| Statement of Jan. 31, 1990 |
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There is a reference here to the Danny Boy's T-shirt being previously shown to and identified by Brown. There is also mention of Herzog and Tridico taking Brown to Quaint Road with a description of a house that sounds like it is Ed Foster's, which is also referred to later as being on Hanson Road (get map). The bulk of this testimony concerns Brown's statement of 1-31-90. It is interesting to note that this statement, and ALL of Michael's subsequent statements are not statements at all, but merely POLICE REPORTS of what he said. Or rather, what they said he said. The only exception is Michael's statement of April 4, 1990, which was given to his attorney.
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Statement of January 31, 1990 |
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(The following in-camera proceedings with the Court and counsel present commenced at 9:00 a.m.)THE COURT: In chambers is Mr. Bonavita, representing the witness, Michael Brown, the district attorney, Mr. Massa, and defense counsel, Mr. Smith. Mr. Bonavita.
MR. BONAVITA: Your Honor, regarding a statement dated April 4 of 1990 by Michael Reuben Brown on public defender letterhead, I would ask the Court to not permit that to be entered as an exhibit, and I site the attorney-client privilege of privileged communication between the attorney and the public defender client, Michael Brown.
MR. SMITH: In response to that for the defense, I point out that the letter dated April 4, 1990, from the Office of Public Defender was forwarded to the district attorney's office by the public defender, made an official part of the police reports starting at 1444, it was disclosed to the district attorney and subsequently to the defense pursuant to their court order to turn the police reports over to the defense. It is dealing entirely with the Kathy Wilson murder case. It's a sworn statement by Michael Brown, and the indications of the statements are that it was prepared for the benefit of the district attorney, was subsequently forwarded to him, and any attorney/client privilege was waived by that action, assuming one still exists at this point.
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MR. MASSA: Commonwealth takes no position.THE COURT: Furthermore, the Court feels is that isn't the statement of Mr. Brown, it has been obviously rewritten or retyped with the correct spellings and pronunciations and quotes, so I seriously question if it falls within the realm of confidential communications. Well, so the ruling of the Court is that the defendant will be permitted to use the statement at this trial.
(In-camera proceedings were concluded at 9:l0 a.m. to commence in open court at 9:30 a.m.)
THE COURT: Good morning. I apologize for the delay. The Court had to review some law with counsel.
MICHAEL REUBEN BROWN. called as a witness, having previously been sworn, testified as follows:
CROSS EXAMINATION (cont.)
BY MR. SMITH:
Q. Good morning, Mr. Brown.
A. Good morning, MR. Smith.
Q. Mr. Brown, again, I want to show you Defendant's Exhibit No. 2, which is kind of a crusty Danny Boys T-shirt, right?
A. Yeah.
Q. And we established the other day that the police found this along Riverside Road or someplace in Pennsylvania along with a bank envelope which we will introduce later on,
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and that the police showed you a photo of that shirt and the bank envelope and mistakenly told you it came from Mr. Buckley's campsite, and then later on advised you that it came from this Riverside Road, and you never had Riverside Road in your travels until later on. As a matter of fact, I don't think we have still come to a statement where you have Riverside Road, and I ask (sic) you whether or not you identified this shirt as Jay Buckley’s, and you said no, not that specific shirt, right? You said he wore things like that but you never identified this specific shirt to the police?A. I told you I didn't remember telling them it was a Danny Boys T-shirt.
Q. Let's try the yes or no. Did you ever tell the police that this was Jay Buckley's T-shirt, yes or no?
A. I think so, maybe.
Q. I think so, maybe. Okay. We are making progress. Why then did you say a couple days ago that you never told them that specific shirt was Mr. Buckley's?
A. When they showed me the photograph I told them I think that was the shirt he wore, but I don't remember - - like I said the other day, I don't remember ever specifically telling them it was a Danny Boys T-shirt.
( Document marked Defendant's Exhibit No. 46.)
MR. SMITH: Let me show you what has been marked for identification purposes as Defendant's Exhibit 46, a
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statement dated 1-31-90 that, again, you made to the police. Move for admission of Defendant's Exhibit 46, Your Honor.MR. MASSA: No objection.
THE COURT: Admitted.
BY MR. SMITH:
Q. Let's go through this a tad. It says 1-31-90, this officer interviewed Michael Reuben Brown. Present was Brown's attorney and Detective Tridico, and again this officer refers to Officer Herzog. It states here after being advised of your rights, et cetera; Michael Brown was again asked to identify the shirt with the writing on the front - - with the writing on the front and back from an Ohio pizza shop. Brown was then advised this shirt was located at a logging road just north of Riverside Road in New York state.
Now, first of all, you never had that logging road in your story at all, and when they showed you that picture a couple months back or when they came to it and they said it came from Buckley's campsite, you said sure, that's where it came from, that's Buckley’s, but you never put the logging road in until after 1-31-90, but here they are telling you where they found the shirt. And then you said, Brown again advised that the shirt was Jay Buckley’s, and he had seen him wearing it before, and he had seen it at Buckley's campsite also. Is that truth or a lie?
A. I told them that I thought it was his shirt.
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Q. Well, it says you seen him wearing it and seen him (sic) at Buckley's campsite also. Brown stated the following, it was on the way back from Lander. We came back the same way we went up to Lander. We were coming back across a little bridge and then we drove towards Jamestown. Jay was driving. I went in the back of the van to get a couple beers, and the next thing I knew we were off the road down a bank heading toward the woods. We got stuck and didn't go any further. Now, this is the second time today you have been stuck, second time on May 18; is that true?A. No.
Q. You didn't get stuck while you were going up to Riverside Road here or wherever?
A. No.
Q. Why did you tell them that?
A. I don't know, I told them we couldn't go no further. We would have got stuck. I don't remember telling them we did get stuck.
Q. Let's read it again. We got stuck and couldn't go any further. I asked Jay why we were stopping, and he told me we were going to meet someone. On the way from Jamestown to Lander - - well, there you get into something different. But you were in the embryo stage right there of making up your Riverside story, aren't you? As soon as the police tell you where they found the shirt, show you the shirt again, and you
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again identify that shirt as coming from Jay Buckley, then you start telling the story about we stopped, we had a couple beers, we got stuck. He told me he wanted to go somewhere; you are talking about Riverside Road here, right?A. Yeah.
Q. And you didn't get stuck, and did you go in the back of the van to get a couple beers?
A. I believe so, yeah.
Q. Okay. That's correct. And we went off the road and down over a bank and towards the woods; is that true?
A. Down off a bank?
Qs That's what you said.
A. I don't think so. I don't know.
Q. Down over a bank heading towards the woods?
A. I don't believe so.
Q. Is it true you positively identified Mr. Buckley wearing that shirt before and after, or you saw that shirt, he was wearing it before and have seen it at Buckley's campsite also?
A. I don't remember positively identifying it.
Q. Then when you have him going to this Riverside Road location, this is the same shirt you are saying he put everything into, isn't it?
A. It was a shirt similar to that.
Q. Was it a shirt similar to that or was it that
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shirt?A. I don't positively know if it was definitely that shirt, but it looks like the shirt that it was, yes.
Q. You didn't have any problem positively identifying it here, and after they told you where it was found, you're coming up with this story about pulling into that place where it was found. Let's see, you didn't get stuck, you didn't go down over a bank, so there is two more, right (marking)? Just for the jury's benefit, Mr. Brown, we are looking at Commonwealth's Exhibit No. 1. Show us where Riverside Road is, this logging road. If it's not on there, just show us the general location. Would it be here (indicating)?
A. I - - I don't know what these roads are. I don't know.
THE COURT: You're standing in front of it so the jurors can't see what you're pointing at.
THE WITNESS: I’m sorry.
BY MR. SMITH:
Q. It's marked by the Commonwealth "logging road" right here?
A. Yes.
Q. And they have a 12 underneath it and 12 on the legend says "logging road on Route 62"?
A. Yeah.
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Q. And the district attorney just helped us out and said that's where they found the shirt, right? This is 62 here (indicating).A. That looks correct.
Q. So after this crime is committed you are saying that you went from the crime scene back out the same way you came in back on US 62?
A. Pretty much the same way.
Q. And you drove up 62 and onto this logging road, right?
A. Yeah.
Q. And you pull in there, you don't get stuck, I guess, right?
A. I don't remember getting stuck, no.
Q. And what is the purpose of pulling in there?
A. Go through the stuff.
Q. He couldn't have done that in the van?
A. He was driving.
Q. He was driving? Well, you started driving after you got back to Jamestown. He couldn't have done it up here when you pulled over and switched drivers?
A. He could have probably I suppose.
Q. Why did he need to go through the stuff? Didn't you say the other day he went through the stuff when you were driving down 62?
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A. Not when he took care of everything, no. It was on the way back when he started throwing stuff in my bag.Q. You stopped at this logging road, and how long were you there?
A. Five, ten minutes maybe.
Q. What did you do there, just pull in and he goes through this stuff? Did you drink any beers there?
A. We were drinking a beer, I believe.
Q. Sit down, have a beer, went through the stuff. How long does that take?
A. We was only there five, ten minutes.
Q. Then you got back out of there and head back up 62 or what?
A. Back up towards Jamestown, yeah.
Q. Then you stop at this video store and switch drivers?
A. It was right next to the Kwik Fill gas station, yes.
Q. And in all of your statements up to 1-31-90 you never mention that, right? Never mention stopping on that logging road at all?
A. I don't believe so.
Q. Never mention him going through this stuff, never mention having a couple beers, never mention any of that stuff, right?
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MR. MASSA: Can the witness be seated?MR. SMITH: I am sorry. He can be seated.
BY MR. SMITH:
Q. Never mention any of that stuff, any of those statements; sworn statements to the police and affidavits of probable cause leading to Mr. Buckley's arrest, you never mention that logging road, pulling over, having a couple beers sorting through this stuff, putting it in a Danny Boys T-shirt, never mention it, right? Until they tell you we found the (sic) Danny Boys T-shirt at Buckley's campsite, we found it at this logging road, then you mention it?
A. I believe it was the night that I had told them we had stopped off somewhere is when they showed me a picture.
Q. 1-31-90, that's the first time that statement comes out. You know that's the first time. They have showed you the shirt before, and you say - - you didn't say yes, that's the shirt we pulled in the logging road and Mr. Buckley threw the stuff in?
A. I don't remember them showing it to me twice.
Q. Well, we established that the other day, that they showed you photos of the shirt, said it was from Buckley's campsite, and you agreed with them and never mentioned anything about this logging road until they say here, this is where we recovered that, and you say oh, yeah, by the way, we stopped there, too. You couldn't go back and say that's not
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Mr. Buckley's shirt, I was wrong, gee, I guess I never did see him with it. You have got to come up with a story that matches where they found the shirt now, right?A. No.
Q. Sure looks like that's what you're doing. You are saying no, right?
A. Yes.
Q. Then you go on to say - - let me - - why do you keep that out of your prior statements? What is the reason for not telling the police all the way up to 1-31-90? I mean, Jesus, this is almost two years after you had your first contact with the police. You weren't trying to protect anybody by not telling them you stopped at the logging road were you?
A. No.
Q. What is the reason for not telling?
A. Same reason I didn’t I tell them about a lot of things.
Q. Same reason, and what is that, I don't know?
A. I told you there is no good excuse for why I did that. I don't know why.
Q. You don't know why. Hum. Let's go on with this statement. On the way from Jamestown to Lander Jay went through Wilson's purse. He took everything out of it. What he wanted he put into a paper bag and bank bag. What did he take out of it and put in a paper bag and bank bag?
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A. I don't know.Q. You don't say he did it at the logging road. You don't say he did that anyplace else. You say he did it on the way from Jamestown to where you threw the purse out?
A. Yeah.
Q. And you don't know what he took out of the purse, but here you are telling them that he took everything he wanted out. Why did you tell them that if you didn't see him take anything out of the purse?
A. He must have took everything out he wanted because he threw it.
Q. When we left the crime scene he wrapped the bank bag with the T-shirt, the one I identified - - Danny Boys right? The one I identified.
A. I guess.
Q. It would have to be the one they are talking about. We left the crime scene, we (sic) wrapped the bank bag with the T-shirt. Is that true?
A. He did have the T-shirt when we left, yes.
Q. When you left the crime scene did he wrap the bank bag with the T-shirt? Yes or no?
A. I don't know if it was right when we left, but when we left it was wrapped in that T-shirt, yeah.
Q. That's another problem here, because you said when we left the crime scene he wrapped that bank bag with the
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T-shirt, and you say at other times he didn't wrap that bag with the T-shirt until you got to the logging road and after you pulled over, right? Another lie, Mr. Brown, isn't it?A. I guess.
Q. When we left the - - or he then put it under the front seat in the van. Did he put it under the front seat in the van?
A. At what time?
Q. Did he ever put it under the front seat in the van?
A. It was under the front seat when we got to the road, yes.
Q. When you got to the logging road, the bank bag is wrapped in the Danny Boys T-shirt, and it's under the front seat in the van?
A. Yes.
Q. If you say something different later on we can mark it up, right?
A. Yeah.
Q. After we stopped, got stuck, we both got out of the van and walked back into the woods. Is that true or not?
A. Well, we got out of the van.
Q. You are talking about Riverside Road here. This is what they are asking, and this is what you are telling them. Did you get out of the van and walk back into the
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woods?A. We walked on just a little ways.
Q. I was carrying three beers, one for each of us and an extra. Is that true?
A. I wasn't personally carrying three, no.
Q. That would be a lie, too?
A. Yeah.
Q. (Marking) why did you tell that lie?
A. I don't know. We did have three beers, but I wasn't carrying them.
Q. Jay was carrying the bank bag and Arby's bag and brown paper bag. Is that true or not?
A. Excuse me?
Q. Jay was carrying the bank bag, an Arby's bag and a brown paper bag. Is that true or not?
A. At what time?
Q. When you got out of the van at this logging road and walked back into the woods. That's what you're talking about here. Is that true or not?
A. Yeah. He did have that plastic bag. I don't know if it was an Arby's bag or not.
Q. We will read it again, okay. Jay was carrying the bank bag, an Arby's bag and a brown paper bag. True or false? Yes or no, Mr. Brown?
A. I guess, yeah.
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Q. So that's true?A. I don’t know.
Q. Where did the brown paper bag come from?
THE COURT: Mr. Brown, the Court has instructed you before, the answer is either yes or no to a very pointed question. If you don't know, you simply say you don't know, but these oblique answers don't address the direct question. You either know or you don't know, and if you don't know, you simply say you don't know.
THE WITNESS: Okay.
BY MR. SMITH:
Q. Where did the brown paper bag come from, Mr. Brown?
A. From the van.
Q. From the van? How come we are not mentioning the brown paper bag before until right here?
A. I don't know. We didn't mention this road until right there.
Q. Yeah. You got an Arby's bag in here. He was carrying the bank bag Arby's bag and brown paper bag. What is in the brown paper bag?
A. There was nothing in it.
Q. Nothing in it. What is in the Arby's bag?
A. Everything we took from the crime scene.
Q. Like what?
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A. Like the tape, the twine that was wrapped around her ankles.Q. Okay?
A. Black muscle shirt.
Q. Okay?
A. Is where I stuck it, and his flannel shirt.
Q. What else? Is that it?
A. As far as I know.
Q. All right. So that's what he is carrying, and you're carrying the beer - - or you are not carrying the beer. We already established that. What are you carrying?
A. I had a can of beer. That was about it.
Q. That's it. And you walked in the woods, and he spreads out this Danny Boys T-shirt and starts sorting things out, right?
A. We got out of the van.
Q. How does he take the film out of the camera when he didn't take the camera with him?
A. Take the camera with him where?
Q. When you took this walk in the woods and sorted things out in the Danny Boys T-shirt, you said before that he pulled the film out of the camera. That's one of the things he did. I just asked you who was carrying what, and you never said a word about a camera or Jay Buckley or you carrying it, so how does the camera get in the woods so he can pull the
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film out and put it on this shirt? You didn't say a word about anybody carrying a camera.A. (Pause.)
Q. How do you figure that one, Mr. Brown?
A. You didn't ask me about the camera.
Q. No, I asked you specifically. We went through it, Mr. Brown, what was each of you carrying and you were very detailed like you always are and very specific, and you told me what each of you were carrying into the woods, and you did not mention a camera. You forgot it, didn't you?
A. No, I didn't.
Q. You forget that (sic) you said before. He pulled that film out and put it on the shirt, and you forget to mention the camera, and I gave you every opportunity to mention it and you forgot it?
A. No, I didn't.
Q. You didn't say it.
A. I didn't forget about it.
Q. Why didn't you say that was one of the things that either you or Jay Buckley was carrying?
A. You asked me what was in the plastic bag.
Q. I asked what was in the brown paper bag. Nothing. That was your response. I asked you what was in the Arby's bag. Twine and clothes. No camera. You didn't say it. How come?
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A. You asked me what was in the Arby's bag, that's why.Q. I asked you the Arby's bag and the brown paper bag, and you said nothing was in the brown paper bag, and then you went through a detailed list of what was in the Arby's bag. You're too detailed for your own good, aren't you, Mr. Brown?
A. No. The camera wasn't in a brown paper bag, and it wasn't in the Arby's bag.
Q. I asked you what he was carrying. We through (sic) it. You lied, Mr. Brown. It goes on and said I saw him taking money out of a couple white envelopes, True or lie?
A. He had a white envelope with some money in it, yes.
Q. He had a white envelope bank envelope?
A. It was like a bank envelope, yes.
Q. Was it a bank envelope or not, Mr. Brown?
A. Yeah.
Q. Yeah. And you saw him take money out of it?
A. Yes, I did.
Q. And you saw a couple of them?
A. I believe there - - I believe there was two of them maybe.
Q. Uh-huh. They told you when they told you about finding the shirt, they told you we found this old Marine Bank
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envelope there at the same time, right?A. No.
Q. They didn't tell you that? When you testified Monday and Tuesday I listened very attentively when you were talking about the trip to Riverside Road, and you said what he did and he put the shirt down and took the film out of the camera and wrapped the bank bag up, and you didn't say a word about a bank envelope. You didn't say a word about a bank envelope, Mr. Brown. You didn't say a word about Jay Buckley taking money out of a bank envelope. You forgot it. You didn't say a word about it. Here you talk about it. How come?
A. I don't know. See, you got to understand that these statements here, this is after we have already discussed and they go back to their police station and typed these reports out.
Q. You're saying this trooper that typed this report out doesn't know how to type or left things out or put lies in there or what?
A. I am not saying that. I am saying it's possible that - -
Q. I don't want to talk possibilities. I am talking definite. Are you saying this police report is wrong?
A. Not exactly, no.
Q. What are you saying exactly?
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A. I am just saying that they could be misunderstanding what I told them, because they don't type them out or nothing while I am talking to them.Q. Is this a misunderstanding of what you told them? What we have read so far, yes or no, is this all a misunderstanding of what you told them?
A. You're misunderstanding it, yes.
Q. I am reading word for word. Where is the misunderstanding in that police report?
A. Just like as far as this road and everything like that you say that they told me. You got to understand we have already discussed them. I told them and they showed me the photos, and they went back and typed it up.
Q. The police are lying when they say we showed him the evidence, we told him where we found it. They are lying about that?
A. No, they did.
Q. And are they lying about the envelopes and all the other stuff that is in here that they say you said? Is that a lie or misunderstanding or anything?
A. No, it isn't.
Q. Then going back to when you testified Monday or Tuesday of last week, or whatever week it was by now, why didn't you mention the bank envelopes, two of them, money coming out of them? Very important don't you think? You
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didn't have any problem - - there was a couple hundred bucks coming out of the bank bag. But you didn't say a word about these envelopes, both when Mr. Massa talked to you and when I put you on direct and went through specifically what happened. Not a word about bank envelopes, not a word about money. You simply forgot about that part of your story?A. I wasn't thinking about the envelopes no.
Q. Yeah. How much money did you get out of them there envelopes?
A. Not very much.
Q. How much?
A. I don't know. I didn't count it.
Q. You didn't count it. But now you are saying there was bank envelopes. Before when we went through specifically what he did take out, what did he do, he took the film out, we did this and we did that.
MR. MASSA: I am going to object. It's repetitive.
MR. SMITH: I will move along. I don't want to beat a dead horse.
BY MR. SMITH:
Q. Then you say what? What did he do with that money he took out of the envelopes?
A. (Pause.)
Q. What he do? He took the money out of the bank
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envelopes. What did he do with the money?A. Stuck it in the money bag.
Q. Got that one right. Then what did he do with the envelopes?
A. I really don't know. I had never seen them again.
Q. Never seen them again?
A. He probably left them there. I don't know for sure.
Q. He put the money in the bank bag. I think there was some change in one of the envelopes. I saw one of the envelopes fall to the ground. Then it says I saw - - and actually I can't read the last three lines. Maybe the district attorney can help us out.
MR. MASSA: I saw him take a white credit card type card from the brown bag along with the ring, the car keys and put them in the Arby's bag along with the bank bag. We might have left one of the Busch beer cans there also. We left there.
BY MR. SMITH:
Q. I appreciate the district attorney's help there, but, Mr. Brown, white credit card, white credit type card. How do you figure that? Did you see that?
A. No, I didn't, not a white one, no.
Q. Is that a lie?
A. It's wrong.
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Q. It's wrong? (marking.) How come you're wrong about the color of the card you saw?A. I don't know.
Q. I mean you were very detailed the other week or whatever in describing what this card looked like. Here you are saying white and you said black?
A. That's what I am trying to explain. I cannot explain what they typed up.
Q. Did they lie? They put down what you didn't say here?
A. I am not saying that.
Q. Did he have a ring? I saw him take a white credit card type card from the brown bag along with the ring - - from the brown bag along with the ring.
Q. Now, isn't that curious, because I asked you what was in the brown bag, and you said nothing. And here he is removing stuff from the brown bag. How do you figure that one, Mr. Brown?
A. It's wrong.
Q. Wrong? It's a lie? Why did you tell that lie (marking)?
A. I don't know.
Q. The car keys, car keys were also in the brown bag?
A. No, they were in his pocket.
Q. Here you say they were in the brown bag?
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A. That's wrong.Q. Put them in the Arby's bag along with the bank bag; is that truth or a lie?
A. Put what in the Arby's bag?
Q. Let me read it for you again. I saw one of envelopes (sic) fall to the ground. I saw him take a white credit type card from the brown bag along with the ring, the car keys, and put them into the Arby's bag along with the bank bag; truth or a lie?
A. That's not true.
Q. That's a lie, too, because you testified last week he put everything into the bank bag. He didn't put everything in the Arby's bag, right (marking)?
A. Yeah.
Q. You don't have any explanation at all as to why you're making these big-time mistakes with these details?
A. (No response.)
Q. None? We might have left one of the Busch cans there also; is that true?
A. That's true.
Q. We left there, we had to rock the van to get out of there. Is that true or a lie?
A. That's false.
Q. That's a lie, because you just said you weren't stuck (marking). Jay then drove, and we went to Quality
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Market on Foot Avenue in Jamestown, and Jay called someone and told that person to meet him. You forgot to stop at the video store where you changed drivers, didn't you? You went right from the logging road directly to Quality Foot Avenue. You didn't have the video stop where you change drivers in this statement. How come?A. I don't know.
Q. Don't know?
A. Maybe they just didn't add it in there.
Q. They are not making your story up for you, are they? You are doing that, aren't you?
Q. Jay then - - well - -
MR. MASSA: Excuse me, could the witness have a copy of the exhibit that counsel is reading from?
MR. SMITH: I don't have a copy, Your Honor, and I am not so sure he needs a copy, does he?
THE COURT: Do you have an extra copy, Mr. Massa?
MR. MASSA: I gave Mr. Smith mine.
THE COURT: If we don't have a copy, I am not going to - -
MR. MASSA: He can have that. Mr. Smith has two copies.
MR. SMITH: Actually I don’t, Your Honor, because the page I am reading from now was pulled - - or isn't in the police reports I received, so this is all new to me as I go
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through it.THE COURT: I don't see any need that the witness has a copy. It's the exact paper that Mr. Smith is reading from. He doesn't seem to be having any problem.
BY MR. SMITH:
Q. Jay then drove and went to Quality Market on Foot Avenue in Jamestown. Jay called someone and told that person to meet him. I heard him ask that person how soon he could pick him up. Is that true or a lie? Did you hear Jay Buckley ask that person on the phone how soon he could pick him up?
A. I didn't hear him say exactly that, no.
Q. That's a lie, too (marking). Because you couldn't hear it. You were in the store. I think he was talking to either Ed or Don Foster. True?
A. That's true.
Q. And if Don is in jail and Ed is in New Jersey, couldn't have been either one of them?
A. I thought that is who it was, I said.
Q. I dropped Jay off at Washington Street near Mister Donut, and he asked me if I wanted to go with them and to wait with him, but I told him I had to go home because my mother was waiting for me. Is that true?
A. That's true, yeah.
Q. Well, now he is calling Don Foster, what, to go back to the van?
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A. I don't know for sure.Q. And he is asking you if you wanted to go with them or with him. Is that true or a lie?
A. He asked me if I would go with him. He asked me what I was going to be doing. I told him I had to get home.
Q. Is he talking about wiping the fingerprints off the van?
A. He didn't say what they were going to do.
Q. Jay was gone about two, two and a half hours. Someone dropped him off at my house. That's a lie, right?
A. Yeah.
Q. (Marking.) When Jay came into my house, he told me he had gone to the Wilson van. That's a lie, right?
A. Yeah.
Q. I think he told me that it was Don or Ed Foster that took him to the van and brought him to my home, something said about a semi. That's a lie, too?
A. Not all of it, no.
Q. (Marking.) Did he tell you Ed or Don Foster took him to the van?
A. No, but he did say - - I believe it was Ed Foster he told me was the one that dropped him off.
Q. He told you Ed Foster was the one that dropped him off?
A. Yeah.
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Q. Well, he wasn't ever dropped off at your house. You saw him walking down as you were going to Quality, as you were going down the street?A. He was on my road, right.
Q. Why would he tell you someone dropped me off?
A. Up at the foot of my road. (Sic)
Q. And you knew Ed Foster drove a semi truck, so you threw that something that was said about a semi in there for the fun of it, right?
A. No, he mentioned about a semi, he drove semi or something. I don't remember exactly which.
Q. Did he tell you Ed Foster drove him from Mister Donut where you dropped him off over to the street near your house in a semi truck?
A. I don't believe so.
Q. What was said about a semi? You said something was said about a semi. What?
A. I don't remember exactly. He just made mention he drove a semi or something to that effect.
Q. Brown was again asked about being on the road just past the transfer station on South Work Street, which is now known as Quaint Road (spelled phonetically). Brown again describes the place they stopped as being a cabin with a basement or garage underneath and possibly a farm tractor in the yard. He also advised that Hanson and Lawrence from the
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sheriff's office had him on that road once, that they took him out of work at Amo’s. Now you're hinting here that you went on this road, and you went up to Ed Foster's place, right?A. I guess that's what it says.
Q. And you are saying, gee, I vaguely remember the house, let me see, and describe it somewhat, But you don't remember the road, and you can't describe that, right? But you say to him, I was on that road once when I was riding around with the police one time, but gee, I don't know where it's at. Isn't that what you are saying here, right?
A. Basically, yeah.
Q. And we showed yesterday that you had been to Ed Foster's house, parties, Leo took you there when you were 14, you know, all these other times, and you are telling them here you don't know how to get there, don't know where you went?
A. I didn't go there all these other times.
Q. But you are telling them there you don't know how to get there when, in fact, you're making this statement on 1-31-90, you have been there several times?
A. No, I haven't.
Q. No, you haven't? I thought we established that yesterday. We didn't? Let's move on to your next one. Brown was asked about the burglaries he committed or assisted Jay with, and he gave this officer the following. He stated the one with the old lady, it was in Falconer, New York on
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Main Street. It is a two-story house, and I think maybe someone else lived there with the old lady. The side door was open, and we went inside and took the woman’s purse. There it was (sic) $1,000 inside the purse, and Jay and I split the money. Truth or lie?A. That did happen.
Q. That happened?
A. Yeah.
Q. Thousand dollars in the purse?
A. Yeah.
Q. And you could never take the police back to the house? Why?
A. I did.
Q. You did? And do you know any reason why the lady didn't miss $1,000.?
A. I have no explanation. I don't know. Maybe, like I said, maybe she didn't file a report. I don't know.
Q. So a thousand dollars is taken from the lady, and she didn't file a report. You don't think it was drug money or something she didn't want to report it or something? She is an old lady. You and Jay split the money, 500 apiece?
A. Yeah.
Q. What did you do with that money?
A. Spent it.
Q. Where?
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A. Wherever I felt like buying something.Q. When did this burglary happen?
A. It was while we were still working at Bush Industries.
Q. We are going to establish later on you started there in February 1988, so it would have to be between February and May, right?
A. Yeah.
Q. This is just before he went to work at Amo’s. The second one was also in Falconer at Feta Place on Falconer Street, a white house where Mrs. Reed lives. Is that true or false?
A. That's false.
Q. That's false. So you are telling them about a burglary that happened where Mrs. Reed lives, and Mrs. Reed happens to be the mother of Jason Reed, one of your friends who bought the van from you, as a matter of fact, and you are telling them about a burglary you and Jay committed at Mrs. Reed's house, and it's false, right?
A. I told them about one he had planned on committing there, yeah.
Q. (Marking.) You don't say plan. I don't see plan here. The second one was also in Falconer. That's what you say. You don't say planned. It's a lie. Any reason that you're telling the police that you and Jay Buckley commit
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crimes that you don't commit?A. I told them about ones he planned on committing and stuff. I haven't really told them about all the crimes he has committed.
Q. You are telling them about ones he hasn't committed here, aren't you?
A. Some of them that he has, some that he planned on. I didn't tell them about the rape in Vegas Street in 1978 or something like that.
Q. Come on, Mr. Brown, you didn't even know Mr. Buckley in 1978.
A. I knew of him.
Q. I don't want to talk about that and neither do you, but you didn't even know Mr. Buckley in 1978, so what are you going to tell the police about that?
A. Because I knew about it, I knew about it. He got caught.
Q. He got caught?
A. Yes, he did.
Q. And got caught and did time for raping a woman in 1978? Is that what you're saying? Is that what you're telling the jury?
A. I was told that I believe he got off it, but he did get caught.
Q. You didn't know him '78, and you don't know a
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thing about it. The only reason you are telling the jury that is because you know you are not supposed to, right? You want me to go to the judge and ask for a mistrial, don't you?A. No.
Q. I won't do it.
MR. MASSA: Your Honor, I believe this is becoming argumentative. Mr. Smith is opening the door to areas that he shouldn't, and this individual walks into it, and he makes the implication. Your Honor, I am not going to be responsible for a mistrial and I want that on the record.
THE COURT: This trial hasn't been - - Mr. Brown, the Court instructs you to definitely answer the question. I don't want to hear any more of your voluntary statements that are not addressing the question. Do you understand that?
THE WITNESS: Yes, sir.
MR. SMITH: Request an instruction, Your Honor.
MR. MASSA: He just gave one.
THE COURT: For the jury?
MR. SMITH: For the jury.
THE COURT: Concerning the alleged rape of what year?
MR. SMITH: 1978, I think is what he said.
THE COURT: Ladies and gentlemen of the jury, you have just heard the witness Brown make a statement to you or make a statement concerning an alleged rape that the defendant
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committed in 1978. That statement, you're to disregard as if it were never said. Now, obviously you are not going to forget it, but under your oath, you have to set it aside in your mind and not utilize it in determining your verdict of guilt or innocence.MR. MASSA: Thank you, Your Honor.
MR. SMITH: Your Honor, if I can have one further instruction, and the Court knows Mr. Buckley's prior record, not only should the jury disregard it, but it was false, he was never convicted of any rape.
MR. MASSA: Your Honor, with all due respect to counsel and the Court, I think those types of observations or communications with the Court should take place at side-bar. We are getting into some sensitive areas, and I really want to preserve this.
THE COURT: What was your motion, Mr. Smith?
MR. SMITH: The motion was to instruct the jury, in fact, the allegation that Mr. Buckley was convicted of a rape in 1978 is, in fact, false.
THE COURT: Well, you see, the Court doesn't know that, and that would be shown by the record, and if that's what the record shows, or absence of any conviction, certainly the Court will instruct the jury on that later.
MR. SMITH: Okay.
BY MR. SMITH:
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Q. Mr. Brown, try to answer the questions I ask you, okay?A. I was trying, Mr. Smith.
Q. Jay went to the house the day before and asked for a glass of water to use the phone. We are talking about Reed's house here. Jay went to the house the day before and asked for a glass of water to use the phone. Truth for a lie? (sic)
A. That was not at Reed’s house, no.
Q. That's a lie (marking). The next day he broke out the back window in broad daylight. Truth or lie?
A. That's true.
Q. The next day he broke the back window of the Reed house out in broad daylight?
A. To my knowledge, yes, that's what he said. Not the Reed house but the other house, but that did happen.
Q. It says the Reed house.
A. No.
Q. You're saying that's what he said, so you don't even know. (Marking.) He took two white bank envelopes. Each had either silver dollars or half dollars inside. True or false?
A. That's true.
Q. True? So we got two bank envelopes with coins in this supposed burglary as well as in the Kathy Wilson murder case?
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A. Yeah.Q. Hum. As we were walking towards my house, the town of Ellicott police stopped and questioned us. True or false?
A. That's true.
Q. Mrs. Reed thought that Jason did it.
A. That's false. We are not talking about the Reed house.
Q. We are not talking about the Reed house at all (marking). Why did you tell them the Reed house? Why didn't you tell them what house it really was if there ever was such a house where there was two bank envelopes taken?
A. Because I think, as I will point out, like that they got the name of Mrs. Reed confused with a different - -
Q. I see. The police made a mistake in writing up the report?
A. Exactly.
Q. That makes it all clear. As we were walking towards my house - - I'm sorry. The next one also occurred in Falconer next to the liquor store. Jay took two gray metal toolboxes. True or a lie?
A. That's true.
Q. That's true? Inside one of the boxes there were rubber gloves, the ones you took from my basement the last time you were here. True or false?
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A. That's true.Q. There were also hemostats inside the boxes. True or false?
A. True.
Q. I had one of the hemostats in my hand just after this burglary and the police drove by. True or false?
A. That's true.
Q. You were admitting you committed a burglary with Jay Buckley?
A. I was with him, yes.
Q. Have you ever been prosecuted on that?
A. No.
Q. You haven't been prosecuted because they can't find the victim, have you?
A. I don't know why I haven't.
Q. The next one occurred at Falconer Game Room. This was just before Kathy Wilson. Jay called me at home and told me to pick him up. Is that true or a lie?
A. I can't remember that one specifically.
Q. So that would be a lie then? He said he got inside, something happened and the cops were all over the place. True or not?
A. I told you I can't remember specifically. I don't know.
Q. They can check that with the police records
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whether the cops were all over the place.A. They can check the other ones, too, Mr. Smith.
Q. He did steal a couple cases of liter pop. We picked up a couple of cases of plastic bottles. True or false?
A. Not at this place. That's false.
Q. That's false. (Marking.) So I got about two or three lies in there, right? No Falconer Game Room, no liters, no cops all over the place. He would also hang around the Quality Market and steal purses and then come to my place. True or false?
A. That's true.
Q. That contradicts what you said before in one of your other statements, doesn't it? When they specifically asked you, did Jay Buckley steal purses at Quality to your knowledge and you said no. That's what you said on one of your prior statements, and here you are saying completely opposite. You didn't get that suggestion from them, right?
A. No.
Q. We are going to give you one lie, it's either for that one or this one. You are going to say this is true now?
A. I believe you marked the other one up.
Q. Did we?
A. I think so.
Q. I think you said that was true when we covered the
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other one, didn't you?A. I never seen him rob purses, he just told me.
Q. You called that one true when we came to it, and you're calling this one true now, so we are going to give you one. We don't know which one it is, but we are going to give you one for one of them (marking).
My car that was parked near the Lutheran home was a Buick. I sold it without a title to a Paul or Dave Bishop. He lives on Gerry-Ellington Road. I stored the guns and VCR in the back of the car. What are you talking about, guns and VCR you stored in the back of his car? What are you talking about?
A. There was guns and VCR in the trunk. That's what I am talking about.
Q. And you stored them there, right?
A. That's where they were.
Q. And you stole that VCR from Bill Ziebert (spelled phonetically). Mr. Buckley wasn't along and didn't have anything to do with it, did he?
A. No, I didn't. That VCR came from Ellery Center.
Q. You said before that VCR was stolen from - - I think you said Bill Ziebert. We are going to get to Bill Ziebert, but Ellery Center or Bill Ziebert, depending on which statement you read, and you said Jay Buckley stole it and you had it. How come you you had the VCR here?
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A. When we come back from the house once we come back from Ellery Center, he stuck everything in the trunk.Q. He gave it to you?
A. He stuck it in the trunk. He had nowhere else to put it.
Q. It says here you stuck it in the trunk. I stored the guns and the VCR in the back of that car.
A. That's where they were.
Q. “I” stored them, referring to you. Not Jay Buckley stuck them there; you stuck them there. It's another lie, isn't it?
A. Yeah.
Q. Can't have it both ways. Can't tell two different versions. I'll mark you up one way or the other. The sixth shotgun Jay sold to someone at Bush Industries. Is that true?
A. That's true.
Q. The .22 caliber I sold to Mark Kent. Is that true?
A. That's true.
Q. I had to buy it back from him, and we turned it over to the police. True?
A. That's true.
MR. SMITH: I move for admission of 46. I think I already did that, right? Did you ever work at a place called Eatery?
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A. Eatery.Q. Did you ever work there?
A. Yeah.
Q. Did you ever tell one of your co-workers there that Jay Buckley told you he got in the back of Kathy Wilson's van, went to her house, and that when he was coming out to get back into the van, she noticed Buckley. He took her to Pennsylvania and was hitchhiking back from Pennsylvania when a subject by the name of Foster picked him up, that Foster had been in court that day? Did you ever tell her that story?
A. I don't believe so I told her exactly that, no.
Q. What story did you tell her?
A. A detective came in the Eatery to talk to me about the burglary at Ellery Center, and they made mention of this, and you know, and obviously my co-workers wanted to know what is the cops doing here talking to you, and so I just told her, you know, Mr. Buckley there murdered Mrs. Wilson and they are onto me, and they questioned me about it.
Q. 2-5-90, (sic) you talk to a Barbara - - or excuse me, Barbara Joan Reidy?
A. Barb.
Q. And you told her that story and said he got picked up by this Foster coming back, that he had a garbage bag with him and he burnt it. So you're - - at that stage you're blaming everything on Mr. Buckley, which is nothing new, but
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you are telling another whopper to somebody else, right?A. I admit my faults.
Q. You admit your faults. Police ever tell you they checked the court records and found no Foster was scheduled for court that day in Warren County?
A. I already told you I don't remember telling her that.
Q. That was a lie. You knew that?
A. I wasn't going to tell her I was there. She would have fired me.
Q. Did you ever tell your brother Ronald that you were just doing this for the reward money?
A. No. I don't remember telling him that, no.
Q. Is it possible you did tell him or and you just don't remember or what?
A. I don't know. I don't know. I am saying I don't think I did.
Q. Did you ever tell your brother Ronald that you had to keep getting more evidence for the police because they wanted more evidence and you wouldn't get the reward money unless you give them a bunch of evidence. Did you ever tell him that?
A. Not exactly.
Q. What did you exactly tell him then?
A. I did tell him if, by chance, he might have seen
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anything laying around that might have been physical evidence to do with this case, you know, to let me know because it can only help me.Q. You had your brother Ron look for physical evidence to give to the police so you could get the reward money, didn't you?
A. Not exactly through my house, and I didn't do it for the reward money.
Q. Well, let's break it down. Did you have your brother Ronald look for evidence in your house related to the Kathy Wilson murder case; yes or no?
A. Yes.
Q. Why?
A. Because.
Q. Because why?
A. Because I told him that they were looking for the shoes and the bank bag and stuff like that, so I told him look around, look around the shed, it could be somewhere and I said if you find it, it can only verify the true version.
Q. Mr. Brown, why would you have your brother look for Kathy Wilson's shoes in your house if we already established Kathy Wilson's shoes were at the crime scene?
A. My house isn't underneath the shed.
Q. Well, I don't know where you had him look. Why would you have your brother Ron Brown look for Kathy Wilson's
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shoes anywhere? If you were at the crime scene you should know they were at the crime scene.A. He asked me what I would be looking for, what to be looking for. I explained to him, shoes, a money bag, different things.
Q. I know. We covered that territory. I am asking why are you having him look for Kathy Wilson's shoes?
A. I have already made myself clear on that, I feel.
Q. You have?
A. I explained it to you, yeah.
Q. You said the other day, after you found out the shoes weren't found, but you now deny you ever saw the shoes. Is that your current story, you deny seeing the shoes after the crime scene?
A. I always have pretty much.
Q. You always have?
A. Because I never remembered seeing them.
Q. We can mark those lies up when we come to them. I think we already marked a couple up on them. If you never saw the shoes and never saw them in your house, why do you have Ron Brown looking in your house for shoes?
A. He wasn't necessarily looking in my house for them.
Q. And if you knew Jay Buckley took the bank bag, or you figured Jay gave the bag to Mark Kent, why do you have Ron
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looking in your house for a bank bag?A. He didn't only look in my house and around my house.
Q. Where else did he look?
A. I told him walk up by the woods by Brenda's house, look around. I told him to find out if someone you know, one of his friends might have found one.
Q. Don't you know where any of the evidence was from the Kathy Wilson murder case? Couldn't you say to Ron, hey, the shoes are down at such-and-such a place; the ring is here; this is there; go get it for me and bring it to me so I can give it to the police? You didn't give him any specific locations of anything?
A. No, because I didn't know exactly where it was. If I did they would have had it.
Q. What do you have him looking for? I mean, well, I don't want to beat a dead horse, Mr. Brown, but the point is, you did have him looking for evidence for you to give to the police, you're admitting that, and I trust you're denying that you told him that in order to get the reward money, you had to give them more evidence?
A. I never - -
Q. Let's try a yes or no on that.
A. No.
Q. No, you are not denying it, or no, you're denying
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it. Let me start over. Did you tell your brother Ron Brown, I need to give the police more evidence to get the reward money; yes or no?A. No.
Q. Never?
A. Not that I know of.
Q. Not that you know of? Isn't that something you would know of?
A. Not necessarily. (Pause.) Like I told you, the reward money never motivated me really.
Q. If that would be true, you never had a discussion with your brother about reward money while you were in jail?
A. It didn't motivate me. $25,000 to spend a few years in jail, I could have made triple that in the streets.
Q. Triple that? What did you earn at Amo Marine?
A. Not - - a hundred and some bucks a week; maybe almost 200.
Q. You didn't make 25,000 a year. You're lucky if you made ten, weren't you?
A. At Amo's, I am sure I probably made over ten.
(Document marked Defendant's Exhibit No. 47.)
MR. SMITH: Mr. Brown, let me show you Defendant's Exhibit 47 which has been marked for identification as Defendant's Exhibit 47 dated 2-20-90. Again, police meet with your you give them a statement. Move for admission of
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| Statement of Jan. 31, 1990 |
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