3 THE HONORABLE PETER J. SFERRAZZA, JUSTICE OF THE PEACE 4 5 6 THE STATE OF NEVADA, 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Plaintiff, Case No. RCR2011- 063341 vs. Dept No.2 ZACHARY BARKER COUGHLIN, Defendant. TRANSCRIPT OF PROCEEDINGS JAVS MISDEMEANOR TRIAL Wednesday, September 5, 2012 APPEARANCES: For the Plaintiff: For the Defendant: ZACR YOUNG, ESQ. Deputy district attorney One South Sierra Street Reno, Nevada 89520 JAMES LESLIE, ESQ. Deputy Public Defender P.O. Box 11130 Reno, Nevada 89520 23 (JAVS ELECTRONICALLY RECORDED) 24 Transcribed by: EVELYN J. STUBBS 1 1 I N D E X 2 WITNESS: 3 NICHOLAS DURALDE 4 5 6 7 DIRECT EXAMINATION BY MR. YOUNG CROSS-EXAMINATION BY MR. LESLIE 8 E X H I BIT S 9 NO. Marked Admitted 10 MARKED PREVIOUSLY 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2 PAGE 10 26 ~ 1 RENO, NEVADA; WEDNESDAY, SEPTEMBER 5, 2012; 10:03 A.M. 2 3 4 5 6 7 --000-- THE COURT: Mr. Coughlin, we do have a copy of the recordings of the proceedings. We can furnish it to you at no cost. The answer is no, you cannot record, because we have the official record. And I will instruct 8 that you get an audio -- 9 10 THE DEFENDANT: THE COURT: Thank you, sir . at no cost to you. 11 THE DEFENDANT: Thank you, sir. 12 THE COURT: All right. We left off -- I'm trying 13 to find my notes from last time. 14 MR. LESLIE: Your Honor, before we get going, I 15 do have a preliminary matter, whenever you wish to hear 16 it. 17 18 19 THE COURT: MR. LESLIE: THE COURT: Well, let me just -- Sure. -- find my notes. Okay. We had 20 Nicholas Duralde testify, Nathaniel Zarate, and then Cory 21 Goble. And I'm not sure if the State -- I don't believe 22 the State addressed this. 23 MR. YOUNG: Your Honor, have we formally called 24 the case yet? 3 1 THE COURT: Yes, we have. This is the matter of 2 State of Nevada versus Zachary Barker Coughlin, Coughlin 3 4 (pronouncing), I'm sorry. It is a Department 2 case, 2011-063341, and it is the continued trial. And the 5 charges are petty larceny, one count, and possession of 6 stolen property, a second count. 7 8 MR. YOUNG: Thank you, Your Honor. The State has not rested. Officer Duralde or 9 Duralde (pronouncing), excuse me, testified at the -- with 10 respect to the motion to suppress, which this Court 11 granted in part and denied in part, effectively. 12 And so with respect to the trial, the only two 13 witnesses that have testified for the State in the State's 14 case in chief is Mr. Zarate and Mr. Goble. 15 Officer Duralde is present and ready to testify 16 with respect -- as it pertains to the trial. 17 THE COURT: Well, I think the Court did indicate 18 at the last hearing that I would incorporate, by 19 reference, all of his prior testimony at the motion to 20 suppress and this was to be supplemental testimony. 21 MR. YOUNG: And I recall there was an objection 22 to that. I have Officer Duralde here ready to testify to 23 the case. So State's ready to go forward. 24 (No recording from 10:07 - 10:48 a.m.) 4 1 THE COURT: All right. I will state on the 2 record that the Court has made a determination that any 3 potential conflict of interest that exists in this case 4 between Mr. Leslie and Mr. Coughlin does not rise to the 5 level that it would deny Mr. Coughlin his Sixth Amendment 6 right to be represented by counsel. 7 And further, I find that Mr. Leslie has done more 8 than an adequate job in representing Mr. Coughlin in these 9 proceedings to date and will continue to do so to the 10 11 12 13 14 conclusion of trial. So THE DEFENDANT: Your Honor? THE COURT: Mr. Young -- I'm sorry, Your Honor. If I may THE DEFENDANT: just interject quickly. If there was something I said 15 earlier that constituted an ex-parte communication to the 16 Court, may I ameliorate that now with the Court's 17 indulgence? 18 19 THE COURT: I will ameliorate it. Mr. Coughlin did, in a closed proceeding, suggest 20 that one of the witnesses in this trial was privy to a 21 tape-recording or a video of part of the incident that 22 occurred on that day, and that that was Mr. Zarate. Is 23 that correct? 24 THE DEFENDANT: If I may, Your Honor, I'll -- 5 1 THE COURT: Well, sorry. Was it Mr. Zarate? 2 THE DEFENDANT: No, sir. And I don't believe 3 you're referring to the incident -- the particular 4 incident I'm referring to. 5 THE COURT: There's a different incident? 6 MR. LESLIE: I think he's talking -- should I 7 clarify? Would you like me to clarify? 8 THE COURT: Yeah, if it has nothing to do with 9 this trial. 10 MR. LESLIE: I don't think it has anything to do 11 with this trial. 12 THE COURT: Okay. Well, you can clarify then, if 13 you want. MR. LESLIE: 14 It's an alleged incident where one 15 of the witnesses flicked a cigarette at Mr. Coughlin. 16 THE COURT: But not at this on this date? 17 MR. LESLIE: No. 18 THE COURT: That's what we're talking about, 19 Mr. Young, and that came out, blurted out by Mr. Coughlin, 20 that he was upset that Mr. Leslie had not brought that to 21 the attention of the Court. 22 MR. YOUNG: So long as the Court's -- I don't 23 think you will -- so long as the Court's not going to 24 consider that, since it's not evidence in this case. 6 1 THE COURT: 2 it was improper -- 3 4 MR. YOUNG: THE COURT: Well, I advised him at that time that Thank you. -- to do that, and, you know I would 5 not be considering it in this trial 6 7 MR. YOUNG: THE COURT: Thank you. -- unless it was presented in the 8 trial itself and was not objected to and was allowed to be 9 heard. So . And, frankly, I didn't have an 10 understanding of what it was until just now. 11 12 13 Duralde. 14 15 again. All right. MR. YOUNG: THE COURT: Did you want to call your witness? Yes. State will call Officer Just for the record, I will swear you I know you're probably still under oath, but will 16 you raise your right hand. 17 (Witness sworn.) 18 19 THE COURT: MR. LESLIE: 20 another pad of paper. Please be seated. Your Honor, I'm giving Mr. Coughlin 21 THE COURT: All right. 22 Well, Mr. Coughlin, just to clarify this for the 23 record, what I had instructed you to do previously was to 24 type it on your computer, show it to Mr. Leslie at the 7 1 conclusion, not interrupt him during it. But when he's 2 finished examining or hearing everything that happens, and 3 then finishes his cross-examination, then present to him 4 5 any questions that you wish him to ask. THE DEFENDANT: Yes, Your Honor . All right? I did not 6 realize you had indicated not to do it during the process. 7 8 THE ' COURT: during the process. Well, I don't want you doing it I thought I made it clear the last 9 time, because you're interrupting Mr. Leslie, you're 10 interrupting his ability to properly represent you, to 11 hear what the witness is saying and to observe the 12 demeanor and everything else about the witness; so that if 13 you're interrupting him, he's not able to do that. 14 15 16 THE DEFENDANT: Yes, sir. MR. LESLIE: Your Honor, I THE COURT: I can give you sufficient time at the 17 conclusion of Mr. Leslie's cross-examination to consult 18 with him and give him additional questions and things that 19 20 you wish him to do. All right? THE DEFENDANT: Yes, sir, Your Honor. And I just 21 note for the record that at the conclusion of Mr. Zarate's 22 and Goble's cross-examinations there was a very brief 23 period wherein I was allowed to address Mr. Leslie. 24 THE COURT: You know what I'm going to do, I will 8 1 take a five-minute recess at the conclusion of 2 Mr. Duralde's cross-examination. 3 THE DEFENDANT: Thank you, sir. 4 THE COURT: You will have five minutes, which I 5 think should be more than sufficient time to show it to 6 7 Mr. Leslie. to grant it. And if he needs more time, I would be happy All right? But let's move on. Right now 8 you're not to interrupt the process. 9 10 THE DEFENDANT: Yes, sir. MR. LESLIE: Your Honor, I don't mean to beat a 11 dead horse, and it seems like nothing in this case goes 12 quickly, but I will say this: I appreciate the Court's 13 comments, because I think they will assist me in being a 14 better lawyer in these proceedings without constantly 15 being interrupted and distracted. 16 I will say this, though, I actually do invite 17 Mr. Coughlin to lean over and whisper if he has questions. 18 All I ask is that if I indicate to him to hold on a moment 19 so I can listen, that he honor that. Other than that, 20 though, I don't have an objection to him whispering or 21 pushing me notes during, you know, any portion during the 22 witness examination, as long as he will respect at times I 23 need to waive him off so I can listen, and then he and I 24 can confer. 9 THE COURT: Well, that's fair. 1 2 MR. LESLIE: So I don't want him to feel that he 3 can't talk to me. 4 5 THE COURT: Mr. Leslie, not you. I'm leaving it in the discretion of So if he pushes you off, then you'll 6 have to honor that, but you will have the opportunity 7 again at the conclusion of the cross-examination. 8 right? 9 10 11 12 13 THE DEFENDANT: Yes, sir. THE COURT: All right. Mr. Young. MR. YOUNG: Thank you, Your Honor. NICHOLAS DURALDE, All 14 previously called as a witness by the plaintiff herein, 15 being first duly sworn, was examined 16 and testified as follows: 17 DIRECT EXAMINATION (Resumed) 18 BY MR. YOUNG: 19 Q Good morning, sir. Could you state your first 20 and last name and spell both for the recording. 21 A Nicholas Duralde. First name, N-I-C-H-O-L-A-S, 22 last name, D-U-R-A-L-D-E. 23 MR. YOUNG: Okay. And, Your Honor, this is being 24 recorded, yes? 10 THE COURT: Yes. MR. YOUNG: Thank you. THE COURT: Let me try to raise it. Oh, you're 1 2 3 4 standing up. I'm sorry. I do apologize. I didn't know 5 that you weren't in the chair. 6 MR. YOUNG: I didn't know you were standing 7 either. 8 THE COURT: Well, he was way down in 9 the (inaudible) bottom. 10 11 MR. LESLIE: THE COURT: I do the same thing. It wasn't meant to be that. 12 honest with you, you were so low down in the box. 13 BY MR. YOUNG: To be 14 Q Sir, could you tell the Court with whom you're 15 currently employed? 16 17 18 19 A Q A Q The Reno Police Department. How long have you been so employed? Approximately five and a half years. Could you tell the Court the trainings that you 20 did to become an officer from -- 21 A I participated in a 19-week POST academy and 22 after graduating that went to a 16-week field training 23 program. 24 THE COURT: I'm sorry, what kind of training? 11 1 2 THE WITNESS: THE COURT: Field training program. Oh, field. I just didn't hear. 3 BY MR. YOUNG: 4 5 Q A What did the field training consist of? The trainee officer is coupled with a tenured 6 training officer, who basically works from the training 7 officer, observing to, by the end of the training program, 8 the trainee officer is tracking all tasks relative to the 9 job. 10 11 12 THE COURT: Did you say "ten year" or "tenure"? THE WITNESS: Tenured. THE COURT: Tenured, okay. 13 BY MR. YOUNG: 14 15 16 Q A Q And did you graduate or pass the POST academy? Yes. And did you pass or graduate from this field 17 training program? 18 19 A Q Yes. In the five and a half years as an officer, have 20 you received updated trainings throughout that time? 21 22 A Q 23 well? 24 A Yes. Okay. And have you passed all those trainings as Yes. 12 Q Okay. Sir, I'm going to direct your attention to 1 2 August 20th of 2011. Were you working on that night, on 3 that day? 4 5 A Q 6 court? 7 8 9 A Q A Yes. And did something happen which brings you here to Yes. Could you tell the Judge what was that, please. Initially I was dispatched to a report of a 10 disturbance or possible fight in the area of the plaza at 11 First and Virginia Streets. While I was driving there 12 dispatch updated us saying that larceny of a phone had 13 occurred. 14 Q The location that you just described, is that 15 here in Reno? 16 17 18 19 A Q A Q Yes. Washoe County, Nevada? Yes. And so that being the area of 10 North Virginia 20 Street and 1 North Center Street; is that correct? 21 22 A Q Yes. And could you tell the Court as far as landmarks 23 here, so the Judge is familiar, what area of town you're 24 talking about? 13 1 A That plaza is bordered on one side by the Truckee 2 River, on the south side by the Truckee River, north side 3 by First Street, on the west side by Virginia Street, on 4 the east side by North Center Street. 5 Q 6 scene? 7 8 9 A Q A Okay. Yes. Okay. When you arrived -- did you arrive on And what did you see or notice? When I arrived there was a group of people on the 10 Center Street bridge. 11 Q That's fair. Did dispatch advise you of a 12 specific subject or give you a description of a specific 13 subject 14 15 16 17 A Q A Q Yes. -- that was the subject of the call? Yes. Okay. And did you see an individual matching 18 that description? 19 20 21 22 A Q A Q Yes. Okay. Yes. Is that person in the courtroom today? Could you tell the Judge, point out what he's 23 wearing today. 24 A Mr. Coughlin was that person. He's wearing a 14 1 beige sui t . 2 3 MR. YOUNG: THE COURT: Okay. Your Honor -- The record will reflect the 4 identification of the defendant, Mr. Coughlin. 5 BY MR. YOUNG: 6 Q Okay. Did you have any contact with 7 Mr. Coughlin? 8 9 10 A Q A Yes. Okay. Could you tell the Court how that began? The first thing I recall saying to Mr. Coughlin 11 was that if he had someone's phone that he could probably 12 give the phone back and the whole issue would be settled 13 at that time. 14 15 16 17 Q A Q A Okay. Yes. And did Mr. Coughlin respond to you? What did he say? He asked me if I had enough information for a 18 Terry stop. 19 20 Q What happened next, sir? Well, let me -- let me strike that question. Did you ultimate -- without telling 21 us what -- specifically what others told you, did you have 22 the opportunity to meet with other individuals on scene? 23 24 A Q Yes. Do you recall the names of those individuals? 15 1 2 A Q Yes; Cory Goble and Nathan Zarate. Okay. And did they give you information, again, 3 without giving specifics, which assisted you in your 4 investigation? 5 6 A Q Yes. All right. I will ask you if either of them told 7 you a specific location of one of their phones? 8 9 10 11 12 A Q A Q A Yes. And do you recall who that was? I recall both. Okay. And what was that location? That location - - it was stated that Mr. Goble's 13 phone was in the defendant's left front shorts pocket. 14 15 16 Q And did he? MR. LESLIE: MR. YOUNG: Objection; hearsay. And I'm only using that, Your Honor, 17 not for the truth, but just to establish what was done 18 next as part of the effect on the hearer as part of the 19 investigation. And I'm asking you not to consider his 20 testimony in that regard for truth of the matter. 21 22 what? 23 24 THE COURT: MR. YOUNG: THE COURT: His testimony in that regard as to I'm sorry? His - - not consider his testimony for 16 1 what purpose? MR. YOUNG: I asked what -- what was -- what he 2 3 4 5 was advised. And he advised he recalled both saying -- THE COURT: Well, I heard -- MR. YOUNG: -- the phone was in Mr. Coughlin's 6 left front shorts pocket. 7 THE COURT: But what is the purpose of that 8 testimony? 9 MR. YOUNG: Well, it's going to show what he 10 subsequently did as part of this investigation. 11 12 13 Honor. 14 THE COURT: MR. YOUNG: THE COURT: All right. So it's -- Effect on hearer essentially, Your All right. Then I'm going to 15 overrule the objection. 16 BY MR. YOUNG: 17 Q Sir, what was -- was Mr. Coughlin ultimately 18 placed into handcuffs? 19 20 21 A Q A 22 commands. 23 Q Yes. And for what purpose was that? Mr. Coughlin was very hesitant to follow Okay. All right. Now getting back to your 24 investigation regarding a phone; did you take any actions 17 1 to determine whether or not Mr. Coughlin, in fact, had 2 Mr. Goble's phone? 3 4 A Q 5 those? 6 A Yes. And what actions were those or what steps were I stood near Mr. Coughlin and I called the phone 7 number that Mr. Goble had given me, his phone number. 8 Q And so Mr. Goble gave you -- when you say, "his 9 phone number," Mr. Goble's phone number? 10 11 A Q 12 happened? 13 14 15 16 17 18 A Q A Q Yes. Okay. And when you called that number, what I could hear the phone vibrating. Okay. From where? From the area of Mr. Coughlin's left front. Did you, for lack of a better word THE COURT: You heard the phone or a phone? THE WITNESS: I heard a phone. 19 BY MR. YOUNG: Q Okay. And at this point had you -- had anybody 20 21 identified a phone as Mr. Goble's phone to you? In other 22 words, had you seen Mr. Goble's phone at this juncture? 23 A No. 24 Q Okay. Had Mr. Coughlin handed you over any phone 18 1 identified as Mr. Goble's phone? 2 3 A Q No. So you heard a phone. Was that was what you 4 heard concealed on Mr. Coughlin's person or out in the 5 open? 6 7 8 9 A Q A Q Concealed on his person. Did you stop calling that phone number? Yes. And again, when you terminated, for lack of a 10 better word, that phone call, did you notice anything? 11 A Yes. When I terminated the phone call the 12 vibrating stopped. 13 14 Q A Okay. At that juncture what happened? At that juncture I determined that Mr. Coughlin 15 was in possession of Mr. Goble's phone . Q Okay. And you did what? 16 17 18 A I placed him under arrest. Q Okay. And then what? In other words, did you 19 take any steps to retrieve the phone or a phone? 20 A Yes. Performed a search incident to arrest of 21 Mr. Coughlin and took the phone that had been in the left 22 front pocket out of the pocket. 23 Q Okay. Did you specifically reach in and ,grab 24 that phone? 19 1 2 A Q Yes. Okay. Did Mr. Coughlin at any time hand the 3 phone over to you? 4 5 6 7 A Q A Q No. Okay. Yes. And he was under arrest at this juncture? When you say, "search incident to arrest," could 8 you describe to the Court what that is. 9 A A search incident to arrest is an arrest -- I'm 10 sorry, a search after someone's been taken into custody. 11 We know that they're being transported to the jail and we 12 take everything out of their pockets to assure they have 13 nothing illegal or anything that can be used against an 14 officer that's transporting them. 15 Q Prior to your securing or seizing the phone after 16 his arrest, had you at any time gone into Mr. Coughlin's 17 pockets prior to that time? 18 19 20 21 A Q A Q No. As part of the search, I mean? No. Okay. Did you take any steps to determine whose 22 phone that was? 23 24 A Q Yes. What did you do? 20 A The phone had a password on it. I asked 1 2 3 Mr. Goble for the password. He was unable to provide 4 Hearsay. 5 6 MR. LESLIE: THE COURT: MR. LESLIE: I'm going to object, Your Honor. That he asked? Well, Your Honor, anything that 7 Mr. Goble says would be hearsay. 8 9 10 11 12 heading. 13 14 MR. YOUNG: That's fine. MR. LESLIE: I mean I -- THE COURT: All right. Well, I -- MR. LESLIE: think that's where we are THE COURT: -- will sustain MR. LESLIE: And I'm trying to be 15 contemporaneous. 16 THE COURT: -- the objection. What Mr. Goble 17 said, but not as to what the officer said. 18 19 MR. LESLIE: Right. MR. YOUNG: And that's fine, Your Honor. 20 BY MR. YOUNG: 21 Q Did you take steps to determine whether or not 22 that phone that you seized out of Mr. Coughlin's pocket . 23 was in fact Mr. Goble's phone? 24 A Yes. 21 1 2 3 4 5 6 7 8 9 10 Q A Lack of Honor. Okay. Were Yes. MR. LESLIE: foundation. MR. YOUNG: MR. LESLIE: THE COURT: MR. YOUNG: THE COURT: you able to make that determination? I'm going to object, Your Honor. I f I can, a -- Calls for an ultimate conclusion. Well Part of his investigation, Your Okay. I will sustain the objection 11 as to the conclusion, but not as to whether or not taking 12 steps to determine who the owner was. And I guess he can 13 question as to what steps he took and 14 MR. YOUNG: Could I approach and collect Exhibits 15 either A and B or 1 and 2, whatever they are? 16 THE COURT: Sure. I don't know if I have them. 17 I do. 18 Are these the exhibits you're talking about? 19 MR. YOUNG: Yes. And these have previously been 20 admitted. 21 THE COURT: They were admitted at the motion to 22 suppress. 23 BY MR. YOUNG: 24 Q As part of your investigation in determining or 22 , 1 taking steps to determine if the phone you recovered was 2 Mr. Goble's, did you take photographs of the phone that 3 you recovered? 4 5 6 7 8 9 10 11 12 A Q Yes. Okay. Taking a look at Exhibits A and B, that have been admitted. Do you recognize those photographs? A Q A Q A Q Yes. What are those, sir? Those are photographs of the phone. Who took those? I did. Okay. And those is that the phone in question 13 that we're talking about? 14 15 A Q Yes. Okay. What did you do with that phone at the 16 conclusion of your investigation? 17 A I completed a photo release certificate, where I 18 documented the phone by photographing it and then gave it 19 back to Mr. Goble. 20 Q Okay. And are those pictures true and accurate 21 photographs of the phone that you collected? 22 23 24 A Q A Yes. So it was returned to Mr. Goble? Yes. 23 Were you -- what was your attire that night? In a full police uniform. 1 2 3 Q A Q Okay. And you arrived or drive up to the scene, 4 correct, in a patrol car? 5 A Yes. 6 Q Was that a marked patrol car? Yes, it was. 7 8 A Q Identifying it as a Reno Police Department 9 vehicle? 10 11 12 13 A Q A Q Yes. Lights on top? Yes. And the whole nines? Okay. 14 Mr. Coughlin hand you this phone? No. At any time did 15 16 17 18 19 A Q At any time did Mr. Coughlin indicate to you that he had a phone? In other words, Mr. Goble's phone? No. A Q And that was a bad question. At any time did 20 Mr. Coughlin advise you that he had Mr. Goble's phone? 21 22 A Q No. I'm not sure if you remember, let us know. About 23 from the time you arrived on scene until the time of 24 Mr. Coughlin's arrest, can you estimate how long we're 24 1 talking? 2 3 4 A Q clear. I would estimate five minutes. Okay. And I just want to make sure that I'm You advised that when you called the number that 5 was Mr. Goble's number that was provided to you, you said 6 that it was -- how do you know it was vibrating? I don't 7 know if I quite caught that. 8 9 10 11 12 13 14 15 A Q I could hear it. Okay. MR. YOUNG: That's all, Your Honor. Thank you, Officer. THE COURT: Mr. Leslie. MR. LESLIE: Court's indulgence, Your Honor. THE COURT: Yeah. MR. LESLIE: I'm just going to confer with 16 Mr. Coughlin real quick. 17 Thank you, Your Honor. I just wanted to talk to 18 Mr. Coughlin before starting the cross-examination. 19 20 THE COURT: MR. LESLIE: All right. Your Honor, do you object to me 21 sitting while I examine the witness? 22 23 24 III THE COURT: MR. LESLIE: No, I do not. Thank you, Judge. 25 1 CROSS-EXAMINATION 2 BY MR. LESLIE: 3 Q Officer, you indicated that you were originally 4 dispatched to what you described as a disturbance or a 5 possible fight; is that correct? 6 7 A Q Yes. And that before you arrived on scene, dispatch 8 updated you and said that it might have something to do 9 with the larceny of a phone? 10 11 A Q Yes. Do you recall testifying previously at the motion 12 to suppress? 13 14 15 16 A Q A Q Yes. And that was last week? Yes. And my notes reflect that all you said at that 17 point with regard to the update on the numerous occasions 18 that both counsel asked you about the updated information 19 from dispatch was that the update was that it might be a 20 larceny. Do you recall that? 21 A I don't. 22 Q So you said back at the suppression hearing that 23 the update information from dispatch was that it might 24 involve a larceny, but you're saying today for the first 26 1 time that dispatch told you it might involve the larceny 2 of a phone? 3 4 A Q Yes. Okay. So your testimony changed from the time of 5 the suppression hearing last week to today in that regard? 6 7 A Q Yes. Do you have any reason to protect yourself in 8 this case by making sure this case results in a conviction 9 so that you don't get sued based on threats that 10 Mr. Coughlin may have made? 11 12 13 14 15 A Q No. You're aware that he's made such threats? MR. YOUNG: I'm just going to object, not to the question, but threats to who? It may be a vague question. MR. LESLIE: I can clarify. 16 BY MR. LESLIE: 17 Q You're aware that Mr. Coughlin has previously 18 indicated the possibility of filing suit based on his 19 perception of how he was treated with regard to the 20 contact you had with him that night? 21 22 23 24 A Q A Q I honestly don't recall that. You've not been made aware of that? I don't recall it. So you don't recall whether anybody made you 27 1 aware of that? 2 3 A Q No. So they could have made you aware of that, you 4 just don't recall that at this time; is that -- 5 6 A Q No. -- is that possible? I'm trying to nail down 7 whether you're saying I was told about that, but I don't 8 remember it or I've never been told about that or I have 9 10 been told about that. Could you help clarify that for us? A If any threats had been made, a lawsuit against 11 myself reference my contact with Mr. Coughlin, I'm not 12 aware of it. 13 Q Okay. And you indicated when you first arrived 14 on scene -- and some of this may be redundant to what you 15 testified to last week -- thank you. 16 Pardon me. 17 THE COURT: No problem. 18 BY MR. LESLIE: 19 Q You indicated when you arrived on scene that you 20 were uniformed? 21 22 23 24 A Q A Q Yes. You had a gun -- Yes. -- that was visible to the public? 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 A Q A Q A Q A Q A Q A Q A Q Yes. You arrived in a marked police car? Yes. With lights and sirens? My lights and sirens weren't active in the day. But I mean they are on the vehicle? They are on the vehicle, yes. And you're RPD, is it? Yes. So it's the black and white police car? Yes. Recognizable to the public as a police car? Yes. Okay. Now when you first arrived on scene, you 15 got out of your vehicle, and I believe one of the first 16 things you noticed was a large group of people surrounding 17 Mr. Coughlin? 18 19 A Q Yes. And I think we established that that was anywhere 20 from, in your estimation, 8 to 12 people ranging in age 21 from a parent to teenagers to early 20s? 22 23 24 A Q A Yes. And they were agitated? Yes. 29 1 Q They appeared to be angry or hostile towards 2 Mr. Coughlin, from what you could tell? 3 4 5 6 7 8 9 10 A Q sides? A Q within them? A I Yes. And they were effectively surrounding him on all Yes. Some of them were seated next to him very close, think you indicated six to eight inches, some of Yes. He was sitting down, and on either side of 11 him was someone sitting next to him. 12 Q Okay. And was anyone behind him? 13 14 A Q No. Was there any railing or any obstruction behind 15 him that would have prevented him just leaving in that 16 direction behind him? 17 18 A Q He was sitting on a railing. Okay. And he was sitting in such a way that he 19 was down lower than the people who were standing? 20 21 A Q Yes. Okay. And so the railing he was sitting on I 22 think you said was only about 18 inches off the ground? 23 24 A Q Yes. Okay. And so just to kind of clarify what I'm 30 1 asking about with regard to anything being behind him; was 2 there any obstruction, railing, wall, et cetera, behind 3 him as he sat in that position? 4 A There was nothing behind him. The street was 5 behind him other than the railing he was sitting on. 6 Q Okay. And were there any of these young people 7 positioned behind him? 8 9 A Q No. Okay. And then some of them were standing within 10 a foot or two of him? 11 A I don't recall how close the people were to him 12 that were standing. 13 14 15 16 17 Q A Q A Q But some of them were standing? Yes. In front of him? Yes. And would you estimate again, how many -- and I 18 understand it's an estimate, but how many of these people 19 were standing in front of him as opposed to those sitters? 20 21 A Q An estimate would be maybe four or five. Okay. And we heard testimony from another 22 witness, so I don't know what you saw, but did you see any 23 of the persons surrounding him ever put their hands on his 24 bicycle? 31 1 2 3 him? 4 5 A Q A Q Not that I recall. Okay. No. Okay. Did you ever see them put their hands on Would it be safe to say that it appeared 6 that they had him surrounded and he was not in a position 7 to leave? 8 9 10 A Q A Yes. And several of them had skateboards? I recall people having skateboards. I couldn't 11 say how many there were. Q I thought the word "several" might be throwing 12 13 you for a curve. But there were, safe to say, more than 14 one skateboard amongst this group? 15 16 A Q Yes. Okay. And did they, in fact, appear to be a 17 group of people including some skaters, for lack of a 18 better term? 19 A Yes. 20 Q Okay. Safe to say a skateboard could be used to 21 inflict serious bodily harm if swung at and struck a 22 person? 23 24 A Q Yes. Okay. In fact, as an officer, if you were 32 1 confronted with somebody with a skateboard and you thought 2 they were hostile towards you, you would be on alert, so 3 to speak? 4 5 A Q Yes. Mr. Coughlin was not wearing protective clothing 6 that night, he just had shorts, a T-shirt style shirt, and 7 a Chicago ha t? 8 9 10 11 12 A Q A Yes. Okay. Yes. And he was outnumbered? MR. LESLIE: Sorry, Your Honor. I paused there for a moment. I was receiving a call from Las Vegas, but 13 I turned it off. 14 BY MR. LESLIE: 15 Q Now you indicated, I believe, that you handcuffed 16 him partly because he was hesitant to follow your 17 commands? 18 19 A Q Yes. I think we established last time when I asked you 20 if he was annoying, you actually answered more correctly 21 and indicated that you were becoming frustrated? 22 MR. YOUNG: Your Honor, I'm going to object to 23 that as far as relevance. 24 MR. LESLIE: It goes to his bias, Your Honor. 33 1 MR. YOUNG: Your Honor, and that was -- you 2 allowed that at the motion to suppress hearing with 3 respect to suppression. Now that you've ruled on that, it 4 doesn't have any bearing with respect to any material fact 5 in this charge. 6 7 8 MR. LESLIE: Your Honor, I believe it will if you'll -- I mean he already testified to it. All I want to do is confirm that. And I believe that with another 9 couple of questions that Mr. Coughlin has suggested I ask 10 there will be at least a colorable claim of witness bias. 11 And I think the Court should know whether or not this 12 witness 13 14 THE COURT: MR. LESLIE: Okay. I will overrule the objection. Thank you. 15 BY MR. LESLIE: 16 Q I believe that you, based on his behavior towards 17 you, you became frustrated? 18 19 A Q Yes. At some point during your encounter and your 20 interactions with Mr. Coughlin, did you or another officer 21 have any discussion or make any statements with regard to 22 arresting him for a felony versus a misdemeanor? 23 MR. YOUNG: Again, Your Honor, I'm going to 24 object to that as relevance. 34 1 2 3 4 5 proof? THE COURT: MR. LESLIE: I mean I -- THE COURT: MR. LESLIE: What is the relevance? Your Honor, may I make an offer of What is the -- Well, 11m informed and believe that 6 what may have occurred is that one or more of the officers 7 may have said to Mr. Coughlin, lIyou know, why don't we 8 just arrest you for a felony instead of a misdemeanor, 9 because the bail will be higher and we don't have to just 10 issue you a citation, we can haul you up to jail right 11 now. II 12 And 11m trying to establish whether or not there 13 was some sort of motivation or retaliation against 14 Mr. Coughlin. 15 16 17 THE COURT: MR. LESLIE: THE COURT: Well, I don't understand. Can I finish my offer? You don't have to -- well, I just 18 have a question. 19 20 MR. LESLIE: Okay. THE COURT: Whether or not he was charged with a 21 felony or a misdemeanor, they don't have to issue a 22 citation. 23 24 MR. LESLIE: Your Honor. Hold on. Your Honor, this occurred late at night. It was not committed, 35 1 allegedly committed in the officer's presence. It's our 2 position that they may not have been justified in taking 3 him into custody and placing him at the jail that night, 4 5 unless it was for a felony. If he was, in fact, arrested for a felony. He's now charged with a petty larceny, 6 which means that the D.A. has made the determination that 7 the grand larceny was not an appropriate charge. 8 trying to find out if the officer or officers were 9 motivated against -- I'm 10 THE COURT: I'll allow you a few questions, but 11 I -- 12 MR. YOUNG: I'll renew my objection. 13 THE COURT: All right. Objection is overruled. 14 BY MR. LESLIE: 15 Q So was there any such discussion about arresting 16 for a felony versus a misdemeanor? 17 18 19 20 21 A Q A recall Q I don't recall any discussion. By yourself or by other officers? I don't recall any discussion by myself. that Mr. Coughlin was arrested for a felony. But was it your understanding that if you I do 22 arrested him for a misdemeanor, you would not be able to 23 search him incident to arrest, you would instead issue him 24 a citation? 36 1 A As the value of the phone stated to me was $300, 2 and over the grand larceny, 1111 say over the amount for 3 petty larceny, it made it a grand larceny, I didnlt look 4 into whether Mr. Coughlin qualified for a citation or not. 5 Q Mr. Coughlin at one point gave his bar number; is 6 that correct? 7 8 9 THE COURT: MR. LESLIE: THE COURT: 10 BY MR. LESLIE: 11m sorry. At one point Gave his bar number. Oh, gave his bar number. Okay. 11 Q I donlt expect you to remember the bar number, 12 but do you remember him giving his name and then reciting 13 his bar number? 14 A I recall him identifying himself as a lawyer. I 15 donlt recall anything more specific. 16 Q Did you or did any of the other officers in your 17 presence indicate to him that they or you might call the 18 state bar and report him for his behavior? 19 20 A Q I donlt recall. Are you denying that that happened or you just 21 canlt remember one way or the other? 22 23 24 A Q A I donlt remember one way or the other. Okay. So that might have happened then? Yes, it might have. 37 1 2 Q Okay. MR. LESLIE: Courtls indulgence, Your Honor. 3 BY MR. LESLIE: 4 Q At one point prior to actually arresting him, you 5 had placed your hands on him; is that correct? 6 7 10 11 12 A Q Honor. Yes. Okay. And he exclaimed during that something to MR. YOUNG: Objection as to what he thought, Your No way the officer can know that. MR. LESLIE: Very well. 1111 rephrase. 13 BY MR. LESLIE: 14 15 16 17 Q A Q A 18 penis. 19 Q He said, "Donlt touch my penis"? Thatls not what I recall him saying. What do you recall him saying about that issue? I recall him yelling that I was touching his Okay. Was that one of the things that frustrated 20 you about him? 21 MR. YOUNG: Again, Your Honor, 1111 object as to 22 relevance. It doesnlt prove or disprove any fact or 23 consequence. It I S irrelevant. 24 THE COURT: What is the relevance? 38 1 2 MR. LESLIE: THE COURT: Goes to witness bias, Your Honor. Again, I'll allow it for the limited 3 purpose and overrule the 4 THE WITNESS: I don't recall specifically if that 5 made me more frustrated or not. 6 BY MR. LESLIE: 7 Q But in any event, that occurred prior to your 8 determination to arrest? 9 10 A Q Yes. And his -- his hesitance to follow your commands 11 occurred prior to your decision to arrest? 12 13 A Q Yes. And his providing his name and possibly his bar 14 number, but not answering your question, occurred prior to 15 your determination to arrest? 16 17 A Q Yes. And his questioning whether you had authority 18 under Terry occurred prior to your determination to 19 arrest? 20 21 A Q Yes. And your frustration, as you described it at the 22 last hearing, existed prior to your determination to 23 arrest? 24 A Yes. 39 1 Q About how long was it between the time that you 2 first observed Mr. Coughlin being encircled by the hostile 3 young people and the time that you determined to arrest 4 him? 5 A Best estimate would be between five and ten 6 minutes. 7 Q And how much time took place between when you 8 initially arrived on scene and you saw, put eyes on, who 9 you now identify as Mr. Coughlin? 10 A Very short period of time. I'd say no more than 11 15 seconds. 12 13 14 Q A Q Okay. Yes. Okay. Immediate? And how much time between your initial 15 arrival and when you detained him? 16 A I made the determination that he was not free to 17 leave when I saw him and he fit the description given by 18 dispatch. 19 Q Okay. And then how much time between the time 20 you initially arrived and the time you placed him in 21 cuffs? And was it you that placed him in the cuffs? 22 23 A Q Yes. Okay . So how much time between your initial 24 arrival on scene and then clicking the cuffs on to his 40 1 wrists? 2 3 4 5 A Q A A couple minutes. Two minutes? Two to three minutes, perhaps. MR. LESLIE: Your Honor, I know this has been a 6 long trial, but I need a short break to review a video 7 clip that mayor may not be subject of further 8 cross-examination, but I need to double-check its contents 9 before I proceed. 10 11 THE COURT: MR. LESLIE: How long do you think it will take? Not long. No more than ten minutes. 12 The county laptop takes a little while to boot up, but 13 then it should be just a few minutes beyond that. It's a 14 short clip. 15 And the reason I'm asking for this is I'm aware 16 of the contents and I have an opinion 17 18 THE COURT: give you the time That's fine. My question is I'll I'm just wondering if we should 19 reconvene at 1:30 or reconvene at ten to 12:00 and then 20 MR. LESLIE: I would suggest we reconvene at ten 21 to 12:00. 22 THE COURT: You're only going to take a couple 23 minutes? 24 MR. LESLIE: I'm going to review it and -- 41 1 THE COURT: All right. Then we'll take a 2 10-minute recess. 3 4 5 MR. LESLIE: Thank you, Your Honor. THE COURT: Hopefully we'll finish. But I am going to have to stop promptly at noon. We are scheduled 6 for the afternoon as well. 7 8 9 10 11 12 13 14 15 Honor. MR. LESLIE: I figured we were. THE COURT: I'm sorry. MR. LESLIE: I figured we were. THE COURT: All right. (Recess taken. ) MR. LESLIE: Thank you for that break, Your I think we can go back on the record. THE COURT: All right. Would you please come up. You're still under 16 oath. 17 (Witness resumed the witness stand.) 18 19 20 21 THE COURT: Mr. Leslie. MR. LESLIE: Yes, Your Honor. Just a moment. Your Honor, it's apparent we're not going to wrap up this cross-examination by noon. I wonder if we could 22 go ahead and recess until the 1:30-hour, and then I can 23 finish my cross-examination. And frankly, with the 24 intervening lunch hour, I can probably make sure to make 42 1 the cross-examination more efficient. 2 3 THE COURT: MR. YOUNG: All right. Any- objection? I'm kind of open just to power 4 through, but I understand. 5 6 7 THE COURT: MR. YOUNG: THE COURT: Well, I was too. Is that an option? I would not have continued, I would 8 have continued to 1:30 before, but I was hoping that based 9 on representation you might be through by 1:00 -- by 10 12:00. 11 12 I will continue, then, until 1:30 and apologize to the officer for the delay, Mr. Young as well. But I do 13 want to make sure that we give all parties an opportunity 14 15 16 17 to be heard. So we'll see you back then. MR. LESLIE: Thank you, Judge. (Lunch recess taken.) THE COURT: Please be seated. Is Mr. Leslie 18 here? 19 Are you ready to do your cross? 20 21 22 23 24 MR. LESLIE: Yes, Your Honor. THE COURT: All right. We need Officer Duralde. Do you want to come back up. Or Duralde (pronouncing). THE WITNESS: Duralde, sir. THE COURT: Duralde (pronouncing) I'm sorry. 43 1 MR. YOUNG: Are we back on the record, Your 2 Honor, I guess. 3 4 5 6 7 THE COURT: THE CLERK: THE COURT: Are we on the record? Yes. Okay. This is case of State v. Zachary Barker Coughlin. And we are back on the record. This is Case 06-3341. And you are sworn. And so if 8 you'll just retake the stand. 9 10 11 Mr. Leslie. MR. LESLIE: any further questions. Your Honor, I don't believe I have I have conferred with 12 Mr. Coughlin, and I can't get any straight answers out of 13 him about any additional materials. I have no further 14 questions at this time. 15 THE DEFENDANT: Your Honor, earlier did you 16 indicate I'd have an opportunity to confer with Mr. Leslie 17 at the conclusion of his cross? 18 19 20 THE COURT: Well, you did. THE DEFENDANT: No, I didn't, sir. MR. LESLIE: I'm happy to take five more minutes, 21 if the Court, please. 22 23 24 requests. THE COURT: All right. MR. LESLIE: To afford Mr. Coughlin the time he 44 1 THE COURT: I will give you five more minutes and 2 that's it, Mr. Coughlin, because we had an intervening 3 period of almost ten minutes before lunch. 4 5 me. 6 7 8 THE DEFENDANT: Mr. Leslie refused to meet with THE COURT: You were out in the hall with him. THE DEFENDANT: No, I wasn't. MR. LESLIE: Anyway, Your Honor, if we want to 9 take the five minutes. 10 11 THE COURT: All right. MR. LESLIE: It will probably take 15 minutes to 12 argue the point or we can take the five minutes. 13 THE COURT: Okay. I will give you five minutes, 14 but that's it. 15 16 17 MR. YOUNG: THE COURT: I'll step out, Your Honor. (Recess taken.) All right. The record will reflect 18 that Mr. Coughlin was given the opportunity to consult 19 with counsel. 20 21 THE DEFENDANT: No, sir, Your Honor, I wasn't. THE COURT: Well, that is the record. But I -- 22 if you want to do it in court with me present, you can do 23 that. 24 THE DEFENDANT: Do what, Your Honor? 45 1 THE COURT: Consult with him. You just went 2 outside to consult with him. 3 4 THE DEFENDANT: No, I went outside and Mr. Leslie wouldn't meet me out there. Then Bailiff Sexton 5 ordered 6 7 THE COURT: Mr. Leslie -- THE DEFENDANT: -- me to meet him in the hallway 8 where witnesses could -- 9 10 THE COURT: All right. I'm not going to play any more games, Mr. Coughlin. You can talk to him right here. 11 I will ask Mr. Young and the other people in the courtroom 12 who are not court personnel to step outside. I'll give 13 you four minutes now. 14 15 16 MR. YOUNG: MR. LESLIE: I'll leave right now, Your Honor. (Recess taken.) I'm going to make a record as well, 17 Your Honor, with regard to the client's competency. 18 THE COURT: All right. We are ready to proceed. 19 And the Court, during the recess, did personally observe 20 Mr. Coughlin talking to his counsel, although I did not 21 listen to anything or hear anything, other than 22 whispering, but I believe that there has been an attempt 23 to communicate with Mr. Coughlin. And we will proceed. 24 MR. LESLIE: Your Honor, if I may, it's my belief 46 1 that Mr. Coughlin is not legally competent to proceed at 2 this time. I'm going to make a motion for the Court's 3 determination of whether Mr. Coughlin should be examined 4 by a psychiatrist to determine if he's legally competent. 5 THE COURT: 6 examined 7 8 9 MR. LESLIE: THE COURT: MR. LESLIE: THE COURT: So at this point the shouldn't say that. Well, I believe he was already I believe he was in this case. I believe he was. And was determined to be competent. motion will be denied. I - - well, I I will give you a chance to argue 10 11 12 13 further. I mean I don't know if there's been a change in 14 circumstances, since 15 MR. LESLIE: Well, I think it's just based on the 16 record as a whole. It's - - I think for the - - to a large 17 extent it's the observations the Court has made of his 18 behavior and his reasoning and mental state. 19 Yeah, I'm just raising the issue. I have a 20 question in my mind, so (noise in audio.) 21 THE COURT: Well, I have a question in my mind, 22 but I'm not a psychiatrist, and I've tried to have him 23 examined on multiple occasions in different cases, and in 24 every case they ruled he was competent. 47 1 2 MR. LESLIE: THE COURT: Okay. I shouldn't say "they" ruled. The 3 district court ruled he was competent, based upon the 4 psychiatric evaluation. I don't know if it was an actual 5 psychiatrist. 6 7 8 MR. YOUNG: There was two separate ones, Your Honor. There was a psych competency evaluation in this case and then there was a where he met with one. I 9 don't know if it was a social worker or otherwise, but one 10 11 individual. And there was in a separate case a competency evaluation where he met with two separate doctors. In all 12 evaluations he was found competent. 13 I don't know if there's been a change between 14 then and now or if it's just Mr. Coughlin's behavior 15 that's posing the difficulties. But, you know, I 16 certainly, you know, it's not my call whether -- what to 17 do. Since it's been raised, I'll defer to the Court if 18 you feel it's appropriate to conduct a brief hearing 19 again, I'll step out. You can ask any questions, just so 20 you can determine whether it's warranted or not. 21 THE COURT: I'm willing to have him examined 22 again, but I do want to finish with this witness. And 23 he's been here multiple times and he's on the stand, and I 24 believe at least Mr. Leslie, you can question him. So, if 48 1 you have any questions. 2 MR. LESLIE: Yes. 3 CROSS-EXAMINATION (RESUMED) 4 BY MR. LESLIE: 5 Q Officer, do you have any relation to the 6 dispatcher that dispatched you to the scene in this case? 7 A I don't recall who the dispatcher was, but my 8 wife is a dispatcher. 9 Q 10 case? 11 12 A Q And to your knowledge was she involved in this Not to my knowledge. Very well. Did you notice any inconsistencies 13 when you arrived on scene between what the different 14 witnesses were telling you had happened? 15 16 A Q Not that I recall. Do you recall any inconsistency between 17 Mr. Goble's and Mr. Zarate; one saying that Mr. Coughlin 18 had allegedly taken the phone from some third party that 19 nobody knows who they are, and then the other saying that 20 Mr. Coughlin just picked the phone up directly from where 21 it was lying? 22 23 A It was my impression at the time of the case -- I don't have any recollection of the third party. I was 24 later reading Mr. Zarate's statement and noticed that the 49 1 third party was listed in it. But at the time of the 2 incident I didn't have any knowledge of that. 3 4 5 6 7 8 9 MR. LESLIE: I don't have any further questions. THE COURT: Mr. Young, do you have any questions? MR. YOUNG: THE COURT: No, Your Honor. You're free to go. Thank you. I do note we have -- are you a witness, sir? AUDIENCE MEMBER: No, sir. THE COURT: Okay. Then I -- in light of the 10 conduct of these proceedings and everything that's 11 happened herein, I do believe there's at least a question 12 as to Mr. Coughlin's competency, going all the way back to 13 the initial offer to -- offered by the prosecution and 14 what happened on the first day when we were here for the 15 better part of an hour and a half. 16 So I -- reluctantly I'm going to order another 17 competency evaluation. But this time I am going to ask 18 both counsel to provide the evaluator with any 19 documentation or anything else that you might have with 20 respect to the competency and ask the evaluator to review 21 his prior competency hearings, especially the one at 22 NNAMHS, when he went there. And it's my understanding 23 there was something that happened there as well. 24 MR. YOUNG: Your Honor, in my statement just 50 1 previously with respect to an inquiry, obviously I have no 2 inside information as to what Mr. Leslie is seeing, beyond 3 what we've all seen through the course of the defendant's 4 conduct in open court. It certainly seems to me -- like I 5 said, every evaluation has come back, he's been found 6 7 competent, and it just it raises a significant concern to the State that this is a it is just Mr. Coughlin 8 being difficult and putting in issues that really aren't 9 there. 10 And so I'm not faulting Mr. Leslie. If 11 Mr. Leslie feels that that's necessary or appropriate, I'm 12 not going to challenge that, but it just seems that 13 Mr. Coughlin, through all his actions, certainly is 14 competent, he's just being very obstructionist with all of 15 his dealings with certainly myself and in some of the 16 e-mails I get from him. And again, I can't speak for Mr. Leslie. So I'll 17 18 defer to the Court. But it's just a little pondering to 19 me with where we're at at this time with what the 20 defendant is doing. 21 THE COURT: I understand that. My problem is 22 that his conduct is definitely obstructionist, but at the 23 same time it's not rational in terms of what's been 24 offered to him. And I have had multiple cases with him, 51 1 2 this is not the first. And overall, he has not acted in a way that is rational to me. And I've dealt with thousands 3 of people in this courtroom, and he is definitely -- I'm 4 going to say unusual. So and I -- so I am going to ask 5 one more time that an evaluation be done in light of 6 what's happened in this case. And if it comes back he's 7 competent, we'll finish the trial. 8 But I will advise you sir, Mr. Coughlin, if it 9 comes back that you are competent then I believe you are 10 obstructionist, so we will finish this in a reasonable 11 time frame in short order. 12 Now I don't know how many witnesses, do you have 13 any left? 14 15 MR. YOUNG: THE COURT: No, Your Honor. Mr. Leslie, I'm not asking you to 16 identify witnesses or anything right now, but if we 17 continue the trial, how long do you anticipate the 18 defendant will take? 19 20 21 MR. LESLIE: his behavior. I -- THE COURT: It depends a lot on Mr. Coughlin and Well, his behavior is going to be 22 very different if we continue the trial, because I'm going 23 to have another determination of competency, and I'm not 24 going to put up with any additional interruptions. We 52 1 will just go straight through. 2 3 4 MR. LESLIE: I -- you know, we need to determine if he's going to testify. would have any witnesses. Other than that I doubt that I If I had any, it would be 5 short. 6 THE COURT: All right. 7 MR. LESLIE: I mean if this were other than his 8 behavioral issues, I would think when we come back I 9 should think we'll be done in an hour or less. 10 11 12 13 THE COURT: Typically, my experience has been these take about 30 days. But I don't know how long it will take. So do we have the competency order here? All right. I will sign an order today and then 14 we'll reschedule once we get a determination. 15 MR. LESLIE: Well, I would ask that a status 16 hearing be set so we have no dispute as to his appearance. THE COURT: All right. Well, then I'm going to 17 18 set it out. Mr. Young, do you have any preference for a 19 time frame? 20 MR. YOUNG: Your Honor, taking into light the 21 time it takes to get the evaluation, I would ask for it as 22 soon as possible, but I'll certainly defer to the Court 23 and counsel. 24 MR. LESLIE: I think if you put it in your order, 53 1 Lake's Crossing could turn it around in two to 2 three weeks. I mean that was done at the district court 3 level. 4 THE COURT: Well, I do want it to be a 5 psychiatrist, in my mind, not a social worker. So I am 6 going to request that it be a psychiatric evaluation. 7 8 9 Yes, sir? THE DEFENDANT: Your Honor, if I may speak. had two previous psychiatric evaluations done. And in I've 10 neither of those cases, and so far not in this case, has 11 anyone articulated a specific bases for why they feel 12 13 they're done. And I believe the NRS requires that to be -- to be made on the record. I would like an 14 indication of just exactly how I've put the question in my 15 competency into play beyond a broad allegation of, "Well, 16 it speaks for itself, just his conduct throughout 17 everything. " 18 THE COURT: Well, I will specifically indicate, 19 sir, that number one 20 THE DEFENDANT: I'm sorry, Your Honor. I meant 21 with regard to the public defender has never articulated 22 their bases for doing so. 23 MR. LESLIE: Well, Your Honor if he disputes 24 it -- 54 1 2 THE DEFENDANT: Whether -- MR. LESLIE: And if he disputes it, and you think 3 he's competent to proceed, I was just raising the issue. 4 I mean, I don't have anything to add in terms of, you 5 know, summarizing his behavior and his mental state other 6 than what youlve seen in these various proceedings. 7 THE DEFENDANT: I think that would be obstructive 8 to me. 9 THE COURT: Sir, wait a second. So you -- it's 10 your position youlre competent to finish this trial? 11 THE DEFENDANT: That -- I didn't put forward a 12 position in that regard. I said live never been given a 13 specific articulated bases for why the public defender 14 feels that that's an issue. They merely rest on, "oh, 15 well, it's obvious, it speaks for itself." 16 No. I would like a specific, articulated, 17 serious bases for why the public defender feels my 18 competency is an issue, because to me it seems like these 19 competency evaluations are either brought for a 20 retaliatory reason or used as some sort of shield for the 21 public defender at times. 22 23 THE COURT: I will tell you, my only concern is I do not want to be unfair to you in these proceedings. If 24 you are competent, then you can go forward and you can 55 1 make an informed decision as to whether or not to testify, 2 then I have no problem with finishing it. My concern is 3 that the behavior you have displayed is not rationale in 4 terms -- I think I've said this before -- I believe that 5 you are a brilliant person, very smart, very articulate, 6 but you also have focussed on minutia to the point where 7 it is counterproductive, both to your defense and to the 8 way you live your life. 9 I mean, I've seen you many times, Mr. Coughlin, 10 in rental cases, in criminal cases, I know your conduct or 11 alleged conduct when you went for your mental health 12 evaluation, I've heard similar -- and again, it's hearsay, 13 but similar things that occurred at the PD's office, 14 similar things have occurred downstairs. As chief Judge, 15 I've been informed both in writing by you and others that 16 there have been disputes. And even today during one of 17 these proceedings, you indicated something about the 18 bailiff putting his foot in an inappropriate place. 19 So I mean there is this hostility between you and 20 some people who mean you know harm at all, who actually 21 22 23 24 want to help you. And yet you're constantly assuming that everyone is out to get you here . And we're not. As a fellow member of the bar. I wish this had never happened to you. I wish we weren't here today. 56 1 So I want to give you a fair shake. And at the 2 same time if you feel that you're ready to proceed and 3 ready to go, then let's finish it. 4 THE DEFENDANT: I asked for an articulated bases 5 to be put into the record or at least indicated to me by 6 the public defender justifying any of these three 7 previous, I did not make a statement with regard to 8 whether I felt they were appropriate or not or as to my 9 competency. I just stated that the law requires that by 10 motion they put an articulated basis for why they are so 11 moving for one. And I think that might me -- 12 THE COURT: Well, I think the Court can sua 13 sponte do it, too. THE DEFENDANT: And if that's -- THE COURT: And I'm you know what, we're going 14 15 16 to go forward. Not only that, if you don't want 17 Mr. Leslie to represent you, you want to represent 18 yourself, I will allow you to do that, too, for the rest 19 of this, because you have things that you feel he didn't 20 do, you can do them. 21 22 23 MR. YOUNG: THE COURT: MR. LESLIE: 24 Mr. Coughlin. Your Honor -- Do you want to proceed or what? I think the question is to 57 1 THE DEFENDANT: Let the record reflect Mr. Leslie 2 is smiling at me at this moment. 3 THE COURT: I'm talking to Mr. Coughlin. 4 THE DEFENDANT: I certainly think the extent to 5 which the Court and Mr. Leslie have interjected my 6 competency into this at this point makes it perhaps 7 8 required to have a competency evaluation done. But yes, I would prefer to represent myself. The Court's already 9 ruled on that. 10 THE COURT: Well, if you're found to be 11 competent, I see no reason you can't represent yourself. 12 My reason for proceeding with Mr. Leslie in this case is 13 because I did not think you were competent to represent 14 yourself. 15 THE DEFENDANT: And the bases for rejecting the 16 plea agreement, was that based on competency? 17 MR. YOUNG: Your Honor if I may, as to any sort 18 of plea negotiations, that is not appropriate to bring in 19 the record. 20 21 THE COURT: MR. YOUNG: That's fine. As far as the competency evaluation; 22 you ordered the evaluation, I have not heard Mr. Coughlin 23 say that he feels he is competent. What my suggestion 24 would be, because he has now interjected himself into this 58 1 case, to preserve the record, I would suggest we go 2 forward with the evaluation as you've already ordered, we 3 will set this out. 4 5 THE COURT: MR. YOUNG: All right. And well get that. As to whether 6 Mr. Coughlin is going to represent himself, that is an 7 entirely separate issue. And, frankly, should not be 8 decided -- because there's an order for competency 9 pending, should not be addressed now. We can address that 10 later, but it's a totally separate issue, whether he's 11 competent to proceed. 12 The final thing I'd like to ask is just what the 13 Court's inclination is as to Mr. Coughlin's custody status 14 pending the psychological evaluation. 15 16 THE COURT: My inclination is that his custody status remain as it is. I don't even know what -- are you 17 OR' d, sir? 18 19 THE DEFENDANT: Yes, sir. THE COURT: And conditions; Court Services' 20 supervision or? 21 THE DEFENDANT: No. I'm not under any conditions 22 that -- I don't have Court Services' supervision, sir. 23 Whether or not I have any other conditions, I -- 24 THE COURT: Well, hang on, because the clerk will 59 1 tell me. 2 THE CLERK: There was cash bail posted. 3 THE COURT: You have cash bail posted, sir. 4 THE DEFENDANT: Yes, sir. 5 THE COURT: So there are no conditions. And I'm 6 not going to challenge his status, but we will pick a date 7 right now. 8 THE CLERK: Are we setting it for a pretrial? 9 MR. YOUNG: It's not a pretrial. 10 THE COURT: No. No. It's a continued trial 11 date. well, actually it's a status. 12 Do you want it as a continued trial date or a 13 status? 14 MR. YOUNG: The State intends -- I'm not going to 15 do anything with respect to the State's case, because 16 there's the question of competency, but it's the State's 17 intention to rest as soon as that issue is resolved. So I 18 am okay setting it for a continued trial date. 19 MR. LESLIE: That's fine, Your Honor. I think 20 depending on what - - 21 THE COURT: Why don't we set it around 60 days, 22 because that should give us plenty of time. 23 MR. LESLIE: That's more than we need. 24 MR. YOUNG: That's way more than we need. 60 1 2 3 THE DEFENDANT: Your Honor? THE COURT: All right. THE DEFENDANT: Might it be permissible to allow 4 Mr. Leslie to continue his cross-examinations today of 5 Mr. Zarate who's been called? 6 7 8 THE COURT: No. MR. LESLIE: Not if my client is not competent. THE COURT: There's not going to be any more 9 proceedings today until we determine your competency. 10 THE DEFENDANT: Well, even if that resulted in a 11 negative determination, Mr. Leslie has not seemed to rely 12 upon my input in any respect. 13 MR. LESLIE: Your Honor, you made a ruling. I 14 mean, he'll argue with you all day. 15 16 17 THE COURT: Welre done, sir. THE DEFENDANT: Yes, sir. THE COURT: Welre going to set a date. Everyone 18 thinks it I s too far out, so . 19 20 21 22 23 work? 24 MR. LESLIE: MR. YOUNG: THE COURT: THE CLERK: MR. LESLIE: I think no more than 30 days. I agree. All right. Second week of October, would that Can I check something? 61 1 MR. YOUNG: Actually, is that October 8th? I'm 2 in jury trial, so no. THE COURT: I'm not here the end of September, the beginning of October. I ' m going to be attending a judge's conference. So the following week. 3 4 5 6 MR. YOUNG: So if we can do it later in October. 7 Really, October 8th and 9th would be bad for me, but even 8 later that week would be okay. 9 10 11 12 13 14 15 16 17 THE THE MR. MR. THE THE THE THE THE CLERK: COURT: YOUNG: LESLIE: COURT: CLERK: COURT: CLERK: COURT: I can do the 10th or 11th. 10th or 11th work? 11th would be fine. The 11th is fine . What day is the 11th? Thursday. What's wrong with Thursday - - Wait. I'm sorry. You're right. Thursdays Judge Pearson does CCPs, 18 it's mandatory I do pleas, unless -- then we'd have to 19 call in another Judge, so Wednesday would be better. 20 21 MR. YOUNG: That's fine. MR. LESLIE: I don't know if it helps, but I so 22 can't imagine -- I would think that we could start in the 23 afternoon, if that works for everybody. I mean we're down 24 to-- 62 THE COURT: MR. YOUNG: I hate to -- I want to finish this. I just would hate to confirm for the 1 2 3 lOth if my jury trial goes into that day. I start on the 48th. 5 THE COURT: Are you sure the 11th? How about the 6 following week? 7 8 9 10 MR. YOUNG: The following week is fine. MR. LESLIE: Let me just check. Yes. THE COURT: Monday work? MR. LESLIE: Anytime the week of the 15th would 11 work. 12 13 at 9:00. THE COURT: And we will Let's do it starting in the morning and I promise you this, there 14 will not be any recesses or any of that kind of stuff. 15 We're just going to go straight through. 16 17 18 19 20 21 MR. YOUNG: October 15th at 9:00? THE COURT: Yes. MR. YOUNG: Thank you. MR. LESLIE: And, Your Honor, is your clerk going to provide a written notification of that? They sometimes do that in court for prelims and things like that. I 22 don't want to have to come back and litigate with 23 Mr. Coughlin about whether he received notice when he's 24 sitting right here listening to this. 63 THE COURT: Well, we'll give him a slip. MR. LESLIE: Thank you . 1 2 3 THE COURT: What we normally do -- Mr. Coughlin, 4 for the record, what we normally do is provide the 5 defendants with a slip that has the title on it, the date 6 and time. And I'm going to ask the clerk to read the slip 7 that's going to be handed to you so that there's no 8 question as to what was given to you. 9 THE DEFENDANT: Yes, sir, Your Honor. May I 10 ask-- II THE COURT: Wait a second, sir. 12 THE CLERK: Date to appear is October 15th, 2012, 13 at 9:00 a.m. for said trial. 14 THE COURT: All right. So that's -- for the 15 record, the bailiff has handed that slip to Mr. Coughlin 16 which indicates the date and time for the continued trial. 17 18 Mr. Coughlin -- what does he want to say? THE DEFENDANT: The witnesses that were 19 subpoenaed, Dawson and Templeton, they did not show up to 20 either the suppression hearing or the trial here. 21 believe it was because at the July 16th date, the 22 attorney I 23 THE COURT: Sir, you can discuss that with your 24 attorney. 64 1 2 3 4 MR. LESLIE: Thank you, Your Honor. (Recording turned off at 2:12 p.m.) (Recording turned back on.) MR. LESLIE: -- cooperate with the interviews 5 they require; is that correct? THE COURT: Well, I'm going to do an order that 6 7 he has to have the evaluation. Do you have a blank order? 8 Can one of the bailiffs bring me a copy of the order, a 9 copy of our order for evaluation? 10 11 THE BAILIFF: Yes, Your Honor. THE COURT: I'll tell you exactly what it says. 12 And then, but -- 13 14 MR. YOUNG: And that was the reason I asked about custody status. I just want to make sure if it's ordered 15 by the Court that it gets done before this new date. 16 THE COURT: Well, I will order that right now. 17 just want to review what our form order says, and then I 18 may even fill it out right here right now and give 19 Mr. Coughlin a copy. 20 21 22 23 MR. LESLIE: That would be appropriate. THE DEFENDANT: Your Honor? THE COURT: Yes, sir. THE DEFENDANT: Just with respect to the extent 24 to which you broached the subject earlier about what you 65 I ~ 1 had heard about Lake's Crossing; previous difficulties 2 with Lake's Crossing related just to that issue of what 3 does this require of the defendant, is it a blank check? 4 Is Mr. Dogan allowed to read what medications I take into 5 the open record and announce it in open court as he did? 6 THE COURT: I am not -- I'm just saying that 7 there were problems. 8 9 THE DEFENDANT: But THE COURT: Whether they were even -- maybe the 10 problem was that Lake's Crossing did something to you. 11 But I am going to order and sign this right now. 12 It says you will fill in the case number. 13 Do you have a D.A. number? 14 15 MR. YOUNG: THE COURT: D.A. number is 432068. And this is Case No. RCR 2011-063341. 16 "And upon motion of counsel for the defendant herein, and 17 good cause appearing therefor, it is hereby ordered that 18 the defendant be examined by a psychiatrist." I'm not 19 going to have a psychiatric social worker "or other person 20 who is specially qualified by the Division __ II I'm even 21 going to delete that, because "for the purpose of 22 determining if the defendant is not of sufficient 23 mentality to be able to understand the nature of the 24 criminal charges against him, and two, if because of 66 1 mental insufficiency, the defendant is not able to aid and 2 assist counsel in the defense interposed upon the trial or 3 against a pronouncement of judgment therefor. It Is 4 further ordered that the defendant is to appear __ II now 5 6 this is the problem. evaluation hearing. This is only for the competency So I'm going to put, "It is further 7 ordered that the defendant is to appear __ II no, we don't 8 have the time or anything, so I can just say, "for said 9 evaluation at Nevada Mental Health," or o ~ did you want 10 it framed so that I'm going to put, "for the mental 11 health evaluation and cooperate with the evaluator on the 12 date and time set for said evaluation. And it is further 13 ordered that the defendant appear before myself . " 14 Now we have to put a time for the competency 15 evaluation hearing. 16 MR. LESLIE: I don't know why it couldn't be the 17 same time as the trial date, because if he's competent, 18 we'll just proceed; and if he's not, then we won't be able 19 to. 20 21 date. 22 23 THE COURT: THE CLERK: THE COURT: 24 9:00 a.m.? Right. We'll just set it for that October 15th. The 15th day of October, 2012, at 67 1 2 3 4 THE CLERK: Yes. THE DEFENDANT: Your Honor? THE COURT: Sorry, sir. THE DEFENDANT: May I make -- ask a question. 5 Had you previously indicated you were requiring both the 6 D.A. and the public defender to provide materials to 7 Lake's Crossing supporting any contention they have as to 8 competency being an issue? 9 MR. YOUNG: I'm not providing anything, Your 10 Honor. 11 MR. LESLIE: I won't provide anything unless 12 requested by 13 THE DEFENDANT: Usually judges tell you guys what 14 to do, don't they? You don't tell -- 15 MR. LESLIE: We're helping the Court make a 16 determination. 17 18 THE COURT: I am not going to tell them what to do, I just suggested it. And neither wants to do that, 19 so -- and you don't seem to want it, based on what you 20 said. 21 THE DEFENDANT: No, I would like them to do that, 22 because I've so far not been given any specification as to 23 why either of them feel there's truly a competency issue 24 versus use something for some other purpose. 68 1 THE COURT: Well, I will put here, "It is further 2 ordered that the evaluator review all prior evaluations in 3 making the examination or in conducting examination." 4 MR. LESLIE: Your Honor, there is one more 5 suggestion I have. 6 THE COURT: What? 7 MR. LESLIE: That your order include a directive 8 or request to the evaluator to make an explicit finding as 9 to whether Mr. Coughlin is able, if he so chooses, to 10 assist counsel. 11 12 THE COURT: MR. LESLIE: Able to assist counsel? Yes. I've seen some reports come 13 back and talk about somebody who has some mental health 14 history, but the evaluator will say, "If this defendant so 15 chooses, they can cooperate with counsel." If they don't 16 cooperate with counsel that seems to be more of the result 17 of a choice by defendant, rather than a mental health 18 issue. And I think it might help if they can make a 19 specific finding on that. 20 21 22 comment. 23 24 to wait. THE COURT: Well, hang on. MR. LESLIE: I just offered that as an assistive THE COURT: Mr. Young, I don't know if you want I will finish this order, but I mean if you have 69 1 other things you need to do 2 MR. YOUNG: I have the whole day blocked out for 3 this case, Your Honor. 4 5 6 7 8 9 THE COURT: Okay. MR. YOUNG: I don't really have much say or input in this process as it is. So I'll stick around for a -- MR. LESLIE: I think it's better that he stay. THE COURT: Well, I'm changing it a little bit. I'm going to "be examined by a psychiatrist," as I 10 indicated earlier, but you will provide "or other person 11 who's specially qualified by the Division." And I have, 12 "if the defendant is not of sufficient mental ability to 13 be able to understand the nature of the criminal charges 14 against him __ II I don't know why it says "is not," but "if 15 because of mental insufficiency, the defendant is not able 16 to aid and assist counsel in defense interposed upon the 17 trial or against the pronouncement of judgment 18 thereafter. " 19 And what was the additional item that you wished? 20 MR. LESLIE: My suggestion is that they render an 21 opinion of whether they think he is able, if he so 22 chooses, to assist and cooperate with counsel. 23 24 THE COURT: MR. LESLIE: "And if the defendant __ II "Is able, if he so chooses, to 70 1 assist and cooperate with counsel." 2 THE COURT: Why do I have to put, "if he 3 chooses"? 4 MR. LESLIE: Well, it's just an observation that 5 I've had some cases where there's an inability of the 6 attorney to get the defendant to cooperate meaningfully. 7 8 THE COURT: MR. LESLIE: Okay. "If he chooses to assist"? My suggestion was that they render 9 an opinion of whether he is able, if he so chooses, to 10 assist and cooperate with counsel. 11 12 THE COURT: MR. LESLIE: "Assist and cooperate - - " "With counsel, if he so chooses." 13 think that will help us determine whether there's - - if 14 there is, if there's some actual incompetency or if 15 there's just decisions being made by the defendant. 16 THE COURT: Well I have, "If because of mental I 17 insufficiency, the defendant is not able to assist counsel 18 in defense interposed upon the trial or against a 19 pronouncement of judgment thereafter, and if the defendant 20 is able, if he chooses, to assist and cooperate with 21 counsel. " 22 And then, "it is further ordered that the 23 defendant is ordered to appear for the mental health 24 evaluation and cooperate with the evaluator on the date 71 1 and time set for said evaluation. And it is further 2 ordered that the defendant appear before the Honorable 3 Peter J. Sferrazza of the Reno Justice Court, Department 4 No.2 on the 15th day of October, 2012, at the hour of 5 9:00 a.m. for a competency evaluation. And it is further 6 ordered that the evaluator review all prior evaluations in 7 conducting the examination." 8 9 So that has been pronounced in court, sir. I'm going to have this typed up, and but in the And 10 meantime, I'm going to have them serve you with a copy, a 11 handwritten copy. 12 (Discussion held between the clerk and the Court.) 13 14 15 16 17 18 19 THE COURT: We're going to have it typed. Mr. Coughlin, do you have an address? THE DEFENDANT: Yes, sir. THE COURT: What's your address? THE DEFENDANT: It's P.O. Box 3961, Reno, 89505. THE COURT: THE CLERK: Did you get that? Yes. 20 THE COURT: Okay. We will have it done today and 21 mailed to you, and to both counsel. 22 And we'll see everyone back here on that date. 23 24 And there will be no further delays. THE DEFENDANT: Yes, sir. 72 All right? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 THE COURT: Have a good day. Thank you. THE DEFENDANT: Thank you, sir. MR. LESLIE: Thank you, Judge. MR. YOUNG: Thanks, Your Honor. (Proceedings concluded at 2:29 p.m.) --000-- 73 1 STATE OF NEVADA 2 COUNTY OF WASHOE 3 ss. 4 I, EVELYN J. STUBBS, do hereby state that I 5 am not a relative, employee or independent contractor of 6 counselor to any of the parties, nor a relative, employee 7 or independent contractor to any of the parties involved 8 in the proceeding, nor a person financially interested in 9 the proceedings; 10 That I was NOT present in Department No.4 11 of the above-entitled Court on September 5, 2012, but 12 transcribed the proceedings had and the testimony given 13 upon the matter captioned within from the JAVS 14 electronically recorded audio media; 15 That the foregoing transcript, consisting of 16 pages 1 through 73, is a full, true and correct 17 transcription of said JAVS electronically recorded audio 18 media. 19 20 April, 2013. 21 22 23 24 DATED: At Reno, Nevada, this 25th day of 74
5 7 07 06-M-13755-PEM in Re Zachary Barker Coughlin, Esq. Applicant For Admission in California Complete File With Trial Exhibits LAP With Draft Filing