Вы находитесь на странице: 1из 74

1 IN THE JUSTICE COURT OF THE STATE OF NEVADA

2 IN AND FOR THE COUNTY OF WASHOE


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