a short period of time?
MICHELLE COMBS: yes.
MR. GORDON: Okay. Do you know if � how long he was in the home before he went right back out again?
MICHELLE COMBS: He was � he came in the door. I met him in the doorway.
MR. GORDON: In the foyer there?
MICHELLE COMBS: Yeah.
MR. GORDON: Yeah.
MICHELLE COMBS: And I said, �Did you remember to pick up the girls?� And he said, �No, I forgot.� He carried the kerosene through the house, and then he walked back outside.
MR. GORDON: Okay. You never did have any conversation about what else he may have done, if anything, other than pick up�
MICHELLE COMBS: No, we didn�t.
MR. GORDON: �pick up the kerosene?
MICHELLE COMBS: He just went to pick up the girls.
MR. GORDON: Is that something he forgot to do is pick up the girls?
MICHELLE COMBS: Well, things that aren�t a part of his normal routine he does sometimes forget, and we have been to a neurologist about that; and his forgetfulness and his speech problem�he also has a speech problem � is all pain related.
MR. GORDON: Now, where was his kids that day, where were your kids?
MICHELLE COMBS: They were at a friend of ours that lived in � maybe a half mile down the road.
MR. GORDON: Okay, so he goes back outside.
MICHELLE COMBS: Right.
MR. GORDON: And did something happen then?
MICHELLE COMBS: Yes, I went into the bathroom, and all of a sudden I heard a thump, and then, �State Police,� and they met me in my bedroom.
MR. GORDON: Okay, so they came in there, and there was a lot of officers in there?
MICHELLE COMBS: Yes, there were.
MR. GORDON: Okay. Now tell the jury, if you would, give us a little kind of layout of your residence when you come in that side door. Of course you don�t have a front door, do you?
MICHELLE COMBS: yeah, we do have a front door.
MR. GORDON: Oh, okay, I am talking about the side door by the gravel there where you�
MICHELLE COMBS: Near the driveway?
MR. GORDON: Tell us a little bit about that?
MICHELLE COMBS: You come in our side door, and to the immediate right is the dining area and the kitchen. There was a kitchen table, and at that time there was a freezer behind the door. Then the rest of the kitchen, it was kind of like sectioned off a little bit. There was an island in the center, and the stove is kitty-corner; and the refrigerator is just before the island and the island�across from the island is the sink. And the stove sits kitty-corner, and there is more cabinets, then it goes into the living room.
MR. GORDON: Now, between the � and this is important, we want to establish this area�but the area between the kitchen and the living room�
MICHELLE COMBS: Yes.
MR. GORDON: Okay, there is a � there is a place for a door, but there is no door, is there?
MICHELLE COMBS: No, there isn�t. It�s completely open.
MR. GORDON: And if you sit in the living room you can see into the kitchen, can you not, if you positioned a certain way?
MICHELLE COMBS: Yes.
MR. GORDON: And if people are talking, there is no reason why you couldn�t be able to hear anything as well, right?
MICHELLE COMBS: That�s right.
MR. GORDON: Now, at some point did your husband come in with the police?
MICHELLE COMBS: Yes, he did.
MR. GORDON: Okay, and at some point you, then, came out of the bedroom?
MICHELLE COMBS: Right.
MR. GORDON: Which is back in some little �
MICHELLE COMBS: Through the living room to the left.
MR. GORDON: Okay, and when you got out there, did you see your husband?
MICHELLE COMBS: Yes, I did.
MR. GORDON: And where was he?
MICHELLE COMBS: He was in the kitchen.
MR. GORDON: Okay, and was there some officers out there talking with him?
MICHELLE COMBS: Yes, there were.
MR. GORDON: Okay. Now, what I want to ask you, did you � and you are familiar with this� but did you hear any of the officers ask him any questions?
MICHELLE COMBS: I heard them talking about the guns.
MR. GORDON: All right. And at any time did you hear anything about any� any narcotics or anything?
MICHELLE COMBS: No, I didn�t.
MR. GORDON: Okay. Do you remember a � a � well, you testified in a hearing we had earlier.
MICHELLE COMBS: Uh-hun.
MR. GORDON: Okay, I am specifically trying to direct your attention to that.
MICHELLE COMBS: Right.
MR. GORDON: Do you know what I am referring to now?
MICHELLE COMBS: Yes, I do.
MR. GORDON: All right. We don�t now if it was Napier, but some officer said, �Why do you���Why were you doing� � no �You know better than this,� I think it was something like that.
MICHELLE COMBS: Yes.
MR. GORDON: Did you hear that?
MICHELLE COMBS: No, I didn�t hear that.
MR. GORDON: Do you remember what the response may have been to that? If you know?
MICHELLE COMBS: At one point he said � and I was sitting on the couch and I could see directly.
MR. GORDON: Could you see and could you hear what was going on?
MICHELLE COMBS: I could see and hear most of the conversation. I could not see him because he was positioned right in front of the stove.
MR. GORDON: Are you talking about Leon?
MICHELLE COMBS: Yes, I am talking about Leon. I�m sorry.
MR. GORDON: Okay.
MICHELLE COMBS: He was positioned in front of the stove with his back to the stove, and Keith Napier was to his left standing in front of the kitchen sink. And Chris Fugate was � he was standing right next to the island, and that�s really all I can remember being in there right then. And I could see Chris�no, I could see Keith Napier directly. I was looking directly at him.
MR. GORDON: All right. And do you remember�you don�t remember specifically something being said, �You know better than this, Leon.� You don�t remember that, do you?
MICHELLE COMBS: I � I don�t remember that �
MR. GORDON; If you don�t remember, that�s fine. But do you remember a response in regard to something about receiving money from the government or anything like that, from your husband?
MICHELLE COMBS: Them asking where � about money from the government?
MR. GORDON: Yeah, well, not specifically asking about that but a response to that effect?
MR. WEST: I�ll object. Your Honor, leading. Just ask the witness what she heard.
MR. GORDON: Okay, what did you�
MICHELLE COMBS: What I did hear when they were asking him about the guns. They were talking about the guns, and at one point I heard my husband � I heard my husband say, �I don�t always like what I do, but I do what I can to help my family.�
MR. GORDON: Do you remember anything about any monetary figure being put on there, $400 or anything like that, do you remember something like tha?
MICHELLE COMBS: No, I don�t.
MR. GORDON: Do you�do you remember if this statement�
MICHELLE COMBS: Okay.
MR. GORDON: Do you remember anything concerning that � that Detective � Detective Napier states that he only sold pills to support his family, that he could not live on the amount he received from the government. Do you remember anything like that? Well, you remember something like that, but do you remember hearing him say he only sold pills to support his family?
MICHELLE COMBS: No, he never said he sold pills to support his family.
MR. GORDON: You were in a � you were in a position to hear that, and you didn�t hear that statement being made?
MICHELLE COMBS: No, I didn�t hear that statement being made.
MR. GORDON: You heard something like that, something about his family?
MICHELLE COMBS: I heard him say something about his family, but at no point did he say anything about selling pills.
MR. GORDON: Okay. Now, you testified that � that your husband, at some point as a result of this accident in June of the year 2000, began to get on prescriptions, specifically OC�s, Oxycontin 20's; initially Oxycontin 40, then Oxycontin 20. Was he ever prescribed any other type of narcotics, or do you know?
MICHELLE COMBS: I really can�t remember.
MR. GORDON: Okay. Now obviously everything your husband did you don�t know what he did?
MICHELLE COMBS: That�s true.
MR. GORDON: You weren�t� you weren�t with him twenty-four hours a day?
MICHELLE COMBS: I couldn�t be.
MR. GORDON: Well, you wouldn�t want to be, probably?
MICHELLE COMBS: Probably not.
MR. GORDON: Okay. Did you � while you were there in this, you know, vicinity, where you could see, did you ever see him sell any drugs out of that residence?
MICHELLE COMBS: No, I never saw my husband sell any drugs out of our house.
MR. GORDON: Did you ever see him give any drugs out of that residence?
MICHELLE COMBS: No, I did not.
MR. GORDON: Do you know Josh Miller?
MICHELLE COMBS: I know who he is.
MR. GORDON: Okay. Did you ever see him at the residence?
MICHELLE COMBS: Yes.
MR. GORDON: Okay. What was he coming over there for?
MICHELLE COMBS: When he came over, I only saw him a few times, but he came over and asked if Leon would like to buy a gun or � and Leon would tell him usually, �I don�t have the money.� And he said, �Well, okay, can you loan me so much or give me so much, and I�ll come back and pick it up.�
MR. GORDON: And were you privy to these or you were doing your own thing or �?
MICHELLE COMBS: I was� I was never right there in the same vicinity. I was always in the house and � well, I can�t say I was never there. I did come into the kitchen, and he never came any further than the kitchen.
MR. GORDON: Did you have frequent visitors in the evening over there at your house?
MICHELLE COMBS: Sometimes.
MR. GORDON: Were they coming over there for two or three minutes and then leaving?
MICHELLE COMBS: No.
MR. GORDON: What about in the daytime when you were there, did you have frequent visitors in the daytime?
MICHELLE COMBS: People would come by sometimes, but �
MR. GORDON: Were they coming over, talking to Leon in the back room for a couple minutes and then exiting?
MICHELLE COMBS: No.
MR. GORDON: You didn�t have a constant flow of traffic is what I am getting at?
MICHELLE COMBS: No, we didn�t.
MR. GORDON: As far as you knew you didn�t see anything going on that appeared to be illegal?
MICHELLE COMBS: No, I never saw anything that I thought was wrong.
MR. GORDON: Now, did you know that he was taking medication? Evidently you did.
MICHELLE COMBS: Well, yeah, he was prescribed the medication.
MR. GORDON: Did you know at some point he began abusing the medication?
MICHELLE COMBS: I didn�t realize it for a long time that he was abusing it.
MR. GORDON: Did you � have you ever � have you ever seen him carry � well, strike that. Have you ever seen him fire a weapon at your house, at your home, at your residence?
MICHELLE COMBS: You mean �
MR. GORDON: Fire a weapon�
MICHELLE COMBS: At the house or toward the house or when he was at the house?
MR. GORDON: Yeah, at the house?
MICHELLE COMBS: Well, he had targets that he would occasionally�
MR. GORDON: Oh, okay, outside of the house?
MICHELLE COMBS: Outside of the house.
MR. GORDON: Obviously he didn�t shoot at the house?
MICHELLE COMBS: No, well�
MR. GORDON: Okay. How was your financial picture over there at the house, over at your residence?
MICHELLE COMBS: It was not very good.
MR. GORDON: Just have a moment, Your Honor.
THE COURT: All right, sir.
(Counsel for the defendant conferring with the defendant.)
MR. GORDON: That�s all, Your Honor.
THE COURT: Thank you, Mr. Gordon. Mr. West, cross?
MR. WEST: Yes, Your Honor. Can I have Exhibit 11, please?
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MR. WEST: Miss Combs, in January of this year, how much money was your husband receiving monthly?
MICHELLE COMBS: He was receiving $153 biweekly.
MR. WEST: So a little over 300 a month then?
MICHELLE COMBS: Right.
MR. WEST: And you were not working at the time, correct?
MICHELLE COMBS: No, I was not working.
MR. WEST: Were you attending college at the time?
MICHELLE COMBS: Yes, I was.
MR. WEST: And you have three children?
MICHELLE COMBS: And I have three children.
MR. WEST: Do you all own the house that you live in or do you pay rent?
MICHELLE COMBS: We have it mortgaged, we are buying it.
MR. WEST: And what�s your monthly payment at the time in January?
MICHELLE COMBS: $290.
MR.WEST: Did you receive support in any other way?
MICHELLE COMBS: Yes, I did.
MR. WEST: From who?
MICHELLE COMBS: I get child support �
MR. WEST: Okay.
MICHELLE COMBS: � for my older daughter, I told you earlier, for $428 a month.
MR. WEST: Okay, and what else?
MICHELLE COMBS: And I also get grants for school.
MR. WEST: And those are applied toward your student expenses, right?
MICHELLE COMBS: Well, what is not used in tuition I get to keep.
MR. WEST: And how much would that be, did you get for a grant for last fall for tuition?
MICHELLE COMBS: What I had left over was approximately $1,700.
MR. WEST: All right. And you have three children that live in the house plus you and your husband, right?
MICHELLE COMBS: Right, true.
MR. WEST: Did you have a car payment also?
MICHELLE COMBS: No, no.
MR. WEST: You pay your own utilities?
MICHELLE COMBS: Yes.
MR. WEST: And food for five � I�m sorry, go ahead.
MICHELLE COMBS: We do get help through AEP for the electricity.
MR. WEST: All right. And food for five people, correct?
MICHELLE COMBS: We get food stamps.
MR. WEST: As you stated, your financial picture is not that � that great. It�s tough sometimes?
MR. WEST: On the day that the search warrant was executed you were fairly ill that day?
MICHELLE COMBS: Yes, I was.
MR. WEST: Pretty sick?
MICHELLE COMBS: Yes, I was.
MR. WEST: Was it the flue that you had?
MICHELLE COMBS: I had a bronchial infection, then I ended up with the flu on top of it.
MR. WEST: Were you taking any medication at the time?
MICHELLE COMBS: Just cold medicine.
MR. WEST: Now, this conversation that took place, you were not actually in the kitchen when the conversation took place?
MICHELLE COMBS: No, I was sitting on the couch in the living room.
MR. WEST: And your husband�s back was to you?
MICHELLE COMBS: No, it was to the stove.
MR. WEST: To the stove? So he was kind of to the side then, maybe?
MICHELLE COMBS: Yeah.
MR. WEST: Distance between you and your husband was about the same distance between you and I?
MICHELLE COMBS: Maybe a little more.
MR. WEST: Okay.
MICHELLE COMBS: About where he is now. Well, no, about where you are, I guess.
MR. WEST: And nobody was yelling during the course of that conversation?
MICHELLE COMBS: No.
MR. WEST: And, of course, you didn�t see the � the pills that were taken off your husband outside of your house, did you?
MICHELLE COMBS: No, I didn�t.
MR. WEST: If I understand your testimony correctly about the weapons found in the house, they are always unloaded?
MICHELLE COMBS: True.
MR. WEST: And you want to make sure of that because you have children.
MICHELLE COMBS: That�s right.
MR. WEST: Your husband was going to get all three kids?
MICHELLE COMBS: No, my two young � yeah, my two younger ones.
MR. WEST: There were over at a friend�s?
MICHELLE COMBS: Right.
MR. WEST: Now, the � you said in response to Mr. Gordon�s question about the OC�s, he started on the OC 40 about the time of the accident, shortly afterwards?
MICHELLE COMBS: Shortly when they let him out of the hospital, that�s what they were giving him.
MR. WEST: And your testimony was June 23 of last year is when the hospital was?
MICHELLE COMBS: June of last year.
MR. WEST: How long was he in the hospital?
MICHELLE COMBS: Thirteen days.
MR. WEST: He was out in the early part of July?
MICHELLE COMBS; Right.
MR. WEST: And he started on OC 40's?
MICHELLE COMBS: right.
MR. WEST: There were no OC 40 pill bottles found around the house?
MICHELLE COMBS: No.
MR. WEST: You are not bringing any in the courtroom with you today?
MICHELLE COMBS: No.
MR. WEST: You are not bringing any Dilaudid prescriptions with you today, are you?
MICHELLE COMBS: No.
MR. WEST: In fact, the prescriptio bottles that do contain the OC 20's � see all those, ma�am?
MICHELLE COMBS: Yes.
MR. WEST: Okay. Were those bottles in your residence on the 21st day of January or the 22nd day of January of this year?
MICHELLE COMBS: I would say they were.
MR. WEST: You don�t know for sure?
MICHELLE COMBS: I� not positively.
MR. WEST: You don�t keep up with your husband�s medications?
MICHELLE COMBS: I can�t keep up with everything.
MR. WEST: Sure. Now, would you agree with me that one of those pill bottles is for Oxycontin 20's, 60 tablets on October the 13th of the year 2000, Dr. Wheeler?
MICHELLE COMBS: Yes.
MR. WEST: Okay. And the other is for the November 29th, Dr. Wheeler?
MICHELLE COMBS: Yes.
MR. WEST: Oxy 20's, amount 60?
MICHELLE COMBS: Yes.
MR. WEST: And the other one was for December 28, Dr. Wheeler? Oxycontin 20's for 60?
MICHELLE COMBS: Wait a minute. Yes.
MR. WEST: You said you have children in the home, right?
MICHELLE COMBS: Yes.
MR. WEST: Is one of them named Alice?
MICHELLE COMBS: No.
MR. WEST: Do you know an Alice Burke?
MICHELLE COMBS: That�s his sister.
MR. WEST: Okay. Have you seen that prescription before?
MICHELLE COMBS: Yes.
MR. WEST: Does his sister stay with you all?
MICHELLE COMBS: No, she doesn�t.
MR. WEST: That one�s been identified as coming out of your home.
MICHELLE COMBS: Yes, that was at my house.
MR. WEST: Any reason that would be at your house?
MICHELLE COMBS: She had it with her when she was over one day.
MR. WEST: Edyth Combs?
MICHELLE COMBS: That was his mother.
MR. WEST: Okay. And that pill bottle was taken out of your house also, correct?
MICHELLE COMBS: Yes.
MR. WEST: And who is James Feltner?
MICHELLE COMBS: He is a friend of my husband�s who helped us out a whole lot when my husband first came home from the hospital.
MR. WEST: Likewise, that is James Feltner�s prescription bottle?
MICHELLE COMBS: Yes.
MR. WEST: And that was taken out of your home also?
MICHELLE COMBS: Yes.
MR. WEST: And you recognize Edyth Combs and James Feltner�s prescription bottles both being in your home?
MICHELLE COMBS: Yes.
MR. WEST: And you knew they were there?
MICHELLE COMBS: Yes.
MR. WEST: Okay. Now, you said that you have seen Josh Miller at your place before?
MICHELLE COMBS: Yes, I have.
MR. WEST: Did you ever see him bring over any guns?
MICHELLE COMBS: Yes.
MR. WEST: I am going to try to direct you back to, do you know anything about weapons, ma�am?
MICHELLE COMBS; Not a whole lot.
MR. WEST: You wouldn�t know caliber one from the other?
MICHELLE COMBS: No, I wouldn�t.
MR. WEST: Do you recognize any of these three rifles on the floor there?
MICHELLE COMBS: They could be the ones that were at the house. They were � like I said, I don�t really � I mean, there could be another one just like it, and I couldn�t say well, it was � this is one.
MR. WEST: Sure. Do you recall Josh Miller bringing a weapon to your house the night before the search warrant?
MICHELLE COMBS: No.
MR. WEST: What time do you usually go to bed at night, ma�am?
MICHELLE COMBS: Usually between 10:00 and 11:00. Unfortunately sometimes it�s after 11:00.
MR. WEST: And is it unusual for Mr. Combs, does he stay up after you go to bed at nighttime?
MICHELLE COMBS: No, not usually. Occasionally, but usually we go to bed right about the same time.
MR. WEST: Do you know Miss Eversole, Joyce Eversole?
MICHELLE COMBS: Yes.
MR. WEST: She lives near you all, correct?
MICHELLE COMBS: Yes.
MR. WEST: As far as Perry County you could say near?
MICHELLE COMBS: Yes. She was � she lives � we live on the left-hand fork of the holler and she lives on the right-hand fork of the holler.
MR. WEST: And traveling distance, how far is her home from your house?
MICHELLE COMBS: A mile maybe.
MR. WEST: And she�s been to your residence before?
MICHELLE COMBS: Yes.
MR. WEST: She knows your husband?
MICHELLE COMBS: Yes.
MR. WEST: Josh Miller been to your house before?
MICHELLE COMBS: Yes.
MR. WEST: On this � on this day that the search warrant was executed, do you know how many weapons were actually in the home?
MICHELLE COMBS: I honestly don�t know.
MR. WEST: Are they not kept in a central storage location?
MICHELLE COMBS: They were generally kept in the living room, that�s where they were; and I just never paid any attention to how many there were there.
MR. WEST: Did you know that the Karaoke machine was inside your residence?
MICHELLE COMBS: Yes, I did.
MR. WEST: What about the knives, collector�s knives that were in there?
MICHELLE COMBS: I knew that there were some in there.
MR. WEST: Baseball cards?
MICHELLE COMBS: Yes.
MR. WEST: Do you know where those came from?
MICHELLE COMBS: No, I really don�t.
MR. WEST: And you weren�t involved in any negotiations between your husband and anybody that brought stuff to him for money or for trading?
MICHELLE COMBS: No.
MR. WEST: So you really don�t have any knowledge what he traded those weapons for?
MICHELLE COMBS: No.
MR. WEST: That�s all. Thank you.
THE COURT: Redirect, Mr. Gordon?
MR. GORDON: No. Your Honor.
THE COURT: May this witness be excused?
MR. GORDON: Yes.
THE COURT: Okay, thank you, Miss Combs. You are excused. Next witness, please.
MR. GORDON: Kenneth Rucker.
(Witness sworn.)
THE CLERK: Thank you.
THE COURT: You may ask, Mr. Gordon.
MR. GORDON: Thank you, Judge.
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MR. GORDON: State your full name for the court, please.
KENNETH RUCKER: Kenneth Rucker.
THE COURT: Mr. Rucker, why don�t you scoot a little closer. The chair is not going to move, but you are going to have to scoot up a little closer to that microphone. Thank you.
MR. GORDON: Where do you reside, Mr. Rucker?
KENNETH RUCKER: Hazard, Kentucky.
MR. GORDON: Excuse me?
KENNETH RUCKER: Hazard.
MR. GORDON: And how long have you resided there?
KENNETH RUCKER: Thirty-seven years.
MR. GORDON: Thirty-seven years. Do you know Leon Combs?
KENNETH RUCKER: Yes.
MR. GORDON: How do you know him?
KENNETH RUCKER: He�s been a friend for thirty some years.
MR. GORDON: What about his wife, Michelle?
KENNETH RUCKER: I have knowed her since they have been married.
MR. GORDON: And how far do you live from their residence?
KENNETH RUCKER: About five miles.
MR. GORDON: All right. Do you � how are you emloyed?
KENNETH RUCKER: Mechanic.
MR. GORDON: How long have you been employed as a mechanic?
KENNETH RUCKER: About twenty years.
MR. GORDON: Do you do anything else on the side or anything?
KENNETH RUCKER; Huh-uh, just trade.
MR. GORDON: Trade what?
KENNETH RUCKER; Knives, guns, whatever.
MR. GORDON: Trade a lot of different things?
KENNETH RUCKER: Uh-huh.
MR. GORDON: Is that sort of the hobby for a lot of people, trade guns?
KENNETH RUCKER: Yeah, flea markets.
MR. GORDON: You go to flea markets and stuff?
KENNETH RUCKER: No, we just go to them and trade.
MR. GORDON: Then you also trade amongst your friends as well down there?
KENNETH RUCKER: Yes.
MR. GORDON: That�s kind of a common thing down there?
KENNETH RUCKER: Yeah.
MR. GORDON: Or up there, whatever it is. Now, let me bring your attention to the 22nd day of January, you may not remember that day, but do you know that � that Leon Combs, he was paid a visit by some police officers that day. That�s the day I am referring to. Do you remember that day?
KENNETH RUCKER: I heared about it.
MR. GORDON: Okay. Now, do you know if you saw him that day?
KENNETH RUCKER: Yeah, earlier that day.
MR. GORDON: Okay. When?
KENNETH RUCKER: When I got off of work in the evening.
MR. GORDON: What time do you normally get off work?
KENNETH RUCKER: 6:00; 6:30, it was quarter �til when I got up there.
MR. GORDON: Where did you see him?
KENNETH RUCKER: Around my house, area of my house.
MR. GORDON: Did he stop by?
KENNETH RUCKER: We met. He is always around. We was riding around.
MR. GORDON: Did you call?
KENNETH RUCKER: Uh-huh.
MR. GORDON: He stopped by?
KENNETH RUCKER: Yeah.
MR. GORDON: All right. And what did you call him for?
KENNETH RUCKER: I didn�t call him.
MR. GORDON: Oh, okay. He called you, is that what you said?
KENNETH RUCKER: No, he just comes by.
MR. GORDON: He just stopped by. And what did you all talk about?
KENNETH RUCKER: Just work and what was going on.
MR. GORDON: Did you guys conduct any business that day?
KENNETH RUCKER: I sold him a little gun.
MR. GORDON: You sold him a gun?
KENNETH RUCKER: Uh-huh.
MR. GORDON: What kind of gun did you sell him?
KENNETH RUCKER: .22.
MR. GORDON: For how much?
KENNETH RUCKER: $50.
MR. GORDON: $50. Okay, okay. He give you anything in return other than $50?
KENNETH RUCKER: Huh-uh.
MR. GORDON: Let me show you what�s been marked as Government�s Exhibit No. 10 and ask you if you can identify that?
KENNETH RUCKER: That�s it.
MR. GORDON: Is that the gun that you sold him for 50 bucks?
KENNETH RUCKER; Uh-huh.
MR. GORDON: And that would have been on the evening of the 22nd, okay? And do you know where he went after that?
KENNETH RUCKER: I assume he went home.
MR. GORDON: And how long would it have taken him to go home from �
KENNETH RUCKER: It would be according to the lights and stuff.
MR. GORDON: Did you look in his car to see if he had anything else in there?
KENNETH RUCKER: Huh-uh.
MR. GORDON: Did he tell you what he had been doing?
KENNETH RUCKER: Just out running around.
MR. GORDON: Okay. Do you know � okay, you say you don�t know if he went home, but you assume he went home. Obviously you didn�t go with him?
KENNETH RUCKER: Huh-uh.
MR. GORDON: So you are not positive. But that is the gun that � that you sold him on that evening?
KENNETH RUCKER: Yeah.
MR. GORDON: And do you know that to be the 22nd day of January?
KENNETH RUCKER: I ain�t for sure about the date.
MR. GORDON: Well, do you know if it was in close proximity to the time he got charged by the police officers?
KENNETH RUCKER: Yeah. Yeah.
MR. GORDON: Do you know it to be the same day?
KENNETH RUCKER: Probably was.
MR. GORDON: You are not positive, but you believe it was?
KENNETH RUCKER: Pretty sure, yeah.
MR. GORDON: Well, let me ask you this, do you know what kind of coat he had on that day?
KENNETH RUCKER; I ain�t for sure.
MR. GORDON: Okay. Was it cold?
KENNETH RUCKER: I can�t remember.
MR. GORDON: Was it dark?
KENNETH RUCKER: Getting, it was close to dark.
MR. GORDON: And he was by himself?
KENNETH RUCKER: Yep.
MR. GORDON: And you say it would take how long from your home to his residence?
KENNETH RUCKER: I wouldn�t be for sure, you know�
MR. GORDON: Well, would it be five minutes or ten? Traffic�s not that bad down there, is it?
KENNETH RUCKER: It�s just what you run into.
MR. GORDON: Well, I mean, there is no major freeway between your house and his, is there?
KENNETH RUCKER; Huh-uh.
MR. GORDON: Just � just a bunch of rural routes?
KENNETH RUCKER: Yeah, curves.
MR. GORDON: Curves. Do you live in a holler, too?
KENNETH RUCKER: I live at Airport Gardens.
MR. GORDON: Okay. Well, how many miles would you say it is between your place and his?
KENNETH RUCKER: Seven or eight.
MR. GORDON: Seven or eight? Okay. Did he tell you where he was going that evening or not?
KENNETH RUCKER: Usually where he goes is home.
MR. GORDON: Go home. It that the first time you have seen that pistol since the time you sold it to him?
KENNETH RUCKER: Yes, I don�t see him that often because I work daylight to dark.
MR. GORDON: Excuse me?
KENNETH RUCKER: I work daylight to dark, that�s the first time I seen it since then.
MR. GORDON: And you are sure that�s the one?
KENNETH RUCKER: Uh-huh.
MR. GORDON: Okay.
MR. GORDON: That�s all.
THE COURT: Mr. West, cross exam?
MR. WEST: Yes, Your Honor.
- - - - - - -
MR. WEST: Mr. Rucker, I�m sorry, I didn�t hear you, where did you say you live at?
KENNETH RUCKER: Airport Gardens, that�s Dulley Park.
MR. WEST: That�s in Perry County?
KENNETH RUCKER: Dulley Park.
MR. WEST: And in November of last year you worked until dark?
KENNETH RUCKER: I work to dark about every day. Close to.
MR. WEST: So only time you could meet up with Mr. Combs if you were doing a friendly visit or exchange of something, it would be after dark?
KENNETH RUCKER: It was before dark when I met him that day.
MR. WEST: I am not talking about that day, any other day. You wouldn�t do anything with him at work, would you?
KENNETH RUCKER: No.
MR. WEST: So if you were going to do anything with him after, do anything with him, it would be after you got off work?
KENNETH RUCKER: Run into him.
MR. WEST: Where did you get that gun?
KENNETH RUCKER: I bought it from a boy at the garage needed money.
MR. WEST: Bought it from who?
KENNETH RUCKER: Bought it from the boy.
MR. WEST: How much did you give for it?
KENNETH RUCKER: 50 bucks.
MR. WEST: That�s pretty good gun, isn�t it, 50 bucks?
KENNETH RUCKER: Not really.
MR. WEST: How do you know it�s the same gun?
KENNETH RUCKER: Flip it over, let me see it. Tell it by the back. Yeah, that�s it.
MR. WEST: How do you know?
KENNETH RUCKER: I didn�t have it long enough really to know what it looks like.
MR. WEST: You don�t have the serial number memorized? There is no marks on it that you put on there or any notches or anything like that?
KENNETH RUCKER: No.
MR. WEST: Did you ever fire that gun while you had it, Mr. Rucker?
KENNETH RUCKER: Huh?
MR. WEST: Did you shoot it?
KENNETH RUCKER: I don�t have it long enough to shoot.
MR. WEST: How long did you have it.
KENNETH RUCKER: Day or so.
MR. WEST: No more than two days?
KENNETH RUCKER: I don�t keep them long, I trade it.
MR. WEST: But you didn�t make any profit off the gun?
KENNETH RUCKER: I didn�t want to, he is my friend.
MR.WEST: Leon is your friend? Now, when you got it, do you know if it was loaded?
KENNETH RUCKER: I think clip had some in it. I had the clip out.
MR. WEST: Did you put any more in the clip? You have to answer�
KENNETH RUCKER: I didn�t know what was in the clip. It was handed to me when I bought it.
MR. WEST: You didn�t open it up check to see what was in it?
KENNETH RUCKER: I didn�t check it out.
MR. WEST: Did you check to see if there was one in the chamber?
KENNETH RUCKER: Yeah.
MR. WEST: Was there one in the chamber?
KENNETH RUCKER: Uh-huh.
MR. WEST: You know how to work the gun where the safety is at?
KENNETH RUCKER: Uh-huh.
MR. WEST: You have to answer out loud.
KENNETH RUCKER: Huh?
MR. WEST: You know where the safety is at on the gun?
KENNETH RUCKER: Yeah.
MR. WEST: You know where Mr. Combs�s house is at, right?
KENNETH RUCKER: Right.
MR. WEST: You have been there several times? You said you have known him for thirty-seven years?
KENNETH RUCKER: Pretty long time.
MR. WEST: How � how often would you say you are at his residence at the house?
KENNETH RUCKER: Just every time I got a chance to go up.
MR. WEST: How often would that be? Every day, every other day?
KENNETH RUCKER: Just every chance I got. Couldn�t tell you how many.
MR. WEST: Every day of the week?
KENNETH RUCKER: Maybe.
MR. WEST: In the time prior to this, January 21 or 22, other than that weapon, had you traded him any other guns?
KENNETH RUCKER; Traded him knives and stuff. Just whatever we could get ahold of.
MR. WEST: But you didn�t trade him any guns?
KENNETH RUCKER: I don�t remember.
MR. WEST: Did he ever trade you a .270 rifle?
KENNETH RUCKER: Huh-uh.
MR. WEST: Ever trade you .222 rifle?
KENNETH RUCKER: No.
MR. WEST: Do you know where the holiness church is near his house?
KENNETH RUCKER: I grew up up there.
MR. WEST: So you know where that�s at. If I refer to a place that�s called a wide spot in between Mr. Combs�s house and the church, you know where that�s at, too, don�t you?
KENNETH RUCKER: Wide �
MR. WEST: Wouldn�t be a whole lot of wide spots up on Upper Creek Road, would there? Would there be a place you can pull off?
KENNETH RUCKER; There is several places you can pull off.
MR. WEST: There is several places you can pull off?
KENNETH RUCKER: There is several places you can pull off.
MR. WEST: Do you know Joyce Eversole?
KENNETH RUCKER; Yeah.
MR. WEST: She lives up this way, too?
KENNETH RUCKER: Uh-huh.
MR. WEST: the � after you sold him the gun, did he give you cash or trade or something?
KENNETH RUCKER: Cash.
MR. WEST: Give any OC 40 to you, Mr. Rucker?
KENNETH RUCKER: No.
MR. WEST: Did you ever give him any OC 40 �
KENNETH RUCKER: No.
MR. WEST: When you gave him the gun, what did he do with it?
KENNETH RUCKER: Laid it in the seat, I guess.
MR. WEST: Laid it in the seat of his car?
KENNETH RUCKER: I don�t know.
MR. WEST: You assume.
KENNETH RUCKER: Because he got in trouble around that time.
MR. WEST: Around that time. When did you find out that he got in trouble?
KENNETH RUCKER: Next day or so.
MR. WEST: Not real sure of your dates, are you?
KENNETH RUCKER: No, I work around businesses. I don�t remember everything.
MR. WEST: And your recollection is when he bought that gun he put it on the seat of his car?
KENNETH RUCKER: I would say.
MR. WEST: Nobody else was with him?
KENNETH RUCKER: Huh-uh.
MR. WEST: He didn�t like put it in his waistband and walk around, and he didn�t shoot it, did he?
KENNETH RUCKER: Huh-uh.
MR. WEST: Did you see what he had in his possession that day? Did he have a pill bottle, Tylenol pill bottle?
KENNETH RUCKER: Huh-uh.
MR. WEST: Not really very sure of much are you, Mr. Rucker?
KENNETH RUCKER: I was in a hurry to get home from the shop.
MR. WEST: Usually when you trade guns you make a profit?
KENNETH RUCKER: Where you can better yourself up.
MR. WEST: Better yourself up, but on this occasion you didn�t better up on it?
KENNETH RUCKER: I didn�t.
MR. WEST: If I could use the word, �pawn,� take 20 bucks, they come back next week; give you 30.
KENNETH RUCKER: I heard of it.
MR. WEST: Did you ever do that?
KENNETH RUCKER: I don�t like doing it.
MR. WEST: Have you ever done that with Leon?
KENNETH RUCKER: Huh-uh.
MR. WEST: That�s all, Your Honor.
THE COURT: Redirect, Mr. Gordon?
MR. GORDON: Just a couple.
- - - - - -
MR. GORDON: Mr. Rucker, your testimony is the clip had bullets in it, is that right?
KENNETH RUCKER: Yeah.
MR. GORDON: But the chamber�
KENNETH RUCKER: No.
MR. GORDON: � didn�t. And you � last time you remember seeing that gun you say you put it on the seat?
KENNETH RUCKER: I just handed it to him; he laid it there.
MR. GORDON: Now, I know that gun doesn�t have a big chip on there or anything. You have looked at that gun. There is no reason to think that�s not the gun that you sold him; is that right?
KENNETH RUCKER: It looks like it.
MR. GORDON: And I know you don�t know the exact date, but you believe it was pretty much close proximity to the time he got charged, is that right?
KENNETH RUCKER: Right. Right.
MR. GORDON: When he � when he got that gun from you, neither one of you, you know, checked to see if it worked or anything, you know, shot a bird as it was going by or anything like that?
KENNETH RUCKER: No.
MR. GORDON: That�s not what you normally do, is it?
KENNETH RUCKER: No.
MR. GORDON: Trade guns, you just trade?
KENNETH RUCKER: Trade guns.
MR. GORDON: Something to do, a hobby?
KENNETH RUCKER: Uh-huh.
MR. GORDON: That�s all.
THE COURT: Mr. West?
MR. WEST: Nothing further, sir.
THE COURT: Thank you, Mr. Rucker, you are excused. Next witness.
MR. GORDON: Just one moment, Your Honor.
(Counsel for the defendant conferring with the defendant.)
MR. GORDON: Mitchell Longworth.
THE CLERK: Please raise your right hand.
(Witness sworn.)
THE CLERK: Thank you.
- - - - - - -
MR. GORDON: State your full name for the court, please.
MITCHELL LONGWORTH: My name is Mitchell Douglas Longworth.
MR. GORDON: And where do you live, Mr. Longworth?
MITCHELL LONGWORTH: I live in Hazard, Kentucky.
MR. GORDON: Is that in Perry County?
MITCHELL LONGWORTH: Yes, sir.
MR. GORDON: Have you lived there all your life?
MITCHELL LONGWORTH: Yes, sir. Oh, no, I take that back. I lived in Chicago several years, too, earlier.
MR. GORDON: Live in Shagtown for a little while?
MITCHELL LONGWORTH: Yeah.
MR. GORDON: Now, do you live in a holler down there?
MITCHELL LONGWORTH: Yeah, pretty much, yes.
MR. GORDON: Okay. Do you know Leon Combs?
MITCHELL LONGWORTH: Yes, I do.
MR. GORDON: You see him back here, don�t you?
MITCHELL LONGWORTH: Yes, I do.
MR. GORDON: How long have you know Leon?
MITCHELL LONGWORTH: I would say for the last ten years.
MR. GORDON: All right. You guys friends?
MITCHELL LONGWORTH: Yes, we are.
MR. GORDON: Do you see him frequently?
MITCHELL LONGWORTH: Yes, pretty much.
MR. GORDON: Know where he lives?
MITCHELL LONGWORTH: No, not really.
MR. GORDON: Never been to his home?
MITCHELL LONGWORTH: No.
MR. GORDON: Known him for ten years, just talk with him; but never been over to his home?
MITCHELL LONGWORTH: Yes.
MR. GORDON: What kind of work do you do?
MITCHELL LONGWORTH: I am a service station attendant.
MR. GORDON: Okay, where do you work at?
MITCHELL LONGWORTH: I mean, I work in Airport Garden station in Hazard, a place called Plaza Service Station.
MR. GORDON: Called what?
MITCHELL LONGWORTH: Plaza Service Station.
MR. GORDON: How long have you worked there?
MITCHELL LONGWORTH: For about fifteen years.
MR. GORDON: Okay. Do you do anything on the side, got any hobbies?
MITCHELL LONGWORTH: Yes, we do, we � I collect baseball cards, and I trade baseball cards and NASCAR stuff, guns, knives. We have occasionally bought and sold dogs, things like that.
MR. GORDON: You fish?
MITCHELL LONGWORTH: Yes, some, I do.
MR. GORDON: Now, you say that you buy guns?
MITCHELL LONGWORTH: Yes.
MR. GORDON: Sell guns?
MITCHELL LONGWORTH: Yes.
MR. GORDON: Where do you buy guns at?
MITCHELL LONGWORTH: People that travels in and out there. And flea markets and places like that.
MR. GORDON: Have you ever bought, sold, bought guns or traded guns with Leon?
MITCHELL LONGWORTH: No, not with Leon I don�t think I have, no.
MR. GORDON: What about Josh Miller?
MITCHELL LONGWORTH: Yes, I did. I purchased one gun from Josh Miller.
MR. GORDON: Okay.
MITCHELL LONGWORTH: Yes, I did.
MR. GORDON: And when might that have been?
MITCHELL LONGWORTH: I don�t remember the exact date, but it was during the week he approached me at the place I work at and asked me if I would take a gun on pawn for him. And I said, �Well, I really can�t afford it, but I do trade with guns and things like that of this sort.� And I said, �What do you want for it?� And he said, �Well, will you hold it for me for like $75?� And he said, �I�ll give you like $25 extra back for it.� It was my understanding is it was his gun is what he said.
MR. GORDON: He didn�t tell you it was stolen?
MITCHELL LONGWORTH: No, he didn�t � huh-uh. I took it for granted it was his gun.
MR. GORDON: And did he come back and get his gun?
MITCHELL LONGWORTH: No, I turned it in to the State Police Post in Hazard.
MR. GORDON: You did?
MITCHELL LONGWORTH: Yep, I did.
MR. GORDON: And did they tell you it was stolen?
MITCHELL LONGWORTH: No, when I turned it in, they run it up on the computer, said, �This gun is not stolen.� Reached it back to me. I told them I purchased it from Josh Miller, and they got to checking again. They said, �It could possibly be stolen.� And they kept it.
MR. GORDON: They kept it?
MITCHELL LONGWORTH: Huh?
MR. GORDON: They kept it?
MITCHELL LONGWORTH: Yeah.
MR. GORDON: But they told you it was not stolen?
MITCHELL LONGWORTH: First turned it in, they run it on the computer, they said it had not been stolen.
MR. GORDON: That�s the only gun you bought off Josh Miller?
MITCHELL LONGWORTH: Yes.
MR. GORDON: Did he give you any OC�s that day?
MITCHELL LONGWORTH: Josh Miller?
MR. GORDON: Yes.
MITCHELL LONGWORTH: No.
MR. GORDON: Do you know what an OC is?
MITCHELL LONGWORTH: Yes, I have heard of it.
MR. GORDON: Did you give him any OC�s?
MITCHELL LONGWORTH: No.
MR. GORDON: And you say that � have you met his wife?
MITCHELL LONGWORTH: Leon�s wife?
MR. GORDON: Leon�s wife.
MITCHELL LONGWORTH: Yes, uh-huh.
MR. GORDON: You have just met her out in the community?
MITCHELL LONGWORTH: Yeah, like when she come in when he purchased gas and stuff like that, out of the store, out of our convenience store.
MR. GORDON: That�s all.
THE COURT: Cross, Mr. West?
MR. WEST: Yes, Your Honor.
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MR. WEST: Mr. Longworth, you have never bought and sold guns with Leon?
MITCHELL LONGWORTH: No, I don�t think I have, no.
MR. WEST: And you have never been to his house?
MITCHELL LONGWORTH: No, not been to his house, no.
MR. WEST: And you said you work at the service station in Airport Gardens?
MITCHELL LONGWORTH: Yes, sir, I do.
MR. WEST: Has this place got like a gas company, oil company sponsor like Ashland?
MITCHELL LONGWORTH: Ashland Station.
MR. WEST: Ashland Station.
MITCHELL LONGWORTH: Yeah.
MR. WEST: Leon Combs come to the Ashland Station a lot?
MITCHELL LONGWORTH: Well, he come there like to buy gas and stuff.
MR. WEST: He come there quite a bit?
MITCHELL LONGWORTH: Every couple days probably.
MR. WEST: Sit there and talk, you guys are friends?
MITCHELL LONGWORTH: Yeah.
MR. WEST: Talk about trading stuff?
MITCHELL LONGWORTH: Yes.
MR. WEST: And Josh Miller brought you that gun at the gas station?
MITCHELL LONGWORTH: Yes.
MR. WEST: And that wasn�t his first time there either?
MITCHELL LONGWORTH: No, I had seen him there before, too.
MR. WEST: That�s all, Your Honor, thank you.
THE COURT: Mr. Gordon?
MR. GORDON: Just one moment, Your Honor.
(Counsel for the defendant conferring with the defendant.)
MR. GORDON: That�s all.
THE COURT: May this witness be finally excused?
MR. GORDON: Yes, Your Honor.
THE COURT: Okay, thank you, Mr. Longworth. Next witness, please.
MR. GORDON: That�s all the proof we have, Your Honor.
MR. WEST: No rebuttal for the United States, Your Honor.
THE COURT: Ladies and gentlemen of the jury, you have now heard all the evidence that you are going to hear in this case. The next thing that you hear will be the instructions of the court. I have been working with counsel to some degree on getting these ready, and we are pretty close; but we are going to take a recess now to get them finished. May take a little bit of time, but not a lot, and it�s a pretty day outside, so I am going to give you a recess until 2:30, and then if you will be back here at 2:30. Remember the admonition of the court. Do not discuss the case amongst yourselves for you haven�t heard the instructions of the court. Don�t make up your mind about the case for the same reason. Do not let anybody talk to you about the case. If anybody does, let one of the court security officers know. If � that�s about it, isn�t it, Mr. Thompson? He said it�s about it. So I�ll see you back here at 2:30. All right? You may show the jury from the courtroom.
THE MARSHAL: All rise.
(Jury excused.)
THE COURT: Let the record reflect that the jury is out of the courtroom. Renew your motion under Rule 29, Mr. Gordon?
MR. GORDON: Yes, Your Honor.
THE COURT: Same reasons?
MR. GORDON: Yes, sir.
MR. WEST: Same responses, Your Honor.
THE COURT: Same ruling. Court will be in recess until called back to order.
(Afternoon recess taken from 1:54 p.m. until called back.)
- - - - - - - - - - - - - -
(After recess)
(The following proceedings were had in open court out of the presence and hearing of the jury.)
THE COURT: Madam Clerk has to go get her exhibits. Let the record reflect that the parties are present in the courtroom by and with counsel, that the jury is not present. The record will also reflect that prior to coming back into court, I had a conference informally with counsel in chambers and we went over the instructions that I intend to give. This is the formal instruction conference at this time.
Mr. West, are there any objections to the � any of the instructions on behalf of the United States?
MR. WEST: No, Your Honor, thank you.
THE COURT: Mr. Gordon?
MR. GORDON: Yes, Your Honor. With regard to count � instruction no. 14, count 4, I believe that would be the one with the trading of the guns.
THE COURT: Yes, sir.
MR. GORDON: Yeah. It would be the � it would be our position that the language, �A person who trades a firearm for drugs uses the firearm during and in relation to a drug trafficking offense.� It is our position that that language is somewhat fatal and, of course, we object to that language and think that there should be an additional part of that equation that not only should there be some connection � that that is not in and of itself a connection. That there has got to be more than just a simple trading of the gun for the drugs, that the guns have got to be further � they have got to enhance, make his position better, they have got to do something other than just a simple trade of a gun for a drug. So we object to � to that language not coming in.
Let me also say that in regard to that instruction that I believe that the language in instruction no. 13, that, �Mere possession of the firearm without a connection to the drug trafficking crime� � which is just what I said � �is� not enough to sustain a conviction, �also ought to be in there as well. So that�s the basis of my objection, Your Honor.
[The point Mr. Gordon appeared to fail to make was that Leon did not trade a gun for drugs�there was nothing in the evidence which would or should support the fact that Leon traded guns for drugs�this is actually wording that should have been used in the instructions to a jury in the trial of Joshua Ray Miller!!!!]
THE COURT: All right. Is that the only objection?
MR. GORDON: I believe that�s � that�s � yeah, I think that�s it, Judge.
THE COURT: The court has called the attention of the parties to a case, Smith v. The United States, 50 F8, United States � or U. S. 240 at page 2 � 241, in that page, at that cite, the Supreme Court held � holds as follows:
�We, therefore, hold that a criminal who trades his firearm for drugs uses it during and in relation to the drug trafficking offense within the meaning of Section 924(c).� It doesn�t matter whether the drugs are transferred from one who is involved in the transfer. [NOT SURE EXACTLY WHAT THIS STATEMENT MEANS.] Trading guns for drugs is a violation of 924. So your objection is overruled.
Anything else we need to take up outside the presence of the jury?
MR. GORDON: In regard to that instruction 13, Judge, on the last sentence there �
THE COURT: 13?
MR. GORDON: Yeah, Yes, sir. Okay, see at the bottom, �who committed a drug trafficking crime.� Last sentence on that page, �who committed a drug trafficking crime and in the circumstances who that the firearm facilitated.� Does that make sense?
THE COURT: Wait a minute. Which page?
MR. GORDON: Okay, the bottom � instruction no 13.
THE COURT: Yeah.
MR. GORDON: These pages aren�t numbered, I don�t think.
THE COURT. No, just find�I got instruction no. 13.
MR. GORDON: Okay, bottom of the page, �who committed a drug trafficking crime��
THE COURT: Which page?
MR. GORDON: The beginning of it, instruction no. 13. The first page.
THE COURT: Okay.
MR. GORDON: The very last sentence, �who committed a drug trafficking crime, last sentence.�
THE COURT: Approach, please, I can�t � I � you might have �
(A bench conference was had between the Court and counsel out of the presence and hearing of the jury.)
THE COURT: Show me.
MR. GORDON: Right here, �who committed a drug trafficking crime and the circumstances who that the firearm facilitated.� That don�t make any sense.
�The drug trafficking crime who� � turn it over now � next page � �who that the firearm� �
THE COURT: Okay.
MR. GORDON: That don�t make any sense. That still doesn�t make any sense.
THE COURT: �Who is in possession of a firearm.�
MR. GORDON: �Were such that the firearm facilitated or had a role in the crime.� The circumstances were such.
THE COURT: Such. Okay, I�ll just write that in. Okay.
MR. GORDON: Okay.
(End of bench conference.)
THE COURT: Anything else?
MR. GORDON: Not that I can think of right now.
THE COURT: Okay. Okay. Let�s show the jury in.
(Jury resumed their places.)
MR. GORDON: I need to approach the bench, Your Honor. Well, I can tell you on 14, look at the bottom of it.
THE COURT: Let the record reflect the jury is present in the courtroom by counsel � or the jury is present in the courtroom. We�ll waive the poll of the jury. Please be seated. Approach, please.
(A bench conference was had between the Court and counsel out of the hearing of the jury.)
MR. GORDON: Same thing again, Judge. �And the circumstances were such,� on 14. Take it out.
MR. WEST: No objection, sir.
THE COURT: Okay.
MR. GORDON: Okay?
THE COURT: Yeah.
MR. GORDON: Yeah. Thank you.
THE COURT: Okay, thank you, Derek.
(End of bench conference.)
THE COURT: Members of the jury, now it is time for me to instruct you about the law that you must follow in deciding this case. I will start by explaining your duties and the general rules that apply in every criminal case. Then I will explain the elements or parts of the crime that the defendant is accused of committing. Then I will explain some rules that you must use in evaluating particular evidence and testimony. And last I will explain the rules that you must follow during your deliberations in the jury room and the possible verdicts you may return. Please listen carefully to everything I say.
You have two main duties as jurors. The first one is to decide from what the facts are from the evidence that you heard here in court, you saw and heard here in court. Deciding what the facts are is your job, not mine; and nothing I have said or done during this trial was meant to influence your decision in any way.
Your second duty is to take the law that I give you, apply it to the facts and decide if the government has proved the defendant�s guilt beyond a reasonable doubt. It�s my job to instruct you about the law, and you are bound to the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them. This includes the instructions that I gave you before and during the trial and these instructions. All the instructions are important, and you should consider them together as a whole.
The lawyers have talked about the law during their argument � will talk about the law during their arguments. But what if they � but if what they say is different than � from what I say, you must follow what I say. What I say about the law controls.
Perform these duties fairly. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way.
As you know, the defendant has pleased not guilty to the crimes charged in the indictment. The indictment is not any evidence at all of guilt. It is just the formal way that the government tells the defendant what crimes he is accused of committing. It does not even raise any suspicion of guilt. Instead, the defendant starts the trail with a clean slate with no evidence at all against him, and the law presumes that he is innocent. This presumption of innocence stays with him unless the government presents evidence here in court that overcomes the presumption and convinces you beyond a reasonable doubt that he is guilty. This means that the defendant has no obligation to present any evidence at all or to prove to you in any way that he is innocent. It is up to the government to prove that he is guilty, and this burden stays on the government from start to finish. You must find the defendant not guilty unless the government convinces you beyond a reasonable doubt that he is guilty.
The government must prove every element of the crimes charged beyond a reasonable doubt.
Proof beyond a reasonable doubt does not mean proof beyond all possible doubt. Possible doubts or doubts based purely on speculation are not reasonable doubts. A reasonable doubt is a doubt based on reason and common sense. It may arise from the evidence, the lack of evidence or the nature of the evidence. Proof beyond a reasonable doubt means proof which is so convincing that you would not hesitate to rely and act on it in making the most important decisions in your own lives. If you are convinced that the government has proved the defendant guilty beyond a reasonable doubt, say so by returning a guilty verdict. If you are not convinced, say so by returning a not guilty verdict.
You must make your own decision based only on the evidence that you saw and heard here in court. Do not let rumors, suspicions, or anything else that you may have seen or heard outside of court influence your decision in any way.
The evidence in this case includes only what the witnesses said while testifying under oath, the stipulations that the lawyers agreed to and the facts that I have judicially noticed. Nothing else is evidence. The lawyer�s statements and arguments are not evidence. Their questions and objections are not evidence. My legal rulings are not evidence, and my comments and questions are certainly not evidence.
During the trial I did not let you hear the answers to some of the questions the lawyers asked. As ordered, you must completely ignore all of these things. Do not even think about them. Do not speculate about what a witness might have said. These things are not evidence and you are bound by your oath not to let that influence your decision in any way. Make your decision based only on the evidence as I define it here and nothing else.
You should use your common sense in weighing the evidence. Consider it in light of your every day experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion.
Now, we talked a little bit about the term �direct and circumstantial evidence.� Direct evidence is simply evidence like the testimony of an eye witness which, if you believe it, directly proves a fact. If a witness testified that he saw it raining outside and you believed him, that would be direct evidence that it was raining outside. Circumstantial evidence is simply a chain of circumstances that indirectly proves a fact. If someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining. It is your job to decide how much weight to give the direct and circumstantial evidence. The law makes no distinction between the two, or to say one has more weight than the other or to say that one evidence � type of evidence is any better than the other. You should consider all the evidence, both direct and circumstantial, and give it whatever weight you think it deserves.
Another part of your job as jurors is to decide how credible or believable each witness was. This is your job, not mine. It is up to you to decide if a witness�s testimony was believable and how much weight you think it deserves. You are free to believe everything that a witness said or only a part of it or none of it at all. But you should act reasonably and carefully in making these decisions. Let me suggest some things to you to consider in evaluating each witness�s testimony.
Ask yourself if the witness was able to clearly see or hear the events. Sometimes evan an honest witness may not have been able to see or hear what was happening and may make a mistake.
Ask yourself how good the witness�s memory seemed to be. Does the witness seem able to accurately remember what happened?
Ask yourself if there was anything else that my have interfered with the witness�s ability to perceive or remember the events.
Ask yourself how the witness acted while testifying. Did the witness appear to be honest or did the witness appear to be lying?
Ask yourself if the witness had any relationship to the government or to the defendant or anything to gain or lose from the case that � that might influence the witness�s testimony.
Ask yourself if the witness had any bias or prejudice or any reason to � for testifying that might cause the witness to lie or to slant the testimony in favor of one side or the other.
Ask yourself if the witness testified inconsistently while on the witness stand or if the witness said or did something at any other time that is inconsistent with what the witness said while testifying. If you believe that the witness was inconsistent, ask yourself if this makes the witness�s testimony less believable. Sometimes it may, other times it may not. Consider whether the inconsistency was about something important or about some unimportant detail. Ask yourself if it seemed like an innocent mistake or if it seemed deliberate.
Ask yourself how believable the witness�s testimony was in light of all the other evidence. Was the witness�s testimony supported or contradicted by other evidence you found believable? If you believe a witness�s testimony was contradicted by other things, remember that people sometimes forget things and that even two honest people who witness the same events may not describe it exactly the same way.
These are only some of the things that you may consider in deciding how believable each witness was. You may also consider other things that you think shed some light on the witness�s credibility. Use your common sense and your every day experience in dealing with other people, and then decide what testimony you believe and how much weight you think it deserves.
One more thing about witnesses. Sometimes jurors wonder if the number of witnesses who testify makes any difference. It does not. Do not make any decisions based only on the number of witnesses who testify. What is more important is how believable the witnesses were and how much weight you think their testimony deserves. Concentrate on that and not on the number.
There is one more subject that I want to talk to you about before I begin explaining the elements of the crimes charges.
The lawyers from both sides objected to some of the things that were said or done during the trial. Do not hold that against either side. The lawyers have a duty to object whenever they think that something is not permitted by the Rules of Evidence. Those rules are designed to make sure that both sides receive a fair trial. And do not interpret my rulings on their objections as any indication how I think about the case � how I think the case should be decided. My rulings were based on those same Rules of Evidence, not on how I feel about the case. Remember that your decision must be based only on the evidence that you saw and heard here in court. That concludes the part of my instructions explaining your duties and the general rules that apply in every criminal case.
In a moment I will explain the elements of the crimes that the defendant is accused of committing. But before I do that, I want to emphasize that the defendant is only on trial for the particular crimes charged in the indictment. Your job is limited to decididng whether the government has proved the crimes charged. Also keep in mind that whether anyone else should be prosecuted or convicted for this crime is not a proper matter for you to consider. The possible guilt of others is no defense in a criminal charge. [EMPHASIS ADDED] Your job is to decide if the government has proved this defendant guilty. Do not let the possible guilt of others influence your decision in any way.
COUNT 1 of the indictment accuses the defendant of knowingly and intentionally possessing with intent to distribute and distributing a quantity of Oxycontin, a Schedule II controlled substance, on or about November 14th, 2000, in violation of Federal Law. For you to find the defendant guilty of this crime, you must be convinced that the government has proved each and every one of the following elements beyond a reasonable doubt:
FIRST, that the defendant possessed the quantity of � possessed a quantity of Oxycontin, a Schedule II controlled substance.
SECOND, that the defendant intended to distribute and did distribute the Oxycontin.
THIRD: that the defendant did so knowingly and intentionally.
The term �controlled substance� means a drug or other substance included in Schedule II of the Federal drug laws and would include Oxycontin or Oxycodone.
The term �Oxycontin or Oxycodone� means Oxycodone, its salts, isomers, and salts of its isomers, or any mixture or substance containing a detectable amount of Oxycodone, its salts, isomers, or salts of its isomers.
The term �distribute� means to deliver a controlled substance.
The term �deliver� means the actual, constructive or attempt � attempted transfer of a controlled substance.
In attempting to determine the intent of any person, you may take into consideration all the facts and circumstances shown by the evidence received in the case concerning the person.
In determining a person�s �intent to distribute� controlled substances, you may consider, among other things, the quantity of the controlled substance.
If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.
COUNT 2 of the indictment accuses the defendant of knowingly and intentionally possessing with the intent to distribute a quantity of Oxycontin and/or Dilaudid, Schedule II controlled substances, on or about January 22nd, 2001, in violation of Federal law. For you to find the defendant guilty of this crime, you must be convinced that the government has proved each and every one of the following elements beyond a reasonable doubt:
FIRST, that the defendant possessed the quantity of Oxycontin and/or Dilaudid, Schedule II controlled substances.
SECOND, that the defendant intended to distribute and the Oxycontin and/or Dilaudid.
THIRD, that the defendant did so knowingly and intentionally.
The term �controlled substances� means a drug or other substance included in Schedule II of the Federal drug laws and would include Oxycontin or Oxycodone and Dilaudid or Hydromorphone.
The term � Oxycontin or Oxycodone and Dilaudid or Hydromorphone� means Oxycontin or Hydromorphone, its salts, isomers, or salts of its isomers, or any mixture or substance containing a detectable amount of Oxycodone or Hydromorphone, its salts, isomers, or salts of its isomers.
For a definition of these other terms, please refer back to instruction No. 10.
If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements as to the defendant, then you must find the defendant not guilty of this charge.
Count 2 of the indictment accuses the defendant of committing a crime of possessing Oxycontin or Dilaudid, or both, with the intent to distribute the substance or substances, in one of the three ways, on the day in question.
The first is that he possessed Oxycontin with the intent to distribute.
The second is that he possessed Dilaudid with the intent to distribute.
The third is that he possessed both Oxycontin and Dilaudid with intent to distribute.
The government does not have to prove all of these three theories for you to return a guilty verdict on this charge. Proof beyond a reasonable doubt of one of these theories is enough. But in order for you to return a guilty verdict, all twelve of you must agree that the same theory has been proved. All of you must agree that the defendant possessed only Oxycontin, or all of you must agree that the defendant possessed only Dilaudid; or, all of you must agree that the defendant possessed both Oxycontin or Dilaudid. [THIS INSTRUCTION IS IN ERROR� ONE CANNOT POSSESS BOTH --------- OR--------]
In any case, you must find that that possession was accompanied by the intent to distribute that drug.
The evidence in the case need not establish the exact amount or quantity of controlled substances, but only that a measurable amount of controlled substance was in fact the subject of the acts charged.
COUNT 3, on or about July 22nd � January 22nd, 2001, the defendant is accused of violating Title 18, United States Code, Section 924(c) as cited in count 3 of the indictment, which provides in pertinent part as follows:
�Any person who, during and in relation to any drug trafficking crime for which the person may be prosecuted in a court of the United States, possess a firearm, shall be guilty of an offense in violation of the laws of the United States.�
There are two essential elements which must be proven beyond a reasonable doubt in order to establish the offense proscribed by this law:
FIRST, that on or about the date and place alleged in the indictment, Leon Combs possessed a firearm.
SECOND, that he did so during and in relation to a drug trafficking crime.
The crime of possession with intent to distribute Oxycontin and/or Dilaudid is a drug trafficking crime within the meaning of this statute.
The term � during and relation to a drug trafficking crime,� as that term is used herein, means that the firearm was within the possession or control of the defendant who committed a drug trafficking crime and that the circumstances were such that the firearm facilitated or had a role in that offense, in that crime. In other words, the government is required to prove a relationship between the crime alleged in count 2 and the possession of the firearm. You must be convinced beyond a reasonable doubt that the firearm played a role in the commission of the alleged drug offense by being available for protection or to embolden the defendant. Mere possession of the firearm without a connection to the drug trafficking crime is not enough to sustain the conviction � to sustain a conviction. [EMPHASIS ADDED.]
The term �firearm� means any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.
In order for you to find the defendant guilty under count 3, you must first determine whether the defendant committed the offense charged in count 2. In other words, you cannot convict Leon Combs under count 3 unless you have found that Leon Combs is guilty on count 2.
COUNT 4, Title 18, United States Code, Section 924(c) as charged in count 4 of the indictment, provides in pertinent part as follows:
�Any person who, during and in relation to a drug trafficking crime for which the person may be prosecuted in a court of the United States, possess a firearm, shall be guilty of an offense in violation of the laws of the United States.�
There are two essential elements which must be proven beyond a reasonable doubt in order to establish the offense proscribed by this law:
FIRST, that on or about the date and place alleged in the indictment, the defendant, Leon Combs, possessed a firearm.
SECOND, that he did so during and in relation to a drug trafficking crime.
The crime of possession with intent to distribute Oxycontin and/or Dilaudid is a drug trafficking crime within the meaning of the above statute.
The term �during and in relation to a drug trafficking crime,� as that term is used herein, means that the firearm was within the possession or control of the defendant who committed a drug trafficking crime and the circumstances were such that the firearm facilitated or had a role in the offense. In other words, the government is required to prove a relationship between the crime charged in count 2 and the use of the firearm.
A person who trades a firearm for drugs �uses� the firearm during and in relation to a drug trafficking offense. [EMPHASIS ADDED�Note that no where in the evidence was it established that Leon Combs traded a firearm for drugs but that Joshua Ray Miller, the nephew of two of the Kentucky State Police traded a firearm for drugs.]
You must be convinced beyond a reasonable doubt that the firearm played a role in the commission of the alleged drug offense.
The term �firearm� means any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.
In order for you to find the defendant guilty under count 4, you must determine whether the defendant committed the offense of distribution of Oxycontin. In other words, you cannot convict Leon Combs under count 4 unless you have found beyond a reasonable doubt that Leon Combs distributed Oxycontin to Joshua Miller at the same time Leon Combs received the weapon in exchange for that Oxycontin. [NOTE that this sentence or instruction tells the jurors that Joshua Ray Miller traded a firearm for drugs!]
COUNT 5, Title 18, United States Code, Section 922(j), makes it a crime for any person to receive, conceal, store, sell or dispose of any stolen firearm which has been shipped or transported in interstate commerce, knowing or having reasonable cause to believe that the firearm was stolen. Count 5 charges the defendant with this offense. For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt:
FIRST, that the defendant knowingly received, concealed, stored, stole � sold or disposed of any stolen firearm.
SECOND, that the stolen firearm had been shipped or transported in interstate commerce, that is that it had traveled at some time from one state to another.
THIRD, that the defendant knew or had reasonable cause to believe the firearms were stolen.
Now, I would like to say a word about the dates mentioned in the indictment. The indictment charges that the crime began �on or about� a date. The government does not have to prove that the crime happened on that exact date. But the government must prove that the crime happened reasonably close to that date.
Now, I want to explain something about proving a defendant�s state of mind. Ordinarily, there is no way that a defendant�s state of mind could be proved directly, because no one can read another person�s mind and tell what that person is thinking. But a defendant�s state of mind can be proved indirectly from the surrounding circumstances. This includes things like what the defendant said, what the defendant did, how the defendant acted; and any other facts or circumstances in evidence that show what was in the defendant�s mind. You may also consider the natural and probable results of any acts that the defendant knowingly did or did not do and whether it is reasonable to conclude that the defendant intended those results. This, of course, is all for you to decide.
The word �knowingly� as that term has been used from time to time in these instructions, means that the act was done voluntarily and intentionally and not because of mistake or accident or some other innocent reason.
The word �willfully,� as that term has been used from time to time in these instructions, means that the act was committed voluntarily and purposely, with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law.
You have heard testimony that the defendant committed some acts other than the ones charged in the indictment. You cannot consider this testimony as evidence that the defendant committed the crimes that he is on trial for now. Instead, you can only consider it in deciding whether the defendant had the intent to commit the crimes charged in that indictment. Do not consider it for any other purpose. Do not return a guilty verdict unless the government proves the crimes charged beyond a reasonable doubt.
The defendant has the absolute right not to testify. The fact that he did not testify cannot be considered by you in any way. Do not even discuss it in your deliberations. Remember that it is up to the government to prove the defendant guilty beyond a reasonable doubt. It is not up to the defendant to prove that he is innocent.
You have heard the testimony of Joyce Eversole. You have also heard that she received money from the government in exchange for helping purchase controlled substances from the defendant. The use of paid informants is common and permissible, but you should consider Joyce Eversole�s with more caution than the testimony of other witnesses. Consider whether her testimony may have been influenced by what the government gave her.
You have heard the testimony of Joshua Miller. You have also heard that he was involved in the same crime that the defendant was charged with committing. You should consider Joshua Miller�s testimony with more caution than the testimony of other witnesses. Do not convict the defendant based on the unsupported testimony of such witnesses standing alone unless you believe their testimony beyond a reasonable doubt.
You have heard the testimony of Dan Smoot, Henry Hayes, and John Harris, who were presented as expert witnesses. Now, an expert witness has special knowledge or experience that allows the witness to give an opinion. You do not have to accept an expert�s opinion. In deciding how much weight to give it, you should consider the witness�s basic qualifications and how he reached his conclusions. Remember that you alone decide how much of a witness�s testimony to believe and how much weight it deserves.
That concludes the part of my instructions explaining the rules for considering some of the testimony in evidence. Let me finish up by explaining some of the things about your deliberations in the jury room and your possible verdicts.
The first thing that you should do in the jury room is to choose someone to be your foreperson. This person will help guide your discussions and will speak for you here in court. Once you start deliberating, do not talk to the jury officer, or to me, or anyone else except each other about the case. If you have any questions or messages, you must write them down on a piece of paper, sign them and give them to the jury officer. The officer will give the message to me and I will respond as soon as I can. I may have to talk to the lawyers about what you have asked, so it may take me some time to get back to you. Any questions or messages normally should be sent to me by your foreperson. One more thing about messages. Do not ever write down or tell anyone how you � how you stand on your votes. For example, don�t write down or tell anyone that you are split 6 to 6, or 8 to 4, or whatever your vote happens to be. That should stay secret until you are finished.
Remember that you must make your decision based only on the evidence that you saw and heard in court. Do not try to gather any information about the case on your own while you are deliberating. For example, do not conduct any experiments inside or outside the jury room. Don�t bring any books like a dictionary or anything else with you to help you in your deliberations. Do not conduct any independent research, reading or investigations about the case; and I am certainly not going to allow you to visit any of the places that were mentioned during the trial. Make your decision based only on the evidence that you saw and heard here in court. Your verdict, whether it is guilty or not guilty, must be unanimous.
If you decide that the government has proved the defendant guilty, then it will be my job to decide what the appropriate punishment should be. Deciding what punishment should be is my job, not yours. It would violate your oaths as jurors even to consider the possible punishment in deciding your verdict. Your job is to look at the evidence and decide if the government has proved the defendant guilty beyond a reasonable doubt.
I have prepared a verdict form that you should use to record your verdict. If you decide that the government has proved the charge against the defendant beyond a reasonable doubt, say so by having your foreperson mark the appropriate place on the form. If you decide the government has not proved the charge against him beyond a reasonable doubt, say so by having your foreperson mark the appropriate place on the form. Your foreperson should then sign the form, put the date on it, and notify the jury officer that you have reached a verdict so that he can return the verdict to me in open court.
The verdict form is styled, United States of America v. Leon Combs. We, the jury, find the defendant, Leon Combs, as to count 1, a place to check, guilty or not guilty. Count 2 is a little different. If you check guilty, then you have to also check whether the defendant possessed Oxycontin with intent to distribute it or Dilaudid with intent to distribute it, or you can check both. If you find him not guilty, you check the not guilty. Count 3, you have checked guilty or not guilty. Count 4, guilty or not guilty. Count 5, guilty or not guilty.
The only thing I can tell you is on count 3, if you have found him not guilty on count 2, according to my instruction, you cannot find him guilty on count 3. All right? Then there is a place to date it and have your foreperson sign it.
Let me finish up by repeating something I have said throughout the trial. Nothing I have said or done during this trial was meant to influence your decision in any way. You decide for yourselves if the government has proven the defendant guilty beyond a reasonable doubt. Before we came back in here, I talked with the lawyers about their closing arguments and got their best estimate on how long it would take them to � to argue this case, to fairly argue the case. I told them when they got within five minutes of their alotted time, I would say, �Mr. West, you have five minutes.� �Mr. Gordon, you have five minutes.� After that five minutes is up by my watch, they stop. I do this to keep them from becoming enamored with the sound of their own voices. Under our rules, and as you know through these instructions, the government has the burden of proof. They also have the burden of persuasion. That means under the rules that the government makes the initial closing argument, the defendant will then make � counsel for the defendant, Mr. Gordon, will make the second closing argument; and then the government will make a rebuttal argument, brief rebuttal argument.
Mr. West, on behalf of the United States.
MR. WEST: Thank you.
THE COURT: You may proceed.
MR. WEST: May it please the court, Mr. Gordon.
THE COURT: Mr. West.
MR. GORDON: Mr. West.
MR. WEST: Ladies and gentlemen of the jury, I want to thank you for your time and patience. I know you have sat on jury panel a long time.
The greatest thing is this was only a two-day trial but I know it�s important; and I know you paid attention as best as you could to the witnesses.
Couple things I want to go into before we get into the instructions and the charges. One is to prove beyond a reasonable doubt, it is defined for you in the instructions, and you will get a copy of the instructions when you go back. Other thing we talk about is witnesses. When they come forth into the courtroom as we told you initially, no witness will stand alone. This is not a case where Joshua Miller stood upon the stand and said, �I bout OC�s from the defendant, Leon Combs.� Nor is it a situation where Miss Eversole came in and said, �I bought OC�s from Mr. Combs.� That is it and that is the crux of the case. If those were the only two witnesses, there were no exhibits, I submit to you that is not proof beyond a reasonable doubt. When you evaluate a witness�s testimony, you have to evaluate it upon the whole case. Look as to what they said. They said something happened. Was there someone else that witnessed it. Were there some other fact that maybe another witness testified to, at least you believe what they were saying was right. Now, looking at the physical evidence is also a way to determine whether or not these witnesses are in fact telling you the truth and also expert witness opinion from laboratory examiner and qualified narcotics detectives is the way to determine whether or not Mr. Miller and Miss Eversole are telling the truth.
Now, the first count is the distribution of 25 OC 40's for the amount of $1,000. Miss Eversole said it happened. She said it took place on or about November 14th. She met with Mr. Leon Combs in a wide spot out there on Second Creek Road. They went to another location where they saw someone else; and they did the deal at the Holiness Pentecostal Church not far from where she lives and not far from where the defendant lives. Now, that doesn�t stand alone.
Detective Smoot, Detective Napier said they gave her the $1,000. Did they get 25 OC 40's back? Yes. Proof. Was it OC 40's? Absolutely. John Harris testified it was mostly 40's. Did someone other than Joyce Eversole see the defendant, Mr. Leon Combs? Yes. Detective Napier saw him. Saw him pick her up at a wide spot in the road, saw him bring her back. He got the 25 OC 40's from her; he gave them to Detective Dan Smoot. That�s the base and the sum of the proof backed up by other witnesses that could prove what happened, yes.
As to count 2, possession with the intent to distribute. Now, Joshua Miller, as I told you yesterday, early in the morning, and will tell you that he was addicted to OC�s and he stole guns from his parents, from his father and from his uncle. Horrible. For those of us that are parents, we hope to never have to go through one of those things, let alone two of them. To find out that your child�s addicted to dope, and, two, that he stole from us. Not just $5 out of your wallet or $10 out of the counter, he stole firearms and he stole a number of other things. Does that make Josh Miller a bad person? You bet. Sure it does. At that time he was. One thing his father said is real important, I heard him, I wrote it down. I don�t think I have to. I asked him, �How come you didn�t charge him?� He said, �He is my son.� Does that make sense to all of us? Yes. Whether you are a prosecutor, defense attorney or a juror, that makes sense. Now, would I put him through rehab.? I would say that�s the last opportunity Mr. Miller has to make a mistake. Crimes committed against the whole family.
Now, Josh Miller says, �I was buying OC 40's from Leon Combs. I was taking him guns without my father�s permission and I have been trading OC 40's to him. I have also taken him other items, I have taken him knives, I have taken him baseball cards, Karaoke machine and on the 21st of January I traded him one .270 rifle for an OC 40 and $40. That�s what he said very simply as to what his testimony was.
Now, another witness also said, �I was buying dope from Mr. Combs.� Joyce Eversole. She said he is a good friend. �He�s always got me pills when I wanted them.� Out of those two together. Now, let�s take it a step further. Search warrant of Mr. Combs� residence. What do they find? He identified .22 rifle, identified two .22 rifles that he said he sold to Mr. Combs. And the day before the .270 rifle that he said he gave � sold for 40 OC and $40. Testimony from Mr. Ed Miller was these would sell for several hundred dollars, particularly the .270. Is what Mr. Miller said more likely to be true? Absolutely. What he said would be found. What he said, where he took the guns, they were in fact found there.
He didn�t hide from you the fact that he was addicted to OC�s. It was probably a good thing his father and uncle weren�t in the courtroom when he was testifying. He didn�t hide a bit of that from you.
Did they find the Karaoke machine? Found the knives? Huh? Found the trading cards? Yes. They did. Everything that Joshua Miller told you was verified was found in Mr. Combs� residence. Now, toward the end of the defendant�s proof there was a witness up here, couldn�t at first figure out why he was up here. Didn�t quite understand, but it kind of turned into an advantage for us on this thing because he said he worked at a filing station.
Remember what Josh Miller said. He said he would go down to the Ashland station and meet with Mr. Leon Combs there. Well, that�s what one of the defendant�s own witnesses said. Yes, Joshua Miller comes down to the Ashland station. Yes, Leon Combs had been there at the Ashland station, and yes, they traded there. Does that make what Josh Miller said more likely to be true? Yes, yes, it does.
Now, take it a step further, when they begin to search Mr. Leon Combs on the search warrant, they find an unmarked pill bottle. When I say �unmarked� not a prescription bottle as described by Josh Miller. And it contains, lo and behold, OC 40's. Exactly what Josh Miller said he sold them a .270 for the day before. But there is two bonuses in there, there is OC 40's and K4 Dilaudid. The search warrant finds three prescription bottles with OC tablets. Please make no mistake. The OC 20's were found in the house, plus a prescription of OC 20's found in the house were meant for distribution. They were different. They were packaged different. They ought to be, if you have a prescription from the doctor, in the house in the bottle where they are supposed to be.
Now, most of us do not have experience with this type of narcotics investigation. We see it on television, hear from our friends and we watch television. That�s why we have people like Detective Dan Smoot. That�s their job, that is their profession, that is their daily life. Being a narcotics investigator, I�ll submit to you, probably it�s not just a job, it�s a lifestyle. He has the experience, twelve years. Based on what his testimony was, the OC 40's, ten of them, 40 apiece were $100. OC 20's in that pill bottle, six of them $20 each, $120. K4 Dilaudid, $80 apiece. 720. Doing the math, $1,240 street value of what�s in that little tiny bottle. Amazing.
Mr. Gordon asked Detective Smoot what are the inditia of trafficking. The sheer volume of pills. No question. Sheer volume of pills in this case. Not what�s found in the house, the ones found on Mr. Combs� person.
We look at the actions of the defendant to determine whether or not he was trafficking, possessing with intent to sell? You betcha.
If you have legitimate prescription pills with you, why are you stuffing them down your pants? Hoping the police wouldn�t look there, one reason. To conceal them is the other reason.
And there is reasons why you conceal them, because you don�t want to get caught. Now, that�s the basis for count 2.
Count 3 is the .22 caliber pistol found in his pocket. When you have read the instructions by Judge Hood, once you get to see, again, there is no requirement that the gun be pointed at anybody, there is no requirement it be fired, no requirement he threaten anybody with it or attempt to intimidate anybody with it. You must be convinced beyond a reasonable doubt the firearm played a role in the commission of the alleged drug offense either available for protection or to embolden defendant. Embolden meaning to give courage or to become protection. Mr. Rucker, who testified and had some interesting things to say, that he gets off work after dark, lives in the Airport Gardens area and is very familiar with the Second Creek area. The facts for the United States to find out, said that he gained the gun on or about that time period before he got arrested, wasn�t really sure on the dates. I don�t have a particular problem with that. I mean, not all of us can narrow down every single particular event, particularly with regard to somebody else. But what Mr. Rucker said was accurate as he gave him the gun just minutes before this event took place, he saw Mr. Combs place it on the seat of the vehicle. It was found in his coat pocket.
Don�t know where the pills are at before the officers showed up. We know where they wound up at, wound up in his underwear.
Does the pistol embolden the defendant? You betcha. Instead of running the other way, police officers showed up, he is concealing the evidence, stuffed down his underwear; the gun is in his pocket.
�Detective Smoot, in the cases you have worked, is it common to find guns, find guns in people�s houses, find guns in people�s cars?
Drug dealers carry their guns on their persons, embolden to protect them if you are to supply protection to yourself in this dangerous business.
As to count 4, that is the count where Joshua Miller says that he traded $40 and a 40 OC for the .270 rifle. The changing of the cash for the rifle itself is not a criminal offense. The trading the drugs for the .270 rifle is a felony Federal offense. [NOTE: Case law in the 6th Circuit�
Under Bailey, "use" requires some active employment of the firearm by the defendant. No matter how we phrase the events of this transaction, the defendant is on the passive side of the bargain. He received the gun. He was paid with the gun. He accepted the gun. But in no sense did he actively "use" the gun. If [the agent] had paid for the gun with a $100 bill, we would not say that [the defendant] "used" $100 in selling his gun to [the agent]. A seller does not "use" a buyer's consideration. The only person actively employing the gun in this transaction is the government agent. In fact, [the agent] testified that he purposefully introduced the gun into the transaction. See U. S. v. Warwick.]
The law says you cannot do that, that it is illegal to do that. [NOTE: The above cited case and quote therefrom would suggest this statement also is not true.]
In the instructions you will see a person who trades a firearm for drugs uses the firearm during and in relation to a drug offense, you must be convinced beyond a reasonable doubt that the firearm played a role in the commission or in the relation of an offense. If it was just $40 that was handed over, no offense. Josh Miller paid $40.
Why should we believe what Josh Miller said? One, the .270 was exactly where he said it would be, in his house. In Mr. Combs� pocket are 40 milligram OC�s; 40 milligram OC�s in the house. No Dilaudid prescription bottle in the house. It is what Josh Miller said. Yes, has that been proven to you? By the testimony of other witnesses, yes. And through the physical exhibits that you have seen, yes. Ashaldn station, yep. Leon Combs being there, yes. Trading guns? Yes.
Forty, that term 40 milligram was all throughout this case. First purchase was 40 milligram OC�s. What was found in his pocket, 40 milligram OC�s. The trading in and of itself was only for the guns. Now, one of the elements of the what we call 924(c) counts are if the weapons are capable, if they are a firearm, if they can expel a projectile. Simple questions I had Detective Smoot do it, test the weapons, see if they work. He test fired all of them, all three of these and the pistol; and they all work, fire a projectile. [NOTE: This was done after the trial was in session�after the Kentucky State Police had relinquished control of the evidence back to the Miller family some three months prior to this test firing.]
Now, a little glitch in the law, the black powder rifle that was traded, according to Josh Miller. A black powder is not a prohibited firearm, believe it or not, in Federal crimes. It�s not listed. It�s not under indictment.
THE COURT: Five minutes, Mr. West.
MR. WEST: Yes, sir.
MR. WEST: The last count is the stolen firearms counts themselves, and once again it�s only the three that were taken without the permission of Ed Miller, and Josh Miller took them without permission; and Ed Miller said, �He took them without my permission.� Please do not get hung up on the word �stolen.� Mr. Miller said, as you would expect a father to say, �I will not file charges against my son. He took them without permission.� Josh says he took them without permission. You take something without permission, it was stolen.
You go to a store, take something without permission from the store and don�t pay for it, it is stolen.
Now, as a prosecutor, I am not lying, I am not an idiot, the proof on count 5 is not that strong as to count 4, particularly with regards to the word �stolen.� In the other part of that you will see it says it�s a crime for any person to receive, conceal, store, sell or dispose; and in this situation we are saying Mr. Combs received stolen firearms. The defendant knowingly receives part of it. Firearms have been shipped in interstate commerce; he knowingly received the guns. It�s obvious what they are, they are firearms. Were they shipped in interstate commerce? Yes.
Mr. Gordon and I stipulated they were manufactured outside the State of Kentucky.
And third, that he had reason or cause to know the firearms were stolen. Now, Josh told him they were stolen. [NOTE: During cross examination Mr. Gordon asked, �Did you tell anyone they were stolen, anyone other than the police?� Joshua Miller responded, �No, sir.� So here again the prosecutor appears to be misleading the jurors.] Should Mr. Combs have reasonable cause to believe they were stolen? Yes, should have. .270 rifle transferred for 40 bucks and 40 Oc�s [NOTE again the prosecutor is attempting and apparently was successful in misleading the jurors because Joshua Miller�s testimony was $40 and one OC 40 (milligram).] other two rifles, hundreds of dollars worth of firearms transferred for 40 OC�s, all the other stolen items in his house, Karaoke machine, knives, trading cards, brings to mind a word called offense. It also brings to mind another word called drug deal. [NOTE: The search warrant stipulated approved search for the following items: �Any and all weapons. Any and all controlled substances including but not limited to Oxycontin. Any ledgers or records of illegal drug sales. Any U. S. currency which would be proceeds of illegal drug transactions. Any receipts from doctor visits, or filled prescription bottles, filled or empty, and additional evidence related to doctor shopping, or obtaining controlled substances by fraud.� The fact that police officers took items which they obviously did not have approval for taken, would suggest these police officers abused their authority to search and seize by going on a fishing trip which now appears to have had definitive motives which were related to family membership in the Kentucky State Police. Note also that Gary Scott Sandlin indicated he took a �weed eater� from an outside building and that item was not even listed on the police report!]
Ladies and gentlemen, upon your careful consideration as to all the counts in this case and as to all the evidence that you have heard, I submit to you on behalf of the United States that the testimony of the witnesses, each and every witness does not stand alone. It is corroborated through testimony of other witnesses, either witnesses for the defense and by the physical evidence that you have seen. Upon your careful consideration, ask you for a verdict as to guilty as to all five counts as to this defendant. Thank you.
THE COURT: Thank you, Mr. West. Mr. Gordon, closing argument on behalf of the defendant?
MR. GORDON: Thank you, Your Honor. May it please the court.
THE COURT: Mr. Gordon.
MR. GORDON: Mr. West.
MR. WEST: Mr. Gordon.
MR. GORDON: Members f the jury, I, too, want to thank each and every one of you for your time and consideration here.
This case hasn�t been the longest case. Good thing about me, when I am up here, once I sit down you don�t have to hear me any more; so just bear with me as best you can here.
You know, the � the� the very first thing that the government says when they get up here, they say if Josh Miller and Joyce Eversole would have come in here and indicated to you all that they bought OC�s, that that�s not reasonable doubt. That in and of itself is not reasonable doubt.
Well, granted, I agree it�s not reasonable doubt. Well, if that�s not a reasonable doubt, then what � what possibly in this case could be reasonable doubt? They are the only two people that have said anything in this particular case about Leon Combs. Nobody else came in here. Not one other person came in here and said they buy drugs off him. Not one person. From November until January of 2000 up to 2001, not one person.
Now, they have already conceded the point that Joyce Eversole and Josh Miller, on their own, on their own, without substantiated corroboration, that is not reasonable doubt. That you can�t convict them on that.
And there is an instruction in there that says withstanding alone, you could if you believe those two beyond a reasonable doubt. You could, perhaps. But the government has conceded that point. So you don�t need to get worked up about that particular instruction because you know based on them they haven�t proven their case.
Now, you look at the other part of the case, and we are going to talk about that. And reasonable doubt, as you well know, and as I talked to you about it at the very beginning; and I want to make sure you remember it because that�s a promise that you all made to me at the very beginning of this case when you were sitting out there and I was standing here. You all agreed that you would hold the government to their burden of proof in this case beyond a reasonable doubt which is the highest burden. And you remember that I said thank goodness in Federal court we have a definition, and that definition is that you have to believe, you have to believe in this case as to each count that Mr. Leon Combs is guilty beyond a reasonable doubt.
What does that mean? It means that you would not hesitate to rely on it in making the most important decisions in your life. There is [are] 14 of you here and there is going to be 12. 12 minds. You are going to go back and talk about it. We want you to talk about it. But every person heard the evidence, and don�t be swayed in by the fact you need to go somewhere, whatever the case may be. You have heard the evidence, you make your decision based on the evidence. And remember, again, you would not hesitate to rely on it in making the most important decisions of your life.
We talked about guns. You remember the guns we talked about. We have seen guns the entire time. There has to be a connection. I told you that at the beginning. There has to be a connection with the drugs. Just because someone has guns, that�s not against the law. Just because someone trades guns, that�s not against the law. There has to be during and in relation to a drug trafficking crime. Without more, it doesn�t each � it fails. It does not suffice.
There has to be a casual {causal} connection, a nexus, a tieup somewhere. You have got to have something. Don�t convict just because you hear drugs in this case and just because you hear guns. We have talked about drugs as well. There has been some drugs. They want to make a big deal about the drugs in this case. Oh, it�s $1,000 street value. $1,000. That�s 25 OC�s. Yes, they made out inditia he�s purchased 25 OC�s. 25 OC�s. That�s all it is. You go down 00 if you have a problem, you go down, you can get at least a prescription for 25 OC�s. $1,000 in � in the drug world and going to a doctor for $1,000 is not much.
This isn�t some humongous case here. This isn�t some � they are trying to make this guy out some big time drug dealer.
Dan Smoot, he is a good officer, they are all good officers in this case. I am not making any shots at any officer, but Dan Smoot comes in here, so-called expert; and he may very well be. He is a good fellow. I won�t disagree with that. But they try to use whatever they think they can use, and they cannot. They said, �Well, there was no vehicles, there was no bubble cups, or whatever you call those things, you know, where you split the cups. Therefore, he must not be a user. But what about the fact there was no U. S. currency that was used? What about the fact they didn�t find any ledgers? What about the fact that � that there is no proof in this case, that the traffic in dope was unbelievable? Where are the pictures? There is no tape that you heard in this case. We don�t have anything like that. You can rest assured that if they had that, they would have be in here doing it all. It�s easy to just flip it around like they always do. Where is the substantiation, the corroboration, the confirmation of Josh Miller in this case? There isn�t any. Zero.
Now, I want to talk to you about the counts and try to tie in the evidence as well. Let�s talk first about the incident that occurred on November the 14th of 2000 with Joyce Eversole. Now, Joyce Eversole is not, you know, she is not the � well, she is a drug addict. I mean, come on. She was doing OC�s. Of course, they didn�t check to see if she was on OC�s that day. Of course, she didn�t remember if she was on OC�s that day either, quite frankly. But she says that she came over there after making repeated phone calls to them, call them all the time. [NOTE: Mr. Gordon either keeps saying �them� or the court reporter was misunderstanding him.] Now, some of it may have been unrelated, but she made calls from her home, she made calls from a cell phone. She went over there and she wanted � she asked him about getting some OC�s. Now, you know that he had a prescription for OC 20's. You know at some point he had a prescription for OC 40's. Did he have them all inside the pill bottle? Sure he should have. But he didn�t. And maybe that�s a charge for prescription out of container as Mr. Smoot had said. He couldn�t even produce the OC 20's or the OC 40's that she had gotten that day. He didn�t have them at his residence. He didn�t have any drugs. If he is some big time player like they want you to believe, well, why didn�t he just have them there? It would have been very simple. Just come on over to the residence. She�s been there thousands of times. She�s been over there for ten years.
And remember Joyce said, �Well, he is a friend. Did it many times.� How many times? One time. This is the only time she testified to. Have you been over to his residence before? Have you ever purchased drugs at his house before? No, never got drugs at his house. A person who was some OC addict for three years since they came out and knew this man for ten years and had been unable to tell you other than one time she got some OC�s and they weren�t even from him. They were from some other guy. Do we know for a fact he possessed them? How do we know he possessed them? There was no testimony that he actually gave them to her. There was some guy that drove by. He knew them, no question. The testimony was that apparently he knew this person. And this person stopped. And this person, we don�t know if he gave them to what she says, Leon, or if he gave the drugs directly to her. Maybe we don�t know that he possessed it, with the intent to distribute those drugs. We don�t � but we do know one thing, he didn�t possess those drugs at his residence for seven years with his wife back there with the intent to distribute those drugs. He didn�t do that.
Was there any drugs involved in that transaction? Did he have a gun in there to embolden himself, to import courage upon himself, to strengthen his position, to feel more relaxed in this so-called drug transaction? No, he didn�t have it. The only reason he had guns, the only reason Joyce Eversole had guns, only reason any of those Perry County residents had guns is because it�s a way of life down there. That�s a way of living.
MR. WEST: Your Honor, objection. That�s not a fact in evidence.
THE COURT: Sustain.
MR. GORDON: A lot of people trade guns down there. You know it. All these people testify that they trade guns. They trade them back and forth for nominal amounts of money. They don�t look to see if they are fired, if they fire. They don�t look to see how much they cost. They simply trade the guns. You have got � you have got to know beyond a reasonable doubt a decision that you wouldn�t hesitate to rely on that he actually possessed those 25 OC�s with the intent to distribute them.
Now, let�s talk a little bit about the incidence in question on the 22nd day of January at his residence at his so-called drug house. He is � he is � he is out in his car, we don�t know if he is coming, we don�t know if he is going, we don�t know how long he�s been there other than from the testimony of his wife, who indicates that he had just arrived home, that he forgot to get his kids so he had to leave. Even if the gun was on the seat as they want you � as that witness testified and as they want you to believe, that�s fine. The gun very well could have been on the seat. He picks the gun up off the seat, he puts it in his coat so that when he walks in the house he can put the gun in his house where he puts all the other guns. [NOTE Testimony also supported the fact that he had gone to purchase kerosene and had indeed purchased kerosene, so it would be reasonable to think he put the gun in his coat pocket while he unloaded the kerosene from the vehicle and carried it into the house as the testimony indicated happened.] But he didn�t get time to take the gun out of his pocket because he had to go, because remember at the beginning of the trial he said, �Darn it, I forgot to pick up the kids.� And he had to go back out. He didn�t have time to drop that gun off. And now they are trying to prosecute him because he was holding a gun that he had just bought twenty minutes before or fifteen minutes before and he had it in his doggone pocket.
Did he try to use it? No. If he would have had that gun on the seat, if that gun would have been on the seat, you don�t think that he would have had to make a move to get that gun and those police officers, Keith Napier and those other officers that came up there wouldn�t have noticed that he did that? You know they would have, and you don�t think they would have pulled their guns out immediately? Sandlin and (said) he never pulled his gun out. They weren�t in fear of this guy. This guy got out of the car, what�s the first thing he did? He put his arms straight down to the ground. The first thing he did. He didn�t try to use that gun in any form or fashion. And doggone it, he just picked that thing up and wasn�t able to put it inside the home because he had to pick up his kids. And it�s not unreasonable for him not to want a gun sitting on the car seat. He doesn�t want anyone just going out there, maybe open up the car, picking up the gun. He took the gun like a reasonable citizen would do, intended to put it inside and was unable to do so because he had to run another errand.
There was no threat by him toward any officers. You know what the officers said, that he was cooperative. Very cooperative. There was no question that he aimed any gun. Now, you don�t have to aim a gun at anybody in this case to be guilty of those offenses. You don�t have to do that. But doggone it, what you do have to do is that on or about the date and place alleged in these indictments � and I am talking about count 3 right now which we are talking about is that gun, that silver gun purchased from Mr. Rucker there for $50. That he did so during and in relation to a drug trafficking crime. That that firearm must be within his possession, okay. But that the firearm facilitated or had a role in the crime. Well, if you believe � if you believe the testimony � and I submit to you that there is no testimony to the contrary � that he simply picked that gun up beforehand and he went inside the house, that gun didn�t facilitate any drug trafficking crime.
That � that� that weapon didn�t play any role in that drug trafficking crime. He just had that gun in his coat pocket, that�s all he had. You have got to have more than just a gun on you, folks. You have got to have some facilitation, some role, some nexus, some connection to the drug trafficking crime. Simply to have it is not sufficient. It�s got to be available for his protection. He didn�t use it to protect him or to embolden his � to embolden him, to import courage upon him as the dictionary would say. You have got to have something, and in this case we don�t have it. We simply have a fellow, as it relates to count 3, that had a gun and that he had just picked up.
Now, let me talk briefly, I can see here now, we are on a time frame. In regard to count 4. You go to the same thing, trading of guns. Even if there was trading of guns, I mean, what proof do you have in this case other than from Josh Miller who was in a bind? Who � who was with his father and his uncle and he had taken those guns out of their home, and he was admitting now that he was an OC addict, that he had taken guns without their permission. He knew where he had traded these guns, but generally, I might add, to Leon Combs. But he knew he was in trouble, does � is Leon Combs perhaps a convenient target on January the � January the 22nd of 2001? He could be. He is the one that has the guns. The one who trades guns which happen to be over at his house. What an easy way to get out of this mess. I am not saying that that�s what happened. But is it conceivable that that could have happened? What substantiation, what corroboration, what confirmation do you have from Josh Miller? Oh, Roger West wants to say that � that, oh, well, he went up to the Ashland station. Well, how many stations are there over in Perry County? I don�t think there is ten on every � on every block. There is just not that many. There is probably not that many stations that have a food area in a gas station where they pump gas. It�s not like living in Lexington, Kentucky.
Now, granted they do have a lot of hollers, but they don�t have that many gas stations. [NOTE Such a statement is very condescending and unprofessional in my personal opinion. This is one of the many statements which I think left a negative impression with jurors that would not have been tolerated had Leon been tried in the Pikevill area which is more familiar to the area and where jurors would have been more �his peers.�] Everybody goes to the same place.
MR. WEST: Object, Your Honor, that�s not in fact evidence either.
THE COURT: Sustain.
MR. GORDON: Under instruction 14, under count 4, knowledge� not only � and don�t get caught up by the fact that a person who trades firearms for drugs, first of all, there is no proof other than from Josh Miller that he ever got drugs. There is no proof. There is no proof from anyone in this particular case. But you also have to � have to find that so during and in relation to a drug trafficking crime, during and in relation to a drug trafficking crime which means that the � the firearm had to facilitate or play a role in the crime again. It had to be some sort of connection. It had to facilitate. It had to encourage. And it also goes to say at the very end, I might add, that you have to find beyond a reasonable doubt this Leon Combs distributed the Oxycontin, which I submit to you he did not, at the same time that the weapons were traded. We don�t know. We don�t � first of all, not only do we not know that any Oxycontin was ever traded for, but not only that; do you know Josh Miller didn�t even tell you, that it was done at the same time, that the change was done at the same time. You don�t know that. There was never any talk, I asked him was there any talk by Leon of using this weapon, any talk about guns when any of the stuff went on? No. The guns could have been traded when he first walked in, thirty minutes later as he said he got an Oxycontin, but I submit to you that he didn�t. But there is no proof in the record beyond a reasonable doubt that it occurred at the same time. You don�t have any proof of that.
Looking at count 5 of this case, and this is really where it all started, I seem to be going on the back � from the back forward. But even the government, even the government submits that perhaps there is investigation proof here of the stolen part of this case. And there is. There isn�t any � no one ever filed a report in this case that the guns were stolen. Napier didn�t, his uncles and brothers didn�t. There has been no � no report of that. As a matter of fact, one of the officers even indicated that Leon Combs knew to the contrary that in fact the guns were not stolen. Now, how can you imput knowledge when in fact Josh Miller who even admitted on the stand that he never told Leon Combs that he stole any guns, never told anybody else that he stole any guns, and �
THE COURT: Five minutes, Mr. Gordon.
MR. GORDON: Thank you, Your Honor.
And he didn�t even know that he stole any guns, how are you supposed to imput that? You, in order to find him guilty, have to � that he knowingly received those stolen firearms and that he knew or had reasonable cause to believe the firearms were stolen.
Well, there is no proof of that in this case. Absolutely no proof. Now they parade a list of witnesses in here, they parade Dan Smoot, the expert, in here; and they try to tangle everything around and they try to suggest that he is some big dealer. Well, you know, quite frankly, in this case they don�t� have that proof. You think, well, what�s he making such a big deal aout U. S. currency, about pictures, about � about buy money, about ledgers and stuff. The reason is because that corroborates, that substantiates, that confirms, that puts more credibiility to these guys, to this guy and this girl. It gives them more credence to their testimony. Standing alone it could still be enough, but in this case as you well know, straight out of the government�s mouth, at the beginning of the closing argument, they tell you that is�s not. That�s why I bring those things up. That�s why it�s important in this case. There is no question the man had pain. There is no question that he had � he had a prescription of OC 20's and of OC 40's, and perhaps he did possess some other narcotics. He did. It appears he did anyway. But is there any proof that he intended to sell any of those?
And moreover and most importantly, there is absolutely no proof in this case concerning these guns. These guns are a throw-in. Both counts are nothing more than a throw-in. There is no way that you can say from listening to this evidence that this man � you may not like him, you may think he is a drug dealer, but do you know beyond a reasonable doubt that he intended to use those guns to facilitate during a drug trafficking crime, to aid him, to help him? Did anyone mention anything about that in this case? No. These things are nothing more than a throw-in to get him convicted and to get additional penalities.
THE COURT: That�s not for the jury�s concern, they are to be concerned about the �
MR. GORDON: Fine, Judge, I am not going to talk � that�s it.
Well, as I said at the outset, you all we have chosen, and you are going to go back there and you are going to take a vote and you are going to talk about this case: and we want you to. But you know, this is an important day. It�s an important day for this man right here, and not every case that comes into this big courtroom with Judge Hood up there, not every person that comes in here is guilty. And you hopefully know that and you will go back and talk about this evidence and think about it, and don�t rush to any � any judgment. Think about those instructions. Read those words. Those are in there for a reason. Just think about the case. Do you know, can you say beyond a reasonable doubt that you wouldn�t hesitate to rely on it in making the most important decisions of your life, that he used that gun to be picked up twenty minutes before, facilitate, to play a role in those � in those transactions?
I submit to you, no, and the proof says � says the same; and I ask you as it relates to all � all five counts to return a verdict of not guilty. Thank you.
THE COURT: Thank you, Mr. Gordon.
MR. GORDON: Thank you, Judge.
THE COURT: Rebuttal, Mr. West?
MR. WEST: Yes, Your Honor.
MR. WEST: May it please the court, Mr. Gordon?
THE COURT: Mr. West.
MR. GORDON: Mr. West.
MR. WEST: Ladies and gentlemen of the jury, I won�t take much of your time, plus I have got five minutes.
I do take issue with what Mr. Gordon said, that $1,000 of dope is not much. It certainly is. It certainly says it is. Every county in this Commonwealth and in this nation. That�s a lot of money. So is the amount of $1,240 worth of dope. That�s a lot of dope. That�s a whole lot of dope. Now, makes you wonder if Mr. Gordon heard some of the same evidence that we did.
Miss Eversole, the reason why Mr. Combs is not charged with every single event on selling her dope is because we cannot corroborate it. There is not another witness to say �I was there. I saw Mr. Combs do that. I saw Mr. Combs in her presence.� In this case, the one count that we have, the $1,000, which is not worth much to Mr. Gordon, that man right there in the middle of the detectives, Keith Napier, saw Leon Combs. [NOTE: Keith Napier testified that he could not see the individual very well the night of November 14th and only determined later that it was Leon Combs. He did not testify as to how he determined it was Leon Combs.] The guy right next to him in the white coat gave $1,000 to Detective Napier who gave it to Miss Eversole. [NOTE: They testified that the money was not marked. They testified they did not search Miss Joyce Eversole. They testified they did not determine if she had used drugs that day.] Miss Eversole testified that she gave $1,000 to that guy. He was the one that of that brought her back the 25 OC�s. She didn�t see any other guy. Remember she ducked down. We don�t know who that is. [NOTE: No one else say this transaction so who is corroborating her statement? Remember the detectives who supposed watched the transaction said it took place in Airport Gardens � which is several miles from the Holiness Church on Second Creek where Joyce Eversole said it took place. No one testified as to how the transaction took place. It is conceivable that Joyce Eversole could have gotten out of the car and purchased the drugs herself. We only have her word as to what happened and she is an admitted drug abuser who was in trouble over bad checks and was willing to �work with the police in exchange for money.� John Doe is not charged in this indictment. We don�t know who it is. We don�t overreach in this case. We submit to you we will prove what evidence we have with the witnesses who can testify, that is what happened. Now, Mr. Gordon also says if you know he had a prescription for 40's. You know that his wife said that he had. Where is the prescription bottle? Where is the doctor who said, �I prescribed him 40's�? It�s not there. [NOTE: This addresses the lack of proper legal representation by the public defender. There are medical records to show that a prescription for Oxycontin 40 had indeed been written and filled. These documents will be posted to this site to support this contention. Mr. West, the prosecutor, could have investigated and learned this for himself had he been inclined to search for the TRUTH.] Where is the prescription bottle for the K4 Dilaudids? Nowhere. Not one witness testified he was ever prescribed K4 Dilaudids. Not there. But they certainly were in the pill bottle in his underwear. [NOTE: Not one witness testified to having ever bought K4 Dilaudids from Leon Combs either. Police have been known to plant counterband�could they have planted these? Their investigation was certainly not textbook form so the possibility exists�naturally it may not be considered reasonable doubt because of the speculative component.]
Mr. Gordon tells you the pistol was traded and it wasn�t meant � remember I asked him in the witness�s testimony, I used the term, at the time I didn�t know how important it was but I recognize how import it is now. Long guns. What was found in the defendant�s house? Long guns. Anything found in the car? No long guns in the car. I asked his wife, �Were the guns loaded in the house?� No. Where was the only pistol found? The only loaded weapon found, Exhibit 10 and Exhibit 10A, where were they found? In his pocket with the dope. [NOTE: The testimony was that the pill bottle was found in his waistband. Mr. West is saying it was found in his pocket.] Was he going to pick up his daughters with dope in his pocket and a gun? Doesn�t make sense.
Mr. Gordon also says that the first thing he did was put his arms straight down to the ground. Wait a minute, now, that�s not what the officers said. Trooper Scotty Sandlin said he was shuffling around his front part, his waistband. That�s where we found the pills. I asked his wife, �Do you know what he traded for those guns?� No, she has no idea what he traded for those guns. When I went through the pill sequence, seven pill bottles there, I asked his wife what all of them were. She could tell us the names of all the people that were on it, what their relationship was to the household, why the pills were there. No OC 40 prescription. No K4 Dilaudid prescription. Woman was very smart. Not taking that away from anybody. This woman could not account for the K4 Dilaudids or OC 40's.
Now, one of the instructions that you will receive is proof beyond a reasonable doubt. It says very simply proof beyond a reasonable doubt does not mean proof beyond all possible doubt. Possible doubts or doubts based purely on speculation are not reasonable doubts. A reasonable doubt is a doubt based on reason and common sense. Is there a doubt as to these counts based on reason and common sense? No.
Is there another reasonable explanation? No.
Very simply, ladies and gentlemen, Mr. Ed Miller had faith in his son, still has faith in his son. I. J. Sandlin had faith in his nephew. Not pleased with him. They had faith in him. Only ask you, this jury, to have at least that same faith in Joshua Miller and Joyce Eversole, not because of their parents, not because Joyce Eversole worked for the police; but what they said was proven by exhibits, by witnesses, by testimony. Thank you.
THE COURT: Thank you, Mr. West.
Madam Clerk, would you put the 14 names in the box? Shake them up, please.
THE CLERK: Yes, Your Honor.
THE CLERK: Our first alternate is juror no 161. Kimberly Moore. Our second alternate is juror no. 182, Joanne Goodwin.
THE COURT: Where are we? Well, you are excused. Thank you. You probably wonder why I didn�t tell you that you were going to be alternates right off the bat. Well, that�s because I didn�t want anybody to know who the alternates were going to be because I think if I told you earlier that you were going to be the alternates or whoever was going to be the alternates, they might not pay as careful attention as you all have. And had something have happened so one of your fellow jurors was gone, we would have needed that 12th or � 13th or 14th person. And we have everybody paying attention that way instead of doing something like trying to count the number of hairs on my head, which is pretty difficult. So thank you all for your service. You will be notified as to when your next period of jury service will be. You may show the alternatives from the courtroom, Mr. Balcomb.
(Alternate jurors excused from courtroom.)
THE COURT: Now that all the evidence is in and the arguments are completed, you are free to talk about the case in the jury room. In fact, it is your duty to talk with each other about the evidence and make every reasonable effort you can to reach a unanimous verdict. Talk with each other, listen carefully and respectfully to each other�s views; and keep an open mind as you listen to what your fellow jurors have to say. Try your best to work out your differences. Do not hesitate to change your mind if you are convinced that the other jurors are right and that your original position was wrong. But do not ever change your mind just because other jurors see things differently or just to get the case over with. In the end, your vote must be exactly that, your own vote. It is important for you to reach a unanimous agreement, but only if you can do so honestly and in good conscious.
No one will be allowed to hear your discussions in the jury room, and no record will be made of what you say; so you should all feel free to speak your minds. Listen carefully to what the other jurors have to say, then decide for yourself if the government has proved the defendant�s guilty beyond a reasonable doubt.
I am going to send you to the jury room with my instructions, a copy of the indictment and the verdict form. The clerk will send in the exhibits to the jury room, with the exception of 10A, which is the ammunition. We don�t need to have that in the jury room. I don�t want anybody checking to see if that pistol would work. [NOTE: The guns were not entered into evidence�only photos of the guns. So there should not have been a pistol in the jury room for them to see if it worked or not!]
When you get into that jury room with all the exhibits and the fellow jurors and everything else, you do exactly what I have told you not to do throughout the course of this trial; talk to each other and make your minds up.
Mr. Balcomb, you may show the jury from the courtroom.
THE MARSHAL: All rise for the jury.
(Jury excused from the courtroom to commence deliberations at 4:10 p.m.)
THE COURT: Let the record reflect that the jury is out of the courtroom. Anything we need to take up outside the presence of the jury?
MR. WEST: Yes, Your Honor, we need to deal with Miss Eversole.
THE COURT: Yes, you all may be seated. Where is young �
MR. GORDON: I don�t have a dog in this fight.
THE COURT: No, you may be excused. You and your client may be excused. We need to see Miss Eversole.
(Court recessed at 4:12 p.m. awaiting the return of the verdict of the jury.)
[NOTE: Dealing with the �young� Miss Eversole was not in the transcript.]
- - - - - - - - - - - - - -
Friday morning session,
April 20, 2001, 10:05 a.m.
- - - - -
(The jury announced it has reached a verdict.)
(The following proceedings were had in open court out of the presence and hearing of the jury.)
THE COURT: Let the record reflect that the parties are present in the courtroom by and with counsel, that the jury is not present but has announced it�s reached a verdict. Anything we need to take up before the jury comes in?
MS. REED: No, Your Honor.
MR. GORDON: No, Your Honor.
THE COURT: Okay, let�s show the jury in, please. (Jury resumed their places in the jury box at 10:07 a.m.)
THE COURT: Let the record � please be seated. Let the record reflect the jury is present in the courtroom.
Mrs. Armstrong, I understand the jury has reached a verdict?
MRS. ARMSTRONG: Yes, sir.
THE COURT: If you would hand it to the marshal, please.
MRS. ARMSTRONG: (Complies.)
THE COURT: Thank you. Madam Clerk, would you please read the verdict?
(Verdict announced at 10:08 a.m.)
THE CLERK: Yes, Your Honor. We, the jury, find the defendant, Leon Combs, as to count 1, guilty. As to count 2, guilty. Oxycontin is checked. Dilaudid is checked. Count 3 guilty. Count 4 guilty. Count 5 not guilty. Signed and dated this date by the foreperson.
THE COURT: Wish to have the jury polled, Miss Reed?
MS. REED: No, Your Honor.
THE COURT: Mr. Gordon?
MR. GORDON: Yes, Your Honor?
THE COURT: Madam Clerk, would you please poll the jury?
THE CLERK: Yes, Your Honor. Juror No. 13, Cathy J. Spencer, is the verdict as read your verdict?
CATHY J. SPENCER: Yes.
THE CLERK: Juror No. 102, Mabel Hamilton, is the verdict as read your verdict?
MABEL HAMILTON: Yes.
THE CLERK: Juror No. 198, Judy Roberts, is the verdict as read your verdict?
JUDY ROBERTS: Yes.
THE CLERK: Juror No. 148, Shirley Collier, is the verdict as read your verdict?
SHIRLEY COLLIER: Yes.
THE CLERK: Juror No. 167, Gloria Amarillo, is the verdict as read your verdict?
GLORIA AMARILLO: Yes.
THE CLERK: Juror No. 190, Brejetta Stidham, is the verdict as read your verdict?
BREJETTA STIDHAM: Yes.
THE CLERK: Juror No. 75, Ronda Armstrong, is the verdict as read your verdict?
RONDA ARMSTRONG: Yes.
THE CLERK: Juror No. 179, Bonnie Waldridge, is the verdict as read your verdict?
BONNIE WALDRIDGE: Yes.
THE CLERK: Juror No. 170, Ann Hanley, is the verdict as read your verdict?
ANN HANLEY: Yes.
THE CLERK: Juror No. 138, Gene Fouts, is the verdict as read your verdict?
GENE FOUTS: Yes.
THE CLERK: Juror No. 95, Eric McMichael, is the verdict as read your verdict?
ERIC McMICHAEL: Yes.
THE CLERK: And Juror No. 88, Donny Daus, is the verdict as read your verdict?
DONNY DAUS: Yes.
THE CLERK: All 12 in the affirmative, Your Honor.
THE COURT: Miss Armstrong and your fellow jurors, I would like to thank you for your service in this matter. I have told you or I tell every jury that I have that it � the number of the sets of eyes and the number of the sets of ears that listen to this evidence and make these determinations make it a lot easier for us to do our business. Our system wouldn�t operate without the services of a jury paying attention and listening to the evidence and making these decisions for us, and I thank you for your service.
You all are excused at this time, and you will be notified as to when your next period of jury service will be. You may show the jury from the courtroom.
THE MARSHAL: Rise for the jury.
(Jurors excused.)
THE COURT: Please be seated.
Mr. Combs, the jury having returned a verdict of guilty on counts 1, 2, 3, and 4 of this indictment, you are hereby ajudged guilty of the crimes charged in that indictment. The jury, having returned a verdict of not guilty on count 5 of this indictment, you are hereby exonerated of the charge contained in that indictment. May I see your book, Madam Clerk?
THE CLERK: Yes, Your Honor.
THE COURT: Matter will be assigned for sentencing at Pikeville, Kentucky on August the 6th, 2001, at the hour of 4:00 p.m.
MR. GORDON: Judge, I got a shooting case down in London and �
THE COURT: Is that when it�s set?
MR. GORDON: It�s set that day. It�s the third time it�s been reevaluated. It�s going to go, I am 90 percent positive.
THE COURT: How long is it?
MR. GORDON: It�s probably going to go two, three days.
THE COURT: Well, let�s set this then for sentencing here at � Frankfort on July 31, 2001, at the hour of 10:00 a.m. Anything on behalf of the United States at this time?
MS. REED: No, Your Honor.
THE COURT: Defendant may � any objections to the defendant being released on his current bond pending sentencing?
MS. REED: United States requests that he be remanded to the custody of the marshal.
THE COURT: Mr. Gordon?
MR. GORDON: Well, I mean, obviously we ask that he remain out, Judge. Certainly he is not in the same posture that he was ten minutes ago, but I will say that he has been out for an extended period of time on bond. I mean, he lived in Perry County all his life, he appeared in all his court appearances. Met with me on numerous occasions. You know, I � I just ask that he remain out, Judge.
THE COURT: Government�s made a motion for detention, under 3143(a)(2) of Title 18, I am required to order the detention of anybody who has been convicted of an offense in which the maximum terms of imprisonment of ten years or more is prescribed by the Controlled Substance Act. This is not a felony which involves a crime of violence, which carries an offense for which the maximum term is ten years or more. So I don�t think I have much choice in this matter. The defendant is remanded to the custody of the marshal pending sentencing.
MR. GORDON: Where is he going to be placed, Your Honor.
THE COURT: I would assume probably here.
MR. GORDON: Okay.
THE COURT: All right? Court will be in recess then until court in course.
(Matter concluded at 10:15 a.m.)
.