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Jeffrey MacDonald's Article 32 investigation hearing: 1970 - Volume 11
CW3 Franz Grebner (CID Chief Investigator) and Bennie Hawkins (CID Chief WO)

(The hearing reopened at 1303 hours, 24 July 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that those parties who were present at the recess are currently in the hearing room.  Is the counsel for the government ready to proceed with the next witness?

CPT SOMERS:  He is, your honor.

(Investigator Franz J. Grebner was called as a witness by the government, was sworn, and testified as follows.)

Questions by CPT SOMERS:
Q  Would you state your full name?
A  Franz J. Grebner.
Q  Your grade?
A  CW-3
Q  Your organization?
A  Detachment B, 3d Military Police Group, Criminal Investigation.
Q  Your station?
A  Fort Bragg, North Carolina.
Q  And your armed forced?
A  Military Police Corps.
Q  United States Army?
A  Pardon me, United States Army.
Q  What is your duty position, sir?
A  I am the commanding officer of Detachment B.
Q  And was that your duty position on the 17th of February 1970?
A  It was.
Q  Were you in charge of the military side of the investigation of the MacDonald case?
A  I was.
Q  What was your function in regard to other investigative agencies in this case?
A  That of coordination.
Q  What investigative agencies were those?
A  You mean other than the military?
Q  Other than the military.
A  They were the FBI, the North Carolina State Bureau of Investigation, the State Highway Patrol, the Fayetteville Police Department, Cumberland County Police Department, and eventually many other police departments and state agencies throughout the United States.
Q  Now, as coordinator of this effort, do you know, or do you have any idea or estimate of how many people were interviewed by these agencies in the first weeks after this incident?

MR. SEGAL:  That's objected to as irrelevant and immaterial, purely hearsay to the extent the investigation would not be apparent from that, therefore its value and significance to the hearing officer would be of a very minimal nature, if any value at all.

CPT SOMERS:  Sir, the issue of whether the CID and other investigative agencies investigated this case specifically with regard to whether or not the four supposed assailants of Captain MacDonald could be found, has been put in question on the first day of this hearing by the defense.  We are attempting now to give the hearing officer some kind of an idea just exactly what effort was put out to find these individuals, since the investigating officer, in ruling against the government's objection to that, has indicated his interest in this information.

MR. SEGAL:  May I just respond to the extent of saying that if my memory serves me correctly, Colonel Rock, the only questions that were raised from the first day of the investigation was what was done in the immediate hours after Captain MacDonald reported the description of the persons, and particularly, and again with specificity, the question of whether road blocks were established to check persons leaving the reservation, the fact that thereafter, once the mechanism was started rolling, the time and the value of the road blocks appeared to be diminished, but many people were investigated or interviewed seems to me does not really lend itself to any question the defense has raised.  Secondly, Mr. Grebner has been asked to give a gross figure or the total number of people talked to, and without establishing of how many were talked to for the purpose of identifying the three men and a woman, or what they talked to other collateral, perhaps totally unrelated matters, and for that reason the figure seems to be not of value, not of help, and somewhat misleading to the investigation.

CPT SOMERS:  I do think they do show the magnitude of the investigation and the thoroughness thereof.

CPT BEALE:  Mr. Grebner, if you--I hate to impose upon you--but would you mind stepping outside for just a second?  We have a matter we have to resolve.

(The witness departed the hearing room.)

COL ROCK:  We will recess for five minutes.

(The hearing recessed at 1312 hours, 24 July 1970.)

(The hearing reopened at 1320 hours, 24 July 1970.)

COL ROCK:  The hearing will come to order.  Let the record reflect that all parties that were present at the recess are currently in the room, with Mr. Grebner being reseated at the witness table.

MR. SEGAL:  Colonel Rock, in view of the informal discussion that we've had with all parties, I withdraw at this time the objection that I made prior to the recess.

COL ROCK:  Thank you.  Proceed, counselor.

Questions by CPT SOMERS:
Q  The question was: how many people were interviewed by these investigative agencies in the first weeks after the murders?
A  In the Fayetteville-Fort Bragg complex, it would be in excess of 3500 people.
Q  Can you tell us what approximately--what percentage of these people were interviewed specifically with respect to the four alleged assailants of Captain MacDonald and his family?
A  In the initial stages the majority of these people would have been interviewed in connection with that.
Q  Can you give us some idea how many people were interviewed in the first week by the Criminal Investigation Division?
A  It would be about 1500.
Q  And does that same percentage apply there with respect to the subject of the interviews?
A  Yes, it would.
Q  Do you know, sir, whether road blocks were set out at the entrances to Fort Bragg on the morning of the 17th?
A  Yes, they were.
Q  How do you know this?
A  By the fact that people were being brought to our offices from these road blocks to be processed and talked to.

MR. SEGAL:  That's objected to, and move to strike the answer.  He does not have any personal knowledge that I can ascertain from that answer.

CPT SOMERS:  Now, with respect to the information he's just given, he knows personally that people were sent in from road blocks that were investigated by him and his people.  Again, recognizing there is some hearsay nature to what this witness has to say, this hearing is empowered to listen to hearsay evidence, and this evidence can be questioned, if the defense likes, as to its credibility because of that nature; but I think that it is relevant, that the investigating officer has indicated his desire to hear this type of evidence, and that this is far in away the best witness available to give this evidence.

MR. SEGAL:  I would suggest that the best witness available to give this evidence would be the officer or other authorized person who made the original order to establish a road block, and that the next best person would be those persons who executed the order, so that we know that the order in fact became a reality, but in this process, when somebody was brought to him he says came out of a road block is totally precludes any determination as when, how, where and under what circumstances such a road block came into existence, if it ever did.

CPT BEALE:  Captain Somers, in this particular matter, since this apparently is becoming somewhat an issue, that is whether or not the road blocks were set up, Colonel Rock has indicated that he would like to have the best evidence of the fact of whether or not road blocks were set up, so therefore, if in fact you care to establish this particular matter, you will either bring in the officer who gave the order or you will bring in the people who were at these alleged road blocks who can come in to say, yes, I had a road block set up, so therefore this witness will not be permitted to testify as to reference that there was or was not a road block, but he can testify that certain people came to him, will be fine, so to that extent the objection is sustained.

Q  Did you say, Mr. Grebner, that people were sent to your office during that morning?
A  Yes, they were brought to the office.
Q  And how many people were brought in that way?

MR. SEGAL:  I don't understand the question, that way.

CPT BEALE:  Rephrase your question.

Q  How many people were brought in there, Mr. Grebner?
A  On that morning, about 25 to 30.
Q  Now do you have any idea, do you know, how many Federal Bureau of Investigation agents were initially assigned to this case?
A  It was in excess of 20.
Q  And did the Federal Bureau of Investigation at some point reduce the level of its participation in this case below its initial level?
A  They did.
Q  Why?

MR. SEGAL:  That's objected to.

Q  And if you know--

CPT BEALE:  Wait a minute, he's got an objection.  Would you please state your grounds?

MR. SEGAL:  That obviously calls for an answer as to what the decision was of the Federal Bureau of Investigation.  It seems the only person who could appropriately state the reason for the reduction, if there was a reduction, is an appropriate agent in charge of the investigation or someone of higher authority in the FBI.

CPT SOMERS:  I think that, again, this witness, in indicating his source of information, will make it very clear the authenticity of his information.

CPT BEALE:  Mr. Segal, your objection is overruled.  However, this witness will be required to give the source of his knowledge.

Q  Why was this, and how did you discover this information?
A  I received this information from Mr. Murphy, who is the Special Agent in charge in Charlotte, North Carolina, and he indicated that after an analysis and evaluation of the evidence developed to that date, that it did not appear that there was a group of individuals as described, and that although they were not withdrawing, they were reducing the force at this time.

MR. SEGAL:  I move to strike that.  It's going beyond the scope of any permissible exception, because that calls for a series of conclusions apparently by Mr. Murphy, which are very much worthy of being examined by this court, if, in fact, he made such a conclusion, which I state now I seriously doubt.  Among other things, I would suggest that it be appropriate that before anyone even considers anything more about this, we be told on what date Mr. Murphy made such a statement on, and how much of the information developed here including 46 unidentified fingerprints did Mr. Murphy have when he made such a statement, if he made such a statement, which I again say, I doubt.

CPT SOMERS:  May I reply?

CPT BEALE:  Yes.

CPT SOMERS:  If counsel wishes to dispute the information of this witness, I suggest that he is not the best witness to do so.  He can impeach this witness in any of the normal ways he sees fit.  This witness has come in here under oath and stated that he was told by the man in charge of the FBI investigation division--

CPT BEALE:  Just a second, okay, fine.  We understand now.  When this witness was permitted to testify on this particular subject, in our informal discussion that we've just had, we agreed that we were going to not apply the hearsay rules to certain facts and figures.  Any conclusions that some other person like Mr. Murphy might have made and the reasons why he, himself, took a particular action, if you care to establish that, you may bring Mr. Murphy in, so that portion of his testimony as to why Mr. Murphy did whatever he did will be, in fact, stricken from the record completely.  So therefore, your answer to the question of was the FBI force reduced, and your answer was, yes, I believe.  Is that correct?

WITNESS:  That is correct.

CPT BEALE:  Fine, your answer will cease at that point.

Q  Would you tell us, please, sir, what you know personally about the wallet inside the house at 544 Castle Drive and its disposition?
A  On that morning when I arrived there, there was a man's wallet lying on the desk on the closest edge to the front door.  Subsequently I was told by the military policeman who was in the living room--

MR. SEGAL:  That is objected to.

CPT SOMERS:  He's just describing a sequence of events.  This is not hearsay; this is something that he heard.

MR. SEGAL:  The experienced investigator knows he can testify to what he did as a result of hearing something.  It is not appropriate to testify about a witness who must be readily available to this investigation.  He might have been here already.

CPT BEALE:  Your objection is sustained, Mr. Segal.

Q  When did you first discover that this wallet was missing, if you did?
A  Sometime after I had originally seen it.
Q  What was done as a result of this?
A  At this time I instructed that all persons that were present be searched to determine, or to establish that they had not taken it.  This was done.  We did not find the wallet.  It was later that day found along the road adjacent to the hospital.
Q  What hospital is that?
A  Womack Army Hospital.
Q  Was any medical personnel present in the house about the time this wallet was discovered missing?
A  For a short period of time, two of the ambulance drivers stepped in off the porch in order to get out of the rain, and they were shortly thereafter instructed that if they were getting wet standing outside, to go and sit in their ambulances.
Q  What was done with the wallet?
A  The wallet, after it was recovered, was returned to Captain MacDonald via Captain Williams with an explanation of what occurred.
Q  Did you assign some investigators to investigate the incident with the wallet?
A  No, sir, I didn't.  My entire investigative strength was committed to this investigation.
Q  How were these medical personnel dressed?
A  They were dressed with white jackets on and one of them was wearing a--appeared to be a pair of blue jean trousers.

CPT SOMERS:  Your witness.

Questions by MR. SEGAL:
Q  What is the name of the medic who was wearing the white jacket and blue jean trousers?
A  I do not know, sir.
Q  What effort was made to locate that person?
A  None.
Q  Was that medic on the premises of the MacDonald house when you arrived?
A  He was outdoors, I believe, because the ambulances were there.
Q  Let me ask you, sir, did you see the medic with the white jacket and dungarees when you arrived on the premises?
A  Oh, no, sir, only at the time that I noticed that they were standing inside the front door, and they were instructed to go and sit in the ambulances.
Q  Well, how long after you arrived at the premises did you observe these men standing inside the living room?
A  Perhaps a half hour, sir.
Q  After you arrived?  Well, let's establish when did you arrive?
A  I arrived somewhere in the neighborhood of 4:45 to 4:50.
Q  Between 0445 and 0450.  Is that right?
A  Yes.
Q  And when you arrived, whom did you observe outside the MacDonald house?
A  Primarily military policemen.
Q  And how many military policemen did you see on the outside when you arrived?
A  I came in the front door directly, and I believe that I recall seeing two at the--on the sidewalk, just at the edge of the front yard.
Q  You mean at the time you arrived--
A  This is outdoors.
Q  At the time you arrived outdoors on the MacDonald front lawn area, the only people you observed whatsoever were two military policemen?
A  No, there were also criminal investigators searching the outside of the house.
Q  Well, can you give us a figure of the total number of individuals you saw outside the MacDonald house when you, yourself, arrived?
A  No, sir, I didn't count them.
Q  Would you give us your best estimate to the number of military official persons, be it in uniform or investigators in plain clothes that you saw when you first arrived?
A  That I saw in the front yard in front of the house, approximately five to the best of my recollection.
Q  When you went in the house you entered through the front door?
A  That's correct.
Q  And in the living room how many people did you see?
A  Four as I recall.
Q  Who were those persons?
A  The military policeman, Major Parson who is Deputy Provost Marshal, and two criminal investigators, and that's all that I recall.
Q  Five persons were inside?
A  Four.
Q  You said--
A  In addition, and standing just outside in front of the Kalin door, in that vicinity, there were members of the Kalin family too.
Q  I am asking now about inside the MacDonald house--you said there was a military policeman inside?
A  A military policeman, Major Parson and the criminal investigators.
Q  Who was the military policeman that was inside?
A  I believe his name is Hagney.
Q  Now how much later after you arrived at 0445 or 0450 did you notice the wallet was not there?
A  I would estimate it would be somewhere between thirty and forty minutes, to the best of my recollection.
Q  Were you out of the living room for a portion of that time?
A  Yes, I was.
Q  Do you know how many persons, other than the four you found there originally, had occasion to come in and leave the living room while you were out of it?
A  No, I don't, but I do know that military policemen did come to the doorway and receive instructions from Major Parson.
Q  When you say came to the door; you are not indicating they came into the house, are you?
A  They stepped, opened the screen and stepped up into the doorway.
Q  Did you ascertain how many persons came actually into the living room while you were away from it, and before you discovered the wallet was missing?
A  From the last time that I saw the wallet there and when I learned that it was missing, it was the one military policeman that came to the door and the two ambulance drivers that were standing at the desk where the wallet was.
Q  And how did you get that information?
A  Because I had--when I reentered the living room the wallet was still on the desk.
Q  Were either of these two ambulance drivers permitted to go in the area of the couch in the MacDonald living room or the coffee table in the MacDonald living room?
A  Not until they eventually removed the bodies of the two children.
Q  So that if you were to be told that a witness to the military police observed a person in a fatigue jacket and dungarees enter the living room, go past the coffee table, touched a plastic pot and sit on the sofa, that does not sound to you as one of the military medical personnel that you, yourself observed?
A  It is no one that I observed, no, sir.
Q  Now at what time was Captain MacDonald's wallet later located?
A  To the best of my recollection it would be about 1330 hours, as I recall, shortly after lunch.
Q  And who is the person that found the wallet?
A  I do not recall the name of the person.
Q  Is there a record of the name of the person?
A  Yes.
Q  Will you be good enough to obtain that name for us and advise us before this proceeding has ended, as to who it was who found the wallet?

CPT SOMERS:  I object, this defense counsel cannot give this witness directions of any nature.

MR. SEGAL:  I was only asking.  I would not presume to tell Mr. Grebner or anyone else what they have to do

CPT BEALE:  Mr. Segal, your request to have this particular name is denied.

Q  Did you yourself, personally receive the wallet?
A  At which time, sir?
Q  Shortly after 1330 hours.
A  Yes, it was brought to me.
Q  By some of the military police people?
A  It was turned into one of those who were in the duty investigator's office, and they then brought it into my office, where I retained it until I--I retained it in my possession, until I turned it over to Captain Williams to give to Captain MacDonald.
Q  Did you examine the wallet?
A  Only to the extent that I opened it up to see if there was any money in it.
Q  Was there any money?
A  There was no money.
Q  Now in regard to the investigation made by the CID to locate the four persons described by Captain MacDonald, is it fair to say that the primary responsibility for that investigation was that of CID Agent Connolly and CID Agent Carter?
A  Carter is not a CID man.  Connolly is.  But it was not solely their responsibility.
Q  Mr. Carter is a detective for the Cumberland County Sheriff's Office?
A  That is correct.
Q  Now did CID Agent Connolly have the primary responsibility for checking out persons in regard to information about the four suspects described by Captain MacDonald?
A  This, coupled with other duties.
Q  I know, sir, but I want to know who had the primary responsibility for making the 1500 interviews that you say the CID performed?
A  All my investigators.  I was the coordinator and the director.
Q  Mr. Grebner, are you are aware that Mr. Connolly has given a signed sworn statement in which he said that he interviewed between 500 and 600 people in connection with this particular subject matter?
A  That is correct.
Q  He did.  And in view of the fact that you said 1500 people were interviewed, would that not make him the person who conducted the primary investigation of individuals for further information about the four people described by Captain MacDonald?
A  No, sir, it would not.

CPT SOMERS:  I object.  He's answered that question.

MR. SEGAL:  Well, who did have the responsibility--

COL ROCK:  Just a minute.

CPT BEALE:  Your objection is overruled, Captain Somers.  Answer the question if you can, Mr. Grebner.

A  Most of Connolly's interviews in connection with this were in the company of John Carter and were off post, and I said in that area there were 3500 in total, Fort Bragg and Fayetteville, and Cumberland County generally.  In addition to Mr. Connolly, there were FBI agents; there were Provost Marshal investigators, criminal investigators--
Q  Excuse me just a moment.  I think I have not made clear to you what I am asking.  I understood your direct testimony was that the CID caused 1500 people to be interviewed by its personnel.  Did I understand that correctly?
A  I said on Fort Bragg, that was the answer.
Q  In other words, you are telling us that in addition to 1500 interviews on Fort Bragg, the interviews were conducted by CID personnel on Fort Bragg and here in Fayetteville area?
A  Right.
Q  And that was what Mr. Connolly was doing?
A  He was one of those that was doing that.
Q  Who were the CID agents on 17th, 18th and 20th of February who conducted these 1500 interviews on Fort Bragg?
A  By name?
Q  Yes, sir.
A  Connolly would have conducted some, Mr. Hodges, Hawkins, Avilla.
Q  What was that last name?
A  Avilla, Reeves, Spesert, Cooper and Provost Marshal investigators which I could not say definitely which were the ones.
Q  Did each of these investigators submit a written report on every person they interviewed?
A  There would be a record that a person had been interviewed in most instances.  If there was negative information there perhaps would not be a record.
Q  How did you come to conclude that there were 1500 interviews by the CID personnel on Fort Bragg?
A  I was asked for an approximation.
Q  Yes, sir, what was the basis of your approximation?
A  By the number of people that were doing the interviewing and the number of interviews that they did.
Q  How do you know the number of interviews they did?
A  I can only accept what they reported to me.
Q  Well, did you write down what each of these agents reported to you as the total number of persons they interviewed each day?
A  Did I write that down?
Q  Yes, sir.
A  No, sir.
Q  Well, where did you get the figure of 1500, other than--are you saying to your recollection of what they told you on February 17th, 18th, and 19th?
A  From my recollection and also from the written records that we do have.
Q  Well, will you tell us, please, what the written records reflect in terms of total number of people, that is, can you give us the figure which is validated by written records of interviews?
A  During that period, a thousand.
Q  Are you telling us that there are a thousand interviews--
A  Twelve hundred, somewhere in that area.
Q  There was a thousand names that you had and noted in your files of persons who were interviewed?
A  Yes, sir.
Q  Those interviews were made in three days?
A  On those three days.
Q  And how many hours a day were your investigators working those days?
A  Sixteen and eighteen hours, therein.
Q  Have you figured out the amount of time that was devoted to each interview on the basis of the number of hours they were working?
A  I would have no way of knowing that.
Q  Do you have any idea of how long or how short the interviews were?

CPT SOMERS:  I object.  He's answered that question.

CPT BEALE:  Your objection is overruled, Captain Somers.

A  It would vary with each interview.  Some would last a matter of several minutes.  Some would last perhaps hours.
Q  Can you tell me how many interviews that your agents conducted lasted one hour or more?
A  In those days?
Q  Yes, sir.
A  Those three days--perhaps five or six.
Q  Isn't it a matter of fact, Mr. Grebner, some of those interviews took place because people called the CID and the military police to volunteer information in connection with the MacDonald episode?
A  That's correct.
Q  Can you give the court an approximate number of the persons who called to volunteer information in this regard?
A  I couldn't give you an honest estimation to that.
Q  Well, can you give us an approximation of the number of calls by persons volunteering information in what they thought was related to the MacDonald case?
A  Two or three, probably.
Q  And did many of these persons volunteer information purporting to descriptions of three men and one female?
A  This is correct.
Q  Mr. Grebner, when you arrived on the scene at 0445, did you then become in charge of the MacDonald investigation?
A  Yes, I did, as far as the military.
Q  Yes, sir, and were apprised very shortly after you arrived of what Captain MacDonald had said in regard to the assailants being three men and a woman?
A  Yes, I was.
Q  Did you cause or issue an order directing road blocks to be set up on the highways leading off the Fort Bragg reservation?
A  No, sir, road blocks are military police functions.
Q  Did you suggest to the military police or the Provost Marshal Office to set up such road blocks?
A  I understood at that time and was told by Major Parsons that road blocks were in effect.
Q  You were told by Major Parsons that, sir?
A  Yes.
Q  Did you have any other information in that regard other than what Major Parsons told you?
A  I don't understand your question, sir.
Q  All right, when did you--you say you learned from Major Parsons that the military police set up road blocks.  When was this?
A  Shortly after I arrived at the house.
Q  And did you learn where the road blocks were supposed to be set up?
A  No, I didn't inquire.
Q  Were you told?
A  No, I was not.
Q  From the time you arrived, Mr. Grebner, on the scene of the MacDonald house, and thereafter, did anyone else of the CID have a responsibility for giving investigation assignments to other CID investigators?
A  Yes, Mr. Shaw, who I placed in charge of the crime scene, would have directed any efforts in connection with the crime scene protection and security.
Q  That would be to retain the services of the crime laboratory at Fort Gordon?
A  He did not do that personally.  That was done from my office.
Q  Who was the man actually assigned on a day-to-day basis of the investigation of the MacDonald case under your overall supervision?
A  At the crime scene, Mr. Shaw.
Q  Were there any other specific assignments given out by any of the CID investigators, specific individual assignments?
A  Yes.
Q  But you remained in charge thereafter of the overall investigation?
A  That is correct.
Q  And thereafter did all reports made by the various investigators and the agents that you coordinated come to you for your attention?
A  Not directly to me.  They came first to another investigator who was maintaining a log and file.
Q  Who was that?
A  That was Mr. Ellis.
Q  Did you have occasion to review the reports that were coming in from the investigators and military police and the other agencies you coordinated?
A  I did.
Q  That was part of your function, as a matter of fact, being the overall chief of this investigation, was to review all reports and investigations developed on a day-to-day basis?
A  This is correct.
Q  And to your knowledge, based upon your supervision of this case and your review of the records, has anyone made a statement that Captain MacDonald and Mrs. MacDonald had a violent argument on the evening of February 16th or early morning of the 17th, 1970?
A  Not that I recall.
Q  Has anybody made a statement to your knowledge that Captain MacDonald and Mrs. MacDonald were in a habit of violent domestic arguments?
A  Not that I recall.
Q  Is it a matter of fact that the sum and substance of all the people you interviewed, in regard to that last question I put to you, that you have no information and no investigation report which shows that the MacDonalds had a habit of having violent domestic arguments, that you included in your answer consideration of the fact that your agents interviewed people as far away as Ohio and New York, who could give you no information that there was this kind of relationship between Captain and Mrs. MacDonald?
A  That's correct.
Q  Did your agents also have occasion to interview people in Chicago where Captain MacDonald went to school and was married and living with Mrs. MacDonald as to the domestic relationship of he and his wife?
A  We did.
Q  And that none of those persons gave any information to indicate that they were in the habit of having violent arguments?

CPT SOMERS:  I object.  It is true that this hearing can go into hearsay and we've gone into a bit of it, it can get too remote and I submit that at this point we have gotten too remote in the sense of hearsay, and I object to this questioning, and any further questions in this line.

CPT BEALE:  The objection is sustained.

Q  Based upon the various investigation reports that you received and you own interviews with the CID investigators, did you receive any information whatsoever to substantiate a claim that Captain MacDonald and Mr. MacDonald ever assaulted each other physically?

CPT SOMERS:  I object.  There's no basis for that question, and furthermore it goes back to the remoteness of the information that he's asking for.

MR. SEGAL:  The basis for the question is the fact that Captain MacDonald is charged with having done these crimes, and the propensity to commit violence upon one another is a fact that would have to be considered, and what I suggest, which there is no difficulty in receiving answers, no harm to the government since, one, the government already knows the information that we're talking about, so therefore the government is not surprised and not prejudiced.  So it seems to me such information is highly relevant to determining whether or not the defendant in this case, in fact, did inflict these injuries on his wife and his two children.

CPT SOMERS:  If the defense wishes to submit character evidence it is free to do so; however, I submit again the evidence he's trying to ascertain now is from a source too remote to be considered and I object.

CPT BEALE:  Captain Somers, your objection is going to be overruled because if, in fact, this witness has knowledge of these particular facts you state is too remote for this particular hearing, then I would suggest to you then that his testimony concerning what the agents went out and did and found with suspect accordingly and after their interview, they didn't find any, then I suggest to you that that also is too remote.

CPT SOMERS:  If I may, the information which Mr. Grebner has given here and which he's been permitted to give on direct examination has concerned administrative details such as the numbers of investigations and the extent of an investigation, which hasn't concerned conclusions as to the investigation, or the substance of any given interview.

CPT BEALE:  Well, your objection, at least right now, is overruled and this witness will be instructed to answer this particular line of questioning as long as it's within reason.  We don't want to go too far.

(Mr. Segal requested that the reporter read back the last question and she complied.)

Q  Was there any indication from your records that Captain MacDonald himself ever administered corporal punishment to his children; in other words, beat them, other than a playful slap or anything like that?
A  No.
Q  Did your interviews reveal that Captain MacDonald was a kind, gentle, loving father to his children?

CPT SOMERS:  I object to that on the same basis.

MR. SEGAL:  It goes to the specific question of whether this man is capable of having mutilated his children, or whether he has shown by prior conduct that he exhibited propensity for violence, and that would give reason to believe that is consistent with other behavior.

CPT BEALE:  The objection is overruled.  Answer the question, Mr. Grebner.

A  No.
Q  Did your interviews indicate whether or not Colette MacDonald ever became violent with either her husband or children?
A  No.
Q  Did your interviews indicate that Captain MacDonald was anything other than a normal, healthy, medically and physically, person?
A  Physical?

CPT BEALE:  Just a second, Mr. Grebner.  Mr. Segal, how much further along these lines?

MR. SEGAL:  I have just two questions, sir, and that will complete, I think, all of our examination.

CPT SOMERS:  I object to this one.  It requires that he decide whether the evidence shows that he would be healthy which is a conclusion, shows him to be normal, which certainly is a conclusion, and I think we've gotten ourselves extended out here on hearsay on top of hearsay and asking for conclusions.  I think this witness now cannot answer that question and should not be permitted to do so.

MR. SEGAL:  What we are asking of this witness, sir, is whether any person of hundreds of thousands interviewed ever indicated that Captain MacDonald showed signs of mental aberration, mental illness, or any condition that might be significant factors in this determination.
I will rephrase the question if that's more appropriate.

COL ROCK:  Please do so.

Q  Mr. Grebner, did any of the persons interviewed by the various investigators in this case give any statement to indicate that Captain MacDonald showed signs of mental illness or mental aberration of any sort?
A  No.
Q  Did any person interviewed by the various investigation state that Captain MacDonald had taken either dangerous drugs or addicting drugs?
A  No.

CPT BEALE:  Mr. Segal, that's your two questions.

MR. SEGAL:  I think that's the end of my examination.  Thank you, Mr. Grebner.

CPT BEALE:  Redirect?

Questions by CPT SOMERS:
Q  Mr. Grebner, did anyone in any of these interviews that have been related have an occasion to state that Captain MacDonald was capable of committing these crimes?
A  Yes, sir.
Q  He did, very good.  Who was that?
A  His sister, Mrs. Alvey.

CPT BEALE:  Mrs. Who?

WITNESS:  Mrs. Alvey.

Q  How do you spell that?
A  A-l-v-e-y.
Q  Now with respect to these phone calls that we've spoken about dealing with the group composed of three males and one female, what did your investigation do?

MR. SEGAL:  I object.  I know of no phone calls that were referred to whatsoever.

CPT SOMERS:  The defense asked questions about whether or not many of the phone calls that they received concerning information about these people--

MR. SEGAL:  I thought he was referring to interviews of persons--

CPT BEALE:  All right, go ahead.

Q  Upon this, what did your agents do?
A  Upon receiving this information, investigators were sent out to check out each and every report and find the members of that group to establish whether they did fit the description and to establish their whereabouts and their activities during the period in question.
Q  Was this done with each of the phone calls with information that was given to you?
A  Everyone we have received from that day until this.
Q  Do you have any idea how many different groups were checked on in this way?
A  In this area, groups, I--
Q  Groups or individuals.
A  Well, there were many individuals checked in addition to just reported individuals, who reportedly hung around together.  I'd say 150 to 200 different individuals and groups were checked.
Q  What did the investigation disclose with respect to the location of the individuals who were checked?

MR. SEGAL:  That would be objected to.

Q  On the night of the 16th-17th.

MR. SEGAL:  That would be objected to unless those reports of investigation were made available.

CPT SOMERS:  I think the defense is in a very difficult position here, having elicited much of this information itself.

CPT BEALE:  The objection is overruled.

A  We were able to establish that these individuals were not on Fort Bragg on the night and morning in question.

CPT SOMERS:  No further questions.

CPT BEALE:  Re-cross?

MR. SEGAL:  Yes.

Questions by MR. SEGAL:
Q  Mr. Grebner, did you establish that some of the these people were not on Fort Bragg by either showing them in person or showing their pictures to Captain MacDonald for the purpose of having them identified, him identify them?
A  I don't recall showing pictures of that type of individual that he described.
Q  Isn't it a matter of fact, Mr. Grebner, that Captain MacDonald was never asked by you or any CID agent to view any of the persons that were subjects of interview as possible suspects in the investigation of this killing?
A  That is correct.
Q  And he was never shown any photographs of persons outside the immediate Fayetteville area who were being considered as suspects in this killing?
A  That's correct.
Q  That police in farther places away than the Fayetteville area, all over the southeastern parts of the United States, made reports of groups of individuals who might be considered suspects to your office?
A  Yes, that is correct.
Q  And did you show pictures of the individuals who were picked up in these places to Captain MacDonald for the purpose of identification?
A  No, sir.
Q  Do you have a copy, sir, of the statement you say Mrs. Alvey made about Captain MacDonald?
A  I have a copy of the investigator's statement concerning her interview.

MR. SEGAL:  I would request, sir that a copy of that statement be made available to the defense.  I would say that particularly in anticipation of the fact she will be called as a defense witness.

CPT BEALE:  Well, the request is denied at this time.

MR. SEGAL:  I have nothing further.

CPT SOMERS:  No further questions.

COL ROCK:  When you were in the house or in the area of the MacDonald house and you saw this individual as a medic with blue jeans and a white jacket, did this strike you in any way as being unusual? Did you think this was a civilian or that a soldier would be dressed in blue jeans and jacket?

WITNESS:  Well, that is why I remember, sir.  My first thought upon seeing him is, “He's out of uniform.”  And immediately following this thought was that there were several ambulances out there and I recall that they normally only have two ambulance drivers on duty and they must have had to call some of them out of bed and they had dressed quickly.

COL ROCK:  I see.  To your knowledge, have you been involved in any other investigation where similar circumstances has occurred; that you have seen a soldier medic in blue jeans?

WITNESS:  Not that I recall, sir, offhand.

COL ROCK:  Did you have occasion to go outside the house during the time that you were first in the MacDonald home area that is to go around the house in a search?

WITNESS:  Yes, sir.  I was called outside when the weapons were found in the back of the house and I went around and instructed that the knife and ice pick be covered.

COL ROCK:  Was it dark at that time?

WITNESS:  Yes, sir, it was dark and raining.

COL ROCK:  Did you notice whether there was a light burning in the back of the house, on the exterior of the house?

WITNESS:  I believe that the back light was on at that time but I could not say for certain, sir.

COL ROCK:  When did you first go into the kitchen area?

WITNESS:  I did not enter the kitchen area.  I merely walked as far as the doorway of the living room.

COL ROCK:  Basically speaking, can you sum up how an agent would determine when interrogating a “hippie” suspect, whether that individual in fact had or could have been in the MacDonald house area?  In other words, in reading reports, does the individual establish an alibi of having been somewhere else that evening?

WITNESS:  Yes.

COL ROCK:  Or what method is used to--

WITNESS:  It would be the establishment of an alibi that they were someplace else at such and such a time, and then that alibi is checked.

COL ROCK:  I see.  The alibi is then checked.  I have no further questions.

MR. SEGAL:  I have nothing further, sir.

CPT SOMERS:  No further redirect.

COL ROCK:  Mr. Grebner, you are advised that you will discuss your testimony with no person other than counsel for the government or counsel for the defense.  Do you understand that?

WITNESS:  Yes, sir.

COL ROCK:  You are excused, subject to recall.

CPT SOMERS:  At this time, sir, I wish to have the weapons taken back to the CID evidence locker.

COL ROCK:  I have no further use for them at this time.  Does counsel for the accused?

MR. SEGAL:  Depending upon who is to be called in the balance of the afternoon, sir.

COL ROCK:  Who is the next witness?

CPT SOMERS:  The next witness, sir, is a Mr. Hawkins.

COL ROCK:  Also of the CID?

CPT SOMERS:  Yes, sir, he is.

MR. SEGAL:  And after Mr. Hawkins?

CPT SOMERS:  That's the last witness for the day.

COL ROCK:  Well, Mr. Hawkins could return these, could he not?

CPT SOMERS:  Well, sir, I'd have to check.  I'm not sure the paper work is here.

MR. SEGAL:  I don't think Mr. Hawkins will require them.

COL ROCK:  All right, these weapons will be removed by Mr. Grebner.  We will now take a ten-minute recess.

(The hearing recessed at 1414 hours, 24 July 1970.)

(The hearing reopened at 1457 hours, 24 July 1970.)

COL ROCK:  The hearing will come to order.  Let the record reflect those parties who were present in the hearing room at the recess are currently in the hearing room.  Is the government ready to proceed with its next witness?

CPT SOMERS:  Yes, sir, the government calls Mr. Hawkins.

(Investigator Bennie Hawkins was called as a witness by the government, was sworn, and testified as follows.)

Questions by CPT SOMERS:
Q  State your name.
A  Bennie J. Hawkins.
Q  Your grade?
A  Chief Warrant Officer.
Q  Organization?
A  Headquarters and Headquarters Company, 503d MP Battalion.
Q  Your station?
A  Fort Bragg, North Carolina.
Q  And your armed force?
A  Army.
Q  What is your duty assignment?
A  Criminal Investigator.
Q  At Fort Bragg?
A  At Fort Bragg.
Q  Did you have an occasion to receive a report from New York reference the MacDonald case?
A  Yes, sir, I did.

MR. SEGAL:  Objection, that's objected to.

CPT BEALE:  On what grounds?

MR. SEGAL:  It's vague, its relevance or pertinence to time in connection with this matter is so remote that on the basis of the present state I don't think we can permit such an answer.  I think we should get to the relevance.

CPT SOMERS:  It is a preliminary question.

COL ROCK:  Proceed, counsel.

Q  Did you have occasion to receive such a report?
A  Yes, I did.
Q  What did you as a result--

MR. SEGAL:  It's objected to.  You don't know when the report was received, from whom, what circumstances and therefore what he did with it cannot be of any conceivable relevance.

CPT SOMERS:  I think it will be.  I think--

CPT BEALE:  I think through the art of questioning you should be able to at least establish some vague relevancy of what this report has to do with this hearing.

CPT SOMERS:  Well, I can make an offer of proof to explain what this witness is going to testify to.

MR. SEGAL:  Could we just have the date of the report and from whom, instead of taking him out of the room for an offer of proof and delaying this.  I'd like to have some bare factual outline, sir, to understand what we are talking about.

CPT SOMERS:  Given the chance, I will establish the date.  I'll withdraw that question.

CPT BEALE:  Okay, well, fine.  Try again.

Q  Mr. Hawkins, approximately when did you receive that report?
A  9 May, sir.
Q  And from whom?
A  From a Detective Sergeant, Suffolk County Police Department.
Q  Now what did you do as the result of receiving this report?
A  On 11 May I proceeded to Suffolk County Police Department in New York.

MR. SEGAL:  You are dropping your voice.  I cannot hear your answer.

CPT SOMERS:  Would you repeat your answer, please?

A  On 11 May I proceeded to the Suffolk County Police Department.
Q  What did you do there, if anything?
A  I learned upon arrival that--

MR. SEGAL:  That's objected to.  That's hearsay.

CPT BEALE:  Mr. Somers, direct the witness to answer the question in terms of what he did.

CPT SOMERS:  I asked him what he did.

CPT BEALE:  And he said he learned something from somebody.

Q  Do you understand the direction?  Phrase your response to it in terms of your own actions, if you will.  When you arrived there, what did you do?
A  I proceeded to identify a group which had been reported on the initial report on 9 May.
Q  Can you describe this group?
A  Yes, sir, it was a group of four.  There were three males and one female in the group.  The one male, Negro, approximately 5-9 in height, 170 pounds in weight, black hair, brown eyes.  There were two Caucasian males, one of them approximately 5-10 in height with dark brown hair, hazel eyes, of about medium build.  The other Caucasian male was approximately 5-6 in height, blond hair and blue eyes.  The female approximately 5-5 to 5-6 in height, 110 pounds in weight.  She had blond hair and blue eyes.
Q  Did this group have any connection with one another?
A  Yes, sir, they did.  They ran together in a group.
Q  Did you obtain any information about wearing apparel of these people?
A  Yes, sir, I did.
Q  What was that?
A  They all were dressed with the hippie type clothing.  They--the colored male was seen wearing an army field jacket or fatigue shirt.
Q  Did you learn anything about the apparel of the female?
A  The female was known to wear a floppy hat and hip boots.
Q  Did this group you are speaking about have any connection or association with Captain MacDonald or his family?
A  They associated with Captain MacDonald's brother.

MR. SEGAL:  That's objected to and move to strike.  There's no evidence that Captain MacDonald's brother is involved in this case in any fashion whatsoever.  In fact, there's no evidence that he even has a brother, sir.

CPT BEALE:  What was your answer to that question?

WITNESS:  My answer was that they associated with Captain MacDonald's brother.

CPT BEALE:  Mr. Hawkins, did you learn this knowledge through questioning these four people?

WITNESS:  Through questioning one of the four, sir.

CPT BEALE:  One of the four, and that's how you came by that knowledge?

WITNESS:  Yes, sir.

CPT BEALE:  Your objection is overruled, Mr. Segal.

Q  How long had that association been?
A  I only know that the association was from a period of last summer to the time I was there.
Q  And why last summer?
A  The individual I interviewed there informed me that Captain MacDonald's brother and this group had lived in a house which they had rented on Fire Island during the summer.
Q  Do you know as a result of your information whether Captain MacDonald had been up to New York and seen his brother last summer?

MR. SEGAL:  That's objected to.

A  Yes, sir.

MR. SEGAL:  That's objected to.

CPT SOMERS:  I'm trying to establish, sir, that Captain MacDonald had an opportunity to have seen this group of people.

MR. SEGAL:  Well, how does Captain MacDonald know what that group of people the government talks about, they've never shown him a picture of the individuals?  We have no way of knowing what he is referring to.

CPT SOMERS:  The defense counsel can cross-examine this witness.  The witness can tell us the names of these people, if necessary.  I think the defense has any opportunity it needs to find out.  All I am trying to establish is that Captain MacDonald had an opportunity to see these people.

CPT BEALE:  Mr. Hawkins, if you would excuse yourself and just wait out there in the room and we'll be right back with you.  Of course, don't discuss your testimony with anyone other than counsel who are here.

(The witness departed the hearing room.)

COL ROCK:  Let the record reflect that I have also excused myself at this time.

(Col Rock departed the hearing room.)

CPT BEALE:  Captain Somers:  would you please elucidate to some extent to show what you are driving out--what the relevancy of this whole line of questioning is?

CPT SOMERS:  Well, obviously, the government's contention here is that Captain MacDonald--

MR. SEGAL:  Excuse me, please.  Is this on the record or off the record?

CPT BEALE:  On.

CPT SOMERS:  The government's contention is that Captain MacDonald committed these offenses.

CPT BEALE:  Well, that's obvious.

CPT SOMERS:  Now he's given description of four people as the supposed assailants in this case.  We are attempting to show that he has had an opportunity to see four people just like this, and from this source derived a possible source of description for these four people, and that they are memories of his from having seen them in the past, and that the opportunity to have fabricated this story presents itself from his seeing these four people.

CPT BEALE:  Now, what is this witness going to testify to?

CPT SOMERS:  He can testify that Captain MacDonald was in New York during the time that his brother was associating with these people, and that he saw his brother at this time and therefore had an opportunity to see these four people.

MR. SEGAL:  May I say, sir that the rule of flexibility that we've applied about when statements made by other persons are admissible seems to be have reached the stretching point with this issue.  It is very clear that if this witness has such knowledge and assuming it is admissible or of any value, then the witness who Mr. Hawkins talked to might be of some interest to this investigation.  I doubt it.  I doubt it, that one has to produce somebody, you know, who fit the description in order to say that a person made up a story used in that description, you know, nine months, or six months later, and it is so remote, it is so tenuous in this connection and its possible prejudice on the balance.  It can't possibly be admitted and certainly not through this witness.

CPT BEALE:  This hearing will be recessed.

(The hearing recessed at 1512 hours, 24 July 1970.)

(The hearing reopened at 1528 hours, 24 1970.)

CPT BEALE:  The hearing will come to order.  Let the record reflect that Colonel Rock is again not present, as is the witness.  Everybody else is here who was here at the break.
    I've considered both the pro and the con of this particular question to the extent to which this witness will be permitted to testify.  I have decided that the hearsay notwithstanding, he will be permitted to testify concerning the fact that he went to New York, he visited with these four people, I gather that's what he did, that he had a certain conversation with one of these individuals, one portion of that conversation being that the group did, in fact, at least know Captain MacDonald's brother; and secondly, the witness will be permitted to testify as to the description of the four individuals, if he, in fact, visually saw the individuals.
And he will only be permitted to testify as to what they looked like at the time he saw them.

MR. SEGAL:  Might I suggest in order to implement your ruling, Captain Beale, that we strike from the record all the testimony after the point at which Mr. Hawkins who said now that he went to Suffolk on the May the 11th and he interviewed a person, and then the questioning should begin anew from that point in the light of the order that you have just entered.  It seems to me otherwise we would have to go back and edit this record and I think it is difficult to recall the words exactly of Mr. Hawkins.  It would be easier from all stand points to start afresh, pursuant to your decision.

CPT BEALE:  I think that's a valid suggestion and I will instruct that the record--that it will be stricken from the record that portion of Mr. Hawkins testimony after the fact that he testified that he went to Suffolk County, New York.  Any other matters to be taken up?

CPT SOMERS:  Yes, sir, something that I wish to make clear.  The witness did not testify that he has seen all four of these people.  He has seen and talked to one of them.  He has seen photographs of all four of them, and he has descriptions of all four of them.

CPT BEALE:  Where did he derive the description from?

CPT SOMERS:  From the Suffolk County Police Department, I believe, who had apprehended them, photographed them, and made up their description, and that is the description which he has given.  Like I say, he's seen one of them and he's seen photographs of all of them.

MR. SEGAL:  I'm not at all certain that having seen the photographs, since Mr. Hawkins did not see the people in Captain MacDonald's house on February 17th, other than the fact that they indicate, probably, whether they were Caucasians or they were Negro, or they were male or female.  But aside from that, it seems to me all the rest of it now calls for substantial addition of hearsay as to the procedure or techniques of Suffolk County Police, how they establish height, weight, and other points of identification, age, whether those were facts by questioning these people, by actual measurements, or by estimation, is beyond me, and I don't think I would ever get to see the validity of it without going into an interview with one of the persons who conducted these particular measurements.

CPT SOMERS:  If I may, we are not requesting that this witness testify--in fact, we have not had this witness testify, nor would we, that these people as a conclusion meet the description given by Captain MacDonald.  Now this witness knows that description, and could give it.
All we are doing is presenting his testimony as to these four people.  You can decide for yourself, and of course, more particularly Colonel Rock can decide for himself how closely or how far from the original description that Captain MacDonald gave, the description of these people comes.

MR. SEGAL:  We don't know the basis of how this information was gotten.  We can't cross-examine Mr. Hawkins as to whether he just guesstimated it, the height or weight, or whether he read it from something--how they got it.  I mean it is really absurd to speculate.

CPT SOMERS:  He saw him.

MR. SEGAL:  Excuse me; speculate as to how those figures were arrived at.

CPT BEALE:  What were you going to say, Captain Somers?

CPT SOMERS:  He saw one of them; he has photographs of all of them.  He has seen the police descriptions made up by the people who apprehended them.  That's all I can offer as basis for his description.

CPT BEALE:  Well, I am going to again stick to the ruling I've made.  I am going to let him testify as to those things I've mentioned to include the description of the four individuals.  The weight to be given this testimony, if any, is of course solely within Colonel Rock's determination, and I rest assured that through the art of cross-examination that counsel for the accused will be able to make the continuances of the testimony at least apparent if that is in fact true.  So does both sides understand the ruling?

CPT SOMERS:  I'm not sure I completely understand the ruling.

CPT BEALE:  Let's permit him to testify to the fact that he talked to this one individual who stated that Captain MacDonald's brother was known to have associated; secondly, we will permit him to testify as to the description of the four individuals.

CPT SOMERS:  If I may, then, in a counter proposal.  I think he's already testified to all those things.  Probably the best thing to do is eliminate the last question which raised the objection with respect to whether Captain MacDonald was in fact in New York, which I gather is what you are excluding.

CPT BEALE:  Yes.

CPT SOMERS:  And just leave it at that.  I think that does, in fact, what your ruling has stated.

MR. SEGAL:  I would not want to speculate at all to the bits and pieces that we have left in the record.  For that reason it seems to me the only way to really proceed within limits of your ruling, sir, is to start from the juncture that on May 11th, 1970, Mr. Hawkins went to meet with Suffolk County Police and thereon he made the questioning, but not allowed to ramble on but answer specific questions in detail which may be subject to your ruling so that we may know that the record is correct, and that all is entered is within the confines of the ruling.  We are treading on a very difficult area.  I am very much troubled about the judicial potential of this, and I am particularly troubled when we are dealing with proceeding within the determining authority is not a trained law person, all due deference to the investigating officer, is not the same thing as an experienced judge sitting and weighing and rejecting evidence, and although I am certain that the investigation officer will do everything within his power to, you know, weigh these things properly, I cannot say with confidence, that a person without legal training and substantial legal experience could treat this in a proper manner, and because of the danger of prejudice and potential harm to the accused I think we must move with great caution and start from a point on this record clearly where we all know where we are at, where we all know what has gone before that, and we can judge whether each answered question fits within the limitation of the rule made by the legal advisor.

CPT BEALE:  And I think that's best and what we are going to do.  We will just strike that in accordance with my previous direction and we'll start anew and we'll have the appropriate questions directed to the witness.  We will recess.

(The hearing recessed at 1538 hours, 24 July 1970.)

(The hearing reopened at 1539 hours, 24 July 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that both the witness and the investigating officer have returned.  Counsel for the government and the accused are present.  I would like to remind you, Mr. Hawkins that you are under oath.  Please proceed, counsel.

MR. SEGAL:  May we advise the investigating officer at this time the status of the record of the case, sir.

CPT BEALE:  Oh yes.  Let the record reflect that I am informing Colonel Rock that all the testimony that had been given after the question of--Did you in fact go to Suffolk County, New York on a certain date and he responded, yes I did--all the testimony after that has been stricken from the record, sir.

COL ROCK:  Okay, proceed.

Questions by CPT SOMERS:
Q  Did you have occasion in New York to interview someone?
A  Yes, sir, I did.
Q  Would you describe that person, please?
A  That person was a colored male, approximately 5-9 in height, 170 pounds in weight, black hair and brown eyes.
Q  Did you derive from this individual a description of any other individuals?
A  Yes, sir.
Q  Who were associated with him?
A  Yes, sir, I did.
Q  And what was that description?
A  One--

MR. SEGAL:  That's objected to as double hearsay.  We were up to single hearsay, now we are up to double hearsay, and I question the credibility of the colored man, whose name is not even known to this inquiry as to his ability to observe, describe or honestly state what he may have seen, and who he means when he was describing his associates.

CPT BEALE:  Captain Somers, in accordance with my ruling, why don't you elicit that information through other means, or establish it by other means?

Q  Did this individual whom you have interviewed have other associates?
A  Yes, sir, he did.
Q  Now with respect these other associates, do you have--let me retract that.  With respect to these people have you seen their pictures?
A  Yes, sir, I have.

MR. SEGAL:  That's objected to.  We do not know who--or how to determine who these associates were.  I mean I beg anyone to tell me how they will determine who we describe as my associates or not associates.  This is improper questioning of this witness, an improper area and it seems that it goes beyond what was specifically ruled upon by the legal advisor in our discussion before.

CPT SOMERS:  I disagree.  I think it quite within the ruling.

CPT BEALE:  Well, Captain Somers, I can envision a way in which you can establish what I ruled, and you are not presently proceeding on that course.  I don't want to tell you how to do it.

Q  Did you, in New York, have occasion to investigate a group of individuals?
A  Yes, sir, I did.
Q  How many people were in the group?
A  Four, sir.
Q  Did you have an occasion to interview any of these people?
A  Yes, sir, I did.
Q  And is that the individual you've already described?
A  Yes, sir.
Q  Would you describe them, please--him, please?
A  He was a colored male, approximately 5-9 in height, 170 pounds in weight, black hair and brown eyes.
Q  Would you describe the other members of this group, please?

MR. SEGAL:  That is objected to.

CPT BEALE:  All right, let me ask this witness a question.  Did you, in your course of the investigation, have a reason to come in contact with the photographs of other three people?

WITNESS:  Yes, sir.

CPT BEALE:  Were these people, in fact, identified to you to be the other three that the person you talked to--were these three all the associates?

WITNESS:  Yes, sir, they were.

CPT BEALE:  Now, how did you determine in fact that these other three were, in fact, associates of the fourth that you talked to?

WITNESS:  From the interview of the man, sir.

CPT BEALE:  From the interview of the man?

WITNESS:  Yes, sir.

CPT BEALE:  And you had occasion to examine those photographs?

WITNESS:  Yes, sir.

CPT BEALE:  And from that can you give a description of the other three?

WITNESS:  Yes, sir.

CPT BEALE:  Would you do so?

WITNESS:  There were two Caucasian males, one approximately 5-10--

MR. SEGAL:  Now, that's an objection.  The photograph couldn't possibly show that.  It had to be hearsay from another source beyond the photograph itself.  I think if we ask Mr. Hawkins where he obtained the vital details it may become apparent as to what objection basis is.

CPT SOMERS:  Did you have any other source of information about the description of these people?

A  Yes, sir.
Q  And what was that?
A  Police records of Suffolk County Police Department.
Q  And did you see those records?
A  Yes, sir.
Q  Now, as the result of having seen those records and the pictures that you have reference to, can you describe those individuals?
A  Yes, sir.
Q  Would you do so?

MR. SEGAL:  That's objected to.  He cannot describe those individuals.  He can report, report perhaps, if you allow it, sir, what the records say in New York.  He cannot tell us how they made it, either by measurement or by guess, or by the hearsay statement of the individuals themselves, and that has to be made clear on this record before we get beyond this.

CPT BEALE:  All he will be giving is merely the facts and figures as were reported on some police report, and that's all he's doing.  Proceed.

A  Two Caucasian males, one approximately 5-10 in height, 180 pounds.  He had dark hair and brown eyes.  The other was approximately 5-6 in height.  He was approximately 150 pounds, blond hair and blue eyes.  The fourth individual was a female, approximately 5-5 to 5-6½, 110 pounds and she had blond hair and blue eyes.
Q  Did these descriptions tell you anything about the habitual wearing apparel of these people?
A  It only gave the wearing apparel at the time they were arrested.
Q  What was that?
A  The two Caucasian males were dressed in dungarees or blue jeans with shirts.  The colored--the female was dressed in a, what was described as a mini-skirt on that record with sandals and a blouse; and the colored male was in dungarees with tennis shoes and a plaid shirt.
Q  Did your investigation, particularly the interview with this individual, reveal any relationship between the four?
A  I misunderstood, sir.
Q  Did your investigation, particularly this one interview with this individual, reveal any relationship or association between the four?
A  Yes, sir, they were associates.
Q  And by that, what do you mean?

MR. SEGAL:  Objected to, not what he means at all.

CPT SOMERS:  He's used the term.  I think he knows what he means when he said it.

MR. SEGAL:  It is objected to.

CPT BEALE:  Mr. Hawkins, please explain in a little bit more detail what you mean by the term associate.

WITNESS:  They associated together in that they ran together.  They were close friends.  They were a group.

Q  And did your investigation, particularly in this interview, disclose whether these people had any association or relationship with any member of the MacDonald family?
A  Yes, sir, it did.
Q  And what was that?
A  It was a friendship with Captain MacDonald's brother.
Q  Do you know how long that association existed?
A  I know that it existed from a period of last summer to the time I was there in May.

CPT SOMERS:  I think that covers the ruling.

CPT BEALE:  Well, of course, you can ask him other questions, or at least attempt to.  I just
--as pertains to the visit to New York, that's what that ruling went to.  I don't know what else you might want to elicit from him.

Q  You mentioned the summer, what is it about the summer that makes you give that date?  Are you speaking about last summer, 1969?
A  Yes, sir.
Q  And what is it about that summer?
A  Well, the summer of 1969 there was a house on Fire Island, rented on Fire Island and it was occupied by this group of four, Captain MacDonald's brother, and others whose names I could not obtain.
Q  Do you know from your investigation whether this group habitually had any particular type of apparel?

MR. SEGAL:  That's objected to.  That's not from his investigation.

CPT BEALE:  Sustained.

Q  Did that person tell you anything about the habitual wearing apparel?
A  Yes, sir, he did.
Q  And what was that?
A  The individual I interviewed told me that the female dressed in boots and a floppy hat.
He, on numerous occasions, wore what he called a field, army-type field jacket.
Q  Mr. Hawkins, have you been involved in the investigation of this MacDonald case otherwise than this?
A  Yes, sir, I have.
Q  Do you know the description given by Captain MacDonald of his four assailants?
A  Yes, sir, I do.
Q  What was that?
A  Captain MacDonald gave a description of a group of four to include one colored male, two Caucasian males and one Caucasian female.
Q  Do you know anything more than that?
A  No, sir, I don't.

CPT SOMERS:  Your witness.

Questions by MR. SEGAL:
Q  Now Mr. Hawkins, what is the name of this individual that you interviewed on May 11th?
A  His name was Joseph Lee, sir.
Q  And at the time you interviewed him was he in anyone's custody as a prisoner or inmate?
A  No, sir.
Q  Where did the interview take place?
A  The interview took place at the Suffolk County Police Department.
Q  And did Mr. Lee give you a home address for himself?
A  He gave me a town, sir.
Q  Did you ask him for a home address?
A  Yes, sir.
Q  And what did he say in response to the request for a home address?
A  Patchogue, New York.
Q  And you have no more definite address from him than that?
A  I have an address, a street name which was obtained from the police records.
Q  Did you reduce into writing the statement given to you by Mr. Lee?
A  Pardon, sir?
Q  Did you reduce to writing the answers to questions that Mr. Lee gave to you?
A  In my own handwriting, yes, sir.
Q  And when did you do that?
A  On May the 11th, sir.
Q  Were you doing that at the time that Mr. Lee answered your questions or after you finished your interview?
A  During the time.
Q  And did you show your record of recording his answers to Mr. Lee for verification?
A  No, sir, I did not.
Q  Did you ask Mr. Lee to sign any statement for you?
A  No, sir, I did not.
Q  Why did you not ask him to sign a statement?
A  I did not feel it was relevant to obtain a sworn statement from Mr. Lee.
Q  Why not?
A  It was my intention at that time to talk to the other three which he had described.
Q  And after you talked to all three, all four, what would you do?
A  Then I would have went back and got the statements to verify his story that he told me.
Q  And then would you have asked for a written statement?
A  Yes, sir, I would have.
Q  Then why didn't you do that--do those other steps?
A  I could not locate the other three, sir.
Q  What efforts did you make to locate them?
A  I visited their home addresses as listed in the police department.
Q  And what else did you do besides that?
A  That's all I could do, sir.
Q  Well, did you ask the New York Police authorities to help you locate the three?
A  Yes, sir, they were with me.
Q  You mean they accompanied you to the house?
A  They did take me to the address.
Q  Have you caused to put out through circulation a wanted notice for questioning or interview the description of these names and addresses of the persons you are talking about?
A  I did not, no sir.
Q  Did you ask anyone else to do that?
A  No, sir.
Q  Did you ask the local authorities to do that?
A  No, sir.
Q  Have you asked the Suffolk County authorities to continue to look for these persons for you?
A  Yes, sir.
Q  When did you ask them to do that?
A  This morning, sir.
Q  This morning?
A  Yes, sir.
Q  At whose request did you make that inquiry this morning?  Who requested you to do that?
A  It was at the request of my chief, sir.
Q  Mr. Grebner?
A  Yes, sir.
Q  Was anybody else present at the time Mr. Grebner made that request?  Let me be specific--was anyone connected with the prosecution of the MacDonald case present when Mr. Grebner asked you to call the Suffolk County authorities?
A  No, sir.
Q  What did you ask the Suffolk County authorities to do this morning?
A  To determine if this group was still in and around Suffolk County.
Q  And did you get an answer?
A  Yes, sir, I did.
Q  When did you get an answer?
A  Approximately one-thirty this afternoon.
Q  And what did you ascertain?
A  I ascertained that the group was still there, yes, sir.
Q  You mean that on the basis of four hours, they were able to locate all four of these people.  Is that right?
A  To determine that they were still in town.
Q  Well, did that lead you to believe that they were still in Patchogue, Long Island?
A  Yes, sir.
Q  Well, you weren't able to find them with the assistance of Suffolk County authorities on May 11th, were you, sir?
A  No, sir.
Q  Could you indicate to us what was the extent of the investigation you made on May 11th to locate these three persons, other than going to an address--the address on those police files?

CPT SOMERS:  I object.  I think he's answered the question.

CPT BEALE:  Sustained.

Q  Who is the person that you spoke to today in Suffolk County Police Department?
A  A detective Hahn.
Q  Do you know how to spell that, sir?
A  H-a-h-n.
Q  And is he a county detective of Suffolk County Police Department?
A  Yes, sir.
Q  Is he the person you spoke to with your original request this morning?
A  Yes, sir.
Q  Is he the person who called you back this afternoon?
A  Yes, sir.
Q  Now when you went to look for these three people to interview them, were you accompanied by detectives from Suffolk County Police Department?
A  Yes, sir.
Q  Were you accompanied by Detective Jack Scott and--
A  No, sir.
Q  Well, who were the detectives who accompanied you?
A  Detective Hahn and Detective Mullney.
Q  Mullney?
A  Right, sir.

MR. SEGAL:  At this time, may it please the investigating officer, I call upon the government to make available the notes of the interview with the witness Joseph Lee, since the witness has been permitted to testify as to the hearsay nature, that informal statement, we should be able to cross examine by the use of those notes.

CPT SOMERS:  The witness didn't bring those notes with him.  He's not referring to them, and he can testify without them.

MR. SEGAL:  That is known as suppression of evidence, sir, to allow a witness to testify on hearsay when he had full notes, is to keep from the full examination of this inquiry the facts about this case.  It is absurd to purport that he has committed to memory every single word on that.  As a matter of fact, I'll ask to hold in abeyance the ruling on my request until I ask Mr. Hawkins that question.

Q  Mr. Hawkins have you memorized everything you wrote down as a result of your interview with Mr. Lee?
A  Yes, sir, I have.
Q  Every word?  When did you examine the paper that had the notes of Mr. Lee's interview on it?
A  I have examined that paper on numerous occasions.
Q  When is the last time you examined it, sir?
A  This morning, sir.
Q  This morning.  Where were you when you examined that?
A  In my office, sir.
Q  Why did you examine it this morning?
A  Just to refresh my memory, sir.
Q  So that you would not omit any details?  Is that right, sir?

CPT SOMERS:  I object to that.

Q  Did you use it to refresh your recollection?
A  Yes, sir.

MR. SEGAL:  I call upon the government to make that statement available again, sir.

CPT SOMERS:  The government has replied to that request and takes umbrage at the suggestion of suppression of evidence which I think is a terminology which the defense too lightly uses.

CPT BEALE:  Mr. Hawkins, when you read that document, was your memory in fact refreshed?

WITNESS:  No, sir, I recall everything I read.

CPT BEALE:  No, you misunderstand my question.  When you read that document this morning, and when you finishing reading it, was your memory then refreshed?  Did you then--were you able to recall all the facts that you had on the document? As when you came here to testify today?

WITNESS:  I don't understand what you mean, sir.  It refreshed my memory, yes, sir.

CPT BEALE:  Okay, fine.  Then your request for the production of the document is denied.

Q  Mr. Hawkins, what is the first sentence on your memoranda or handwritten notes with Mr. Lee?  Quote it for me, please, sir.
A  The first sentence on it, sir?
Q  Yes, sir.
A  Proceeded to Suffolk County, New York.
Q  And what is the second sentence?

CPT BEALE:  Mr. Segal, the ruling has been made.

MR. SEGAL:  I want to know how good his recollection is, sir.  I don't think we can allow him to preclude our finding out by simply giving a bare conclusion.  Every witness says that he knows what is on the paper--he doesn't have to refer to it, but we'd never in fact find out whether he does know.  I suggest that we are entitled at this time to ask the witness certain points of recollection and how good his recollection is.

CPT SOMERS:  I do object.  The ruling has been made.  This is just another way of doing what the ruling has already said he cannot do.

CPT BEALE:  The document will not be required to be produced, so you may go to another area.

Q  Mr. Hawkins, have you told this investigating officer everything you wrote down?

CPT SOMERS:  Objection.  This is the same, exact same technique.

MR. SEGAL:  Sir, we now want to explore what he learned from Mr. Lee.  I want to know whether he has told us everything.  I don't want to ask additional questions if he says he's told us all.

CPT BEALE:  Your objection is overruled, Captain Somers.

Q  What is your answer, Mr. Hawkins?
A  Yes, sir, I have.
Q  You've told us all that Mr. Lee told you?
A  Yes, sir.
Q  There are no other facts that Mr. Lee told you at that time that you recorded in your interview or have any memory of?
A  No, sir.
Q  Mr. Lee, therefore, did not tell you that he had ever seen Captain MacDonald, did he?
A  No, sir, he didn't.
Q  Mr. Lee did not tell you that Captain MacDonald had ever seen him either?

CPT SOMERS:  I object to this.  The question has been answered.  He asked the generic question, then he goes through a bunch of details.  If he wants to ask the details, ask them, but don't ask the generic questions.

CPT BEALE:  Your objection is sustained, Captain Somers.

Q  Did you ever show the picture of Mr. Lee to Captain MacDonald?
A  No, sir.
Q  Did you ever show the picture of the other three to Captain MacDonald?
A  No, sir.
Q  Who investigated the whereabouts of these four people on the morning hours of February 17th, 1970?
A  I did, sir.
Q  You did?  When did you make the investigation of their whereabouts on the morning of February 17th?
A  13 May.
Q  13 May?  How did you make that investigation in the absence of having interviewed three of these people?
A  Through other friends of this group, that were identified at the police department.
Q  You mean Mr. Lee said he gave an alibi for the other three persons in his groups?
A  No, sir.
Q  Well, who gave them an alibi?
A  Other friends, sir.
Q  And how did you get the names of the friends?
A  From the police department records, sir.
Q  What do you mean, from the police department records?  Are you telling us that the Suffolk County Police Department investigated at some point the whereabouts of these people on February 17th?  Or that you investigated their whereabouts?
A  I investigated their whereabouts, sir.
Q  And how many persons did you talk to to determine the whereabouts of the four people of this group that you've described?
A  There were two, sir.
Q  You talked to two?  Who were the two persons that you talked to?
A  I don't recall their names, sir, but I can tell you that one of the two who verified the group was on Long Island the night of 16-17 February.
Q  How do you know, sir?
A  One of the two that I talked to was a police officer undercover type who was living in the same building.
Q  Was that Mr. Scott?
A  I don't recall his name.  I know him by the first name, Joe.
Q  By the way, where did you call Detective Hahn this morning?
A  In his office at the Suffolk County Police Department.
Q  Now what would you say, sir, if I were to tell you that upon a phone call made in the last five minutes to Suffolk County Police Department, they said that Detective Hahn has not been on duty all day today?
A  I'd have to say that I talked to Detective Hahn this morning, sir.
Q  Might you have talked to someone else and be incorrect, sir?
A  No, sir, I don't think so.
Q  What if I were to tell you that Detective Loth, L-o-t-h, of the Suffolk County Police Department, has stated by telephone to counsel for the accused, that detective Hahn has been nowhere around the police department on duty today at all?

CPT SOMERS:  I object.  He's answered the question.

MR. SEGAL:  Well, I ask him specifically as to whether he believes the detective may have informed us incorrectly, or whether he may be correct as to who he spoke to today.

CPT BEALE:  The objection is overruled, Captain Somers.

Q  What would your response be to that information?
A  I would have to say that I talked to an individual and I asked for Detective Hahn by name and this individual called me by my first name.
Q  What was the first name of Detective Hahn?
A  Bob.
Q  Robert Hahn?
A  Right, sir.
Q  Now, Mr. Hawkins, when did you have the fingerprints of this group of four individuals compared with any of the fingerprints found in the MacDonald house?
A  When did I, sir?
Q  Yes, sir.
A  I obtained fingerprints of the four individuals.  I did not send them to the crime lab myself.
Q  What are you doing with the fingerprints of those four individuals in connection with this investigation?
A  They were sent to the crime lab with the prints that were developed in the house.
Q  Did you ever see a written report back in this regard?
A  This I don't know, sir.
Q  May I ask when you sent the fingerprints of these four individuals to the crime lab?

CPT SOMERS:  I object.  In the first place, this witness has said that he did not send them.

CPT BEALE:  Okay, sustained on that basis.

Q  Let me rephrase it.  What steps, if any, to your knowledge has been taken to compare the fingerprints of these four individuals that you were checking into on Long Island with the prints found in the MacDonald house?

CPT SOMERS:  I object to that.  I think that question's been answered.

MR. SEGAL:  If it's been answered, the answer escapes me.  I want to find out from this witness what steps he knows has been taken.

CPT BEALE:  Your objection is overruled, Captain Somers.  Answer the question, Mr. Hawkins, if you can.

A  I know the fingerprints were sent to the lab for comparison with latent prints from the house of the crime scene.
Q  Do you know at approximate what date the prints were sent?
A  No, sir, I do not.
Q  Would it have been within a matter of a week or two after you returned from Patchogue, Long Island?
A  It was later than that, sir.
Q  Would it have been within the last two or three weeks, sir?  Within three weeks of today's date, the last three weeks?
A  It was prior to that.
Q  Did the pictures of any of these individuals that you either saw, or the pictures you observed, show a man wearing a mustache?
A  Yes, sir.
Q  Was it a black or white male with a mustache?
A  The black male and one white male.
Q  Two persons had mustaches?
A  Yes, sir.
Q  Now in reference to this house on, you say on Fire Island, do I understand that there were a group of at least six people who were residing in that house?
A  I can only say, sir, that the group of four, Captain MacDonald's brother, and others.  The others, I have no knowledge of how many.
Q  Well, did this entire group rent those premises?
A  Yes, sir, the entire group.
Q  And was it fair to say these people all considered themselves to be friendly with each other?

CPT SOMERS:  I object.  He's testified he's only talked to one of these people.  How can he testify as to what all of these people might consider?

MR. SEGAL:  The same way he testified the others were associated.  The question of how many associates did Mr. Joseph Lee have in New York.

CPT SOMERS:  Then he can ask whether the man he spoke to considered this, but he can't ask whether somebody else can be considered associates.

CPT BEALE:  Your objection is sustained to that extent.  You may rephrase your question, Mr. Segal.

Q  Mr. Hawkins, did you ask Mr. Lee what his relationship was with the group of people that lived in the rented house on Fire Island?
A  He was just a friend, sir.
Q  The request was--did you ask him what his relationship was?
A  No, sir.
Q  Then why did you just try to answer that he was just a friend if you never asked him what his relationship was?
A  Because they all ran together, sir.
Q  Why did you attempt to answer the investigating officer that Mr. Lee was just a friend of the other people if you never asked him what his relationship was?

CPT SOMERS:  I object to that.  In the first place, he's answered it, and in the second place I think the counsel is now badgering the witness.

MR. SEGAL:  Sir, this is a critical question as to the credibility of a witness who purports to make an answer, and when confronted and admits that he never asked the question that would have provided him with the basis for giving the answer.  That type of witness credibility certainly has to be examined and scrutinized carefully.

CPT BEALE:  Your objection is overruled, Captain Somers.

Q  What is your answer, Mr. Hawkins?
A  Would you repeat the question, sir?
Q  Why did you tell the investigating officer a moment ago that Mr. Lee was only a friend of the other people in the Fire Island house when in fact you never asked Mr. Lee what his relationship was with those people?
A  They were all friends, sir.
Q  You told us, I believe, that Mr. Lee never told you what his relationship with the other people were.  Did you not say that a few minutes ago?

CPT SOMERS:  I object.  That's not what he said.

MR. SEGAL:  I've asked him, sir, if that's what it was, and you may answer yes or no, and explain--

CPT BEALE:  Let the witness answer the question.

A  I don't recall saying that, no, sir, I don't.
Q  As far as you were able to determine, were all of these persons who occupied the Fire Island house friends of Mr. Lee?
A  As far as I was able to determine, yes, sir.
Q  And that their relationship was sufficient with each other that they chose to live in a house for a period of days or weeks?
A  Yes, sir.
Q  And Mr. Lee said that he wore, sometimes, an item of apparel that he called a field jacket.
Is that right, sir?
A  Yes, sir.
Q  Did you ask him to let you examine that jacket?
A  When I interviewed him as to the jacket he told me he threw the jacket away because it was worn out.
Q  How close was it to February 17th, 1970; did he throw that jacket away?
A  He said he threw it away in January, sir.
Q  In January? Did you ask him where he threw the jacket?
A  Yes, sir.
Q  What did he say?
A  He said in a garbage can.
Q  Now did you question him about those matters?
A  Yes, sir.
Q  Could I ask you in the beginning of my cross-examination whether you told us everything that Mr. Lee said to you?
A  Yes, sir.
Q  And did you not tell me that you had already told us on direct examination everything that Mr. Lee said to you?
A  I did bring out the jacket.
Q  Did you mention anything about Mr. Lee having thrown this jacket in a garbage can in the month of January 1970, less than a couple of weeks, apparently before the killing at the MacDonald house?  Did you tell us that?
A  No, sir, I did not.
Q  Is that in your notes of your interview of Mr. Lee?
A  No, sir, it is not.
Q  Now are you aware that civilians sometime confuse an army fatigue shirt with a field jacket?
A  Yes, sir, I am.
Q  Is that the reason why you chose to characterize what Mr. Lee said to you that he had owned what he called a field jacket?
A  Yes, sir.
Q  Because you, yourself, are uncertain as to whether he actually knew what a field jacket was?
A  Yes, sir.
Q  Did you ascertain whether Mr. Lee had ever been in the armed forces?
A  No, sir, I did not.
Q  You did not.  So you don't know whether he actually knows the difference between a fatigue shirt and a field jacket?
A  No, sir.
Q  Did Mr. Lee discuss any of the paraphernalia or designs or embroidery that he wore on this jacket?
A  No, sir.
Q  Did you ask him about it?
A  No, sir.
Q  Were you aware that Captain MacDonald described a black male wearing a field jacket with E-6 Army Sergeant stripes on it?
A  Yes, sir.
Q  Why did you not ask Mr. Lee whether his jacket or his fatigue shirt had such stripes on it?
A  Because I was told by the undercover man, who was living with--in the same building, that this did not have any type of insignia on it.
Q  Well, would it have been significant if Mr. Lee had perhaps given you a conflicting story?
A  It probably would, yes, sir.
Q  Did the undercover agent who lived in the building with these people give you any description of the clothing worn by those people, other than the jacket of Mr. Lee?
A  Yes, sir.
Q  Whose clothing was described to you?
A  The girl's clothing, sir.
Q  What did he say about the girl's clothing?  Now this is by the undercover agent?
A  Yes, sir, this is the undercover.  He stated that the girl did wear the hippie type boots, what I call knee boots, floppy hat, wigs.
Q  Wigs?
A  Wigs, right, sir.  She had different shades of wigs than what her natural hair was.
Q  Did he know what her nature hair was?
A  Her natural hair was blond, sir.
Q  Now the undercover agent wasn't referring to observations he made of the Fire Island house was he?
A  No, sir.
Q  Some residence in Patchogue, Long Island?
A  I think the residence was in Bailport.
Q  Is that a different community from Long Island?
A  Yes, sir.
Q  Do you know of your own personal knowledge whether Captain MacDonald was ever in Bailport, Long Island?
A  No, sir, I don't.  Not to my knowledge.

MR. SEGAL:  I have nothing further.

CPT BEALE:  Redirect?

Questions by CPT SOMERS:
Q  Where did you say this group was on 16, 17 February of this year?

MR. SEGAL:  That's objected to, since we never asked if the persons were on Long Island with Mr. Lee.

CPT SOMERS:  The defense opened this area.

MR. SEGAL:  The ruling of the legal advisor, I understood, was that we could learn what Mr. Lee said to Mr. Hawkins, and Mr. Hawkins has already told us that Mr. Lee didn't tell him anything more than what we've brought out here.

CPT SOMERS:  Now, the defense has already elicited information from the undercover agent and other sources, and the defense also raised this issue of where the group was.  All I am doing is asking, and where was this group.

CPT BEALE:  Well, my ruling was applicable to the government during their direct examination.  Now whatever you care to open up, Mr. Segal, of course is fine.  I think he does have the opportunity to redirect on anything that you might have brought out.  So your objection is overruled.

Q  Do you remember the question?  Where was this group on the 16th and 17th of February?
A  This group was, on the 16th of February, the afternoon and early in the evening, on Long Island.  Later in the night they went into the borough of Queens.

CPT SOMERS:  No further questions.

Questions by MR. SEGAL:
Q  Mr. Hawkins, the whereabouts of this group of individuals on the 16th and 17th of February 1970, that was determined by you, by talking to the two other people, as I understand.  Is that right?
A  The whereabouts, sir, came from the undercover agent, the undercover policeman.
Q  That was the man you talked to?
A  Yes, sir.
Q  And did you determine how he happened to know on May the 11th where this group of individuals was on the 16th and 17th?
A  As I said earlier, sir, he was living in the same building with this group and they had asked him to accompany them into Queens.
Q  I understand that, sir, but what I am asking you, did the undercover agent indicate how three months after the date in question he knew where they were on February 16th and 17th?

CPT SOMERS:  I object.  That's not three months.

MR. SEGAL:  Well, all right, two months and three weeks later, Mr. Hawkins, I'm sure you will forgive me that.

A  Well, sir, the undercover agent was living in this building with this group on the 16th and 17th of February.
Q  I appreciate your saying that, but did he keep a log or a diary of whereabouts of himself and these people in the building?
A  No, sir, he recalled this from memory, as far as I know.  He was telling me this.
Q  In other words, when you interviewed this person on May 11th, 1970, he recalled from memory where this group of people was on February 16th and 17th?
A  Yes, sir.
Q  And did he indicate to you what happened on that date that was so unique or special to allow him to be able, two months and three weeks later, to recall with specificity where they had been?
A  No, sir, he did not.
Q  And did you ask him, sir, how he could recall with specificity where the group had been two months and three weeks earlier?
A  No, sir, I did not.
Q  Why not?
A  I don't know, sir, I just didn't.
Q  Now the agent who gave you all this information, is he a police officer or a civilian who is working as an informer for the police?
A  He is a police officer.
Q  And did you ask him to make available to you any police reports any of them had to verify the whereabouts of these people on February 16th and 17th?
A  No, sir, I did not.

MR. SEGAL:  That's all.

COL ROCK:  Mr. Hawkins, do you know when these photographs of the four people were taken, how old they were or anything about their origin?

WITNESS:  The photographs were taken by the Suffolk County Police Department, sir; on the date they were taken, I don't know.  They were fairly new photographs.  The group had been arrested.

COL ROCK:  They had been arrested?  Do you know approximately when they were arrested?

WITNESS:  In March, March something; I don't know the date, sir.

COL ROCK:  Of what year?

WITNESS:  '70.

COL ROCK:  I have no further questions.

CPT SOMERS:  No questions.

COL ROCK:  Do you wish the witness excused?

CPT SOMERS:  Yes, sir.

COL ROCK:  Mr. Hawkins, you are advised that you will discuss your testimony with no person other than counsel for the government, or counsel for the accused.  Do you understand?

WITNESS:  Yes, sir.

COL ROCK:  You are excused, subject to recall.

(Witness departed the hearing the hearing room.)

COL ROCK:  Does counsel for the government have any further witnesses?

CPT SOMERS:  No, sir.  At this time we do, however, have some documentary evidence we wish to introduce.

MR. SEGAL:  Before proceeding to that, sir, I wish to move to strike all the testimony of Mr. Hawkins.  It is so faintly--irrelevant, immaterial, and potentially suggestive of things that I can't even begin to fathom the depth of.  We certainly have a relevancy here to allow that testimony to remain in the record as if to indicate to the investigating officer could give it any weight at all is, I think, prejudicial to the accused in this case and denies this accused of an appropriately fair hearing.  This testimony here brought out that a group of individuals was fine--was found to--with a certain description--to have known a relative of Captain MacDonald.  There is utterly no evidence that Captain MacDonald was ever in the same community with these persons; that there was no evidence that these persons knew Captain MacDonald, ever saw him, or that he ever saw them.  In fact, to the contrary, for the witness specifically said that they did not see Captain MacDonald or he did not see them.  Under those circumstances, there was utterly no evidentiary basis, no evidentiary usefulness for this information, and yet letting it remain in the record will present the possibility that some reviewing authority would consider it as evidence reviewed or considered by the investigating officer.

CPT SOMERS:  May I respond?

COL ROCK:  Certainly.

CPT SOMERS:  The evidence as it stands now, from Mr. Hawkins, is in the form specified in a ruling of the legal advisor.  The ruling on this issue has already been made and the government requests that we adhere to the ruling.

COL ROCK:  I will make my ruling on this matter at our next session on Monday.  Does the government have further--I believe the government has documents to present at this time?

CPT SOMERS:  Yes, sir.  Request this be marked as a government exhibit.

MR. SEGAL:  May we see the document, sir, before it is submitted for marking?

(The document was handed to Mr. Segal.)

MR. SEGAL:  Sir, may it please the investigating officer, I would object to the reception and marking at this time in evidence of documents that are in the hands of counsel for the government.  One of these documents purports to be a Photostat--I'll accept it as a Photostat--of a World Health Organization Certificate of Vaccination for preparation of travel between countries, and that, I gather, the purports to introduce something on the last page purporting to relate to the blood type of the individual.  There is no evidence whatsoever how that information was gotten and I'd be glad to testify from personal knowledge of about one weeks duration of how one gets a blood type on a World Health Organization card.  I'm sure the court could find it most unsatisfactory in a way of determining blood type.  Secondly, the other document offered by the government, I believe, is a ophthalmological record made in July of 1969, for whatever relevance that might have, it does not deal with apparently any injury that I can observe which is in close proximity to February of 1970, and  again for that reason I would respectfully object to its relevance as being remote, and not being current evaluation of eyesight or eye condition, and in being suggestive to facts which are not necessarily existent in February of '70 which may have existed in July of '69.

CPT SOMERS:  These exhibits, both of them, and I don't notice that the defense counsel is contesting this, are in fact copies from the medical records, the official Army medical records of Captain MacDonald, and as such must be acceptable to this Article 32 proceeding to show on their face that what they do purport to show.  Now if the defense counsel cares to try to impeach these records, that's fine, but that doesn't go to their admissibility.

CPT BEALE:  The defense is overruled.  Captain Somers, are all of these pages relevant to this proceeding?

CPT SOMERS:  No.  The only reason that they are all there is because the original of that document contains all of those things.  I'd be happy to offer the cover page and the page I consider relevant if you prefer it.

(The document was returned to Captain Somers.)

CPT SOMERS:  This exhibit now consists of two pages, the cover page and this one.

(The document was shown to counsel for the accused.)

COL ROCK:  Government Exhibit 97, Ophthalmologic Consultation and Spectacle Prescription for Captain MacDonald.  Government Exhibit 98, International Certificate of Vaccination showing blood group designation of Captain MacDonald.  Does the government at this time have any other matters to present before the investigating officer?

CPT SOMERS:  Yes, sir, and I've just presented it to the defense to give them an opportunity to read it.

MR. SEGAL:  In regard to a statement that was handed to counsel for the accused, of a person by the name of Rebecca Jane Cohen, dated July 15th, 1970, we are checking certain prior representations made to counsel for the accused by the government with regard to witnesses, but while we are checking that, I would ask that the legal advisor review this statement for the purpose of rejecting it on the grounds of inadmissibility even on the fact of what it contains therein, is not the facts known of the personal knowledge of the witness, but representations about what was said to her by a third person, her opinions and observations of what a group of persons in a classroom in school did, and not involving children, a group of adults, doesn't involve Captain MacDonald and that it contains just the grossest kind of conclusory opinions about what a group of third parties, how they reacted or not reacted.  On that basis, I ask for a ruling on this matter on the basis of relevancy, on the basis of materiality.

COL ROCK:  Let the record reflect that I have excused myself from the hearing during which time counsel can discuss this with my legal advisor.

(Colonel Rock departed the hearing room.)

CPT BEALE:  Captain Somers, I've read this statement.  Would you please relate to me how this was relevant to the particular proceedings that we have now before us?

CPT SOMERS:  Yes, it relates to a state of mind of Mrs. MacDonald who is, of course, now dead, with respect to a specific situation, out of which the government contends the motivation for this crime arises.

CPT BEALE:  Which is what?

MR. SEGAL:  Urinating on the bed, sir, contact between the parents of the child who was in the bed.

CPT BEALE:  Mr. Segal, I believe you've stated your position already.

(The reporter asked for a recess.)

CPT BEALE:  All right, we are in recess.

(The hearing recesses at 1645 hours, 24 July 1970.)

(The hearing reopened at 1652 hours, 24 July 1970.)

COL ROCK:  This hearing will come to order.  Let the record reflect that those parties who were in attendance at the recess are currently in the hearing room, with the exception of Mr. Eisman, counsel for the accused, and Captain Thompson, counsel for the government.

CPT BEALE:  Very well, let the record further reflect that I have considered the offer of proof of Captain Somers reference the statement of Mrs. Cohen, and the contents thereof, and I have determined that it is in fact not relevant to these proceedings and therefore it will not be permitted to be offered into evidence.

COL ROCK:  Is there any other evidence to be presented at this time by counsel for the government?

CPT SOMERS:  Not at this time, sir.

COL ROCK:  If not, this hearing will be recessed until 1330 hours on Monday.

(The hearing recessed at 1653 hours, 24 July 1970.)


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