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REPORTER'S DAILY TRANSCRIPT SUPERIOR COURT OF THE STATE OF CALIFORNIA SHARON RUFO, ET AL., N/A, PLAINTIFFS, VS. ORENTHAL JAMES SIMPSON, ET AL., DEFENDANTS.
SANTA MONICA, CALIFORNIA DEPARTMENT NO. WEQ (REGINA D. CHAVEZ, OFFICIAL REPORTER) (The following proceedings were held in the Court's chambers, outside the presence of the jury.) THE COURT: Okay. Now that I have you in chambers, my turn to surprise you. I'm going to be giving special instructions to the jury regarding Mr. Simpson's examination by Mr. Petrocelli. I've written it out; I'm going to pass it out to you. Look it over before I come out or before we have the jury come out. If you want to make a record, we'll do that before I make any statements to the jurors. (Court hands document to counsel.) THE COURT REPORTER: Are we still on the record? THE COURT: My suggestion is, you guys go out and study it. (The following proceedings were held in open court, outside the presence of the jury.) THE COURT: Okay. The Court, in chambers, gave counsel the special instruction that the Court intends to give to the jury with regards to examination of Mr. Simpson last week. And at this time, if you have any comments for the record, you may make them. MR. PETROCELLI: Thank you, Your Honor. I just read the Court's proposed instruction. As I understand it, it basically points out to the jury that Mr. Baker, in his opening statement, spoke on the subject of the lie-detector test and thereby opened up the subject to examination by the plaintiff. The Court then goes on to say that, however, by Mr. Baker opening the door, he didn't permit me to inquire into confidential communications. None of my questions, Your Honor, inquired into confidential communications in regard to this subject matter. That's point 1. Point number 2: In the Court's proposed instruction to the jury, it operates under the assumption that I asked questions of Mr. Simpson about Mr. Schiller's book and literally referenced Mr. Schiller's book. At no time did I do so. I specifically avoided mentioning Mr. Schiller's book at all in my questions because I didn't want to get into the thorny issues of privilege. I've just had an occasion to review the transcript of my examination of Mr. Simpson on this subject, and there is absolutely no mention, as far as I can see, to Mr. Schiller or his book. And so I would object to the text of this being mentioned to the jury because you're pointing out things that are actually not accurate. I at no time referenced the Schiller book. The jury shouldn't be told that I did so. THE COURT: Well, Mr. Petrocelli, if you recall from your examination of the transcript, that you made pointed reference to the book at side bench, so I think there was a reasonable inference that that's what you were referring to. MR. PETROCELLI: But the jury doesn't have any knowledge about the Schiller book, and the side-bar conferences were out of the presence of the jury. And I didn't bring up the Schiller book. I mean, that was a point that Mr. Baker kept bringing up in regard to the privilege issue. And the issue -- point I want to make, Your Honor, is that this issue of the lie-detector test, first of all, this was brought up initially by Mr. Baker, who made a very strong point in his opening statement, that Mr. Simpson was absolutely willing to take one and the police refused. And the only inference to be drawn therefrom, and the only reason why he made such a statement, is to suggest that Mr. Simpson was innocent; if he took a lie-detector test, he would have passed it. There is no other reason to make such an argument to the jury. THE COURT: You made no objection at that time, if you recall. MR. PETROCELLI: The statement is out. THE COURT: You could have made an objection. MR. PETROCELLI: And secondly -- THE COURT: You didn't make an objection, so I assume you had something in mind when you failed to make your objection. MR. PETROCELLI: Mr. Baker opened the door and fully intended to follow up on it. And the second thing, Your Honor, is that -- I think if you go back and look the at transcript, I didn't launch into this line of examination. Mr. Simpson brought out the issue of the lie-detector test, once again, or his willingness to take one. And I then followed up on it. In other words, I believe if you'll look at the transcript, that he volunteered it again on his own, not in response to a question of mine, but just added something about wanting to take a lie-detector test. And then I followed up on it, now having been -- it having been referred to twice by the defense: Once by Mr. Simpson and once by Mr. Baker. I did not initiate any of this dialogue about a lie-detector test. Having said all that, I believe that if Your Honor wants to give some kind of instruction, it has to be more balanced and more even-handed. I don't believe this accomplishes that. And I also believe that this is highly inaccurate because it says that I referred to a book written by Mr. Schiller, and I at no time did so. And you have a big, long paragraph here about my talking about the Schiller book. And I don't think it's appropriate to be telling the jury anything at all about the Schiller book, in particular that I referred to the Schiller book, Your Honor, because I did not do so. And I was steadfast in avoiding the subject altogether. So I would ask that this be modified. I would propose drafting something if Your Honor would like, but this, I don't believe, is appropriate. MR. BAKER: Your Honor -- THE COURT: Yes? MR. BAKER: Two things. One, in my opening statement I didn't refer to him taking a lie-detector test; I referred to the offer to take a lie-detector test. And there is, in a total of six hours of opening statement, two sentences, as I went back and looked at it, because we had prepared a motion that we were going to file with the Court this afternoon on this very issue, requesting a mistrial because of the introduction of the evidence of the lie detector -- the polygraph information. As the Court will recall, we made -- Mr. Blasier made a motion relative to the Schiller book before Mr. Simpson took the stand, and the Court overruled that motion. The Schiller book was sitting right on counsel table with Post-Its, in front of Mr. Petrocelli during his examination of Mr. Simpson. I had asked on two occasions that that book be removed from counsel table. The plaintiffs' attorneys would not and did not do it. They certainly referred to it. I went back yesterday -- I looked at the -- the piece in the book relative to the polygraph examination that is mentioned in the book and -- and that indicates that that examination, which was never an examination, was done on the 14th, when Mr. Simpson admitted that he was hooked up to it, but the test was never completed. Mr. Petrocelli, in an effort to mislead this jury, kept talking about the 15th in the transcript because he wanted to mislead the jury, because on the 15th was the letter written to Vannatter and Lange, indicating that Mr. Simpson would take a polygraph test. But we made that motion and I don't think that any jury instruction is curative of the evidence that has gone before the jury. In fact, I'll have the motion here momentarily. We were waiting, Your Honor, to file that motion because Schiller, on November 25, on MSNBC, in an interview, indicated that he didn't know what the content of this purported hook-up was, whether there were any questions asked about the murders. All he apparently reported was that there was a test score; that he doesn't know whether it was a completed test or anything. I wanted to include that. But in any event, there are California cases which I will have momentarily and cite to the Court, where after a curative instruction such as the Court proposes, was given to a jury. And after a jury verdict was returned, on appeal -- the Court of Appeals reversed, saying you cannot -- a curative instruction simply does not work. And so I would suggest that the Court mistry this case and, unfortunately, start all over again. We did not discuss taking of a lie-detector test, which I would suggest to the Court, is far different than what Mr. Petrocelli put before the jury. He got them to assume that a test was taken, it was completed, that the score was minus 22. That was extremely deceptive. If the Court will review -- I believe it's Evidence Code Section 351.1, the Court will see that before any of that evidence can get to the jury, there has to be a stipulation. There was never a stipulation by this side; and therefore, I think it is imperative and obligatory that the Court mistries this case, and this case be sent down for trial again, at some subsequent date. And that is because, even after we were at the side bar, we had an unlimited discussion relative to this issue. The Court overruled my objection. Mr. Petrocelli went right into it, went right into the fact that -- that there was a polygraph test taken, went right into the -- this purported score. There's only one place that I've ever read that, and that's in the Schiller book. MR. PETROCELLI: First of all, Your Honor, I haven't gotten any motion for a mistrial yet, so it's premature to argue that. I will point out that Section 351.1 applies specifically and only to criminal proceedings, not civil proceedings. THE COURT: Well, I'm not inclined to do anything other than to instruct the jury relative to your examination of Mr. Simpson. And I'll take a few moments to review my instruction and make any alterations I feel that are necessary. And I'll have the jury come out, and I'm going to give the instruction, and then we'll proceed with the trial. MR. PETROCELLI: The pertinent questions are Section 191 of the -- Page 191 of the transcript, Your Honor. THE COURT: Okay. MR. BAKER: Your Honor, I will give the Court cases citing the 351.1 application to civil cases within -- shortly. THE COURT: Mr. Baker, you know, I've come this far, and if it's your opinion that a curative instruction will not do, then that's your opinion. MR. BAKER: I understand. THE COURT: I'm doing what I have to do. MR. BAKER: I understand that, sir. Let me say, you said I spoke on the subject of a lie-detector test. There are two sentences in six hours. So I don't think I spoke on the subject. I mentioned the offer to take a lie-detector test. THE COURT: Mr. Baker, you slipped that in, and Mr. Petrocelli took advantage of it. MR. BAKER: Well, I mean, you can have your opinion, Judge, and -- THE COURT: That is my opinion. MR. BAKER: Obviously, the Court of Appeals will have the last word. THE COURT: All right. MR. KELLY: Your Honor, I had one other matter before the jury came in, before witnesses -- THE COURT: Well . . . MR. KELLY: Okay. (Recess.) (The following proceedings were held in open court, outside the presence of the jury.) MR. PETROCELLI: Thank you, Your Honor. I have reviewed the revised instruction proposed by the Court. I have a couple of comments for the record. First of all, on the second page, at the top of the page, the first sentence says that there is no other evidence before you that Mr. Simpson took the lie-detector test and so forth. I have no quarrel with that statement. I do quarrel with the statement two paragraphs down, where the Court says there is no evidence before you that Mr. Simpson took a lie-detector test, because there is evidence that Mr. Simpson gave, in the form of his answers, that he was hooked up to a test, and the jury can draw their own conclusion about what that meant. They don't have to accept Mr. Simpson's characterization; they can accept his exact factual rendition and conclude that he did take the test. So I think that -- that is not accurate and it is inconsistent with the first statement made by the Court. And secondly, the Court has only directed that the jury disregard my questions concerning the lie-detector test, but does not likewise ask the jury to disregard Mr. Baker's statements about the lie-detector test. And I think that it should be mutual in that regard. THE COURT: Well -- MR. BAKER: Your Honor -- THE COURT: -- you had your opportunity to object to that statement at the time the opening statement was made, so that's gone. MR. BAKER: I won't belabor that issue. I would request again, without waiver of -- of our view that curative instructions are not adequate based upon People versus Aragon, A-R-A-G-O-N, 1957, 154 Cal.Ap.2d 646, People versus Schiers, S-C-H-I-E-R-S, 1970, 19 Cal.Ap.3d 102, and People versus Bentley 1955, 131 Cal.Ap.3d -- or 2d. Pardon me. 131 Cal.Ap.2d 687. And I would request that -- the jury hasn't heard about attorney-client communications. Second paragraph of your proposed special instructions indicates something about attorney-client communications. And I think that -- that to raise that in a -- in an instruction that's meant to be curative, raises the issue that the information that Mr. Petrocelli gave the jury, through his questions to Mr. Simpson, came through attorney-client communications. And that raises the sphere, at least in my mind, that that -- that the jury will believe that came through communications from attorney-client. And I think that just red-flags the issue, and would request that the second full paragraph be deleted. And other than that, without waiving the objections that we have, have no further objections to the Court's proposed special instruction. THE COURT: Well, the Court put that in there because that seemed to have been one of the major points that you raised at the side-bench argument on that issue. So I -- out of an abundance of caution, the Court is going to give it. MR. BAKER: Your Honor, we also raised the issue of the book. If we're going to put anything about communications, then -- I mean, you've deleted that. Because it was raised at side bar, I'd respectfully request that the communications concerning attorney-client -- because I certainly did raise it, but I raised it at side bar out of the presence of the jury for the particular reason that you did not want the jury to infer that these communications came from his attorney, either now or at the criminal case. And I think that we would be pleased to present the Court with the transcript of Mr. Schiller on MSNBC, which we will have momentarily, that indicates he doesn't know what was in this purported hook-up on June 14. Now he doesn't know if any questions were asked relative to the murders at all. And so we're heightening this to a level that I think is inappropriate, in view of what we're trying to do is offer a curative instruction, I would submit. MR. PETROCELLI: We object to any reference to the Schiller book, as it was not part of any of my questions. MR. BAKER: Your Honor, I apologize. The plaintiffs didn't object to taking communications between attorney client out, I did. THE COURT: I'm going to leave it in, for the -- there was reference in Mr. Petrocelli's examination about attorneys from San Francisco and Mr. Simpson -- some arrangement being made with Mr. Gelblum, I believe, in regards to the "demonstration," as Mr. Simpson put it. So I'm going to leave it out, out of an abundance of caution. Bring the jury in. MR. GELBLUM: Your Honor, we have a couple things. We had subpoenaed a document, and the attorney for the organization which it is from, which it was subpoenaed, is here. She was under an order from probably a year ago now, from Judge Ito, not to disclose it. Judge Ito said as long as you tell her to turn it over, he doesn't care; she can turn it over; but she wants to hear it from you, that she can turn it over. MS. WITHEY: Pamela Withey appearing for the witness that was subpoenaed today, the Ocean Park Community Center, for certain documents. They were also subpoenaed in the criminal trial. And during the course of that trial, a motion to quash was made and heard. At the conclusion of that, Judge Ito issued an order to me personally, stating -- since I was an officer of the Court, he could have control over that -- that I maintain the original of the documents and not allow them to be copied for any purpose at any time. He also allowed one copy to be made for the prosecution, one for the defense, and ordered them also not to disseminate them to anyone, and so we have not. We've now received the subpoena to produce a document here today. We have the documents. I would like to be relieved, of course, of the Court's order from Judge Ito. In order to do so, I contacted Judge Ito's clerk, Yolanda, who indicated to me that basically, a motion may need to be made, but my discussion with counsel here this morning was that she indicated that Judge Ito would do whatever you felt was appropriate, since it is now within your jurisdiction. THE COURT: Well, I don't have any motion before me. I don't even know what the document is. MR. GELBLUM: We just subpoenaed it, Your Honor. It's a subpoena for some documents from a battered women's shelter, Sojourn House. We have a witness that we intend to call today who will be testifying about that document. We have not ever had a chance to see the document. Yesterday, I spoke with Yolanda, Judge Ito's clerk, who was on the phone, and spoke to Judge Ito, and came back, he said, as long as Judge Fujisaki says it's okay to turn over the documents, it's okay with him; that was his case and this is your case now, and he doesn't feel -- it's your decision. MR. P. BAKER: This is the first we've heard of the subpoena and the witness he's referring to, Nancy Ney, is subject to a motion to strike witnesses, which was filed this morning. Nancy Ney is a witness who says she received a phone call from a person named Nicole -- she doesn't know who -- if it's Nicole Brown Simpson, totally hearsay, and we object to the introduction of this document of her testimony as a result, and Nancy Ney's not a witness. THE COURT: What's the document? MS. WITHEY: These documents were documents in the possession of the Ocean Park Community Service Center and the witness here the custodian is Vivian Rothstein, who is the director of that program. The documents are call sheets filled out by a counselor working for the Community Service Center, a calendar and some additional notes filled out by the counselor with regard to a call that was made into the shelter. The motion to quash was subject to Evidence Code 1035, which had nothing to do with the civil matter; it had to do with admissibility of call sheets in a criminal case. But during that hearing, Judge Ito did find that the documents -- made a threshold finding of elements of the documents, after having reviewed the documents. The evidentiary issues are another matter. All I'm here to say is that I'd be delighted to turn them over, but I just need to be relieved of the court order; that's all. THE COURT: Okay. It's within my power. You're relieved. MS. WITHEY: Thank you, Your Honor. MR. P. BAKER: I would like to put on the record that Judge Ito quashed the subpoena. THE COURT: I don't have any -- there's no standing on that issue at all. Anything else? MR. KELLY: Yes, Judge. Judge, with regard to two issues regarding witnesses on our witness list. One witness, Alfredo Acosta, who's under subpoena and was listed to appear today, he's in El Paso, Texas; his father is very ill, and he's not expected back for several days. And he's expressed a willingness to testify and will appear when he's able to get back from caring for his father in El Paso. The second one is Robert Kardashian, who is not subpoenaed, but I had dealt with Janet Levine, his attorney, and had spoken to her last Wednesday and last Friday, and she had indicated there was no reason at that time to serve Mr. Kardashian, and that he was out of town; he would be back last Saturday or Sunday. And she discussed with him his appearance. We talked about his appearing Wednesday morning to testify, the scope of his examination, and whether or not she was going to appear with him. And she never -- she indicated to me there was no reason to serve him at that time. I expressed a willingness to do so. She asked to hold off as a courtesy. It was only yesterday, at 2:30 in the afternoon, that she left a message in my New York office that he would not appear without a subpoena, and that she would not accept a subpoena on his behalf. And he is still on the east coast at this time. And what I would ask for, Your Honor, based on her prior representation, that with regard to Mr. Acosta and Mr. Kardashian, that when they become available, that we be allowed to reopen our case if we've rested, at the time when they do become available, just for the limited purpose of calling them. And we expect it to be short and limited testimony. MR. BAKER: Your Honor, obviously, in view of the way that the plaintiffs have put on their case, I would object to that. I mean, when we had Detective Vannatter on the witness stand, or Detective Lange, they wouldn't let us go into anything that was outside the scope of what they felt were the parameters of their case. And I certainly am not going to, at least without objection, agree that they can interrupt our case to put their witnesses on. He had the right to subpoena Kardashian and he had the right to subpoena and get Mr. Acosta in here. THE COURT: Well, Mr. Acosta, I think, has a reasonable excuse. So I will permit Mr. Acosta to be called out of order. Mr. Kardashian - if you wanted him, you should have subpoenaed him. MR. P. BAKER: Can we have Mr. Acosta testify following the presentation of our case? THE COURT: Whenever he's available. MR. P. BAKER: Can we find out beforehand if he's available come January? MR. KELLY: Yes. I'll find that out. With regard to Mr. Kardashian, we relied on representations of counsel. THE COURT: Maybe you shouldn't have. MR. KELLY: Obviously, not at this point. Seemed like it would be a good cause. THE COURT: Doesn't sound like a good cause to me. THE BAILIFF: The jury is right here. MR. BAKER: We have another issue, on the issue of Mr. Wayne Hughes. Mr. Wayne Hughes is apparently their first witness. Mr. Hughes, I think, at least in his statement to the District Attorney, indicated there was an incident that he may be asked about this morning, and that was an incident that occurred, he now has recollection, in 1979 and 1980, when Nicole Brown Simpson came to his house, saying that Mr. Simpson may have had physical contact with her. Mr. Hughes never discussed this matter with Mr. Simpson and will so testify. He has no knowledge of whether Nicole Brown Simpson's representations to him were accurate. He asked Nicole Brown Simpson -- at least he'd be prepared to testify that if she wanted him to ever discuss this with O.J. Simpson, she said no. And based upon the hearsay nature of it, the remote nature of '79 or '80, we move to exclude any reference to -- to incident number one, if you will. And then he discussed the 1989 incident, and he's prepared to testify. And we have no objection, obviously, of him testifying about that. MR. PETROCELLI: Your Honor, under People versus Zack and People versus Linkenauer, the relationship -- the relationship between the defendant and the victim is relevant to the issue of motive and identity. And the Court specifically pointed out that acts of physical violence in that relationship are particularly relevant, in addition to evidence of quarrels and antagonism or enmity. Now, in addition to that, Your Honor, which Mr. Hughes will testify about, Mr. Simpson categorically denied ever hitting Nicole. And this evidence is offered to directly impeach that testimony. Moreover, Mr. Baker, in his opening statement, described for about the first hour or so, the nature of the relationship between Nicole Brown Simpson and Mr. Simpson, and specifically represented to the jury that there was only one physical altercation in 1989. And we will be producing a series of witnesses, each lasting about five to ten minutes, to evidence that there were other acts of violence in the relationship. MR. P. BAKER: Judge, regarding the remoteness, People versus Zack does not say that. People versus Zack is a murder case where the decedents died in 1982 and the issue was the stormy -- and the Court said it -- the stormy up and down relationship from 1978 to 1980. That's four years. This issue is 16 years, and we believe the Court should be directed to People versus Gonzales, where it held the victim's representation to violence seven years before the crime was held too remote for evidentiary value. Thirdly, Judge Ito already rendered a ruling on this, and I submitted it as Exhibit A to my motion, and Judge Ito found that it was too remote, and he said "this event provides only indirect evidence of assaultive conduct. The probative value of this incident is, therefore, much diminished when compared with the Court's time that would be -- would be required in the presentation. It's been collaterally estopped. It's too removed. We think People versus Gonzales binds the Court -- THE COURT: How is it collaterally estopped? MR. P. BAKER: Judge Ito rendered a ruling when it was remote in time in relation to the crimes of June 12, 1994. THE COURT: I don't think the concept of collateral estoppel applies here. MR. P. BAKER: The same issues reliance -- they've relied on collateral estoppel throughout the case, we relied on Judge Ito's ruling, holding O.J. Simpson over for their motion for punitive damages. This opinion was rendered. It was decided it was held too remote. It's characterized by hearsay. THE COURT: Well, I think the doctrine of collateral estoppel would apply to Mr. Simpson, but would not apply to Mr. Goldman. MR. P. BAKER: The issues were the same. THE COURT: Parties. MR. BAKER: You still -- THE COURT: Am I getting two timed? MR. BAKER: Yes absolutely. You still have to put the evidence on by competent evidence. You -- that's what we're talking about here is the hearsay. THE COURT: Well, it's not collateral estoppel, so that's out. You want to address the hearsay issue? MR. PETROCELLI: Yes, Your Honor. First of all, unlike the criminal case, the defense in this case has proffered Nicole's state of mind as -- and as was ruled on the 16th of September in connection with the motions in limine, Nicole's state of mind is directly relevant to the issue of the relationship between Mr. Simpson and Nicole. So, number one, her state of mind furnishes an exception to get in this testimony. And secondly, in this particular case, as Mr. Hughes will testify, Mr. -- Nicole came running to his house after being hit by Mr. Simpson, was extremely upset, and it would qualify, certainly, as a spontaneous statement. She also showed Mr. Hughes the mark on her body where Mr. Simpson had hit her. And again, I emphasize that in opening statement, Mr. Baker's spent quite a bit of time characterizing this relationship between the two and pointing out that there wasn't any violence or physical alterations, except on one occasion. And Mr. Simpson, at no time in his testimony, limited his answers. He said "never," categorically, did he ever touch Nicole, slap her, strike her, hit her, and so forth. MR. BAKER: In 1979 -- first of all, the -- my remarks in opening statement were in response to the plaintiffs' remarks. They proffered her state of mind, not us. Number two is the -- the hearsay statements are -- are definitely not spontaneous declarations. You're not going to hear that Mr. Wayne Hughes lives next door to O.J. Simpson. Number three, they're so remote in the time as to be irrelevant and immaterial to any issue in this case. They're talking about 15, 16 years prior to the murders that they are attempting, in this case, to hold Mr. Simpson responsible for. THE COURT: Okay. I'll permit Mr. Hughes to testify to the '89 incident, but not the '79 incidents. MR. PETROCELLI: Your Honor -- THE COURT: Let's get on with the trial. MR. PETROCELLI: Well, Your Honor, I object to this. I -- just because he makes this argument -- I mean, Mr. Simpson categorically testified that he never once hit Nicole and -- THE COURT: Mr. Petrocelli, I've heard your argument. I've made my ruling. Okay. THE BAILIFF: Jury walking in. MR. PETROCELLI: Well, I'm not going to call Mr. Hughes. THE COURT: All right; don't call him. MR. PETROCELLI: What's the ground, Your Honor, remoteness? THE COURT: That's right. 352. (The jurors resumed their respective seats.) THE COURT: Morning, ladies and gentlemen. JUROR: Morning, Your Honor. THE COURT: Ladies and gentlemen, the Court at this time will give you specific instructions regarding the plaintiffs' examination of Mr. Simpson which was just completed concerning lie detectors. I want you to listen very closely. All communications between an attorney and his client are absolutely privileged. This means that such communications cannot be used by anyone for any purpose except with the permission of the client. Mr. Simpson cannot be asked any questions about any communications with his attorneys. Furthermore, there is no evidence that Mr. Simpson consented to the publication of any of his communications with his attorney. You will recall, Mr. Simpson's attorney, Mr. Baker, in his opening statement to you, spoke on the subject of a lie-detector test. By this opening statement, Mr. Simpson opened the subject of lie detectors to examination by the plaintiff. This, however, did not open the subject of any communication on this matter between Mr. Simpson and his attorneys, or persons acting for the attorneys for any purpose. In this trial, Mr. Petrocelli questioned Mr. Simpson whether he took a lie-detector test, any score and meaning thereof. I instruct you that his questions do not and cannot establish that Mr. Simpson took a die lie-detector test, a score and meaning thereof. Statements of counsel, that is, the statements or questions of Mr. Petrocelli, are not evidence and may not be considered by you for any purpose. The references or statements regarding a lie-detector test and Mr. Petrocelli's questions are not evidence unless they were adopted by Mr. Simpson in his answers. A question by itself is not evidence. You may consider questions only to the extent the content of the questions are adopted by the answer. Mr. Simpson's answer to the question of whether he took a lie-detector test was that he was given an explanation of how the test worked and that he did not take the test. There is no other evidence before you that Mr. Simpson took a lie-detector test, and the plaintiff is bound by Mr. Simpson's response. Likewise, when Mr. Petrocelli asked Mr. Simpson whether he knew what the score on the test was, whether it was a minus 22, or whether it indicated extreme deception, these were questions by an attorney and do not constitute evidence. Mr. Simpson denied any test score or any knowledge of what test scores meant, and there is no evidence before you of any test score or what a score means. There was only Mr. Petrocelli's questions which were not adopted by an answer. Plaintiff is bound by Mr. Simpson's response. Therefore, there is no evidence before you that Mr. Simpson took a lie-detector test, no evidence about any score on such a test, nor any evidence of what any score means. You must totally disregard the questions about taking lie-detector tests, test scores and their meanings, and treat the subject as though you had never heard of it. Do all of the jurors understand these instructions? JURORS: Yes. THE COURT: Do any of the jurors have any questions about these instructions? JURORS: (Nod negatively.) THE COURT: Okay. Thank you. Plaintiffs may call their next witness. MR. KELLY: India Allen, please. MR. BAKER: Your Honor, we want to approach. THE COURT: Okay. (The following proceedings were held at the bench, with the reporter.) MR. BAKER: This, well, allegedly is going to comment about a 1980 incident where she observed Mr. Simpson make contact with -- with Nicole. And we would object on the issue -- THE COURT: You mean physical contact? MR. BAKER: We -- yes physical. On the issue of remoteness. THE COURT: Overruled. (The following proceedings were held in open court, in the presence of the jury.) INDIA ALLEN, called as a witness on behalf of Plaintiffs, was duly sworn and testified as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this Court shall be the truth, the whole truth, and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: And if you would, please state and spell your name for the record, THE WITNESS: Okay. My name is India Allen, spelled I-N-D-I-A. My last name is A-L-L-E-N. DIRECT EXAMINATION BY MR. KELLY: Q. Morning, Ms. Allen. A. Morning. Q. You're married; is that correct? A. Yes, I am. I think my husband is in here. He's an officer in the Marine Corps. Q. And your married name is? A. India Rose. Q. Okay. And is it my understanding that you use the name India Allen for professional purposes; is that correct? A. Yes. I used to be a model; I'm retired now. Q. Okay. And you use the name India Allen? A. Yes, I did. Q. Now, by the way, do you have any children? A. Yes, I do. I have two, and I have one on the way. Q. You're expecting? A. Yes. Q. Now, taking you back a little bit, about -- did you ever work in a veterinary hospital? A. Yes, I did. I worked for Dr. Shipp in Beverly Hills. Q. And when you say veterinary hospital, this is where you took care of animals, cats, dogs, et cetera? A. Yes; they were a full service. They did flea baths, they did surgery, everything, shots, everything. Q. And do you recall the location of this veterinary hospital that you worked at? A. Yes. It was -- I think it was 351 Foothill Drive, I think, something like that. Q. Okay. That's Beverly Hills? A. Yes, Beverly Hills. Q. Do you recall approximately what year you worked at this hospital? A. It was in the early '80s. I think it was '83. Q. Okay. And what exactly did you do there when you worked there? A. I washed dogs and cleaned up after them, and cleaned the kennels, and all that glamorous stuff. Q. And how old -- A. That's what I did. Q. How old were you at this time? A. I think I was about 20. I think I went through a birthday there, so I'm not really sure at this time. Q. How long did you work there for? A. Not very long. I think about six months, something like that. Q. Okay. Now, during the time you worked there, did you ever have occasion to meet Nicole Brown during your employment there at the hospital? A. Yes, I did. I don't know if you'd call it meet. She didn't pay that much attention to me. I washed her dogs. Q. Okay. A. Yeah. MR. KELLY: Can I see 2194. (Exhibit 2194 displayed.) Q. (BY MR. KELLY) Do you recognize the individual on the screen there? A. Yes, I do. Q. Is that Nicole Brown? A. Yes, it is. Q. Okay. And can you tell the ladies and gentlemen of the jury, under what circumstances you first dealt with Ms. Brown while working at the hospital there? A. Well, the first -- I saw her a couple of times. She came in with her two Chows to get them washed. I usually did the washing 'cause they -- they kind of had little tempers on them, so I usually did it. And so I saw her a couple of times, and -- and then one day she came in, she was wearing actually a very similar head band to that one she always wore, and she -- Q. (BY MR. KELLY) If I could interrupt you. Did there ever come a time that you observed Mr. Simpson at this animal hospital also? A. Yes. Only I only saw Mr. Simpson once. Q. Was that after you had met or dealt with Nicole Brown a couple times there? A. Yes, yes, it was. Q. Okay. And could you tell me what, if anything, you observed the time that Nicole Brown was there at the hospital and Mr. Simpson arrived there also? A. Well, she came in to pick up her dogs -- and she always wore sunglasses, she always came in sunglasses and the head band, and always very glamorous. She was wearing -- I think she was wearing a gold Spandex exercise outfit. She was wearing a full-length fur coat over it. I think it was a silver fur but I'm not positive, I'm not that well versed in furs. And she came in to pick up her Chows and -- MR. BAKER: I'm going to move to strike as nonresponsive. THE COURT: Overruled. Q. (BY MR. KELLY) You can go ahead. A. Okay. She came in to pick them up, and I brought -- I always brought them out to the car for her. And another guy was with me. I carried out a bag of dog food and put it in her trunk, and I had the dog, and she opened the car door, and when she opened the car door, Mr. Simpson pulled into the parking lot and sort of parked sideways, he didn't actually pull into a spot, he was kind of parking sideways. This was on the side of the building. We came out the side door. And he was very angry. When he got out of the car, he came kind of around the car very quickly and started yelling at her about wearing the coat out during the day. And he was very upset; he told her that he -- I don't know if I can say this or not, out loud. MR. BAKER: I'm going to object on hearsay grounds in any event, Your Honor. Q. (BY MR. KELLY) This is referring to a statement of Mr. Simpson? A. Yes, it is. THE COURT: Overruled. Q. (BY MR. KELLY) Okay. You can tell us what you heard Mr. Simpson state at this time. A. He said, I didn't buy this fur coat for you to go fuck somebody else, is what he said. And then he said -- then he said, I want the coat back, and he grabbed her by the back of the coat and started trying to pull the coat off of her. And she said she was -- at the time they were kind of going around and around about the coat, she was saying she wasn't going to give the coat back, it was her god damn coat; and so, anyway, she jerked away from him, and that's when I saw him strike her. He hit her across the face, and her glasses and her head band flew off and her hair kind of flew to the side when she came back up. It was the only time I ever saw her without her sunglasses. She had sort of a fading bruise under her eye. Q. And in addition to that fading bruise under her eye, did you see any other marks on her face at this time? A. Just her face was red where he hit her. Q. Okay. And what if -- let me ask you a couple questions. First of all, do you remember what kind of car Nicole Brown had at the time when you were putting the dogs in it? A. I know it was a Mercedes. I think it was a white Mercedes, but I always get the white of her Mercedes and her gold pants mixed up, so it could have been one or the other. It might have been white pants and gold Mercedes. Q. Was it a large Mercedes, small one; do you remember what type it was? A. No, it was small, I think it was a 450SL. It was very nice, nice car. Q. You also indicated that Mr. Simpson was angry when he exited his car. A. Yes. Q. Would you describe exactly what you observed about Mr. Simpson when he exited his car? MR. BAKER: Asked and answered, Your Honor. THE COURT: Overruled. A. Well, he got out of the car, and he was mad. I mean he looked like he was gritting his teeth, and his fists were clenched, and it was -- it was kind of intimidating. I stayed where I was. It was enough to keep me where I was with the dogs, and they were a little agitated, so it was difficult to hold onto them. Q. And how did you feel when you observed Mr. Simpson first come out of the car? MR. BAKER: Objection, relevance. THE COURT: Overruled. A. Well, I was a little -- first I was shocked because they were two famous, beautiful people and what I thought getting ready to have a knock-down, drag-out right in front of me, so -- while I was holding these dogs. So I was -- I was -- I was shocked and a little intimated standing there. Q. Now, what, if anything, happened after Nicole was hit and her sunglasses and head band came off? A. She kind of held the coat close to her, didn't look like she was going to give up the coat, and she picked up her sunglasses, and she picked up her head band, and she stomped over to the car, and she said, I'm going home. And she took the dogs from me; she put the dogs in the car. And he said, I'll talk to you about this when we get home. Then she got kind of intimidated and said, fine, I'll talk to you about it when we get home. And she got in the car and jerked out of the parking lot first, and then he got in his car and he followed her. MR. KELLY: Steve, can I see the picture, please. (Photo displayed.) MR. KELLY: I'm going to show you one other picture up on the board, please. THE COURT REPORTER: Do we have an exhibit number, please. MR. FOSTER: Next in order. MR. KELLY: Next in order, Erin. THE CLERK: 2222. (The instrument herein described as a photo of O.J. Simpson and Nicole Brown Simpson in fur coat was marked for identification as Plaintiffs' Exhibit No. 2222.) Q. First of all, do you recognize the person wearing the long fur coat in that picture there? A. Yes, that's -- that's Nicole. I'm not used to seeing her hair that way, but yes. Q. The individual next to her? A. Looks like Mr. Simpson. Q. And by the way, do you recognize the coat? A. Yes, that looks like the coat, yes. Q. That she was wearing that day in the parking lot? A. Um-hum. Q. And one other thing. Prior to Mr. Simpson pulling in the parking lot that day, were you familiar with who he was before then? A. Only from television, only from commercials, yeah. I had never actually seen him in person before. Only from TV. But I recognized him immediately. And the car was -- was pretty fancy. I think it was a -- I think it was a big, blue Rolls Royce. Q. And is this the first time you've ever testified regarding what you witnessed that day? A. Yes, it is. MR. KELLY: Okay. I have no further questions. THE COURT: Cross. CROSS-EXAMINATION BY MR. BAKER: Q. Good morning. A. Good morning. Q. Do you have an agent? A. Do I have an agent? Q. Yes. A. No, I don't. Q. Did you have an agent? A. Yes, I used to. Q. Did you ever appear in Playboy magazine? A. Yes, I did. MR. KELLY: Objection, relevance. THE COURT: Sustained. Q. (BY MR. BAKER) Do you have a web page presently? MR. KELLY: Objection, relevance. THE COURT: Sustained. Q. (BY MR. BAKER) In the web page did you have -- do you appear without clothes? MR. KELLY: Objection, relevance, Your Honor. THE COURT: Sustained. MR. BAKER: Your Honor, this goes to the issue of bias. MR. PETROCELLI: No speaking objections, Your Honor. THE COURT: Sustained. Q. (BY MR. BAKER) Now, did you ever, at any time during the criminal trial, report what you've just told this jury, to the Police Department? A. No, I did not. Q. Now, you were aware of the murders in June of 1994, were you not, from all the media hype on this incident? A. Yes, I was, but I was in the process of moving at the time. Q. Well, the trial went on for nine months, and you were aware that there was some issue of domestic violence during that time, were you not? A. Yes, I was. And I was also aware that they had decided not to use it. MR. BAKER: I move to strike everything after "yes, I was." THE COURT: Stricken. Q. (BY MR. BAKER) Now, so this -- your report of this incident, during the entire nine months of the criminal trial, was never made to the LAPD, was never made to the D.A.'s office, correct? A. Correct. Q. And now -- in terms of your recollection of this event, you seem now to have a pretty clear recollection of an event that took place some 13 years ago, correct? A. I wouldn't say that it's that clear, but, yeah, correct. Q. And how much time did you spend with Mr. Kelly before you got on the witness stand here today? A. Probably about 15 minutes. Q. And how much time did you spend looking at pictures before you got on the witness stand here today? A. Actually, none. Q. Never looked at those pictures that you've seen here? A. I've seen one shot of the fur coat picture. Q. Okay. A. That's it. Q. And how much time did you spend with the other plaintiffs other than Mr. Kelly. A. The other plaintiffs? Q. Yeah. Mr. Petrocelli. A. Oh, Mr. Petrocelli. I met with Mr. Petrocelli one time, just to tell him my story. Q. When was that? A. I believe it was in February. Q. How long did you spend with him then? A. He spent about 25, 30 minutes with me; not much time. Q. And now, you say that this occurred, you believe, in 1983? A. Yes, I believe it was, yeah. Q. What month? A. I'm not sure. Q. Do you know whether it was in the summer? Do you know whether she was wearing a fur coat in the summer, the winter, the fall, the spring? A. I think it was spring, but I'm not positive. Q. And you said in terms of Mr. Simpson, that he was driving a blue Rolls Royce. You have a pretty clear recollection then? A. I think it was. I remember it was a dark color. Q. But you're really clear? A. I'm pretty sure. Q. A Rolls Royce is a pretty distinctive car? A. Yes. Q. And you have no doubt in your mind, as you sit here today, that Mr. Simpson got out of a Rolls Royce in 1983, correct? A. I'm pretty sure it was. Q. Well, I mean -- A. When I -- I was not that sophisticated back then so I -- I wasn't a connoisseur of car models, so I'm not positive. Q. I understand that. I'm not trying to assert that you are. But a Rolls Royce doesn't look like any other car? At least to me it doesn't. A. No. It was a big car, yes. Q. Your best recollection is it was a blue or dark Rolls Royce, right? A. Yes. Q. And you indicated that they exchanged words and you have a clear recollection, as you sit here now, of this incident 13 years ago, that Mr. Simpson was gritting his teeth? You recall that? A. Yes. Yeah, he was mad, he was very angry. That's one thing I remembered. Q. All right. A. Yes. Q. You recall looking specifically at his fists, and both of the fists were clenched, right? A. Yes. Q. Who was this employee that went out with you that put the food in the car of Ms. Simpson? A. I think his name was Greg or Paul. And -- he was another assistant that worked there. Q. And what was his last name? A. I'm not sure. Q. How long did he work there? A. I have no idea. Longer than I did. He was a professional. Q. Now, the recollection that you have of this incident some 13 years ago, is that -- well, strike that. Where was the dog food placed in Ms. Simpson's car? A. It was in the -- they put it in the trunk. Q. Where were the dogs placed by Ms. Simpson when she put them in? A. One of them rode in the front seat and the other one was kind of squished in the middle. Q. Now, you said -- in response to a questions by Mr. Kelly, you indicated that you always get mixed up between the coat and the pants, the colors? A. No, not the coat. The pants and the car. Q. Oh, that's right. I'm sorry. A. Yeah. Q. Well, how many times have you told this story that you always get mixed up? A. I've told it to my family a number of times over the years, just because it was the only time I'd ever seen two people like that fight. Q. I see. So -- and it always kind of -- you get them mixed up, the color of the pants and the color of the automobile; is that right? A. Yes. Q. I see. Now, in terms of your recollection, you have a clear recollection that Ms. Simpson (sic) backed out earlier after they had words earlier, that they were going to discuss this further at home? A. Um-hum. Q. And you saw Mr. Simpson's hand come in contact with Ms. Simpson, correct? A. Yes. Q. Okay. Where? A. On her check, her face; right there. Q. Open handed? A. It was open handed, yes, it was. Q. And this is -- you have no problem with your recollection of this event 13 years ago, correct? A. No. Q. And the only thing you didn't do is you didn't report it to the LAPD or the D.A.'s office at any time during the investigation of the case, or during the trial, and only came forward in February of 1996 for this case, true? A. That's correct, yes. MR. BAKER: I don't have anything further. REDIRECT EXAMINATION BY MR. KELLY: Q. Was there a particular reason -- first of all, you were aware of the criminal trial going on, were you not? A. Yes, I was. Q. And I think Mr. Baker asked you if you knew whether domestic violence was an issue in that or not. A. Yes. Q. Did you know? A. I did know, but I heard that they were not going to make an issue of it, so I didn't think there was any reason for me to come forward, 'cause it wasn't going to be allowed in the trial. Q. Did you intend at the time to come forward? A. I would have if they would have needed me, yes. Q. Okay. Was there any -- MR. BAKER: Move to strike. Objection to speculation. THE COURT: Overruled. Q. (BY MR. KELLY) Was there any other personal reason that you didn't want to, if you could avoid it, testify at the criminal trial? A. Yeah. Well, I -- I -- I've retired from being a model, and I had seen a little taste of that, and I didn't want it. I have two kids, and I retired for a reason, not to be involved in it any more. Q. Was there any physical condition at that time? A. Yeah, I was pregnant at that time also. MR. KELLY: Okay. I have no further questions. THE WITNESS: Thank you. RECROSS-EXAMINATION BY MR. BAKER: Q. Well, now, in 1994, as I understand it, you had retired and you didn't want to have any more of a career in the public limelight, correct? A. I did one more job after that. It wasn't really a job, though. Q. Actually, in 1995, you appeared nude in Cigar Aficionado magazine, did you not? MR. KELLY: Objection, relevance. THE COURT: You opened it. Overruled. Q. (BY MR. BAKER) Did you not? A. Yeah. That was the one job I was talking about. Q. And you certainly wanted the limelight if you appeared without any clothes, in a magazine, smoking a cigar, did you not? MR. KELLY: Objection, argumentative. THE COURT: Overruled. A. I thought it was very artistic and a beautiful layout. It was one of the best I ever did. Q. And one of the -- you also appeared in an unrated film, "Seduce Me," did you not? MR. KELLY: Objection, relevance. THE COURT: As to time, sustained. Q. (BY MR. BAKER) Isn't it true, Ms. Allen, that you want to resurrect your fledgling acting career and you came forward with this because of that? A. No. I can't really work with a big belly anyway. I'm getting ready to have another baby, so... Q. And you had already had how many babies when you appeared without clothes on in Cigar Aficionado magazine? A. I had had one, and had one on the way, actually. MR. BAKER: Thank you. Nothing further. MR. KELLY: Nothing further, Your Honor. THE COURT: You may step down. THE WITNESS: Thank you. THE COURT: Call your next witness. MR. KELLY: I'd also like to move in 2222. THE COURT: Received. (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2222.) THE CLERK: Can we get a spelling of Ms. Rose. Is it R-o-s-e? THE WITNESS: Yes, it is. THE CLERK: Thank you. MR. KELLY: Albert Aguilera, please. ALBERT AGUILERA, called as a witness on behalf of Plaintiffs, was duly sworn and testified as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: Please be seated. And, sir, would you please state and spell your name for the record. THE WITNESS: Albert Aguilera. Last name A-g-u-i-l-e-r-a. THE CLERK: Albert, A-l-b-e-r-t? THE WITNESS: Yes. DIRECT EXAMINATION BY MR. KELLY: Q. Good morning, sir. A. Morning. Q. You currently employed? A. Yes. Q. And what type of work do you do? A. I'm a pharmacist in retail. Q. And did you receive a doctorate in pharmacy? A. A doctorate pharmacy degree, yes. Q. And where did you receive that from? A. From the University of Southern California. Q. And what years did attend U.S.C. prior to receiving your doctorate there? A. 1965 to 1969. Q. And when you were attending U.S.C., did you have occasion to know who O.J. Simpson was? A. Yes. Q. And why did you have occasion to know that? A. Well, everybody knew about the SC football team. We were doing great. During the whole four years I was there, we did very well. Q. Did you ever see Mr. Simpson on campus when you were there? A. Yes, on numerous occasions. Q. You were familiar with his appearance? A. Oh, yes. Q. Knew him by sight? A. Oh, yeah. Q. Okay. Now, I want to draw your attention to approximately July 1, 1986. Do you recall where you were living at that time? A. I lived in Laguna Beach at a place called the Blue Lagoon. Q. And who did you live there with? A. Art Sorce. Q. And did Art Sorce have any affiliation with football himself? A. Yes. He was a former All American from Colorado, and he also played briefly with the Green Bay Packers. Q. Now, going back -- going back to early July, 1986, do you recall having an occasion to be on Victoria Beach one afternoon? A. Yes, we were walking on the beach that day. Q. When you say we, who were you walking with? A. Art Sorce. Q. Okay. And do you recall where you had started walking from? A. We started from Blue Lagoon, which is the south end of Victoria Beach. Q. And proceeded in what direction? A. Proceeded north, walking down the water. Q. Okay. And do you recall what time of day it was, approximately? A. Middle of the day, between 12, 1, 2, o'clock. Q. And what, if anything, did you observe or anyone, did you observe, as you were walking along at that time? A. As we were walking and talking, about three-fourths up the way -- of the way up the beach, we saw O.J. and Nicole. Q. Okay. Were you walking on the sand or in the water at this time? A. In the water. Q. And how far out in the water were you, when you were walking along? A. About 15, 20 yards in. Q. And how far away were you from Mr. Simpson and Nicole when you first observed them? A. Oh, probably were about 50, 60 yards away. Q. And after first observing them, what, if anything, did you continue to observe about them at this time? A. Well, she was standing in front of him, he was facing the beach, she had her back to us and she was -- Q. When you say he was facing the beach, you mean the water or the sand? A. He was facing the water. Q. Okay. And she was facing? A. She was facing him. She was standing in front of him so she had her back to us. She was -- looked -- appeared like she was teasing, him or laughing and kind of animated in front of him. Q. Were you able to observe him at that time also? A. Yes. He had a more serious look on his face, and was standing still. Q. Okay. And what, if anything, did you observe next? A. Well, I was -- as we watched him and -- we would walk, and as we got almost directly in front of him, suddenly he slapped her and she fell down. Q. All right. When you say he slapped her, what exactly did you observe Mr. Simpson do at that time? A. He swung his right hand and hit her across the face. And she went down. Q. And how far were you from them when you made this observation? A. About 30 yards. Q. Okay. What, if anything, happened next? A. We kept walking and watching. And he crouched down over her. First looked like he was consoling her. Then he became agitated. And she -- couple times I heard her say, no, no, and it appeared to be in a crying voice. Q. When you saw her go down, did she fall to the side, or how did she exactly fall? A. Almost straight down. Q. Okay. And she was -- when she was on the ground, what position was she in on the ground at this time? A. She was on her knees. Q. Okay. A. On the sand. Q. Okay. A. He was crouching over her. Q. Okay. And you indicated there was some conversation between them? A. Couldn't hear the conversation. I heard her say no, no, at least twice. Q. Okay. What happened next? A. We kept walking, and looking back, and didn't know what to think. She suddenly stood up and ran away from the -- towards the back of the beach, away from the beach area. Q. Okay. Directly away from the water at this time? A. Um-hum. Yes. Q. What happened next? A. Then we -- we -- at this point we were turning around, walking back, and we kept looking to see if he was going to pursue her. And he didn't; he stayed a little while longer. And we looked back once, and he was walking away in her direction. Q. Okay. I'm going to ask you to look up on the screen there, Mr. Aguilera (referring to Exhibit 2194). Do you recognize the individual in that photograph? A. Yes. Nicole Simpson. Q. Is that the person you saw Mr. Simpson hit that day on the beach? A. Yes. Q. Okay. MR. KELLY: I have no further questions. THE COURT: Cross. CROSS-EXAMINATION BY MR. BAKER: Q. Mr. Aguilera, what year was this that this event allegedly took place? A. 1986. Q. You're sure of that? A. Yes. Q. And that's what you testified in Mr. Simpson's custody hearing last -- two weeks -- MR. KELLY: Objection. Could we approach, briefly? THE COURT: Yes. (The following proceedings were held at the bench, with the reporter.) MR. KELLY: Your Honor, I believe that the custody proceeding is a totally sealed proceeding, both the transcript and everything testified to therein. I would object to any potential impeachment Mr. Baker may be contemplating with regard to this witness and that testimony. MR. BAKER: Well, Your Honor, you can't testify one place independent, perjure one thing and someplace else. Regardless of whether he -- -- that whole custody thing is such a -- you know -- I mean, Mr. Kelly's associate in this case is -- his associate in this case is pursuing that case down there. They're using the very same witnesses. If they're going to misrepresent the truth in one case, they're going to misrepresent the truth in the other case. I think I'm entitled to go through this. I've got transcripts of this guy down there. I think I'm entitled to go into it. MR. PETROCELLI: I object to -- I want to object to this record -- I've had zero access to any of the materials or the transcripts in that case. I don't have access to Simpson's transcript. I don't know what Mr. Kelly's position is regarding access, but it seems fundamentally unfair if there's a sealing order in that case and Mr. Baker has testimony that I don't have. That's number one. THE COURT: Sustained. MR. KELLY: Thank you. (The following proceedings were held in open court in the presence of the jury.) Q. (BY MR. BAKER) Now, this event that you say you witnessed was July 4, 1986, right? A. No. Q. When was it? A. Approximately two or three days before. Q. You told -- well, strike that. By the way, you didn't report this to the LAPD, did you? It was your ex-wife that did, true? A. No. Q. You're saying you reported it to the LAPD, your purported viewing of this incident, Mr. Aguilera? A. I didn't report it to the LAPD. Q. You had a statement taken by the D.A's office, did you not? A. Yes. Q. On December 17, 1994? A. Correct. Q. I take it that your recollection of this incident that occurred two or three days before July 4th of 1986 was better than it is now? A. No. Q. You told the interviewer that it was -- you're pretty sure it was 1987, when you were interviewed in December of 1994, correct? A. No. Q. Let me read from your statement. Page 1. MR. PETROCELLI: Object. This is not his statement. This is -- there's got to be some foundation laid that he saw this, reviewed this, and so forth. THE COURT: Sustained. Lay a foundation. Q. (BY MR. BAKER) Were you investigated by Investigator Mike Stevens, with Investigator Dana Thompson, on December 17, 1994 at approximately 3:25 p.m.? A. Yes. MR. KELLY: Objection -- MR. PETROCELLI: He said investigated. MR. KELLY: Form. Investigated. THE COURT: Sustained. MR. BAKER: I'm sorry. MR. KELLY: You said investigated. MR. BAKER: I apologize; I misspoke. Q. (BY MR. BAKER) Were you interviewed by Investigator Mike Stevens, with Investigator Dana Thompson, on December 17, 1994 at 3:25 p.m. in the afternoon? A. Yes. Q. And you were aware that a recorded statement was being taken of what you were -- the questions that were being asked of you and the answers you were giving, true? A. Correct. Q. And you were asked about this purported incident that you say you witnessed in 1986, right? A. Correct. Q. And you told the investigators that you were pretty sure it was 1987, isn't that true? A. No. Q. Okay. And have you -- you've seen the transcript of your interview, have you not? A. Yes. Q. And I'm showing you a copy of the transcript of your interview, correct? A. Um-hum. Q. And when you were asked about the incident you observed, what year, you said, I'm pretty sure it was '87, did you not? MR. KELLY: Can you continue reading, Mr. Baker. MR. BAKER: Let me ask these questions, will you, Mr. Kelly. THE COURT: Sustained. You may proceed. A. At that time, yes. Q. (BY MR. BAKER) And you -- you told them that it was the 4th of July, or the day before the 4th, correct? A. No. Q. You want to read what you told them? A. I know what's on there. That isn't what I told them. Q. So the transcript of the investigators is incorrect, true? A. There's quite a few inaccuracies in that transcript. Q. So -- and the reason that you now say that it's incorrect is because you subsequently learned, did you not, that O.J. Simpson was never in Victoria Beach on July 3, July 4 of any year, because he was hosting a charity softball game; isn't that true? A. That's not true, no. Q. Of course if Mr. Simpson were hosting a charity softball game on July 3 and July 4, you couldn't have seen him at Victoria Beach. You would agree with that? MR. KELLY: Objection, argumentative. THE COURT: Sustained. Q. (BY MR. BAKER) Now let's talk a little bit about what you say you purportedly observed. Now, it's three days or so before July 4, is that it, sir? A. Yes, that's correct. Q. And you were 15 to 20 yards from the water, right? A. Yes. Q. Now, this purported day that you say you saw this, July 1 or whatever it was -- what day of the week was that, sir? A. It was about Wednesday, Wednesday or the day before. Q. And it wasn't the holiday weekend, then, huh? A. Well, it was -- the holiday weekend was coming up. 4th of July was Saturday. Q. Well, was there a lot of people around the beach -- that beach is pretty crowded, isn't it, in July? A. No, it's not. MR. KELLY: Objection, argumentative. Time frame, Your Honor. THE COURT: Overruled. Q. (BY MR. BAKER) The houses are 60 feet wide and they adjoin each other along the whole beach, don't they, sir? A. That's true. Q. And the people can walk out of their houses on the beach, can they not, sir? A. Yes. Q. And there are generally a lot of people and kids playing in the summer, during the time period that you say you observed this incident, isn't that true, sir? A. Not generally, no. Q. You say it's untrue that there are a lot of people on the beach in July, say July 2, 3 or 4, 1986? MR. KELLY: Objection, argumentative, Your Honor. We need specific date and time and place; not generally. THE COURT: I'll sustain the objection. MR. BAKER: On what grounds sir? THE COURT: Specificity. Q. (BY MR. BAKER) Early July -- had you ever been on that beach in early July before this purported time that you say you saw Nicole Brown Simpson in 1986, sir? A. Yes. Q. And is it your testimony as you -- or before this jury today, that you believe that beach is an uncrowded beach in the July time frame? MR. KELLY: Objection, vague, argumentative. THE COURT: Overruled. A. Yes. Q. And so were you and this friend of yours, who isn't available to testify, did you see anybody else on the beach that day besides you two? A. There were a few people on the beach, yes. Q. Were there any other witnesses to this event -- strike that. How long is Victoria Beach, Mr. Aguilera? A. It's about, I'd say, 400 yards at the most. Q. And how deep is it till the houses start? A. Another 50 yards from the water, I think. Q. And so there's -- and that's all sand, isn't it, up to those houses? A. Yes. Q. And that's a beach that's used not only by the people that live there, but by people who park their cars and walk into that beach area, correct? A. They can. MR. KELLY: Objection, argumentative, vague. THE COURT: Overruled. A. If they can find parking, yes. Q. (BY MR. BAKER) And that beach is a pretty popular beach down in Laguna, is it not? A. I wouldn't say it's real popular, no. Q. What was the -- you were out, in the water was it -- you say 15 to 20 yards from the waterline to where you and this friend of yours were walking, right? A. Right. Q. And you say that Nicole Brown Simpson and O.J. Simpson were 150 to 180 feet away from you, correct? MR. KELLY: Objection, misstates the testimony. A. No. Q. (BY MR. BAKER) You said 50 to 60 yards away. That's what you testified to? A. When I first saw them, not when we were right in front of them, no. Q. So you were in the water, Nicole Brown Simpson was not facing you, and you say that you observed her teasing Mr. Simpson, right? A. Yes. Q. You didn't see her face? A. No. Q. You didn't -- couldn't hear her because there were waves breaking and they were a distance away from you, correct? A. Yes. Q. So you didn't hear her and you couldn't see her, but you knew she was teasing you (sic), right? A. Yes. Q. Okay. This transcript is incorrect although there is an audio tape of this, isn't there? A. I think so. Q. And you're sure on that audio tape that you didn't say the 3rd or the 4th of July, correct? A. I don't recall, no. Q. Well, let's get this straight. This is important. You've testified here in questions I've asked you, sir, that it -- and the questions that Mr. Kelly asked you about July 1, and this transcript of your recorded statement to the police in December of 1994 indicates July 3 or July 4. Now, which was it? A. 1st. Q. You're sure of that? A. It wasn't the 4th or the 3rd, I'm sure of that, yes. Q. And you're sure that on the audio tape it is going to say, not July 3 or 4th, that was a mistake, it's going to say July 1, right? A. It will say -- it will be -- the audio will back me up, but I wasn't sure which date it was. It wasn't the 4th or the 3rd. Q. You never mentioned July 1, at any time, to the Los Angeles Police Department on December 17, 1994, did you, sir? A. I didn't talk to the Los Angeles Police Department. Q. The investigators. Pardon me. A. They were from the D.A.'s office. Q. The investigators? A. Yes. Q. You never mentioned July 1 at all, did you, sir? A. No, that's not true. Q. The fact that it doesn't appear anyplace, you still believe that you mentioned it was July 1, 1986, as contrasted to another date? A. That's correct. Q. All right. Now, you indicated to the investigators that you were 30 to 40 yards away from them at the time you observed the incident, correct? A. It's approximate. Q. You were 90 to 120 feet away from these two individuals? A. Possibly closer to 20 yards. Q. Well, you said, when you were asked, and how far again were you now approximately 30 to 40 yards away, but directly in front. That's what you told the police or the investigators -- D.A. investigators on December 17, 1994, correct? A. That's about right. Q. And so, as I understand it, Nicole Brown Simpson, according to your testimony, never even turned around while you were out in the water, waves are breaking, Mr. Simpson and Nicole Brown Simpson are up on the sand some 90 to 120 feet away, and you hear what they say; is that right? A. I didn't hear what she said, no. Q. Well, I thought you said you heard -- well, strike that. Is it your testimony now you didn't hear any comments of Nicole Brown Simpson? A. No, I didn't hear any conversation. Q. Is it your testimony, sir, that when you were 90 to 120 feet away out in the water, surf breaking, and the Simpsons are in front of you, that you heard or didn't hear anything that was said between the two of them, yes or no? A. I heard -- I heard some things, yes. Q. So you heard, as you testified here, Nicole Brown Simpson say no, no, in a crying voice in between the surf, and being 90 and 120 feet away, you could discern all of that, right? A. I was pretty focused at this time. Q. You could discern all of it, you heard what she said, you noticed the connotation that it was a crying voice, you knew all of that from your location 90 to 120 feet away, right? A. Yes. Q. All right. Thank you. Now, and you observed Mr. Simpson stay there, you say, after -- a while after Nicole Brown Simpson left the area? A. Yes. Q. Okay. Let me show you this page 2 of the statement and ask you if you remember the question asked by Investigator Stevens, where he says do you remember the specific date, month and day. Do you remember your response to that? A. That isn't accurate, what it says there. Q. Is it your testimony -- your response, according to the transcript of the tape, that you had seen before you testified today was, quote, it was either the 4th of July morning or the day before the 4th of July, correct? That's what this transcript indicates, true? A. That's what is says there, yes. Q. And you, of course, say now, that you would never say -- have said that it was the 3rd or the 4th of July, correct? A. Correct. Q. Okay. And you don't know why that it appears in two places in the matter of about 10 questions, the 3rd and 4th of July, as contrasted to what you now say is the date, that being the 1st of July, right? A. I can't account for that, no. Q. And you have no explanation for that at all, right? A. No. Q. And by the way, sir, how many television shows have you been on relative to this purported story of July 4, 1986? MR. KELLY: Objection, relevance. THE COURT: Overruled. A. Zero. Q. (BY MR. BAKER) Well, how about "CBS This Morning," the name of the show being "CBS This Morning," you been on that show? A. They taped me on my beach. Q. Well, didn't you think that when they taped you on your beach, that you were going to be on the show? A. I thought you were referring if I was in the studio. They interviewed me. Q. And you haven't shied away from publicity in this case, have you, sir? A. That's not true. Q. How about the "L.A. Times," did you grant them an interview telling your purported story? A. Yes. Q. Did you ever -- after you saw the transcript that I put in front of you at least three times today, did you ever ask anybody from the LA D.A.'s office to change any of the remarks that are attributed to you in that statement? A. Those are -- those remarks, the first time I saw them was last week sometime. Q. Did you ever ask anybody from the LA D.A.'s office to change any of the remarks that were attributed to you in that statement? A. Never had an opportunity. Q. In the last week, you have never had an opportunity and you've never asked to hear the same tape? A. First time I -- MR. KELLY: Objection. A. -- Wednesday morning. THE COURT: Excuse me. MR. BAKER: I don't have anything further of this witness. REDIRECT EXAMINATION BY MR. KELLY: Q. Mr. Aguilera, have you ever made a nickel from anyone or anything with regard to your observations that day in July, 1986? A. No. Q. Okay. With regard to July 4th in '86, do you recall what day of the week that was on? A. Saturday. Q. And were you even in Blue Lagoon where you were living at the time, on that day, July 4th? A. No. Q. Do you recall when you had left there that early July, 1986? A. I left about Thursday. Q. Okay. And is that why you can remember now what date it was that you made those observations? MR. BAKER: Leading and suggestive. A. Yes. THE COURT: Sustained. Q. (BY MR. KELLY) Do you have any reason you specifically recall what date it would have been you made these observations? A. Yes. When Art and I were walking on the beach, one of the things we were talking about was whether I was going to stick around for the 4th. I told him I didn't think so. Q. Now, Mr. Baker also made reference to this friend of yours who was unavailable to testify here today -- that you were walking along with that day. What was his name again? A. Art Sorce. Q. Is he, in fact, unavailable to testify here at this time, before the ladies and gentlemen of the jury? A. Yes. Q. And why is that? A. He passed away. Q. How long ago? A. In 1989. Q. Okay. And also, you were asked about testifying a certain way because you had learned of Mr. Simpson engaging in a charity softball event, or something on the 4th of July, correct? A. Yes. Q. Have you ever learned anything, at any time, about any of Mr. Simpson's activities, prior to your testifying here? A. No. Q. Okay. And one last thing: You were asked about whether at Victoria Beach there is -- it is crowded or not. First of all, did you observe any other people on the beach that day, at that time when you made those observations? A. Mainly, there was 8 to 10 people on the beach that day. Q. Was there anyone closer, that you could see? A. No. Q. Now, is there any public access to Victoria Beach where you made those observations? A. At the north end of the beach, yes. Q. Okay. But in the area you made these observations, is that -- A. Pretty much from the homes that are right on the beach. Q. Okay. There's no public parking there either? A. No. Q. And was it your experience, down there, that this was generally not too crowded an area during the week on that beach? A. During the week, yes. Q. Okay. MR. KELLY: I have no further questions. MR. BAKER: Your Honor, I want to be heard on this issue, on the other hearing issue. (The following proceedings were held at the bench with reporter:) MR. BAKER: When he asked about did you hear from any source about Mr. Simpson's charity softball game or anything else, I think he's opened the door to those custody hearings because he testified to those custody hearings and he testified on the 3rd and 4th is my recollection, and I don't have the transcript here. THE COURT: Okay. MR. KELLY: Your Honor, I was just asking a question in response to Mr. Baker's cross-examination. That was it. THE COURT: I will not reopen it. Denied. (The following proceedings were held in open court in the presence of the jury.) RECROSS-EXAMINATION BY MR. BAKER: Q. Were you interviewed by "The Globe," Mr. Anguilera? A. No, I was not. Q. Your ex-wife reported this whole incident that you say occurred to "The Globe," correct? MR. KELLY: Objection, hearsay. THE COURT: Sustained. Q. (BY MR. BAKER) You were aware, because you were subsequently contacted after this appeared in "The Globe" by the LAPD or LA D.A.'s office, that your wife had put your purported rendition of this event in "The Globe," correct? MR. KELLY: Same objection. THE COURT: Sustained. MR. BAKER: On what grounds, sir. THE COURT: It's hearsay. Q. (BY MR. BAKER) Did you ever read this article -- any article in "The Globe" relating to this purported event? MR. KELLY: Objection. THE COURT: You can answer yes or no. A. Yes. Q. Did you read the portion that is attributed to you in the article? A. Yes. Q. And is it your testimony, as you sit here today, that you never had any interview with "The Globe" whatsoever? A. I never even talked to my ex-wife about this incident. Q. I didn't ask you if you talked to your wife about it. I asked you if you, in fact, talked to "The Globe" about it. MR. KELLY: Objection, asked and answered. THE COURT: Overruled. You may answer. A. No, I did not. Q. And so the -- what is it attributed to the -- to you in "The Globe," you never said that either? A. That's correct. Q. Now, did you -- did you indicate to the police that you could hear Nicole talking from 90 to 120 feet away to -- to Mr. Simpson? MR. KELLY: Objection, improper recross. THE COURT: Sustained. Q. (BY MR. BAKER) Did you, at any time, indicate to anyone, that you could hear Nicole Brown Simpson communicating with O.J. Simpson when you were 30 yards out in the water, waves crashing, and Mr. and Mrs. Simpson were up on the beach? MR. KELLY: Same objection. THE COURT: Sustained. Q. (BY MR. BAKER) So all of these comments that you made to the investigators in the LA D.A.'s office, indicating that when you purportedly saw this incident, being the 3rd or 4th of July, are absolutely incorrect, and you have no explanation, whatsoever, how they could have mixed up the 1st of July for the 3rd or 4th? A. That's correct. MR. KELLY: Same objection, argumentative and compound. MR. BAKER: I don't have anything else. THE COURT: Sustained. MR. KELLY: Nothing further. THE COURT: You may step down. MR. GELBLUM: Your Honor, we need to go a little bit out of order because of the subject matter, because of scheduling. Charles Cale is the next witness. THE CLERK: Sir, if you step up behind the court reporter. Right there is fine. Please raise your right hand to be sworn. CHARLES CALE was called as a witness on behalf of the Plaintiffs, was duly sworn and testified as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: Thank you. Please be seated. And, sir, if you would please state and spell your name for the record. THE WITNESS: My name is Charles, C-h-a-r-l-e-s, Griffin, G-r-i-f-f-i-n, Cale, C-a-l-e. THE CLERK: Thank you. DIRECT EXAMINATION BY MR. GELBLUM: Q. Morning, Mr. Cale. Morning. Are you here under subpoena, sir? A. Yes, sir, I am. Q. Where do you live? A. I live on North Rockingham Avenue. Q. How far away from Mr. Simpson's house? A. Several hundred yards. Q. Do you know where Mr. Simpson lives? A. Yes, sir, I do. Q. Which direction from Mr. Simpson's house? A. I live north on Rockingham -- from the corner of Ashford and Rockingham. Q. How long have you lived there? A. Approximately 14 years. Q. Since about 1982? A. Yes, sir. Q. What's your occupation, sir? A. I'm a self-employed investor, private trustee, and corporate director. Q. Okay. And in your career, have you ever done any work with the Olympic movement? A. Yes, sir, I have. Q. What's that? A. I was Group Vice President of Sports and responsible for sports in a number of other areas for the 1984 Olympic Games with the Los Angeles Olympic Organizing Committee. That was the 1982 to 1984 organization. From 1985 through 1992, I was assistant to the president of the United States Olympic Committee and Assistant Chief of the United States Olympic team in South Korea in 1988. Q. What year? A. 1988. Q. And have you been involved with any other sporting organizations? MR. BAKER: Objection, relevance. THE COURT: Overruled. A. Yes, sir, I have. Q. What's that? A. I was a member of the board, co-chairman and CEO of the World Cup Organizing Committee for the Soccer World Cup, CEO and co-chairman for a year, little over a year, and member of the board for a total of about five years. Q. That was the World Cup just held in the United States? A. In 1994. Q. You lived up the street from Mr.Simpson on June 12, 1994? A. Yes, I did. Q. Did you walk your dog that night? A. Yes, sir, I did. Q. About what time? A. Neighborhood of 9:30 to 9:45. Q. How do you know it was that time? A. Well, I was leaving for a trip early the next morning, it's a trip I regularly take, or not irregularly at least, and I was having to leave my house before 7 and get up at 6, and when I do that I pack the evening before and make sure that I get in bed by approximately 10 o'clock or shortly thereafter. Q. That's a routine you have when you take this trip? A. Yes, sir, it is. And that evening I went out with the dog, after I packed, and before I turned in. MR. GELBLUM: Steve, can you put up Exhibit 2067, please. (The instrument herein described as an aerial photograph of North Rockingham Avenue and Ashford Avenue was marked for identification as Plaintiffs' Exhibit 2067.) Q. Do you recognize what's on the monitor? A. Yes, sir. It's a little hard from this angle, but it -- Q. If you want to get up, you can go ahead and get up. A. It's North Rockingham Avenue, and the street coming in from the right appears to be Ashford. May I? Q. Sure. (Witness stepped down from the witness stand to view Exhibit 2067.) A. Yes. Q. It appears -- there should be a pointer on the stand up there. Just show generally what direction you live. Can you point out Mr. Simpson's house, first of all. A. This -- I believe this is Ashford. It comes into Rockingham. This is North Rockingham. Mr. Simpson's property is at this corner, which would be the southeast corner of Rockingham and Ashford. (Witness indicates.) Q. And you live? A. I live in the northerly direction, yes, sir. Q. Now, that night on June 12, did you walk south on Rockingham at all? A. Yes, sir. Q. From your house? A. Yes, sir. At the conclusion of my walk, I believe I started up, perhaps, to the north, and then walked back down south, and then turned around and went back to my house. Q. How far was the farthest point south you got on Rockingham? A. To my best recollection, it's right in this area here. Q. Okay. A. Down in the area of the -- of the -- somewhere by the driveway, I remember the property there, or slightly south. Q. It's the first driveway on the east side of Rockingham, north of Ashford? A. Yes, sir. Q. For the record, it's, I'd say, about halfway down from the top of the photograph to Ashford. A. Yes, sir. I'd say, again, in this area here. Q. Okay. Did you have a clear view down south on Rockingham? A. Yes. Q. Are there street lights? A. There's some, yes, sir. There's one street light right here at the corner. Q. You can take a seat. (Witness complies.) Q. When you took your walk between 9:30 and 9:45, was there a car parked on the east side of Rockingham, between Ashford and the Rockingham driveway, from Mr. Simpson's property? A. No, sir, there was not. Q. Was there a car parked anywhere between -- if I can have the pointer, please. (Witness hands pointer to counsel.) Q. Anywhere between Ashford, here on the north, and this driveway of Mr. Simpson's estate, here on the east side? A. No, I don't believe there was a car anywhere on Rockingham, that I could see, down south. Q. And you believe that was between 9:30 and 9:45 on June 12? A. Yes, sir. I would say closer to 9:45. Q. Did you see anybody walking out in that area, while you were out? A. No, sir, I did not. Q. Did you see the defendant, Mr. Simpson? A. No, sir, I did not. Q. Now, as of that night, June 12, 1994, you had lived up the street from Mr. Simpson for about 12 years; is that right? A. Yes, sir. Q. And during those 12 years, on the average, how many times did you drive down Rockingham, past Mr. Simpson's property, how frequently? A. More than once a day I would pass that -- his property. Q. Okay. And in all that time, do you recall ever once having seen a white Ford Bronco parked on the east side of Rockingham, by Mr. Simpson's property? A. No, sir, I did not. MR. BAKER: Objection. THE COURT: Overruled. Q. (BY MR. GELBLUM) Now, did you ever see a white Ford Bronco parked on Ashford? A. Yes, sir. Q. Frequently? A. Not infrequently. Q. Now, the next morning you said you had to catch a plane? A. That's correct. Q. What time did you leave your house? A. Slightly before 7 in the morning. Q. What route did you take? A. We came out and went south on Rockingham, and we're going to turn left, normally we would turn -- turn left on -- on Ashford and go across to Cliffwood, but I -- we saw there was a -- a police car parked just east of the intersection, sort of between Rockingham and the gate on Ashford of Mr. Simpson's property, so I was -- I was being dropped off at the airport, and I said, let's turn, I don't know what that is, let's keep going south on Rockingham. Q. And you proceeded past Mr. Simpson's property on Rockingham? A. That is correct. Q. Did you see a white Ford Bronco parked outside Mr. Simpson's house at the time? A. Yes, sir, I did. Q. Where was it parked? A. It was parked north of the Rockingham gate, on the east side of Rockingham, pointed north. Q. Can you point to approximately where you saw it? (Witness indicates.) MR. GELBLUM: Can you see? Q. Can you stand on the other side so the jury can see. A. Excuse me. It was here at the Rockingham gate, and it was right -- right in that area. Q. Thank you. MR. GELBLUM: I have no further questions. THE COURT: Cross. CROSS-EXAMINATION BY MR. BAKER: Q. Mr. Cale, as I understand it, from 9:30 to 9:45 you started -- can you put that back on the Elmo, please, on the monitor -- you started north of Mr. Simpson's home and then you proceeded down south, correct? A. That's my recollection, yes. Q. And you didn't see any cars on Rockingham, parked on either side of the street, right? A. That is correct. Q. You didn't see a limo driver come down the street, up Rockingham towards Ashford, either, did you? A. Not when I was out there, no, sir, I did not. Q. You didn't see a limousine driver pull down Ashford, did you? A. No, sir, I did not. Q. You didn't see a limousine driver, at the time you were walking, come out of -- out of Ashford and go back down and pull in by the gate area on Rockingham, did you? A. I think that was covered by my prior answer. It was no. Q. So you didn't. And you saw -- and you didn't hear any vehicles during that time come north or south or east or west on -- on Rockingham or Ashford, correct? A. That is correct. Q. So as I understand your testimony then, it was 9:30 to 9:45, and you were walking south on Rockingham, and it was obviously dark out, right? A. It was evening, yes, sir. Q. All right. And there was a street light over across on the north side of -- A. On the corner. Q. Yeah. And there's no street lights down here in the -- south of Mr. Simpson's property, correct? A. The predominant light is that one on the corner. Q. All right. And as you sit here today, as you testified in the criminal trial, you had no recollection of seeing any vehicles whatsoever that night, correct? A. That is correct. Q. And you are an attorney, are you not, sir? A. I'm not practicing, but I'm a law school graduate and I did practice law. Q. You practiced law in the State of California for a while, did you not, sir? A. I did. Q. And as I recall, you didn't file a report relative to any of this until January of 1995 because you said you didn't know how to contact the police; is that right? A. I don't believe that's completely accurate. I think I said that I did not know that what I had not seen had any relevance to the -- to the matter. Q. You made no contact, no attempts to contact the police until January of 1995; is that correct? A. That is correct. Q. Now, you and other neighbors in the area certainly are not, let's say, pleased about all of the activities that have gone on in the neighborhood since June of 1994, correct? A. I think that would be a safe statement. Q. In fact, you -- would you possibly agree with me, that there have been meetings as to how to get Mr. Simpson to leave the area; isn't that true? MR. GELBLUM: Objection, relevance. THE COURT: Overruled. A. I believe that there have been. Q. And would it be also fair to say that you've talked to your neighborhood, and Mr. Simpson is, as the Latin phrase, persona non gratia, he's not terribly welcome in the neighborhood because of the June 1994 murders, and the activities that have gone on, and the looky-loos and all that around your neighborhood; is that correct? A. I think there have been discussions. I don't believe that I really discussed it with people. Q. Well, I'm sorry, sir, maybe my question wasn't very clear. I asked you if you had -- I said you would agree with me that in the neighborhood, because of the murders of June of 1994, Mr. Simpson is persona non gratia in your neighborhood. MR. GELBLUM: Objection, irrelevant. He didn't participate. THE COURT: It's irrelevant except as to this witness's state of mind. You may inquire as to his state of mind, not to the neighbors. Q. (BY MR. BAKER) Your state of mind is you want him out of there, too? A. I would prefer that there weren't looky-loos, and people that came through the streets all the time. Q. You would prefer that he be out of there, correct? A. I think probably. Q. Now, you had -- that night you didn't see, for example, did you -- you didn't see Kato Kaelin's 300ZQ that night either, did you? A. I did not see any cars on Rockingham. Q. Okay. And did -- strike that. The closest you got to Mr. Simpson's property was approximately 200 feet north of his property, as it intersects Ashford, up in this area, correct? A. I believe it was in the neighborhood of 200 feet. I think it was somewhere down around the -- the driveway that I pointed out. Q. Okay. And you were on the east side of the street or the west side of the street? A. I was probably walking in the middle of the street or from side to side as the dog dictated. Q. And, Mr. Cale, that area where you've resided for the last 14 years is exceedingly quiet, especially on a Sunday night, is it not? A. It is, yes. Q. And from where you were, 200 feet north of Mr. Simpson's property, if a car came north on Rockingham, after it turned from Sunset onto Rockingham and came north, you could see that car and its headlamps half a mile -- A. I don't think -- Q. -- south? MR. GELBLUM: Objection, calls for speculation. THE COURT: Overruled. A. I don't know that you could as far as a half mile because of the bend, but you could certainly see several hundreds of yards, I believe. Q. And so, if any vehicle had been on Rockingham and going north, you would have seen at least the headlamps, correct, while you were walking your dog that evening? A. I believe, certainly, after it had passed Parkyns which is the next street to the south. Q. And this obviously wasn't the first time you walked your dog, I assume, sir? A. No, sir. Q. And you had obviously been in tune, I take it, to some extent, to the noise levels in the area, correct? A. I think -- I think so, yes. Q. All right. And -- A. It's a fairly quiet neighborhood, if that's what you're asking. Q. Yes. And Parkyns is a street that goes off to the east as well below the picture that we have on the monitor now, correct? A. That is correct. Q. Even before you see any headlamps, because Rockingham turns a little bit to the east as it gets to Parkyns, doesn't it? A. Yes, sir, it does. Q. You could hear a vehicle if a vehicle was coming in that direction, could you not? MR. GELBLUM: Objection, relevance. THE COURT: Overruled. A. I don't know that you could -- I know you could -- probably could see the headlights a lot sooner than you could ever hear it. Q. Okay. Thank you. REDIRECT EXAMINATION BY MR. GELBLUM: Q. Mr. Baker asked you some questions about whether you saw a limousine driving around that night. Were you outside at 10:15, 10:20 that night? A. No, sir, I was not. Q. So if a limousine drove around the corner at 10:23, 10:24, 10:25, you were not in a position to see it? A. I was in bed, if not asleep. Q. Mr. Baker asked you some questions about seeing headlights and hearing cars on Rockingham. Did you go over that night and stand by Mr. Simpson's Ashford gate and get inside a car and turn the radio on and look for cars? A. No, sir. MR. BAKER: I object to the leading and his pointing as indicating where the car was when there's no evidence of that. THE COURT: Sustained. Q. (BY MR. GELBLUM) Did you go on Ashford at all that night? A. No, sir. Q. Did you go look down Ashford to see Mr. -- whether Mr. Kaelin's Datsun was there? A. No, sir. MR. GELBLUM: Nothing further. RECROSS-EXAMINATION BY MR. BAKER: Q. Did you see any cars, sir, on Rockingham at all on June 12, 1994? A. I thought I indicated earlier that I -- THE COURT: This is during that time period? MR. BAKER: No. At all during -- THE COURT: There is 24 hours in a day, Mr. Baker. MR. BAKER: I'm sorry. THE COURT: There's 24 hours in a day. MR. BAKER: I understand that. Q. (BY MR. BAKER) Let me put it this way, did you observe any vehicles the afternoon of the 12th? MR. GELBLUM: Outside the scope. THE COURT: Sustained. That is irrelevant. You may inquire, if your question is as to the specific time period. That's relevant. You may inquire. Q. (BY MR. BAKER) Did you know in June of 1994, after Fuhrman's testimony to the grand jury hearing, that the issue -- MR. GELBLUM: Objection. MR. PETROCELLI: Objection. THE COURT: Sustained. MR. BAKER: How do we know what the question is? THE COURT: Because it's -- I will sustain the objection. Q. (BY MR. BAKER) You were aware in June of 1994, that the Bronco was an issue relative to the accusations that O.J. Simpson murdered two people on June 12, 1994, correct? MR. GELBLUM: Objection, outside the scope of redirect. THE COURT: Overruled. Q. (BY MR. BAKER) You may answer that. A. No, I was not. Q. And at no time, from June of 1994 to January of 1995, did you become aware that the Bronco was an issue relative to the innocence or guilt of Mr. Simpson in the murders of June 12, 1994? MR. GELBLUM: Objection, overbroad, irrelevant. THE COURT: Sustained. MR. GELBLUM: Whether the Bronco was an issue, that's a broad statement. THE COURT: Sustained. Q. (BY MR. BAKER) Let me it put it this way, did you know the Bronco was an element of the case? MR. GELBLUM: Objection. Same objection. During what time period? MR. BAKER: Let's say July of 1994. MR. GELBLUM: We're talking about where the Bronco was parked. Overbroad. THE COURT: Sustained. MR. BAKER: I'd like to read from the criminal trial testimony, 21201, lines 2 through 7. MR. GELBLUM: Objection. It's the same question you just sustained an objection to. MR. BAKER: Objection wasn't made at the criminal trial. MR. GELBLUM: Same questions. MR. PETROCELLI: Lack of foundation. THE COURT: You may ask a question. Q. (BY MR. BAKER) You knew as early as July of 1994, that the Bronco was at least an issue in the case, did you not? MR. GELBLUM: Same objection. THE COURT: I'll sustain that. Q. (BY MR. BAKER) You knew as early as July of 1994 that the Bronco was at least an issue in the criminal case, being a lawyer, did you not? MR. GELBLUM: Objection. Same objection. THE COURT: Sustained. Q. (BY MR. BAKER) You knew it was an element in the case in July of 1994 and never talked to the police until January of 1995? MR. GELBLUM: Same objection, compound. THE COURT: The question was asked and answered by this witness on the first cross-examination. Sustained. MR. BAKER: Nothing further. MR. GELBLUM: Nothing further. THE COURT: You are excused. THE WITNESS: Thank you. THE COURT: 1:30, ladies and gentlemen. Don't talk about the case, don't form or express any opinions. (At 12:01 P.M., a recess was taken until 1:30 P.M. of the same day).
SANTA MONICA, CALIFORNIA DEPARTMENT NO. WEQ (REGINA D. CHAVEZ, OFFICIAL REPORTER) (The jurors resumed their respective seats.) THE COURT: Okay. You may proceed. MR. GELBLUM: Your Honor move in Exhibit 2067. (The instrument previously marked as Plaintiffs' Exhibit 2067 was received in evidence.) THE COURT: It's received. MR. KELLY: Thank you. Mr. Cowlings, please. ALLEN COWLINGS, called as a witness on behalf of Plaintiffs, was duly sworn and testified as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: You may be seated. And, sir, would you please state and spell your name. THE WITNESS: Allen Cowlings, A-L-L-E-N C-O-W-L-I-N-G-S. DIRECT EXAMINATION BY MR. KELLY: Q. Good afternoon, Mr. Cowlings. A. Good afternoon. Q. Okay. Your first name is Allen; is that correct? A. It's Allen. Q. And you also are commonly referred to as -- as AC; is that correct also? A. Yes, I am. Q. And, in fact, some people also refer to you as AC Cowlings on occasion, do they not? A. I have no knowledge of that. Q. You corrected me once? A. That's right. Q. Okay. I'm the only one that made that mistake? A. No. Q. Okay. Anyway, today, you and I have not discussed prior to you taking the stand, your testimony you're giving here today, have we? A. No. Q. Okay. And I haven't told you any questions that I'm going to ask you and gone over answers you might give, either, have we not? A. No, you haven't. Q. Okay. Now, as you sit here today, would it be fair to say that Mr. Simpson is your closest and dearest friend? A. Yes; he still is. Q. And he has been since childhood, has he not? A. Yes, he has. Q. Played high school, college, professional football together? A. Yes. Q. And you, in fact, stood up for him at his wedding when he married Nicole Brown -- A. Yes. Q. -- did you not? A. Yes, I did. Q. And, in fact, you were over at his house the morning of June 13, 1994, when you found out that Nicole Brown Simpson had been killed, were you not? A. Yes, I have. [Sic] Q. Okay. Now, with regard to Nicole, you knew her from almost the time Mr. Simpson started dating her, did you not? A. Yes. Q. And you -- would it be fair to say that you had a very strong relationship with her? A. Yes. Q. And she was like a sister to you? A. Yes. Q. You loved her, did you not? A. Yes. Q. Okay. Now, Mr. Cowlings, I want to take you to New Year's Eve, 1988. With me? A. Yes. Q. Okay. And do you recall where you were the night of New Year's Eve 1988? A. At a New Year's Eve party. Q. And whose party was that? A. Mr. Peter Loche and his wife Karen. Q. And do you recall approximately how many people were there at that party? A. I couldn't tell the you exact number. Q. Pretty good size party, though? A. Yes. Q. And among the people present there were Mr. Simpson and Nicole? A. Yes, they were. Q. Okay. And you talked to them over the course of the night? A. I think -- Yes, we did. We did talk. Q. And you were there past midnight, were you not? A. Yeah. We all embraced each other at the striking hour of 12. Q. And you specifically recall Mr. Simpson and Nicole being there past midnight, also, do you not? A. Yes. Q. And that night, when you -- at least your observations, first of all, of Mr. Simpson, do you recall him appearing intoxicated at all to you, at any time when you saw him at that party? A. I don't remember that. Q. Okay. And what about Nicole? When you spoke to her that night at all or interacted with her, did she appear to be intoxicated at all to you? A. I don't remember. Q. Okay. Now, do you recall approximately what time it was that you left this party? A. No. I couldn't tell you. Q. Would you be able to approximate for me? A. It was after 12 o'clock. I couldn't tell you exactly what time I left. Q. Okay. And did you go back to your own house that night, after you left the party? A. Yes. Yes, I did. Q. Went home? A. Yes. Q. Went to bed? A. Yes. Q. Okay. Did there come a time after you had gone to sleep that you received a phone call? A. Yes. Q. And did you recall approximately what time that was? A. I didn't look at the clock, so I couldn't tell you exactly what time. Q. Okay. Who was the phone call from? A. I'm -- I don't know if he -- if it was Arnelle or if it was Michelle, the housekeeper. It was somebody from the Rockingham house that called me. Q. You're saying Michelle, the housekeeper, that was Mr. Simpson's housekeeper at that time? A. That was the Simpsons' housekeeper. Q. I'm sorry; both of them, Mr. Simpson and Nicole? A. Right. Q. And what, if anything, was said to you in that phone call at the time you received it? MR. LEONARD: Objection. Hearsay. THE COURT: Sustained. MR. KELLY: To explain subsequent conduct, Your Honor. THE COURT: You may proceed subject to motion to strike. MR. LEONARD: Same objection. Q. (BY MR. KELLY) What, if anything, was said to you when you picked up the phone? A. To be honest with you, I don't remember what was said. Whatever was said was something urgent, and I was asked to come. Q. Okay. And you don't recall the reason you were asked to come over? A. I'd be speculating. If I did say something, I don't remember exactly what was said. Q. Okay. And what did you do upon being asked to come to Rockingham -- A. I got up -- Q. -- if anything? A. -- got in the car, and drove over there. Q. Approximately how much time elapsed from the time you got the phone call until the time you got in the car and headed over to Rockingham? A. Minutes. At that time I was living in Santa Monica, so it wasn't -- I wasn't that far away. Q. But what I'm asking you, from the time you received the phone call till the time you got in the car, how much time elapsed? A. I couldn't tell you. It could have been minutes, five minutes, ten minutes. I really don't know. Q. And how long from the time you received the phone call did you actually arrive at Rockingham? A. I don't remember. Q. Would you be able to approximate for me? A. No. Q. More than ten minutes? A. I couldn't remember, sir. Q. Now, can you tell me what you did upon your arrival at Rockingham that -- By the way, was it still dark out when you headed over to Rockingham? A. Yes. Q. Okay. And could you tell us what you did when you arrived at Rockingham? A. Walked in. I don't know if I used the key or the gate was open. Came into the house, and Nicole was in the kitchen. Q. Was there anybody with Nicole at this time in the kitchen, when you saw her? A. No. Q. And was she standing or sitting? A. She was standing. Q. And could you tell me what she was wearing at this time when you observed her? A. I think she had on a -- a -- warm-up bottoms and a leather jacket, looked like an officer's leather jacket. Q. Do you recall what color that jacket was? A. Could have been brown; it could have been black. It was dark; it was a dark color. Q. And what was Nicole's state at this time? What was her demeanor when you arrived there? A. Upset, pissed. Q. Okay. Had she been crying? MR. LEONARD: Objection. Calls for speculation. A. I don't know. THE COURT: Overruled. THE WITNESS: I'm sorry. Q. (BY MR. KELLY) Can you tell whether she had been crying or not? A. No, I couldn't say. Q. And could you describe her physical appearance from what you could observe in terms of her face, hair, things like that? A. What do you mean by that? Q. Well, first of all, did you see her face? A. Yes. Q. And can you describe it as you saw it that morning, when you first arrived there? A. Upset, looked like she was pissed, face was red. Q. Did you make any other observations about her face, other than the fact it was red? A. No. Q. Okay. Did you see any lumps on her forehead at that time? A. No. Q. Did you see any lump on her cheek at that time? A. No. Q. Did she have a lump? A. Not that I noticed. Q. Okay. Did you notice any lump on her cheek? A. No. Q. Did you notice any scratches on her? A. No. Q. Did you notice a split lip? A. No. Q. Did you notice any hand imprint on her neck? A. No. Q. Now, was it that you -- are you able to say that she did not have these different marks on her at this time, Mr. Cowlings? A. I didn't notice any of those marks. I wasn't looking for any marks. My concern was that she was upset and pissed off, and I was there to assist her if she needed help. Q. And what, if anything, did you say to her at the time when you arrived? MR. LEONARD: Objection. Hearsay. THE COURT: Sustained. Q. (BY MR. KELLY) What in particular did she say to you at this time? MR. LEONARD: Objection. Hearsay, Your Honor. THE COURT: Sustained. Q. (BY MR. KELLY) Was she still upset at that time when you were -- when you arrived there at the house? A. Yes. Q. Okay. And was it your understanding that she was still upset as to something that had occurred just prior that you remember, that you were called over there for? MR. LEONARD: Objection. Calls for speculation; lack of foundation, and hearsay. THE COURT: Overruled. THE WITNESS: May I have the question again, sir? Q. (BY MR. KELLY) Was it your impression that she was still upset about something that had occurred earlier there that you had come over there for, Mr. Cowlings? A. Yes. Q. Okay. Now, once again, can you tell me what you said to her at this time. MR. LEONARD: Objection; hearsay. THE COURT: Sustained. Q. (BY MR. KELLY) And can you tell me what she said to you. MR. LEONARD: Objection; hearsay. THE COURT: Sustained. MR. KELLY: Your Honor, I believe that -- MR. LEONARD: Your Honor, I ask for no speaking objections; if we can approach side bar. THE COURT: I sustained the objection. Q. (BY MR. KELLY) After you were in the kitchen, what, if anything, did you observe next? A. That she was upset, she was angry. She didn't talk that much. She was just kind of like pouting, with herself, and that was about it. Q. Okay. And did you see anybody else there in the kitchen at any time, other than Nicole? A. I heard some noise coming from the dining room. And as I looked towards that opening of the door, I saw O.J. step in, into the area where Nicole and I were. Q. Was that the first time you had seen him since you arrived there at Rockingham? A. Yes. Q. Now, what, if anything, happened then, when he came into the kitchen doorway? A. He said that he wanted -- MR. LEONARD: Objection, Your Honor. Object to the hearsay. THE COURT: That's overruled. THE WITNESS: The question again? Q. I'm sorry. What, if anything, did Mr. Simpson say and/or do after you observed him in the kitchen doorway? A. He wanted to talk to Nicole. Q. And did he talk to her? A. She didn't want to hear from him. Q. She didn't converse with him at that time? A. No; she didn't want to talk to him. Q. And what, if anything else, did she do other than indicate she didn't want to talk to him at this point in time? MR. LEONARD: Object to any hearsay response at this point; what she did, not what she did. THE COURT: What did she do, other than indicate she didn't want to talk to him at this time? Overruled. Q. (BY MR. KELLY) Did you see her take any actions, also? A. She picked up the phone. Q. Did you see her dial a number? A. No. She told me if he didn't leave, that she was going -- MR. LEONARD: Your Honor, I'd object to the hearsay. THE COURT: Overruled. Simpson was present. Q. (BY MR. KELLY) I'm sorry? A. That she was going to call the police. Q. And what, if anything, did Simpson do after Nicole stated that? A. He left. Q. Do you recall seeing how Mr. Simpson left, first of all, the room? A. Not really. I mean, he went back to -- back through the dining room. Q. And do you know whether he left over the front or rear of the house at this time. MR. LEONARD: Objection. Calls for speculation. A. I couldn't tell you for sure. Q. (BY MR. KELLY) Can you tell me which -- which part of the house he headed to after he left the kitchen? A. He walked back into the dining room there, which was -- Q. Is that towards the rear of the house? A. Yes. Q. Okay. And what, if anything, did you do after Mr. Simpson went back to the rear part of the house? A. I asked her whether she going to be okay. She said, AC, I just want to be alone. And then I left. Q. Went home? A. Yes. Q. Went to bed? A. I don't know if I went back to bed, but I went home. Q. Okay. Did there come a time that you received another phone call? A. Yes, I did. Q. Okay. Was it early that same morning, still? A. Yes, it was. Q. And who was that call from? A. I don't know if was O.J. or if it was Alan Schwartz, but I was called from -- someone from the house, from Alan's house. Q. And did they ask anything of you at that time? MR. LEONARD: Objection. Hearsay. THE WITNESS: They wanted me to come over. THE COURT: Just a minute. THE WITNESS: I'm sorry. MR. LEONARD: Withdrawn. THE COURT: Okay. Okay. Go ahead. Q. (BY MR. KELLY) What was said to you over the phone? A. Without -- that I was asked to come over. Q. And do you recall whether or not if it was Mr. Simpson that called you? A. I don't remember. Q. And what did you do after you were asked to come over Schwartz's house? A. Got up and drove over to Alan's house. Q. Okay. And how long a time period lapsed from the time you received that second phone call and you got over to Alan Schwartz's house? A. Minutes. Q. Okay. By the way, who was Alan Schwartz? A. Who is he? Q. Yeah. I mean, he's a friend of yours? A. Yes. Q. Okay. Friend of Mr. Simpson's, also? A. Yes. Q. And he lived in -- close by to the Rockingham residence, also? A. He lived on Mandeville Canyon. Q. When you arrived at Schwartz's house -- first of all, did you see Mr. Simpson's car there, when you arrived at Schwartz's house? A. I don't remember seeing O.J.'s car, no. Q. Okay. Did you later learn it was in Mr. Schwartz's garage? A. Later on, I was told that it was in the garage. Q. Okay. What, if anything, did you observe when you arrived at Schwartz's house and went inside? A. Alan talking to me. Q. I'm sorry? A. Alan talking to me. Q. Okay. And you had a conversation with Schwartz? A. Mostly Alan was talking. I was just listening, 'cause nothing made sense, 'cause I didn't know at that time what had happened. Q. And did you then see Mr. Simpson there, also? A. Yes, I did see him. Q. Okay. And first of all, can you describe Mr. Simpson as he appeared to you when you saw him at that time? A. Upset, bothered. Q. And how was he dressed, or what was his appearance at the time when you saw him? A. He was sitting down when I first saw him. He had a blanket over his shoulders. He was cold, he said. Q. And did you have a conversation with him at that time? A. Yes. Q. Okay. And can you tell me what the substance of that conversation was? A. To the extent what had happened, and he talked -- and I never really got a detailed -- exactly what happened. Q. Well, did he -- did he ask you to do something, also, in the course of that conversation? A. Not right at that time. Q. Well, a short time later, when you're there and still talking to him? A. Alan had said something to me. MR. LEONARD: Your Honor, I object to anything Mr. Schwartz said unless there's a foundation laid. THE COURT: Lay a foundation, who was present. Q. (BY MR. KELLY) When you had a conversation -- first of all, you indicated you had a conversation with Mr. Schwartz when you arrived there, correct? A. Right. Q. Okay. And was that in the den of their house there, or what room was it in? A. That was in the family room. Q. Okay. And Mr. Simpson was present there, also? A. No. Q. Okay. Did you later go to where Mr. Simpson was seated? A. Yes. Q. What room was that? A. That was in the den. Q. Okay. Was Mr. Schwartz in there with you, also? A. I'm not sure. He could have been. Q. Okay. Well, did you ever have a discussion -- further discussion with Mr. Schwartz as to something he wanted you to do or retrieve? A. Yes, I did. Q. What was that, with Mr. Schwartz or Mr. Simpson? A. I think it was with Alan first. Q. Okay. First of all, what did Alan -- that's Alan Schwartz? A. Alan Schwartz, yes. Q. What did Alan Schwartz say to you, first of all? MR. LEONARD: Objection. Hearsay. THE COURT: Sustained. Q. (BY MR. KELLY) Was Mr. Simpson present there when you had this discussion with Alan Schwartz? A. I don't remember. Q. What was the discussion you had with Mr. Simpson? MR. LEONARD: Asked and answered. THE COURT: Overruled. He didn't answer. MR. LEONARD: He said he had a discussion about the event. THE COURT: He was asked what was said. He did not answer. You may respond what Mr. Simpson and you discussed, said. THE WITNESS: Could I have the question again. Q. (BY MR. KELLY) Well, you indicated you went into the room with Mr. -- where Mr. Simpson was seated with the blanket around him, correct? A. Yes. Q. There was a reason Mr. Simpson had called you to Mr. Schwartz's house also, was there not, Mr. Cowlings? MR. LEONARD: Objection. Lack of foundation. THE COURT: Overruled. A. Yes, there was a reason. Q. (BY MR. KELLY) Okay. And you had a conversation with Mr. Simpson regarding something he wanted you to do, correct? A. Yes. Q. Okay. And can you relate that conversation to the jury, Mr. Cowlings. A. He wanted to know how Nicole was doing. He wanted me to retrieve some stuff that he had taken with him. Q. What stuff, first of all, that he had taken from Rockingham? A. Well, the first thing that was brought to my attention through both parties that was there -- that there was a set of car keys that were lost. Q. And whose car keys were those? A. Those car keys were Alan Schwartz's. Q. Okay. And were you told, first of all, where those car keys were lost? A. It had to be somewhere between the time that he went back to the house. Q. What I'm asking, "he" meaning Mr. Simpson? A. Yes, O.J. Q. Did Mr. Simpson indicate to you, first of all, where he had lost Schwartz's car keys? A. It had to be between where he got out of Alan's car to come back into the house. Q. Okay. And did he give you some sort of description of the route he had taken to look for those keys? A. Yes. Q. And what did he tell you? A. The car was parked on Bristol, a block east of O.J.'s house, like around the corner. His travels took him through his neighbor's yard, across the tennis court, through a gate, across his tennis court, into his house. Q. Did he tell you how he had gotten from the street -- First of all, when you say the neighbor's yard, that's the Von Watts? A. Yes, Eric Von Watts. Q. Did he tell you how he got into Von Watts's yard? A. I don't remember. Q. Mr. Cowlings, you testified on a prior occasion about these specific matters? A. In a case. Q. On this case, this incident I'm asking about right now. You've testified on a prior occasion regarding it, have you not? A. You're talking about the deposition? Q. Yeah. A. Yes, I did. Q. And you were under oath at that time? A. Yes. Q. And I asked you -- I asked you questions and you gave me answers? A. Yes. Q. And did you remember more about this incident than you do now, Mr. Cowlings? A. Somewhat. Q. Do you recall stating, first of all, that Mr. Simpson told you that you -- he had jumped over a fence on Ashford to get into the Von Watts' property and into the backyard? A. I may have said that. Q. Would it refresh your recollection to see your prior testimony, Mr. Cowlings? A. Probably. MR. KELLY: If I can have a moment, please, Judge. (Pause.) MR. KELLY: 363, 364 -- actually, strike that. 357, lines 12 to 21. THE COURT: I got "actually, strike that," and nothing else is showing on the . . . THE REPORTER: I'll have to check it at a break, Judge. (Referring to computer screen.) Q. (BY MR. KELLY) Do you see the monitor there, Mr. Cowlings? A. Yes. Q. The first question I asked. (READING:) All right okay go on, I'm sorry to interrupt you. This is talking about what he told you at Von Watts, and your answer is, "So, I said, well, where did you hide it. He says, well, I know I went over -- no, no, I take that back, I take that back. Besides the jewelry bag, he had lost his keys, his car keys, so I said, well, let's back track and how did you leave, so he -- meaning Simpson, had went over the Von Watts's wall. And at that time I don't think they had the tennis court then, so I back tracked, I'm climbing over fences." Does that refresh your recollection, Mr. Cowlings? A. Yes. Q. Do you recall now that Mr. Simpson told you he had gone over the -- the fence between Ashford and the Von Watts' property? A. When I said over, I probably meant he went over there, on over the property, not saying that he went over the fence. MR. KELLY: Steve, can you put on page 360, please. 360, lines 10 to 20. (Transcript displayed on Elmo.) Q. (BY MR. KELLY) Starting at line 10. (Reading.) "Q. Okay. What specific directions did Simpson give you in terms of finding those keys? "A. It was over a fence. "Q. What fence? "The Von Watts. "Q. What type of fence was that? "A. Chain link fence -- it could have been a wooden fence. "Did he indicate to you that he had climbed over that chain link fence? "A. Yes." Do you remember being asked those questions and giving those answers? A. Yes. MR. KELLY: 363, 364, Steve. Line 21 to 25. (Transcript displayed on Elmo.) Q. (BY MR. KELLY) This is a continuous answer starting at 21. (Reading.) "I looked around there. I continued towards -- he said he had jumped the wooden fence that runs along Ashford, so I went over -- "Q. Not to his property? "A. No. From the Von Watts. I mean Eric and Val have a -- there's a brick about 3 feet then it's wood. "Right. "It goes maybe five foot high, four foot, I don't know exactly. "So I went to where he approximately said and I looked around the -- on the house side the yard and I didn't see it, and when I put my hands up to jump over the fence, I kind of looked down and I saw the keys in the brick and the grass, right there was two keys." Do you remember being asked those questions and giving those answers, Mr. Cowlings? A. Yes. Q. Did that refresh your recollection now that Mr. Simpson told you he had gone over the fence on Ashford of the Von Watts' property? A. Yes. Q. Okay. Now -- and in fact, when you went back to Rockingham to -- you went back there to look for a couple items. It was the keys and something else, was it not? A. Yes. Q. And what else was it Mr. Simpson asked you to go back there and look for? A. There was a bag of some kind that he had put in a neighbor's garbage can. Q. Okay. And do you recall where that garbage can was located? A. The house was on Bristol. Q. And Bristol runs perpendicular to Ashford; is that right? A. Right. Q. And how many houses down Bristol was this house from Ashford? A. It was -- it was up the block, it was north of Ashford. Q. Okay. And how many houses from Rockingham was that? A. No, it wasn't on Rockingham. I said Ashford. Q. I mean from Ashford? A. About three blocks up north of Ashford on Bristol. Q. Okay. And where had Mr. Simpson told you he had placed this -- this bag that was in the garbage can? A. He said about the third house up the block, walked down, walked the driveway, and as you got to the end of driveway, there was three garbage cans or -- one garbage can -- that the satchel bag was in one of the garbage cans. Q. It was right where he told you to look, in the garbage can? A. Yes. Q. Had you already found the keys there also? A. No, no, I had found the -- looked in the bag first. Q. And after you had found the bag, how did you proceed back to Rockingham? A. I proceeded the way that I came, came that way, still, you know, looking for the keys. Q. Okay. Was that when you went up to the fence along Ashford and went to go over it? A. I didn't go over the fence. I walked through the gate they have there. Q. Okay. And then did you go back to the fence where you had been directed by Mr. Simpson? A. I went back, I was back tracking 'cause I hadn't found the keys yet. Q. And then you found them at the base of the fence on Ashford? A. After I went back, way back to O.J.'s house, I didn't find them, so I came back towards the Von Watts and retracked my tracks again, and when I got back to the outer fence that faced Ashford, I just braced myself, I lifted myself up on top of the fence, that's when I saw the keys. Q. You were getting ready to go over the fence yourself at this time? A. I didn't know if I was going to go over or not. I just lifted myself to look along the fence. Q. You saw them right at the base there? A. Yes. Q. Okay. Now, after you had recovered both the keys and the bag out of the trash can, what, if anything, did you do next? A. I took the items back to Alan Schwartz's house. Q. Schwartz -- you had Schwartz's keys? A. Schwartz's car keys, yes -- no, I take that back. I drove Alan's car back to his house. Q. Okay. And you gave him his car and his car keys back at that time? A. Yes. Q. And you gave Mr. Simpson the bag? A. Yes. Q. Okay. And did you have any other conversation with Mr. Simpson at that time? A. I probably did, but I don't remember -- Q. Okay. A. -- what was said. Q. Okay. By the way, when you were over there and you found the -- located the keys and the bag in the trash can, did you go into the Rockingham house at all? A. No. Q. Didn't see Nicole at all? A. No. Q. Now, after you returned the keys and the bag, what, if anything, did you do next? A. I probably stayed at Alan's house for a while. Q. Did you have occasion to go back to Rockingham after that time? A. Not at that time, no. Q. Was there some point that morning after you had been to Schwartz's you went back to Rockingham? A. During that morning? Q. Yeah. A. I think I called to see how she was doing. Q. Was there a time you went over that morning, and in fact, she was feeding the baby in the kitchen there, Mr. Cowlings? A. No, it wasn't that morning. Q. When was the next time you were over at Rockingham? A. Later on that evening. Q. And it's your testimony as you sit here today, after you returned the keys and the bag to Schwartz's, you did not go over to Rockingham at that time? A. No, I don't think so. Q. And you didn't testify in April this year, after you returned the keys and bag to Mr. Simpson, you went back over to Rockingham and saw Nicole again to check on her? A. I saw Nicole later on that day. It wasn't that morning. MR. KELLY: Steve, can I see that for a moment. If I could have one moment, Judge. (Pause.) (Transcript displayed on Elmo.) Q. (BY MR. KELLY) Page 388, line 18. Question from myself to Mr. Cowlings. (Reading.) "And, Mr. Cowlings, what did you do after leaving Alan Schwartz's house at that time where you just returned with the keys and jewelry bag? "A. What did I do once I left Alan's house? "You did leave, didn't you? "Yes, I did. "Okay. And what did you do next? "A. I went by the house to see Nicole. "Okay. Did you have any bearing as to what time it was then? "Still in the morning. I don't know if it was 8 o'clock, 8:30, I don't know for sure. Somewhere in that time range, though." Now, does that refresh your recollection as to whether you went by that morning after leaving Mr. Schwartz's house, Mr. Cowlings? A. When I said that in the depo, now I know I didn't go back over there until later on that day. I didn't go back over there that morning. I knew -- I remember that I did go, but now I know I went back later on in the day that day, not in the morning. Q. And you recall saying also that you went over that morning, that we wanted to check on her, she was feeding the baby in the kitchen, Mr. Cowlings? A. That happened when I went back that afternoon -- I mean later on that day, she was feeding the baby. Q. Okay. And when you testified that you had offered to take her to the hospital that morning, that never happened? A. I took her to the hospital that evening. Q. I understand that. But -- A. No, I did not. Q. -- Did you see her that morning, offer to take her to the hospital? A. No, not that morning, sir. Q. And did you have occasion to look at Nicole's head or forehead that morning at all? A. I didn't see Nicole that morning. Only -- at the time I saw her, I was called over there the first time. The second time I saw Nicole was when I went back that evening. Q. So the entire incident you related to me -- MR. KELLY: If I could have a moment, please, Your Honor. (Pause.) MR. KELLY: Can I approach the witness, Your Honor. THE COURT: You may. Q. (BY MR. KELLY) Mr. Cowlings, I'm going to ask you to read a number of pages here in your deposition, starting right here, where I put it up on the Elmo, okay. If you can take a couple minutes and read all of this here, and I'll ask you a couple questions. A. Sure. (Witness complies, reads transcript.) MR. BAKER: What did you ask him to read, counsel? MR. KELLY: Excuse me? MR. BAKER: Would you tell us what you're asking him to read. MR. KELLY: I think it was page 390, three pages. A. Turn the page? Q. Yeah. (Witness complies, continues reading.) Q. (BY MR. KELLY) Now, Mr. Cowlings, does that refresh your recollection as to a rather substantial amount of testimony you gave under oath, during your deposition, on April 17 of this year? A. Yes. What I said then. But what I know now is what wasn't -- what I meant to say. What I thought -- well, let me slow down. What I said there, I was -- I had the times wrong. It was later on that afternoon when I saw her. Q. Mr. Cowlings, did I not ask you another series of questions about a return visit that evening where you gave a different -- an entirely different account of what happened when you saw Nicole that evening also? MR. LEONARD: Objection, argumentative. THE COURT: Overruled. A. May I have the question again? Q. (BY MR. KELLY) Did you not -- when I asked you another series of questions at that same deposition regarding a third visit over seeing Nicole that evening, you described an entirely different scenario again about observations you made in conversations with Nicole, did you not? A. Sir, you asked me was I -- when I was taking her to the hospital. I didn't take Nicole to the hospital until later on that day. You said -- you were saying that I took her that morning or suggested I took her that morning, and I didn't. Q. I understand that. But when you testified -- did you not at one time in your deposition testimony indicate that you offered to take Nicole to the hospital that morning -- evening and she refused? A. I may have said that at the deposition. Yes, I did say that. But as I'm telling you now, I didn't see Nicole until later on that afternoon when I went back over there. Q. So when you recounted a whole incident about Nicole complaining about her head hurting, and you looking at her forehead, and what she told you about how she had hurt her head, and things like that, none of that happened that morning, Mr. Cowlings? A. Not that morning, sir. Q. And even though you testified that it happened about 8:30, in the conversation you had while she was in the kitchen that morning feeding the baby, it's now your testimony that never occurred? A. I'm saying she was feeding the baby later on that day when I saw her. Q. Okay. Mr. Cowlings, Mr. Simpson has always helped you out whenever you needed it, hasn't he? A. That's what friends do. Q. He's lent you money at times, hasn't he? A. Yes, he has. So I've had to lend him money back too, sure. Q. Sometimes you paid him back; sometimes you didn't? A. That's right, sir. Q. One time he and his friend, Wayne Hughes bought your condominium from you? A. No, they didn't buy it. I bought it. Q. From them? A. No. Q. With them? A. No. Q. Okay. You went on trips with Mr. Simpson? A. Excuse me? Q. Mr. Simpson take you on trips with him? A. I've been on trips with O.J., yes. Q. Okay. He got you in movies where he was in? A. Yes, he has. Q. Okay. And always took care of you if you needed help? A. I was able to provide for myself. If I needed something, I could always go to O.J. Q. Okay. And I believe you've testified before that you'd always be there to help Mr. Simpson if he needed it, always? A. That's what friends are about, sir. Q. Okay. At this time it's your testimony that that visit you earlier testified to, did not now occur that morning; is that right? MR. LEONARD: Objection, asked and answered and argumentative. THE COURT: Overruled. A. Could I have the question again? Q. This -- your prior testimony in the deposition regarding this -- this visit to Nicole at 8:00, 8:30 in the morning where -- there was detailed testimony you gave as to the conversation you had with her, her physical condition, things she had said to you, it's your testimony now on the stand, that never occurred that morning; is that correct? A. Not that morning. Q. Okay. Now, did there come a time that Mr. Simpson asked you to drive him over to Rockingham? A. Yes. Q. Okay. And you recall when that was, during the course of the day? A. It was early on in the day. We drove by, and we saw a patrol car out in front, and we kept going. Q. Well, let me ask you, you were driving him from Schwartz's house, were you not? A. Yes. Q. And whose car were you in? A. We were in mine. Q. Okay. And did Mr. Simpson give you very specific directions how to get to Rockingham? A. We could have went by the house, come up Bristol and came down Rockingham, coming north to south. Q. Okay. Did he or did he not give you specific directions how to drive to his house because the police were looking for him at that time? MR. LEONARD: Objection, compound. A. He could have. THE COURT: Overruled. Q. (BY MR. KELLY) Well, yes or no, Mr. Cowlings? A. I said I know I went up Bristol and came down Rockingham, heading south, towards his house. Q. Okay. MR. KELLY: Move that answer be stricken and the witness be instructed to answer the question, Your Honor. THE COURT: The answer is stricken. Read the question for him. Q. (BY MR. KELLY) Can you tell me once again, did Mr. Simpson give you a very specific route to take to his -- back -- back to his house at Rockingham because he told you the police were looking for him? A. He could have told me -- Q. Would -- A. -- but I don't remember if he did or not. Q. Well, do you remember testifying under oath at your deposition, that Mr. Simpson told you the police were looking for him and instructed you to take a particular route in case they were at his house? A. He could have. I told you I came up Bristol, past Ashford, and came back down Rockingham, so he could have told me. MR. KELLY: 408, please. Q. (BY MR. KELLY) Would it refresh your recollection to see your deposition testimony, sir? A. Sure. (Transcript displayed.) MR. KELLY: Just -- I need my last question before that on 407. Q. (BY MR. KELLY) (Reading.) "Okay, you drove him back to Rockingham?" Then your answer: "Yes. We drove and we came up -- and he wanted me to go -- come up Bristol and come back -- go north on Bristol, turn left, west, and come south back down Rockingham, about two blocks up. "Q. Why was that? "A. At that time he was telling me that the police -- he felt that the police were still looking for him. "Q. Okay. Were you checking to see if the police were parked in front, is that why you took that route? "A. When I got there, I realized, yeah, that's the reason why. "Q. Okay. Did he tell you that? "A. I saw a police car. "Q. Parked in front? "A. It had pulled -- I don't know if he had just pulled up or how long he had been there, but it was at the gate of Rockingham. "Q. What, if anything, did you do when you saw the police car? "He, meaning Mr. Simpson, asked me to take him back down to Alan's. "Q. And did you?" Your answer: "Yes." Do you remember me asking you those questions during your deposition, Mr. Cowlings, and you giving those answers? A. Yes. Q. Does that refresh your recollection now, Mr. Cowlings, as to whether or not Mr. Simpson told you the police were looking for him that morning when you were taking him to Rockingham? A. Yes. Q. They were looking for him, weren't they, as he had told you? A. Yes. Q. Okay. And, in fact, you had a conversation with Alan Schwartz about the fact that the police were looking for Mr. Simpson also, did you not? MR. LEONARD: Objection, calls for hearsay. Move to strike. THE COURT: Sustained. Stricken. Q. (BY MR. KELLY) Did you have a conversation with both Mr. Simpson and Mr. Schwartz at Mr. Schwartz's house about how the police were looking for Mr. Simpson? MR. LEONARD: Objection, compound and vague. THE COURT: Sounds like two conversations. Sustained. MR. KELLY: Strike the question, Your Honor. Q. (BY MR. KELLY) Did Mr. Simpson also tell you that when he pulled out of his own driveway at Rockingham he knew the police were after him at this time, Mr. Cowlings? A. That I don't remember, sir. Q. Did you not, in your deposition testimony, in April, testify that Mr. Simpson had told you that when he pulled out of Rockingham he knew the police were after him, he went one direction, they went another, and he lost them? A. He could have said that, sir. Q. I'm going to refresh your recollection. If I put your testimony up there on the board -- A. Yes, it would help. Q. Okay. MR. KELLY: 386, lines 1 through 24. (Transcript displayed on Elmo.) Q. (BY MR. KELLY) (Reading.) "Q. Do you recall what you heard regarding the police? "A. I don't know if the conversation -- who said the -- It probably came out of O.J.'s mouth, that the police -- He went -- When he pulled out of his driveway -- I think -- I don't know how Nicole's -- all I know, he said that the police were coming after him, he went out of the driveway, he went one way, they went the other, so he lost them." Q. (BY MR. KELLY) Do you recall me asking you that question and you giving that answer, Mr. Cowlings? A. Yes. Q. Does that refresh your recollection now as to that conversation? A. Yes. Q. And as you sit here today, it's your testimony now, that you only made two trips over where you saw Nicole that New Year's Day at Rockingham; is that correct? A. Yes. Q. Okay. When was the second time you went over to Rockingham that day where you saw Nicole, Mr. Cowlings? A. It was later on that evening. Q. Which -- A. Early -- early evening. Q. By the way, did you talk to her during the course of that day? A. I did call over there. Q. And did you tell her where you were going to be that day? A. Yes. Q. Okay. Did she ever call you? A. No. Q. Okay. You called to check on her? A. Yes. Q. Okay. Now, once again, could you approximate the time you arrived at Rockingham that evening to see Nicole the second time? A. Early evening, could have been 5, 6. I don't know exactly. Q. Okay. And where was she this time when you saw Nicole? A. In the kitchen. Q. And what was she doing at this time you saw her? A. She was feeding the baby. Q. Okay. Do you recall which baby that was at that time? A. No. Q. And can you describe Nicole's demeanor, her state at that time when you were at the house? A. She was -- she had the baby in her arms, feeding the baby, wasn't too talkative. O.J. was with me. Q. I'm sorry? Did you say O.J. was with you at the time? A. Yes, um-hum. Q. Okay. A. That was about it. Q. And was she still upset at that time? MR. LEONARD: Objection. Leading, asked and answered. THE COURT: Overruled. A. She could have been, but I mean she wasn't as -- as she was earlier, earlier that morning. Q. Well, I showed you testimony from your deposition where you indicated you had been mistaken about being over there at 8:30; is that correct? A. Excuse me. Let me have the question again. Q. You've changed from your deposition testimony to today, you're now saying that you never went over there a second time at about 8:30 in the morning and saw Nicole; is that correct? A. I'm telling you about the time now that I went over there that evening. Q. But is it your testimony that you were mistaken about the time you went over there to see Nicole again, but all the other answers you gave are correct in terms of your conversations with Nicole and your observations and things like that? A. You were asking me if -- was I over there that afternoon -- early that morning? Q. Yeah. A. And I'm telling you no. Q. And you never -- Nicole never told you that her forehead hurt that morning at any time, did she? A. Not that I could remember. Q. Never even had a conversation with her about that? A. Well, eventually I did. Q. And when was that, Mr. Cowlings? A. That was that evening. Q. And it's your testimony you had that conversation with Mr. Simpson in the kitchen? A. Mr. Simpson was standing there, yes. Q. Okay. And what, if anything, did she say at that time to you? A. She was saying I -- MR. LEONARD: Objection, hearsay, Your Honor. MR. KELLY: I'm sorry? THE COURT: Overruled. Q. (BY MR. KELLY) What did she say to you at that time, Mr. Cowlings? A. She was saying her head was hurting. Q. Okay. And did you ask her any other reason why her head was hurting at that time? A. I don't know if -- if I had asked her or if I just noticed that where she was saying her head was hurting I could see that there was swelling. Q. Well, didn't she also indicate to you that very -- the first time that there was a particular part on her head, above the hairline, that her head hurt, Mr. Cowlings? A. I don't remember saying that, no. Q. Okay. And did she ever indicate to you why her head hurt at this time? MR. LEONARD: Your Honor, I object. Hearsay. Can I have a continuing objection on a hearsay basis? THE COURT: Objection is overruled. This appears to be a conversation where Mr. Simpson was present. A. I don't remember. Q. (BY MR. KELLY) Well, do you recall me asking you these questions about conversations you had with Nicole New Year's Day, 1989, when I took your deposition in April this year, Mr. Cowlings? A. There was a lot of things that's happening since then, sir. It's hard -- if you want to go back to the deposition, let's do that. Q. Let's do it. MR. KELLY: Okay. Page 393, Steve. (Transcript displayed on Elmo.) Q. (BY MR. KELLY) Starting at page 392. I will represent to you, Mr. Cowlings, this is when you were in the kitchen with Nicole. The is the second time. (Reading.) "Q. What did you see? "A. It was red. "Q. Was there any swelling there? "A. I didn't touch it, so I wouldn't know. "Q. Did you look at it? "A. I looked at it, it was red. "Q. Did you see any swelling there when you looked at it? "A. No, I didn't. "Q. Did you see a bump? "A. No. "Q. What happened next? "A. I said okay, she said yeah, it just hurts, so I said did you want me to take you to the hospital, and she said no. "Q. Was she having any difficulty speaking at this time? "A. No. "Q. Did she indicate to you that she had called a doctor prior to your arrival there? "A. No. "Q. Did she indicate that she had spoken to the police again? "A. No. "Q. What, if anything else did you talk about when you were in the kitchen with her at that point? "A. I can't remember exactly what we talked about. "Q. When you looked at her forehead did she tell you what had happened to it?" MR. KELLY: Top of the next page. (Reading.) "A. I think she said he had pulled her hair. "Q. Other than pulling her hair, what else did she tell you he had done to her? "A. I don't remember. "Q. Was that an injury she was showing to you, when she pointed to her forehead that you came over and looked at? "A. She just -- When she said her head was hurting she rubbed the spot, I guess, that was hurting. "Q. Okay. Show me exactly where she rubbed. "A. I don't remember exactly. I don't know what side of the head that she rubbed. "Q. What part of her head was it on? "A. Towards, I guess, up in the area somewhere. "Q. Above the hairline? "A. Yeah. "Q. You didn't see any bruises below the hairline on her forehead? "A. No." Q. (BY MR. KELLY) Now, do you remember being asked those questions and giving those answers, Mr. Cowlings? A. Yes. Q. Do you recall now that there was a time Nicole was indicating an injury she had above her hairline to you? A. Yes. Q. Okay. You remember her indicating to you then that -- that he, meaning Mr. Simpson, had pulled her hair? A. Yes. Q. Okay. Now, did she tell you anything else about how she had been -- why her head hurt that day, Mr. Cowlings? A. I don't remember. Q. Is it not a fact that she told you that Mr. Simpson had hit her, Mr. Cowlings? A. She had told me that she was hit, yes. Q. Mr. Cowlings, did she tell you that Mr. Simpson had hit her early that morning? A. Yes, she probably did, yes. Q. She did tell you that, did she not? A. Yes. MR. KELLY: Steve, can I see Exhibit No. 5. (Exhibit 5 displayed.) Q. (BY MR. KELLY) Mr. Cowlings, first of all, you recognize who's in the photograph? A. Yes. Q. That's Nicole? I'm sorry? A. Yes. Q. And see the sweatpants she has on in the picture? A. Yes. Q. Okay. Are those the sweatpants she had on in the kitchen when you were called over early that morning? A. Yes. Q. Okay. And you recall them being soiled like that? A. Yes. Q. And the jacket that she has on in that picture, is that the jacket that she had on that early morning when you were called over there? A. Yes. Q. Okay. MR. KELLY: Steve, can I see Exhibit No. 4. (Exhibit 4 displayed on Elmo.) Q. (BY MR. KELLY) That's Nicole again, is it not, Mr. Cowlings? A. Yes. Q. Looking at that photograph, do you recall seeing her that morning when you were talking to her in the kitchen? A. Yes. Q. Now, at that time, Mr. Cowlings, do you recall seeing that bruise over her forehead? A. Let me have the question again. Q. That morning when you first arrived there, early morning when you received a call and rushed right over there and saw Nicole in the kitchen, that black jacket and the sweatpants, do recall seeing that bruise over her right eye? A. No. Q. Do you recall seeing any bruise on her right cheek? A. No. Q. Do you recall seeing scratches? A. What I saw was redness. Q. Okay. See a split lip? A. No. Q. Do you see any hand imprints on her neck? A. No. Q. Now, that evening when you were in the kitchen, you had occasion to get a better look at -- THE WITNESS: Excuse me. Can I take some water, please. THE COURT: Yes. Q. You all right? A. I'm fine. Q. Okay. MR. KELLY: Steve, could you flip up 5, please. (Exhibit 5 displayed.) MR. KELLY: I'm sorry, the one after that, the other picture. MR. FOSTER: 3? MR. KELLY: Yeah. (Exhibit 3 displayed.) Q. (BY MR. KELLY) Do you recognize Nicole there? A. Yes. Q. Okay. You don't recall seeing any of those injuries that morning when you first arrived there? A. No. MR. KELLY: Steve, can I see -- can you flip 4 back up there now. (Exhibit 4 displayed.) Q. (BY MR. KELLY) Now, Mr. Cowlings, you indicated earlier that you had testified that Nicole told you that Mr. Simpson had pulled her hair, then he had hit her. Now, drawing your attention to this lump over her right eye, do you recall seeing it that evening when you were in the kitchen with her? A. Yes. Q. And in fact, when you saw it that evening it was actually larger and darker than it appears in that photograph, was it not, Mr. Cowlings? A. I don't remember that. Q. Do you remember me asking you about that at your deposition? I showed you these photographs. A. I don't remember. You have to show me. Q. Okay. MR. KELLY: Take the photograph off and put page 439 up there. (Transcript displayed on Elmo.) MR. KELLY: Move it down a little bit, Steve. Question above that you're cutting off. (Reading.) "Q. Would you agree with me now as you look at that photograph that she has a very large and swollen bruise" -- (Witness raises hand.) A. I'm sorry. Where are you? Q. Right there. (Reading.) "Q. Would you agree with me now as you look at that photograph" -- and I'll represent to you, Mr. Cowlings, it was the photograph I just had up there a moment ago -- "that she has a very large and swollen bruise over her right eye?" "A. Yes, it is. "Q. Okay. Did you notice that that morning when you went over to Rockingham? "A. No, I didn't, sir. "Q. Okay. Did you notice that that night when you took her to the hospital? "A. Yes, I did. "Q. And, in fact, when you took her to the hospital that night, it was even larger and darker than it appears in that photograph there, was it not? "A. It seemed like it was larger. It could have been darker. Like I say, she didn't have her hair pulled back. But I noticed that it was swelling. And when she was telling me that she was bothered by a headache I felt that, you know, it would be wise for her to go to the hospital because I didn't want her to go to sleep, you know, thinking that maybe she had a concussion." Q. (BY MR. KELLY) Do you recall now, Mr. Cowlings, me asking you those questions and you giving those answers? A. Yes. Q. Does that refresh your recollection that -- MR. KELLY: If you could put No. 4 back up on that screen. (Exhibit 4 displayed.) Q. As to that knot over her right eye, whether it was even larger and darker than it appears in the photograph there? A. It could have been. Q. And you, in fact, did take her to the hospital that night for fear she had a concussion, correct, Mr. Cowlings? A. Yes. Q. And you stayed there while she was treated at the emergency room? A. Yes. Q. And you took her back home that night? A. Yes. Q. And you walked her back in the house? A. Yes. Q. Stayed there a little bit with her? A. Yes. Q. Okay. You see Mr. Simpson there at that time? A. I don't remember. MR. KELLY: I have no further questions, Your Honor. THE COURT: 10-minute recess, ladies and gentlemen. Don't talk about the case. Don't form or express any opinions. (The jurors resumed their respective seats.) THE COURT: You may proceed. CROSS-EXAMINATION BY MR. LEONARD: Q. Good afternoon Mr. Cowlings. A. Good afternoon, sir. Q. I have a couple questions for you. You described Nicole Brown Simpson's demeanor when you saw her on those two occasions on January 1, 1989. Do you remember that in your direct testimony? A. Yes, sir. Q. And would you agree with me, sir, that the primary emotion that you (sic) exhibited in her demeanor was that she was angry? I think you used the words "pissed off." Is that fair to say? A. Yes, she was. MR. KELLY: Objection. Leading, Your Honor. THE COURT: Leading. Overruled. Q. (BY MR. LEONARD) And she was angry in the morning, and she was angry in the evening, when Mr. Simpson was there with you, right? A. Yes. Q. Now, in the evening, there was -- there was a discussion about going to the hospital, right? A. Yes. Q. You suggested that Nicole go to the hospital, and at that point, Mr. Simpson also insisted that she go to the hospital; is that correct? A. Yes. Q. Did Mr. Simpson, at any point that evening, try to prevent Nicole from going to the hospital? A. No. Q. Did he, at any point, suggest to her anything that you should say to the physicians at the hospital? MR. KELLY: Objection. Leading. THE COURT: Leading. Overruled. THE WITNESS: May I have the question? THE COURT: Cross-examination. MR. KELLY: I know. Q. (BY MR. LEONARD) Did she at any point -- did Mr. Simpson, at any point, try to prevent Nicole Brown Simpson from going to the hospital? A. No. Q. Did he try to inhibit -- did he suggest anything to her that she should tell the doctors or not tell the doctors? A. No. Q. He saw you leave with her, to go to the hospital; is that right? A. Yes. MR. LEONARD: Thank you. I don't have any further questions at this time. REDIRECT EXAMINATION BY MR. KELLY: Q. Mr. Cowlings, so we're clear, though, it was you that suggested to Nicole that you wanted to take her to the hospital, first; is that right? A. Yes. MR. KELLY: I have no further questions. MR. LEONARD: Just one question at this point. RECROSS-EXAMINATION BY MR. LEONARD: Q. Nicole seemed reluctant to go to the hospital? MR. KELLY: Objection. Calls for speculation. Q. Did she indicate -- did she respond immediately at that point to your suggestion? A. First she said no; yes. Q. And then what happened, Mr. Simpson? [Sic] Just tell us what happened after that. A. I asked her again -- I said -- I voiced my concern about maybe she may have a concussion. Then O.J. suggested that she needed to go, too. Q. And when he said that, she agreed, correct, to go to the hospital? A. Yes, yes. I mean not right at that time, but she did finally agree to go. MR. LEONARD: Thank you. No further questions. FURTHER REDIRECT EXAMINATION BY MR. KELLY: Q. You encouraged her further, after that, to go, also, did you not? A. Yes, sir. MR. KELLY: Thank you. I have no further questions. MR. LEONARD: Nothing further. THE COURT: You may to step down. (The witness stood aside.) MR. LEONARD: If we can reserve to recall this witness in our case, Your Honor. THE COURT: You may. MR. LEONARD: Thank you. MR. PETROCELLI: Call Jackie Cooper. MR. BAKER: Your Honor, I think we are to have a motion that we had filed relative to the next three witnesses. MR. PETROCELLI: Third one being whom? MR. BAKER: Donna Estes. MR. PETROCELLI: Because of schedule problems with the witnesses, my intention is to call -- and they're all five -- five-minute witnesses: Jackie Cooper, Donna Estes, and Craig Baumgarten. THE COURT: Will the attorneys approach the bench. (The following proceedings were held at the bench, with the reporter.) (Pause for the Court to read document.) MR. P. BAKER: Deposition of the defense, two witnesses, Donna Estes and Jackie Cooper to be called to impeach collateral matters of Mr. Simpson. These two witnesses were referenced on page 155 through -- 155 through 158 of the trial transcript on November 22, 1996 regarding conversations in Palm Springs and whether or not Nicole's name is brought up. If there's any impeachment it would be to a collateral issue. We would move to not have these witnesses testify. What she going to testify to. MR. PETROCELLI: Jackie Cooper, first, will testify that contrary to Simpson's testimony on the Palm Springs weekend, 12 days or two weeks before Nicole's murder, he told Cooper that Nicole had broken up with him, had ended the relationship; he was unhappy about it; and essentially talked on and on and on about Nicole that day. And Donna Estes will testify that same day at dinner, Simpson told her that he had an argument with Paula earlier that day, Paula asked him do -- you still love Nicole, don't you; Simpson said yes, I do. And she left. And then went on to discuss Nicole further with Simpson. All of this is not only relevant directly to our issue of motive, but also serves to impeach Simpson's testimony to the contrary. They're both -- each of them is about a five-to ten-minute witness, Your Honor. MR. P. BAKER: Your Honor, Jackie, what he just said about Jackie Cooper doesn't impeach Mr. Simpson at all. At page 10, the question was asked by Mr. Petrocelli: Do you still love Nicole? She asked you that, right? I don't recall this. And he said yes, I do; I always loved Nicole. That doesn't impeach anything Mr. Cooper said. Secondly, Mrs. Estes, in terms of -- in terms of Ms. Estes, at pages 7 and 8, Mr. Simpson said, and during the course of the conversation, I'm sure Nicole's name came up into that conversation. What he told us doesn't impeach Mr. Simpson at all. It's prejudicial pursuant to 352. It misleads the jury, if that's impeachment, which it doesn't. THE COURT: Overruled. (The following proceedings were held in open court, in the presence of the jury.) JACKIE COOPER was called as a witness on behalf of the Plaintiffs, was duly sworn, and testified as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this Court shall be the truth, the whole truth, and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: Sir, if you would, please state and spell your name for the record. THE WITNESS: My name is Jackie Cooper, J-A-C-K-I-E C-O-O-P-E-R. DIRECT EXAMINATION BY MR. PETROCELLI: Q. Good afternoon Mr. Cooper. A. Hello. Q. What do you for a living? A. I'm a tennis professional. Q. And in June of 1994, what did you do for a living? A. I was the director of tennis at LaQuinta Hotel in the Palm Springs area. Q. How long have you known O.J. Simpson? A. Approximately 15 years. Q. And are you also friends with Allen Cowlings? A. Yes, sir. Q. Pretty good friends? A. Very good friends. Q. And how long have you known Mr. Cowlings? A. From the same amount of time, 15 years. Q. Just generally describe to the jury the nature of your relationship with Mr. Simpson over the years. MR. P. BAKER: Vague, Judge. THE COURT: Overruled. A. As a result of me being a tennis pro and a friend of AC, I got to know O.J.; I got to know his kids; we played tennis together when he played tennis, and we played golf together when we played golf, and we did some things socially together. Q. So you considered him, in June of 1994, to be a friend? A. Yes, sir. Q. And you believe he considered you to be a friend? A. Yes. Q. Now, do you recall being with Mr. Simpson on the weekend of, I guess it's May 28, May 29, 1994, Memorial Day weekend? A. Yes. Q. And when were you with Mr. Simpson on Saturday? A. We had a 6:00 a.m. tee time, so I was with him in the morning. Q. Played a round of golf with him? A. We played 18 holes. Q. You shared a golf cart with him? A. Yes. Q. How long was your time together playing golf? A. Approximately four hours. Q. And after golf, did you have occasion to see him at all that day? A. Yes. We had lunch after golf. Q. Then after lunch? A. After lunch, he came to my house to play golf again, to play another 18 holes, and -- Q. Did you play? A. I didn't play because I was -- it was hot and I was tired. Q. And then he went off to do his thing? A. Yes; he went to play golf. Q. And did you then have occasion to speak with him after his golf round in the afternoon? A. After his round, he called -- he called me. Q. On the telephone? A. Yes. Q. And how long did you speak on the phone? A. We talked for approximately one hour, if not a little more. Q. And then, after you got off the phone, were you with him anymore that evening? A. Yes. We had dinner together at LaQuinta Hotel. Q. Just the two of you? A. No; it was a party of, I would guess, ten people. Q. Friends of both of yourself? A. Yes. More friends of his than mine. Q. Okay. Now, so you spent a goodly amount of time with Mr. Simpson that day? A. Yes, sir. Q. Okay. Now, going back to the morning when you played golf with him, did he talk to you at all about Nicole? A. Yes, he did. Q. What did he say? A. He said that she had broken up with him and it was different this time; that it was final; that she had -- he told me that she really meant it this time, I guess. Maybe not verbatim; that's the message that I got. Q. And what was his -- MR. P. BAKER: Move to strike as nonresponsive. THE COURT: Overruled. Q. (BY MR. PETROCELLI) What reaction did Mr. Simpson express to you, to Nicole having broken off the relationship? A. I think that he was sad. I think that he was upset and in distress. MR. P. BAKER: Move to strike as nonresponsive. THE COURT: Overruled. Q. (BY MR. PETROCELLI) How did he indicate being upset and distressed to you? A. I think by -- maybe that he was repetitive in talking about it a lot. Q. Did you try to talk him out of it, sir? A. Talk him out of what? Q. Did you try to talk him out of his feelings or change his feelings in any way? A. I felt for him, and I tried to help him -- my advice to him was to go on with his life. MR. BAKER: Your Honor, I move to strike. It's nonresponsive, irrelevant, and immaterial. THE COURT: It's stricken. Q. (BY MR. PETROCELLI) Did he basically talk to you about Nicole pretty much the entire golf round? MR. BAKER: I object. That's leading. THE COURT: Sustained. Q. (BY MR. PETROCELLI) What did he mainly talk to you about for the four hours that you were playing golf? A. I think off and on, it came up a lot about Nicole. Q. By the way, was he there with a date that weekend? A. Yes. Q. And who was that? A. Paula. Q. When you spoke to him between 6:00 and 7:00 in the evening before dinner -- you said he called you? A. Yes. Q. And in the course of that hour, what did he talk about? A. The first thing he told me is that Paula had gone back home, and then we talked about Nicole. Q. For the hour? A. Yes. Q. Okay. MR. PETROCELLI: No further questions, Your Honor. THE COURT: Cross. CROSS-EXAMINATION BY MR. BAKER: Q. Mr. Cooper, you were interviewed on November 3, 1994 by the LAPD, right? A. Yes, sir. Q. Never mentioned one thing about the 18 holes of golf, correct? A. I don't recall. Q. Never mention one thing about the hour-long phone call you testified to here? A. I don't recall. Q. Never mentioned one thing about any conversation whatsoever concerning Nicole Brown Simpson, right? MR. PETROCELLI: Your Honor, I'm going to object only because there's no foundation that he was asked these questions. THE COURT: Sustained. Q. (BY MR. BAKER) Wait a minute. When you were interviewed by the LAPD in November of 1994, it was about the murder of Nicole Brown Simpson and Ron Goldman, by the Police Department and the LA D.A.'s office; isn't that true? A. It was a telephone call. Q. Maybe you didn't understand the question. You were interviewed on November 3, 1994, about the murders and your relationship with O.J. Simpson; you knew it was concerning the murder of Nicole Brown Simpson when you gave the interview. Isn't that true, Mr. Cooper? A. They called me because they found my telephone number. Q. Did you or did you not know that it was about the murder of Nicole Brown Simpson? Can you simply answer the question? A. Yes. Q. And in that interview, you never mentioned her name once, did you? MR. PETROCELLI: Objection. He doesn't know what he was asked. A. I don't -- I have no idea what I did or not. THE COURT: Overruled. Q. (BY MR. BAKER) What you told the investigating officers was that Jackie Cooper recalls the weekend as being enjoyable golf and tennis, correct? A. I would classify doing that as enjoyable. Q. Well, I would, too, if I had your job. But you never mentioned one thing about Mr. Simpson having had what you now talk about as the discussion centering around Nicole Brown Simpson; isn't that true, sir? A. I recall only one question that they asked me. Q. Maybe you didn't understand my question. My question, sir, is: You didn't mention one thing about any conversation you had with Mr. Simpson concerning Nicole Brown Simpson; true or untrue? MR. PETROCELLI: I'm going to object on the ground that it's argumentative and also lacks foundation, in that has not elicited what he was asked. THE COURT: Overruled. Q. (BY MR. BAKER) True? A. Would you repeat the question, please. Q. You never once mentioned the name Nicole Brown Simpson in this purported conversation that went four hours on the golf course, an hour on the telephone, and another time period after that. You never once mentioned that to the investigating officers, did you, sir? A. I don't know if I did or not. Q. You looked-- you spent some time with Mr. Petrocelli relative to this case, did you not, sir? A. Yes, sir. Q. You looked at the statement you gave to the police back in 1994? A. No, sir. Q. Never looked at it? A. No, sir. Q. Did you -- did you recall, sir, the members of the foursome? A. Alan Austin was one, and relatives of Alan Austin, and I don't -- I actually don't even know their names right now. Q. They were Alan Austin and relatives of Alan Austin and yourself, correct? A. Yes. Q. And Mr. Simpson, correct? A. Yes. Q. And so it was a fivesome? A. No, it was a foursome. Q. How could there be relatives of Alan Austin if it was a foursome? A. Well, a relative. Q. And now you have all these remembrances of these conversations about this evening with Mr. Simpson and the day with Mr. Simpson, right? A. Yes, I do. Q. Yeah. And that's after you spent how much time with Mr. Petrocelli? A. I would guess -- I would say -- estimate 20 minutes with Mr. Petrocelli. Q. How about the rest of them? A. None. Q. How about when you were first contacted about this? A. It was last spring. Q. And from last spring to the present, you've spent 20 minutes total, right? A. Yes, sir. Q. Yeah, I see. And you never felt compelled to -- during the criminal trial, to ever discuss one thing with the police about these purported conversations you're here telling the jury about, correct? MR. PETROCELLI: That's argumentative, Your Honor. THE COURT: Sustained. Q. (BY MR. BAKER) Well, you never did, after you were contacted on November 4, 1995 -- strike that -- November 3, 1994 -- you never did contact the police with this -- these comments that you say that Mr. Simpson was talking about Nicole Brown Simpson? A. No, I did not. Q. You stated in your interview that O.J. was with Paula Barbieri. You told them that, did you not? A. Did I tell who that? Q. The police, when they talked to you, November 3, 1994. A. If they asked me about it, I -- whatever they asked me, I told them the truth. Q. I see. And you don't have an explanation as to why Nicole Brown Simpson's name was never brought up in your interview with the police on November 3, 1994, correct? MR. PETROCELLI: Objection. Calls for speculation, Your Honor. THE COURT: Overruled. THE WITNESS: Would you repeat it. Q. (BY MR. BAKER) You have no explanation when you were called on November 3, 1994, to talk about Mr. Simpson and the weekend that you have just discussed with this jury, why there was not one mention of any conversation with Mr. Simpson where Nicole Brown Simpson's name was mentioned, correct? A. That's right. I felt that they were in control of the conversation. And it was very brief. Q. I see. So, in any event, sir, you didn't tell them anything about any conversation you had -- you purportedly had with Simpson concerning Nicole Brown Simpson; true or untrue? MR. PETROCELLI: Asked and answered. A. I'm not sure. THE COURT: Sustained. MR. BAKER: Nothing further. REDIRECT EXAMINATION BY MR. PETROCELLI: Q. Did you just answer the questions they posed to you? A. Yes, sir. Yes, I did. MR. BAKER: Leading and suggestive. THE COURT: Overruled. MR. PETROCELLI: No further questions. THE COURT: You may step down. Next witness. MR. PETROCELLI: Donna Estes. DONNA ESTES, called as a witness on behalf of Plaintiffs, was duly sworn and testified as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: Please be seated. And if you would, please state and spell your name. THE WITNESS: Donna Estes, D-O-N-N-A, E-S-T-E-S. DIRECT EXAMINATION BY MR. PETROCELLI: Q. Good afternoon, Mrs. Estes. As of June 12, 1994, did you know O.J. Simpson? A. Yes. Q. And how long had you known him? A. I met them in 1988. Q. When you say you met "them," you referring to O.J. Simpson and Nicole? A. O.J. and Nicole. Q. And what was the nature of your relationship with Mr. Simpson and Nicole from 1988 to 1994? A. Social acquaintances. Maybe a little more. I was quite friendly with Nicole and both O.J. Q. Did you ever go on any trips with them out of town? A. We went to Acapulco for Nicole's 30th birthday in 1989. Q. How many people went on that trip? A. It was O.J. and Nicole and two other couples, including me. Q. And that was Nicole's 30th birthday, you say? A. Right. Q. Okay. Were you with Mr. Simpson on the weekend of May 28, May 29, 1994, Memorial Day weekend? A. Yes, I was. Q. Was that at LaQuinta? A. Yes. Q. Why were you there? A. It was a group of friends went down to celebrate someone's birthday, so we went down for a long weekend. Q. Is that the birthday of Gail Austin? A. Yes. Q. Alan -- A. Alan Austin's wife. Q. Alan Austin. And Alan Austin is a mutual friend of yours and Mr. Simpson? A. Right. Q. You saw Mr. Simpson at dinner that night? A. Yes. Q. Okay. And how many folks were seated around the table, approximately? A. Approximately 10. Q. It was in a restaurant in LaQuinta? A. Right. Q. And at some point, Mr. Simpson joined the table? A. Yes. He came to the table. Everyone was seated, and O.J. came in. He came in late. And he came in without Paula Barbieri, who had come down to the resort with him. I had seen them in the morning and they said, we'll see you at dinner. When dinner came, O.J. came in alone. Q. What did Mr. Simpson say to you when he sat down? A. He sat down next to me and he explained that he and Paula had got into a fight because Paula asked him if he was still in love with Nicole, and he said yes, he was. And she left. Q. Did he say anything more about Paula the remainder of the evening? A. He really didn't talk very much about Paula. He spent quite a bit of time speaking of Nicole. In fact, for maybe 20 minutes, he just continued talking about Nicole. Q. And what did he say about Nicole, if you can remember? A. He was saying things like how lucky he was that she was such a good mother to his children, and that the best day he can think of would be going to Disneyland with Nicole and the two children. He also talked about Nicole liking to go out dancing, and that Nicole would rather go out dancing and wearing short skirts and see who notices her, than to just spend a quiet evening at home. Q. And is it fair to say he expressed both displeasure and good feelings about her? A. Oh, yes. Q. After that evening, did you then run into Mr. Simpson a few lights nights later? A. Yes, I saw him at the House of Blues. Q. What is the House of Blues? A. The House of Blues is a -- it's sort of a nightclub that plays live music, and they were having -- it's dinner and music -- they were having dinner outside, and I was having dinner with another couple, and we were all friends, so we joined his bigger party later in the evening. Q. And did Mr. Simpson say anything to you that evening? A. When I joined them at the table, I sat down for a few minutes next to Paula, who had -- who showed me a bracelet that O.J. had just given her. And at one point, O.J. got up and left the table, and came by and just mentioned to me, don't say anything to Nicole about the bracelet or about Palm Springs. MR. PETROCELLI: No further questions. THE COURT: Cross. CROSS-EXAMINATION BY MR. BAKER: Q. What was the date on this purported House of Blues meeting? A. It would have been the Wednesday -- I believe the Wednesday after Memorial Day weekend. Q. And was that the one up on Sunset? A. Yes. Q. Okay. Now, you were over across at Mr. Petrocelli's suite at the Doubletree? A. Yes. I came there just before I came here. Q. And how long did you meet with him? A. I was only there for a few minutes. I didn't actually get there until, like, almost 1:20, and we came straight here. Q. All right. Now, you told us that you met O.J. and Paula Barbieri on the morning -- that Saturday morning? A. Right. Q. And you chatted with them about that time. What time was that? A. You know, it's hard to remember what time. I just remember it was in the morning, because we were planning the day. So, I mean, I can guess. I have no idea. Maybe 10 o'clock, but that's just a guess. Q. All right. And -- and you say you had a discussion with him at that time, correct? A. Everyone just agreed to meet for dinner that night, and there was discussion of who was going to do what during the day. Q. And was -- was it your understanding, when you say you agreed to meet in the morning, when you talked to Paula and O.J., that there had been no plans about meeting that night at the dinner, as far as you were aware? A. I don't really understand what you're asking me. Q. Are you telling us that when you say you had this happenstance meeting with Paula and O.J. in the morning of -- Saturday morning, that there was no premade plans to have dinner on Saturday night? A. We had all planned on having dinner on Saturday night. That was the plan. Everyone went down together. And the discussion was what were people going to do during the day. And we were all going to meet for dinner in the evening. Q. Okay. And is it -- well, in terms of the sitting at the table, did you sit next to O.J. Simpson? A. I sat next to O.J. for maybe 20 or 25 minutes. My husband was at the other end of the table, and then he came and sat next to O.J. for the rest of the dinner. Q. And they talked about your -- you and O.J. talked about your relationship, did you not? A. My relationship? Q. Yeah, with your husband. You were talking about the relationships that the men and women had -- A. No. Q. -- at the table, were you not? A. No, we weren't, actually. Q. You didn't talk about that at all? A. No. My relationship with my husband, no. In fact, he wasn't my husband at the time. And I very specifically remember not talking about it because he came in late, and we jumped right into the discussion as to why he was late. Q. And the only thing that you recall in the conversation that was discussed within the 20, 25 minutes that you talked to Mr. Simpson, was about Nicole, and that she was a good mother, and he would -- his idea of a good day was going to Disneyland with her and the kids? A. Yeah. And how Paula didn't understand that. Q. And he also talked to you about his dislike for Nicole's going-out spots, drinking, with short skirts and seeing how she was noticed, correct? A. Yes. Q. I don't have anything further. MR. PETROCELLI: Nothing, Your Honor. THE COURT: You may step down. THE WITNESS: Thank you. MR. PETROCELLI: Craig Baumgarten. CRAIG BAUMGARTEN, called as a witness on behalf of Plaintiffs, was duly sworn and testified as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: Thank you. And, sir, would you please state and spell your name for the record. THE WITNESS: Craig Baumgarten. First name, C-R-A-I-G, Baumgarten, B-A-U-M-G-A-R-T-E-N. DIRECT EXAMINATION BY MR. PETROCELLI: Q. Good afternoon Mr. Baumgarten? A. Good afternoon. Q. You are a friend of Mr. Simpson? A. Yes. Q. And you interact with him on a regular basis, right? A. Yeah. Q. How long have you known him? A. I think about eight years. Q. And in 1994, you were a regular golf partner of his, right? A. That's correct. Q. And you played golf with him and several other folks on the morning of June 12, 1994, Sunday morning, right? A. Yes, sir. Q. And on that occasion, Mr. Simpson told you some things about Paula Barbieri, did he not? A. We discussed a number of things. Yes. Q. What did he say in regard to Paula Barbieri, if you can recall? A. At one point during the -- during the round, we had a conversation concerning the fact that Paula was upset, that O.J. felt it best she not join him at the recital that afternoon at Sydney's recital. And -- Yeah. Q. Mr. Simpson reported to you that he had -- he was with Paula the night before? MR. LEONARD: Objection. Leading. THE COURT: Sustained. Q. (BY MR. PETROCELLI) Was Mr. Simpson relating a conversation to you that he had had with Paula? A. I don't know at what point that conversation between Mr. Simpson and Paula occurred. It was my own knowledge that he had been with her that evening -- the previous evening. Q. And what did, again, he say that Paula was upset about? MR. LEONARD: Objection. Asked and answered and leading. THE COURT: Overruled. A. He said that she wanted to go to the recital. Q. (BY MR. PETROCELLI) Did Mr. Simpson indicate whether or not he told Paula she could go to the recital? A. He felt it inappropriate. And he was discussing with me 'cause I had had similar situations many years earlier when I had been divorced, and I -- the woman I was involved with, and, you know, you just get in those situations sometimes when you have small children, going through a divorce, and you have other relationships. Q. Just to be clear in this, what did Mr. Simpson tell you he had said to Paula about her not going to the recital? A. I don't know his words. He reported to me that he felt it inappropriate that she join him at that recital. Q. Based on what Mr. Simpson told you about Paula being upset, when you left the golf course that day, did you have the state of mind that Paula was extremely upset? MR. LEONARD: Objection. Irrelevant, Your Honor, his state of mind. THE COURT: Paula's state of mind. MR. LEONARD: No, his state of mind. That was the question. THE COURT: I don't think that was the question. MR. PETROCELLI: It's foundational to the next question, Your Honor. MR. LEONARD: I object on relevance to Paula. THE COURT: Paula's state of mind. Sustained. Q. (BY MR. PETROCELLI) When you heard of Nicole's murder was sometime on the 13th of June, right? A. Yes. Q. And at the time, you formed the opinion that Paula might have had something to do with it, correct? MR. LEONARD: Objection. THE COURT: Sustained. Jury to disregard the question. Q. (BY MR. PETROCELLI) Did you have the belief, based on your conversations with Mr. Simpson -- MR. LEONARD: I'm going to object and ask to approach. THE COURT: Approach the bench. (The following proceedings were held at the bench, with the reporter.) MR. LEONARD: On the record, I want an offer of proof at this point. This question is what belief this witness formed based on the previous ten questions. I want an offer of proof at this point. MR. PETROCELLI: This witness, first of all, is extremely friendly to Mr. Simpson. I would request that he be treated hostilely under Section 767, so I can lead him. In any event, this witness will testify that Mr. Simpson told him that Paula was so upset about this recital, that when he heard of Nicole's murder, he thought Paula had something to do with it because she was so "pissed off," to use his words. THE COURT: I'll sustain the objection. His state of mind has nothing to do with his opinion. MR. PETROCELLI: It goes to his report of Simpson's conversation, Your Honor. THE COURT: You -- MR. PETROCELLI: May I lead? THE COURT: You may inquire as to what Simpson's conversation was, but the rest of it, I don't think is relevant. MR. PETROCELLI: Can I lead him? MR. LEONARD: He asked about the conversation twice now. MR. BAKER: He's been to his suite. MR. PETROCELLI: He's never been to my suite. MR. LEONARD: He's asked him twice. THE COURT: Go ahead and lead him on that issue. (The following proceedings were held in open court, in the presence of the jury.) Q. (BY MR. PETROCELLI) Mr. Baumgarten, isn't it true that Mr. Simpson told you that -- Sunday morning, that Paula was extremely upset with him? Isn't that true? MR. LEONARD: Asked and answered. THE COURT: Overruled. A. I don't know if "extremely" ever been used. Paula was upset, that was my understanding, about the recital. Q. It was your understanding based on what Mr. Simpson told you, correct? A. Yes. I have no other knowledge. Q. You're talking about what 6:00, 7:00 in the morning on June 12, right? A. My recollection is, it was later in the round, I think, but it was in the morning. Q. Okay. Now, you also had a near confrontation with Mr. Simpson on the golf course that morning, right? A. We had an argument. Q. And, in fact, you got -- it got a little heated, right? A. It's fair to say. Q. And it's also fair to say that the two of you sort of, at one moment in the heated argument, squared off, right, face to face? MR. LEONARD: Objection. Vague. THE COURT: It's not vague. Overruled. A. We faced each other. "Squared off" implies something that I -- that I don't believe. Q. You faced each other in sort of a heated -- a moment of heated argument, right? A. We had a heated argument. Q. It was about a golf shot, right? A. That's -- yeah, yes. Q. And isn't it fair to say that you had never before seen Mr. Simpson that angry? A. Mr. Simpson was very angry, and so was I. Q. The question was, you had never before seen him that angry as he was when you had that heated argument with him? A. I don't recall seeing Mr. Simpson that angry. Q. You don't recall having seen him that angry on any other occasion, correct? A. Correct. Q. And isn't it also true, sir, that on that day, in that golf round, Mr. Simpson told you that it was over for good between Nicole and him? A. No, that's not true. Q. He didn't say that at all to you, sir? A. No, sir. He -- if you want, I will put it -- Q. Please. A. -- in my own words. Q. Yeah, put it in your own words. A. He said to me that he recognized that for now, he and Nicole couldn't be together. And the words that I remember precisely was that maybe in five years, at some point in the future, he hoped they could put it back together. MR. PETROCELLI: Thank you. No further questions. CROSS-EXAMINATION BY MR. LEONARD: Q. This -- good afternoon. I'm sorry. This "squaring off," as Mr. Petrocelli put it, you've had similar confrontations with Mr. Simpson in the past, correct, over -- let me ask you this: This all started with something that occurs once in a while in golf; that is, Mr. Simpson -- actually, you moved behind Mr. Simpson when he was trying to take a toe shot? A. Actually, Mr. Simpson moved behind me while I was taking a toe shot. I got upset with Mr. Simpson is how it began. There were maybe instances in the history of our golf game of five guys who play together every weekend, over numerous years, where various people in that game got upset over various incidences [sic], and they never lasted very long. And neither did this. Q. For the -- for the golf neophytes, people who don't know about it, just explain why that's so disconcerting to have somebody walked behind you while you're swinging. A. It's distracting when you're trying to move this little white ball with a club head. Q. It's hard enough? A. Yes. Q. You kissed and made up shortly after that? A. I don't believe we kissed. Q. You hugged, right? A. We actually did hug five minutes later, yes. Q. All right. Now, you were asked some questions about discussions about Paula. In fact, you saw Mr. Simpson trying to reach Paula. At some point, he was trying to phone her? A. I have no idea who he was trying to phone. He was using the phone when we got off the golf course, trying to reach somebody. Q. His demeanor at this point, he was laughing and having fun? MR. PETROCELLI: Objection. Leading. THE COURT: I'll sustain that. MR. LEONARD: Leading? MR. PETROCELLI: Yes, leading. THE COURT: I think he's an adverse witness. Q. (BY MR. LEONARD) Can you describe for us his demeanor when you saw him making a phone call? A. His demeanor at the time, as soon as the argument was over, it was a normal day, as far as I could -- Q. Okay. He also -- you -- Mr. Petrocelli also asked you about some discussion about Nicole. And would you describe, if you can, his demeanor at that point. In other words, whether he was angry or resentful, resigned. How would you describe it? A. He had no anger or resentment. There was a sadness, is how I believe I'd describe it. MR. LEONARD: I have no further questions. Thank you. Appreciate it. MR. PETROCELLI: Nothing, Your Honor. THE COURT: You may step down. MR. GELBLUM: Nancy Ney, Your Honor. MR. BAKER: What? MR. GELBLUM: Nancy Ney. MR. BAKER: Your Honor, I want to approach. MR. GELBLUM: I thought you weren't going to object on that, Bob. THE COURT: Isn't that the first ruling I made this morning? MR. P. BAKER: That was about a document. MR. BAKER: That was about a document. THE COURT: Okay. Come up. (The following proceedings were held at the bench, with the reporter.) MR. P. BAKER: On Nancy Ney, two issues. First of all, Nancy Ney was never listed as a witness on their witness list. It was filed in the joint statement, the amended joint statement, pages 5 to 6. There's no mention of Nancy Ney. And the first time we had notice that they were going to call her was last Friday. So, pursuant to local rules we got in witness statements she was never listed. Secondly, Ms. Ney is the lady who is going to testify as to having a phone call, it's my understanding, from a person named Nicole, who doesn't identify herself as Nicole Brown Simpson, saying that she was being battered and questioning whether she should return to the battering spouse. It doesn't mention it's Nicole Brown Simpson. And I think the case which we relied upon, the case cites the Court in People versus Arcega 1982 32 Cal.3d and People versus Ireland, have clearly held that it's reversible error to withhold hearsay statements of homicide victims expressing fear of the defendant, even when made on the very day of the homicide. That's what this statement is about, number one. It's not even that good because they don't even have this Nicole Brown Simpson; they have it as an unidentified person saying that her name is Nicole. MR. GELBLUM: Your Honor, it comes in the hearsay. First, the state of mind exception the state of mind. We've been over this several times. Her state of mind is clearly relevant. It's all about the state of mind five days before the murders. They are extreme fear Mr. Simpson phone calls. In terms of identifying her as Nicole Brown Simpson, as Nicole -- she said Nicole. And I have a lot of identifying characteristics: Age, in 30s, married to a high profile man, married for eight years, two children, boy and a girl under 10 years old, lives in West LA, Caucasian, police had been called 8 times. All of these things match exactly with Nicole Brown Simpson. This -- there's really no doubt at all this is Nicole Brown Simpson. Plus, she will testify that she heard recordings of the 911 call and the voice she heard on the phone is consistent with the voice on the -- very, very high probability this is Nicole Brown Simpson. MR. PETROCELLI: Plus, Simpson's testimony. MR. P. BAKER: High probability? They can't identify it as Nicole Brown Simpson. It's hearsay. Mr. Simpson is not in the room when this call is made. Under 352, this has got to be excluded. MR. GELBLUM: It's your crucial testimony. This one woman is saying things that match up precisely with Nicole's situation with Mr. Simpson corroborate with other witnesses. As soon as she heard about the witnesses -- as soon as Ms. Ney heard about the murders, she said it that sounds familiar. I looked through my records. She went back and looked and said that's got to be the same person. All the identifying characteristics identify it. THE COURT: What about the cases that counsel cites? MR. GELBLUM: That's hearsay in those cases. They don't have the state-of-mind exception. THE COURT: This is hearsay. MR. GELBLUM: It's an exception, state of mind. THE COURT: What state of mind? MR. GELBLUM: Nicole's state of mind, fear for -- from Mr. Simpson. THE COURT: What is the state of mind in these cases? MR. GELBLUM: I don't know. I can only assume it wasn't raised. They said it's hearsay. THE COURT: You can what do you mean you can only assume good. MR. GELBLUM: Your Honor we got this this morning. I got this this morning. If you want us to brief it, we'll brief it. I haven't had a chance to read these. They don't have any representation state of mind, there was any exception to the state of mind. THE COURT: You better brief it. MR. GELBLUM: Okay. Call another witness. MR. GELBLUM: Tomorrow morning. THE COURT: Okay. MR. GELBLUM: On those two cases. (The following proceedings were held in open court, in the presence of the jury.) MR. PETROCELLI: Last live witness. We'll play a video for you for about 20 minutes. THE COURT: Okay. (The following proceedings were held in open court in the presence of the jury.) MR. PETROCELLI: Mrs. Ney will be deferred until tomorrow morning. We'll begin with playing about 20 minutes of the deposition of Frank Olson, Chairman of Hertz Corporation, taken in this case sometime in the spring. MR. LEONARD: And there's going to be a very brief reading of some additional portions, as we did with one of the other depositions. MR. PETROCELLI: Okay. (The videotaped deposition of Frank Olson was played in open court, and was not reported.) MR. PETROCELLI: Okay, stop it. There's about five or ten minutes left, Your Honor. We'll do it in the morning. THE COURT: Okay. MR. PETROCELLI: Thank you. THE COURT: Ladies and gentlemen, tomorrow at 8:30, we have another matter unrelated to this case, so I'm going excuse you until 9 o'clock tomorrow. Don't talk about the case. Don't form or express any opinions. Counsel is to be here at 8:30. Let me see counsel at side bench. (A bench conference was held among Court and counsel, which was not reported.) (At 4:30 P.M., an adjournment was taken until Wednesday, December 4, 1996, at 9:00 A.M.) |