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Jeffrey MacDonald's Article 32 investigation hearing: 1970 - Volume 3
Sergeants Richard Tevere and Robert Duffy (MPs)
 CID agent Bob Shaw escorts IO and attorneys through the crime scene

Sergeant Richard D. Tevere 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, please?
A  Richard Dennis Tevere.
Q  Your grade?
A  Sergeant E-5.
Q  Your organization?
A  Company A, 503d MP Battalion.
Q  Your station?
A  Fort Bragg, North Carolina.
Q  Your armed forces?
A  U.S. Army.
Q  What were your duties on the evening of 16 and 17 February of this year?
A  Military Police Patrolman.
Q  And what were you doing specifically?
A  Patrolling Fort Bragg.
Q  Was this in a vehicle?
A  In a M151 jeep.
Q  Did you have an occasion to be directed to go to the Castle Drive address?
A  Yes, I did.
Q  Would you tell us how that came about?
A  It was a radio transmission to the effect that it was a domestic disturbance on Castle Drive.
Q  And as a result of that, what did you do?
A  I proceeded to 544 Castle Drive.

CPT SOMERS:  I believe this will be Government Exhibit 4, will it not?

COL ROCK:  Affirmative.

CPT SOMERS:  This is the statement that you have requested, that the investigating officer requested I provide the witness.

COL ROCK:  Yes.

(Government Exhibit 4 was shown to Mr. Segal and handed to the witness.)

Q  Sergeant Tevere, I hand you what has been marked as Government Exhibit 4 and ask you to examine or tell me if you can what it is?
A  This is the statement that I wrote the morning of 17 February in Colonel Kriwanek's office.
Q  That is your statement?
A  Yes, it is.
Q  It is provided to you to serve to refresh your memory if necessary.  Now to pick up with the train again.  You did proceed to Castle Drive, did you?
A  Yes, sir.
Q  And what did you do when you arrived at your destination?
A  I went to 544 Castle Drive and found several MPs at the steps of the above location trying to get into the house, the front door of the house.
Q  Now what were they doing to try to get in the front door?
A  They were banging on the front door.
Q  What did you do when you pulled up?
A  I stood at the foot of the steps at 544 Castle Drive and I was observing them trying to get into the house.
Q  I see.  What did you next do?
A  I was then told to go around the back of the house and check to see if I could get in the back door of that same house.
Q  Do you remember who told you that?
A  I believe it was Lieutenant Paulk, the MP duty officer.
Q  And did you do that?
A  Yes, sir.
Q  Would you describe that for us, please?
A  I got a flashlight from one of the other MPs and proceeded around the back of 544 Castle Drive.
Q  What did you find there?
A  When I got around the back of the house I found the back door open with the screen door closed to the back of 544 Castle Drive.
Q  What did you do?
A  I opened the screen door and proceeded into the master bedroom at 544 Castle Drive.
Q  Did you stay there or did you leave?
A  I got about two feet into the bedroom and observed Captain and Mrs. MacDonald--a man and a lady on the floor.  I immediately ran back out of the house, out the back door.
Q  Where did you go?
A  I started to run back around to the front of the house.  I got about half way and I was calling for help of the other MPs.
Q  What were your words?  Do you remember?
A  I said, “Let's get some other MPs back here.  I believe somebody has been stabbed.”
Q  And anything else?
A  No.
Q  Where did you go then?
A  I then proceeded back through the screen door again back into the house.
Q  Now to the best of your knowledge, did anybody precede you into the house?
A  Nobody.
Q  And the second time you went in there that you've described to us, was there someone ahead of you at that time?
A  No there was not.
Q  What did you do when you went into the house?
A  I entered the house with my pistol drawn and proceeded up to Captain MacDonald who appeared to have been unconscious, in a state of semi-consciousness.
Q  Now what were the lighting conditions in that bedroom?
A  In the bedroom there was a small light on.  I didn't need my flashlight.
Q  There was a light on?
A  There was.
Q  Was that light on when you first looked in that room?
A  Yes, sir, it was.
Q  Did anyone follow you in that room?
A  Yes, another MP, two MPs I believe.
Q  Did you say anything to them or give any instructions?
A  Yes, I--the first thing I said was, when I put a round in the chamber the fellow behind me also did, and I told him to watch his pistol because he was behind me, and I also told him not to touch anything, bouncing off the walls, watch where you walk and watch where you touch.  I said it several times.
Q  Did you see any foreign material of this sort on the floor of the bedroom?
A  Yes, I did.
Q  Would you describe that?
A  I saw blood on the floor of the bedroom.
Q  Blood, you say?
A  Yes, blood stains.
Q  Did you see any mud or grass or wet spots, water spots or anything of that nature on that floor?
A  No, I did not.
Q  But you could see blood?
A  Right.
Q  What did you then do after you had gone to Captain MacDonald's side?
A  Well, Specialist Four Mica and myself started to talk to Captain MacDonald and I--he stated that he wanted to check on his children, and also stated he wanted to check the pulse in his wife's leg.
Q  He wanted to?
A  He told us to check the pulse in his wife's leg and to check on his children.
Q  What did you do?
A  I then got up and I proceeded to the bedrooms which were to the left of the master bedroom.
Q  You mean down the hall?
A  Yes.
Q  Can you see this diagram that's marked Government Exhibit 1?
A  Yes.
Q  Would you walk up to it, please?
 
(Witness complied.)

Q  Now you say you proceeded to the bedroom.  Would you point out the bedroom you were in?
A  This bedroom here.
Q  That's the bedroom that's marked the front bedroom on that chart?
A  Yes, sir.
Q  What did you do then?
A  I got about two steps into the bedroom and I shined a light on the bed, the child was sleeping in.  It appeared that she had been stabbed several times.  I couldn't see too much of her because it was dark in the room.
Q  Okay, then what did you do?
A  I came out of this bedroom and went to the doorway of the rear bedroom right here.  I stood right in the doorway here.  I again shined my light towards another child who appeared to have been beaten and stabbed.  There was a big puddle of blood here on the floor.
Q  What did you do next?
A  I proceeded back to the doorway of the bedroom here where I saw the MP duty officer and several others, several other MPs.
Q  What were they doing?
A  The duty officer was standing right here with his clipboard.
Q  You've indicated a point which is close to the--close to the north west closet door, perhaps three or four feet in front of it?
A  That's correct.
Q  Okay.
A  And Specialist Four Mica was over Captain MacDonald and there was a couple of other MPs just standing around, standing with clipboards in their hands, paper.
Q  I see.  And what did you do then?
A  Lieutenant Paulk asked if--how bad the children were.  I said they seemed to--they appeared to be bad.
Q  What did you do next?
A  I then went down the hall.

COL ROCK:  Excuse me, did you see the children appeared to be bad or dead?

WITNESS:  Well, I didn't--I just assumed they were dead.  I didn't know.

MR. SEGAL:  That's not what I understood the witness--I thought he said that he told Lieutenant Paulk that the children were hurt pretty bad.  Am I stating directly what you said just a minute ago?

WITNESS:  Yes.

COL ROCK:  That they were hurt pretty bad?

WITNESS:  I didn't have no way of knowing if they were dead or not.

Q  Proceed.
A  Then I went down the hallway to the living room to right about here, observed a table turned over and plants and some magazines thrown about on the floor.
Q  What were the lighting conditions in that area?
A  There was a light on, I believe in the kitchen, this vicinity which was casting enough light. There was no light in the living room but it was casting enough light because I didn't use my flashlight.
Q  Did you notice any mud or wet spots or foreign matter on the rug at that time on the floor?
A  No, I did not.
Q  Would you have seen them if they were there?

MR. SEGAL:  That's objected to.  It calls for a speculation, sir.

COL ROCK:  Objection by counsel for the accused is sustained.  If you could rephrase your question.

Q  Do you think you could have seen them if they were there?

MR. SEGAL:  Objected to again as to the way it is formulated, sir.  It still calls for a speculative answer.

COL ROCK:  Objection is again sustained.

Q  Were the visibility conditions such that such debris might be visible?

MR. SEGAL:  Again it is objected to.  It calls for a conclusion of the witness too.  If the witness were to be asked by the state what the visibility conditions were, what did he observe, I think we might be able to get the answer.

COL ROCK:  That is sustained and the observation is valid.

Q  What were the visibility conditions with respect to the floor area of that living room?
A  It was pretty visible.
Q  It was pretty clear--is that what you are saying?
A  Yes.
Q  Did you, in fact, see any mud or foreign matter, debris, wet spots, stains on the floor?
A  I did not.
Q  What did you do once you got into the living room?
A  I just stood in the entry right here.
Q  Indicating a point from the hall several feet?
A  Right.  Observed the--the way the room looked.  There was also a Sergeant Hagney at that time, I believe, came into the living room, had a few words.  Him and I proceeded back to the bedroom.
Q  Once you got to the bedroom now, what took place?
A  There were several MPs standing around.  Captain MacDonald was giving a description of the people, some people that were in his house, trying to tell us what had happened at that time.
Q  What did you do--what part did you take in this?
A  I just knelt along side of Captain MacDonald.  Mica was on the other side of him, they were trying to get a description of the people that he was giving out, and he also appeared to be going into shock, at that time, and I assisted Mica in giving him first aid.
Q  What was this first aid?
A  We gave him mouth-to-mouth resuscitation.
Q  When did you leave the 544 Castle Drive address?
A  Leave the area of the house?
Q  The house.
A  About ten minutes later when I went next door.
Q  What transpired in that ten minute period?
A  Captain MacDonald gave us a brief description of the assailants.  He explained that he awoke while sleeping.

CPT SOMERS:  You can return to your seat if you want.

(Witness did as directed.)

A  He also stated that if he went into shock that we breathe in his mouth and give him mouth-to-mouth.  We told him we would and we knew what we were doing, just not to worry; we would get him to the hospital as soon as possible.
Q  Then you were in that area for about ten minutes according to your testimony.  And then you left for what place?
A  I left to go next door to see what was taking the ambulances so long in getting to the house.
Q  And how did you do that?
A  I left through the front door, walked to a neighbor's house, also to the front door.
Q  Did you use that phone?
A  I believe I did.  Well, Lieutenant Paulk was using the phone and I had a few words with Lieutenant Paulk, may have made one call.
Q  And when did you finish that?
A  I left the neighbor's house and came back in through the front door of 544 Castle Drive, proceeded back into the bedroom.
Q  And how long did you remain there?
A  For a minute or two.  That's when the ambulance arrived.
Q  And what happened when the ambulance arrived?
A  The ambulance arrived and they brought a stretcher in at 544 through the front door, wheeled down the hallway, and into the bedroom, the master bedroom.
Q  Were you in the master bedroom?
A  Yes, I was.
Q  What did the medics do in the master bedroom?
A  We--they looked at Captain MacDonald's condition and merely decided to place him on the stretcher and take him to Womack.
Q  Did you have any difficulty doing that?
A  No, we placed Captain MacDonald on the stretcher, three or four of us, I believe.
Q  Now I'd like to go back a minute to the second time that you went into the back of the house and into the master bedroom.  Did you touch anything in that room?
A  Yes, I did.  I picked up the telephone receiver.
Q  Where was the receiver?
A  The receiver was off the hook of the telephone, right next to the telephone.
Q  How did you lift it?  Can you show us?
A  The--I proceeded like this, and placed it back down.
Q  Indicating your thumb and first two fingers?
A  Right.
Q  When you lifted it up, what--did you use it?
A  I lifted it up with the intention of calling back to main post Provost Marshal's Office, because I was directed--we were directed to do so when we got in the house.
Q  By whom?
A  The radio operator.  This was what came over the radio.
Q  And what happened when you attempted to use this phone?
A  It was dead.  There was no dial tone.
Q  Did you put it up to your ear?
A  I put it close to my ear.  I didn't put it against my ear.
Q  And when you finished ascertaining that the line was dead, what did you do?
A  Placed the phone right back down where I got it.
Q  Did you dial that phone?
A  No, I didn't.
Q  Outside of that telephone did you move or tamper with anything in that house?
A  No, I didn't, other than the back door--the screen door.
Q  Did you issue any instructions with respect to moving or tampering with anything?
A  Yes, I--I told the other MPs in the house not to touch anything.  I told them to watch where they walked and not to be hitting the walls or anything with their hands.
Q  How often did you do that?
A  I said it several times, maybe three or four times.
Q  And did you see any of these people or anyone in the house move anything or tamper with anything, with the exception of Captain MacDonald?
A  No.

CPT SOMERS:  Your witness.

Questions by MR. SEGAL:
Q  Sergeant Tevere, you saw the body of Mrs. MacDonald.  Was any portion of her body exposed, that was not covered by her own night clothes?
A  Yes, sir, there was.
Q  Would you tell the investigating officer what portion of this body were exposed?
A  I noticed part of her breast and mid-section.
Q  And would that have been the left breast that you observed?
A  Yes.
Q  There's no doubt in your mind that you did see a portion of her left breast actually exposed, not covered by any kind of garment whatsoever?
A  Yes.
Q  And you also indicated her mid-section.  Would you show us on your body, please, roughly what area was exposed and not covered by the clothing of Mrs. MacDonald?
A  Right here.
Q  You are indicating about mid-stomach above the belt buckle.  Is that right?
A  Right.

CPT SOMERS:  On the right side.

Q  Are you indicating the right side also?
A  Yes, sir.
Q  Now I want to show you a photograph that has been previously marked as A-6 for identification, and ask you whether you are familiar with the scene that is depicted in that photograph?
A  Yes.
Q  What is the scene that is depicted there as far as you know it?
A  When I walked in I saw Mrs. MacDonald lying as such.  Mr. MacDonald was along side of her, up against her over here.
Q  So does that photograph depict that portion of the master bedroom of the MacDonald floor which had Mrs. MacDonald on it that is now minus the body of Captain MacDonald?
A  Yes.
Q  Now is there a difference that you observe about the body of Mrs. MacDonald from the way you actually saw it when you came in?
A  I don't remember seeing this blue pajama on her.
Q  You are indicating--if you will hold up the photograph and show it to the investigating officer so he may see it--you are pointing to the area that you have identified as a blue pajama you do recall seeing right here?
A  Yes, sir.
Q  Now at the time you saw Mrs. MacDonald's body was there anything at all covering that portion of her body?
A  I don't know.
Q  Would that be the portion of the body which would have also been her left breast?
A  It could have been.
Q  Now immediately below that garment that you have characterized as a pajama, do you observe a white garment lying on the mid-section of the body?
A  Yes.
Q  What does that appear to you to be?
A  I don't recall that being there either.
Q  I also ask you to look at a photo that has been previously identified as A-5 and ask you whether that likewise depicts another angle of the same scene you have been looking at.  In A-6.
A  Yes.
Q  Sergeant Tevere, do you observe anything on the body of Mrs. MacDonald that you did not observe at the time you came in the MacDonald bedroom on February 17th 1970?
A  I don't remember seeing the blue top draped across her. It could have been there. I just--
Q  And what about the other item of cloth that appears draped across the body of Mrs. MacDonald immediately below the blue garment, what appears to be white, possibly a towel?  Did you see that on Mrs. MacDonald's body when you were there?
A  I don't recall.
Q  Now, you don't recall--you don't recall seeing that there?
A  Right.
Q  Now, if I may, Sergeant Tevere, when you came in, how soon was it that you went to the telephone in the room to determine its condition?  Was it immediately after you observed on the first, did you go to the phone, or was it later after you had checked out the other portions of the house?
A  Well, I went in the house and then I ran back out and asked for help.  I came back into the house and I believe I checked the phone before going into the bedrooms.
Q  Now at that time where was the receiver part of the telephone?
A  It was right along side of the telephone.
Q  It was not dangling at the end of the cord, was it?
A  It was not.
Q  You then picked up the phone, is that right?
A  Yes, sir.
Q  And did you say anything into the receiver at that time?
A  No, I didn't. The only thing I said was to Lieutenant Paulk to see if the phone was dead.  I may have been heard when I said it, but I didn't talk into the receiver.
Q  What was it that gave you the impression that the phone line was dead?
A  Because I got no dial tone.
Q  Did you attempt to flash the telephone button on which the receiver rests?
A  No, I didn't.
Q  You were just listening to the phone and you heard no dial tone?
A  Right.
Q  And you directed some remark toward Lieutenant Paulk but you did not at that time speak into the phone?
A  Right.
Q  After you said to Lieutenant Paulk the line was dead, what did you say or what did you do then?
A  I placed the phone back along side the receiver, the receiver back along side the telephone.
Q  Did you ever place the cradle, the receiver on the cradle?
A  No, I didn't.
Q  Did you ever allow the phone, after you had finished talking to dangle off the bureau, to hang from the bureau?
A  No, I didn't.
Q  Now I want to ask you again to examine photographs, and I first ask you to look at the one identified as A-6 for identification, and ask you if you will particularly address your attention to the white telephone that appears on the dresser or bureau in that room.  Did you ever observe the telephone and its receiver in the fashion which is depicted in this photograph?
A  I can see the telephone but I can't see the receiver.
Q  Now I ask you to observe the photograph marked A-10 for identification.  And I ask you to tell us whether you ever saw the phone as depicted there in a fashion where it is that the receiver is not?
A  No, I didn't.
Q  Did you put the receiver of the phone down on the bureau top at some place close to this multi colored box as appears on the bureau top?
A  Yes, I did.  I put it down on the other side of the telephone.
Q  And would you be good enough to turn the photograph around so the investigating officer may see it and would you indicate with reference to the telephone and the colored box on the bureau where you put the receiver down?
A  I put the receiver down right on the left hand side of this telephone here, facing the same way as the telephone.
Q  So that if it were in that position at the time the photograph was taken, it should be visible in this photograph?
A  Yes, it should.
Q  And it would be visible in the photo that is marked as A-6.  Please indicate again to the investigating officer where you placed the receiver.
A  I placed it on the other side of the phone.  Now in this photograph if it was on the other side, I don't think it would be visible because the phone would be blocking it unless it extended out.

COL ROCK:  May I see those two, please?

MR. SEGAL:  Yes, sir.

MR. SEGAL:  I am now going to show the witness, may it please the investigating officer, a black and white photograph, one of the series of sixteen supplied by counsel for the government a short while ago, and ask that it be marked as A-11 for identification.

COL ROCK:  This will be A-13.

MR. SEGAL:  And submit for examination by the investigating officer.

(A-13 was examined by the IO and CPT Somers.)

CPT SOMERS:  I object to this photograph unless the defense is prepared to tell us exactly when it was taken and under what circumstances.

MR. SEGAL:  May it please the investigating officer.  In view of the fact that--the circumstances by which the defense came into this photograph, having already made a part of this record of this case, namely that upon demand made to this hearing, it was ordered by the investigating officer that the government produce all photographs that were taken prior to the removal of the bodies of the MacDonald household.  It seems to me that these were photographs that were peculiarly under the control of the government.  The government would know much better, in fact, entirely at this time, the circumstances of the taking of the photograph and that demand is not well taken and we should be permitted to use these photographs without further ado.

COL ROCK:  Objection overruled.  Proceed.

Q  Sergeant Tevere, would you be good enough to examine the photograph now marked A-13 for identification with particular reference to the telephone here, and I would ask you, Sergeant, whether that is the way you left the telephone after you had picked it up and attempted to determine whether the line was open, and then put the phone receiver down again?
A  May I see the other picture?
Q  Yes, sir.  Let the record reflect we are also showing Sergeant Tevere A-6 and A-10.
A  I didn't leave the phone this way.
Q  Well, would you describe for the investigating officer what it was that is different in this photograph than the condition which you left the telephone?
A  The receiver just isn't there.
Q  And this photograph was taken from an angle where it should reveal as far as you can tell the receiver as you placed it?
A  Yes, sir.
Q  Is it correct to say that you placed the receiver between the side of the telephone and the lamp that is also located on the bureau in this photograph?
A  Approximately, right.
Q  And would you observe as to whether or not this photograph that I have shown you, A-13, whether the legs of the telephone receiver itself are flush against the table top of the bureau top?
A  It is hard to say because the photograph is very deceiving because of the reflection from the table top.  If you take a picture of it it will cause a reflection.
Q  As best you can observe does it appear that one leg, at least of the telephone is not flush with the table top?

CPT SOMERS:  I object since he is asking that a conclusion be drawn from the picture itself. This is a conclusion that the investigating officer can himself draw.

MR. SEGAL:  I'm only asking whether he observes anything about the leg of the telephone in view of the fact that we are dealing with a relatively small portion of the photograph.  It is not improper, in my judgment, on cross examination to direct his attention to that subject matter.

A  I can't make out--

COL ROCK:  Just a minute, please.  The objection is sustained.  I think the witness has adequately answered the tendered question.

Q  When you placed the receiver of the phone back on the bureau, did you observe whether or not all four legs, if they may be referred to on the telephone, were flush on the table top.
A  I didn't notice, I didn't take notice.
Q  Now I ask you to observe on the floor an item that appears in all three of these photographs and see whether you note what that item is or can identify what that item is?
A  The item I guess you are talking about is a knife in front of the dresser.
Q  Did you observe that knife when you were in the master bedroom?
A  Yes, I did.
Q  And was it in the position that is depicted in this photograph--in the photographs?
A  Yes, it was.
Q  Now, Sergeant Tevere, could you tell us please what portion of your hand and the number of fingers that you used to handle the receiver--the receiver on this particular evening?
A  It would be these two fingers.
Q  You are indicating your thumb of your left hand, your index finger and the forefinger?
A  Right.
Q  And did you have to grasp the receiver with those fingers in order to be able to determine the phone was functioning so far as you could tell?
A  I had no other way of picking it up.
Q  Now when you went down the hall and you looked into the living room, what was your purpose of making observations in that room?
A  Captain MacDonald stated that he was sleeping in the living room and he was woken by some screams or cries.
Q  All right, now what relevance did that remark of Captain MacDonald have to your going to the living room?
A  To see where he was sleeping, and to see if anything was disturbed or if anything was all messed up in there, if there was any other--any other evidence in there.
Q  Were you looking to determine whether any persons were in that living room?
A  Yes.
Q  Well, would that have been the principle object at first to determine whether there was other persons in the house?
A  Yes.
Q  The second object, would be fair to say, if there was any other bodies or injured persons in the house?
A  Yes.
Q  Thirdly, would the purpose have been to see whether you might notice any important clues or evidence at that juncture?
A  Right, sir.
Q  Did you have any reason at that point to be looking for mud on the floor?
A  Yes.
Q  What was that reason?
A  Captain MacDonald stated that there was a blond--one of the supposedly people in the house was a blond with boots on, and that he mentioned the fact that there was muddy boots.
Q  Did he tell you that the first time you were in the master bedroom or the second time?  I'm talking about actually when you went in and with the other MPs.  Not when you first observed the bodies and ran out.  At that time when you came in with other MPs, is that when you heard him tell the description of the blond woman?
A  It was in the course of that time, yes.  It was in the course of that time.
Q  Did anyone ask him whether the mud on the boots was dry mud or wet mud?
A  No, we didn't question the fact as to whether it was wet or dry.
Q  Now you went down the hall.  I assume that you were looking to see whether you could see any traces of mud or any other evidence in the hallway.  Is that right?
A  I was walking cautiously.
Q  And what did you find, if anything, in the hallway?
A  There were some blood stains, I noticed in the beginning of the hallway.  I noticed on the floor a doll's head, just the head of a doll, a very small head, and some clothing at the foot of the hallway.
Q  Now I want to show you a photograph which will be marked as 14, I believe.

(The photograph was handed to the IO.)

COL ROCK:  All right.

(A-14 handed to CPT Somers.)

Q  Sergeant Tevere, I show you a photograph now marked as A-14 for identification and ask you whether that represents any scene that you are familiar with?
A  Yes, it does.
Q  What does that represent to you?
A  This is the living room at 544 Castle Drive.
Q  And looking from what direction to what portion of the house?
A  From the front door towards the hallway.
Q  The hallway that leads back to the master bedroom?
A  Yes, sir.
Q  Now do you observe anything, any items in this photograph that you did not observe yourself on the morning of February 17th, 1970?
A  I believe there are some clothes on the stairs in this picture here.
Q  Would you be good enough to turn the photograph around and indicate to the investigating officer?
A  There was clothing or some sort of clothing items right here on the stairs.  I can't see if there is a doll's head, but there was a doll's head there, and the flower pot was also on its side.
Q  Now you are indicating that there is a white object shown in this photograph which appears to be at the end of the over turned coffee table.  Is that what you are referring to?
A  Right.
Q  Now that white object, as it appears in this photograph, how would you describe it?
A  When I saw it, the white object, which appeared to be a pot of the flower that was on the floor.
Q  Now was that white pot standing on its base or in some other fashion?
A  When I saw it, it was lying on its side.
Q  Do you have any idea, Sergeant Tevere, how that pot came to be at the time the photograph was taken, standing on its base when you had seen it lying on its side originally?
A  I have no idea.
Q  Did you at any time see anybody touch it or move it?
A  No, I did not.
Q  Did you observe anything else on the floor of the living room with particular emphasis in or about the area of the coffee table?
A  I just noticed some magazines in the picture here.
Q  Did you have occasion to note a wallet on the floor?
A  No, I didn't.
Q  Was that an item, that if it had been on the floor you would have thought sufficiently important to take note of?

CPT SOMERS:  I object.  It calls for a conclusion.

COL ROCK:  Objection is sustained.

Q  Sergeant Tevere, what was the light source in the living room area when you first came in there and made your observations?
A  There was a light on in the dining or kitchen area that was reflecting a light into the living room.
Q  Now there is a diagram on the easel in this room.  By looking at that diagram, does it help you to determine more accurately where the light source was that was visible to you in the living room?
A  No, it doesn't.
Q  You cannot ascertain whether the light was in the kitchen or in the dining room as noted on that chart?
A  No, I can't.
Q  Sergeant Tevere, when you came into the MacDonald house originally by yourself, into what room did you enter?
A  I entered through the back door.  There was a little vestibule, I believe.  I entered into it and then entered the master bedroom.
Q  Did you recall going into the utility room before reaching the master bedroom?
A  You have to cross the utility room before you get to the master bedroom.
Q  Did you actually pass through the utility room and step into the master bedroom the first time you came into the house?
A  Yes.
Q  And then you left, went out and asked for assistance to be obtained.  Is that right?
A  Yes.
Q  Did you observe that there was a door inside the utility room that connects the utility room with a bath?
A  No, I didn't.
Q  When you came out you said that you told one of the other MPs that someone had been stabbed.  Is that right?
A  Yes, sir.
Q  Now, how did you make the determination that there had been stabbings?
A  Well, I noticed that Mrs. MacDonald, when I walked in, the first thing that caught me was the fact that she had been, seemed to be cut up and bleeding very badly, or had bled badly.
Q  What portions did you observe these cuts or stab wounds on?
A  I noticed her hand, arm and face.
Q  Now when you came back after giving that message, do you know the names of the military policemen that followed you into the house?
A  Specialist Four Mica was one of them and Specialist Four Morris.
Q  Now would you describe for us, please, what the three of you did when you came back?
A  Myself and Morris had our pistols out.  Exactly what Morris did, I don't know, but Mica and I went to Captain MacDonald.
Q  Do you know where Morris was at that time?
A  No, I don't.
Q  Now how long did you say you stayed with Captain MacDonald at that point?
A  Maybe fifteen seconds or a minute.  Maybe fifteen seconds, thirty seconds or a minute.  I don't recall.
Q  And then did you leave Specialist Mica with Captain MacDonald?
A  Yes, I did.
Q  And where did you proceed to?
A  The--I tried the telephone.
Q  Then after you tried the telephone what did you do?
A  I went to the bedroom on the left.
Q  Now had any other MPs come into room by the time you had finished trying the telephone?
A  Yes.
Q  Who were they?
A  I don't recall.
Q  Was Lieutenant Paulk there at that time?
A  Yes.
Q  Where were the other MPs at that point?  When you finished using the telephone or trying to use the telephone?
A  I don't remember.
Q  They were not all in the master bedroom though, were they?
A  They all weren't in the house yet.
Q  Well, those who had come in behind you, Mica and Morris, were they all in the master bedroom at that point?
A  Yes.
Q  All right, you then proceeded down the hallway.  Is that correct?
A  Yes.
Q  And who did you observe were the MPs in the hallway or in the other parts of the house at that time?
A  There weren't any.  To the best of my knowledge, there weren't any.
Q  All those MPs that were there were still in the master bedroom?
A  Yes.
Q  And then you went into which bedroom?
A  The--I guess it would be the south bedroom.
Q  Is that the one that is marked front bedroom on the chart or the one marked rear bedroom?
A  Front bedroom.
Q  How far into the bedroom did you go?
A  Two feet, maybe three feet.
Q  And what light did you use to make observations by?
A  I used my flashlight.
Q  You flashed light on what objects in the bedroom?
A  The bed.
Q  Now what vital signs did you check on the person that was in the bed at that time?
A  I didn't.
Q  You concluded from your observations, I assume, that the person in that bed was hurt pretty bad?
A  Yes.
Q  You then did what?  Go into the bedroom on the other side?
A  Yes.
Q  And was there any MPs other there at that time?
A  No, there wasn't.
Q  About how far did you go into that rear bedroom?
A  I didn't.
Q  Just to the doorway?
A  Yes.
Q  And did you use your light again at that point?
A  Yes.
Q  And what did you see in that room?
A  A little girl who also appeared to have been hurt very bad, bleeding quite a bit.
Q  But you did not at that time make any observations of vital life signs?
A  No.

COL ROCK:  Counsel, it seems to me we are repeating the same questions that were asked before and getting essentially the same answers.  Is there any purpose in reiterating what has already been said in this event?

MR. SEGAL:  Yes, sir, I think it is necessary to follow somewhat in detail the chronology of Sergeant Tevere's activities to establish how certain observations he made were made and how his testimony may relate or may not relate to other witnesses.

COL ROCK:  Well, my notes indicate that he is saying the same thing that you've already asked him.  You are asking him the same questions that you asked before.  That is the reason I am trying to determine if there is something new that you are obtaining from this.

Q  Sergeant Tevere, when you went down the hallway after looking into the two bedrooms, did you go into the living room?
A  Yes, I did.
Q  How far into the living room did you go?
A  Six feet, five feet.
Q  Were there any MPs there?
A  I think one followed me down the hall.  I am not sure.
Q  Do you know who that was?
A  No, I don't.  I think it was Sergeant Hagney.
Q  Would you tell us please in what position Captain MacDonald was reference to the body of his wife when you initially came in?
A  Captain MacDonald was lying the same way as his wife, in other words their feet were next to each other, and they were lying in the same, more or less, position, in the same way.
Q  And was any portion of Captain MacDonald's body in contact with a portion of his wife's body?
A  Initially, yes.
Q  What positions were in contact?
A  I believe it was his right side.  Part of his right side was in contact with her left side.
Q  And did you notice where Captain MacDonald's head was?  In reference to his wife's body.
A  I think it was around her--the area of her left side.
Q  Are you indicating that his head was resting on a portion of her body?
A  Yes.
Q  Did you ever give Captain MacDonald mouth-to-mouth resuscitation?
A  I physically didn't.  I assisted Specialist Mica when he gave mouth-to-mouth.
Q  Did Captain MacDonald on other occasions while you were there ask about the condition of his wife and ask about the condition of his children?
A  When we first went in, he said--he said, “Check the pulse of my wife's leg.”  And then he kept on asking about his children, to check on his children.  He asked about his children several times.
Q  Did you observe the medics when they took Captain MacDonald down the hall?
A  Yes, I did.
Q  Did you observe what, if anything, Captain MacDonald was doing while he was on the stretcher?
A  Yes.  We were wheeling him past the front bedroom and Captain MacDonald wanted to see his children and he overpowered us to get off the stretcher and tried to get into the bedroom.

CPT SOMERS:  Could I interrupt for just one instant at this moment.  I think that I have the CID on the line with reference to the house.  Could I have a two or three minute recess to answer the phone?

COL ROCK:  About how much longer do you think this will continue, counsel?

MR. SEGAL:  I would think about fifteen to twenty minutes additional questions.

COL ROCK:  Do you object to us taking a brief recess?

MR. SEGAL:  Not at all, sir.

COL ROCK:  We will take a five minute recess, while he answers the phone.  I'd like to instruct the witness that you are advised that you will discuss your testimony with no person other than either of the counsel.  The hearing is recessed.

(The hearing recessed at 1610 hours, 8 July 1970.)

(The hearing opened at 1616 hours, 8 July 1970.)

COL ROCK:  The investigation will come to order.  The members present at the start of the recess are currently in the hearing room.  Proceed with cross examination, counsel.

Questions by MR. SEGAL:
Q  Sergeant Tevere, will you tell the investigating officer what kind of clothing Captain MacDonald had on on the morning of February 17th?
A  Captain MacDonald had blue bottoms--dark blue pajama bottoms, and had no top on.
Q  And what, if anything, can you tell us about the condition of the pajama bottoms?
A  They appeared pretty clean.  They reminded me of the pajama bottoms you see in the hospital.
Q  Did you observe any stains or marks on the pajama bottoms?
A  No, I didn't.
Q  Now did you come into the living room after Captain MacDonald was taken out by the medics?
A  I don't understand your question.
Q  You went down the hallway, I gather, to a certain extent with the medics when they were taking Captain MacDonald out on the stretcher and as a matter of fact you helped them restrain Captain MacDonald when he tried to get off the stretcher near the bedroom of one of his children.
A  Yes, he got off the stretcher.
Q  And you assisted in restraining him?
A  Yes.
Q  And then the medics continued to move the stretcher down the hall and out the front door.  Am I correct?
A  Right.
Q  And did you follow behind them and come into the living room at that point?
A  Yes, I did.
Q  Did you then stay in the living room after Captain MacDonald left?
A  No, I went out and helped them put Captain MacDonald into the ambulance.
Q  And after you helped with that chore what did you do?
A  I proceeded back into the house.
Q  Through the front door?
A  Right.
Q  And did you go into the living room at that time?
A  Right.
Q  And were there other persons in the living room at that point when you came in?
A  At that point Colonel Kriwanek and one of the CID agents appeared.
Q  In the living room?
A  Right, they walked in about the same time as I.
Q  Were there military policemen in the living room already besides these two persons?
A  Yes, there were.
Q  About how many would you say there were?
A  Two, three.
Q  Could you name those you recall?
A  Specialist Sellick--the other two I am not sure--I remember seeing Specialist Sellick.
Q  Did you observe anybody else in the living room at that time whom you could not identify by uniform as being a military policemen on duty or medic or a person on duty?
A  I believe a photographer came in.
Q  Did you know who that photographer was?
A  I had seen him at the PMO in December.  That was it.
Q  Did you observe anybody in the living room wearing dungarees?
A  No, I didn't.
Q  By the way, when you went outside with the medical personnel and the stretcher with Captain MacDonald what was the weather conditions like at that time?
A  It was fine drizzle.
Q  Now when you came back into the house what did you do after helping with the stretcher?
A  Colonel Kriwanek asked who were the first ones at the scene, who were the initial people that were involved and Lieutenant Paulk said it was Specialist Four Mica and myself.  He then walked to the master bedroom and told Mica and myself he wanted us to come to the Provost Marshal Office and make statements.
Q  And then what did you do?
A  Left through the front door with Mica and Colonel Kriwanek.
Q  And did you go to the Provost Marshal Office at that time?
A  Yes, I did.
Q  When you were with Captain MacDonald in the master bedroom did he give you any information about the assailants?
A  Yes, he did.
Q  Would you tell the investigating officer all those things you can recall that Captain MacDonald told you?
A  He said that the assailants were two male Caucasians, one male Negro, wearing a field jacket with sergeant stripes on it, one female with long blond hair wearing muddy boots, a floppy hat, carrying a candle, saying acid is groovy and kill the pigs.
Q  Captain MacDonald said that those statements were made by the blond female?
A  Yes.
Q  When you finished your conversation with Colonel Kriwanek and he told you to report back to the PMO, did you go back out the front door of the house?
A  Yes, I did.
Q  And you went in some vehicle to the PMO?
A  I took my partner's jeep.
Q  And when you walked out through the living room at that time, did you see any footprints or wet spots on the floor of the living room?
A  I didn't take notice.
Q  Did you see anything?
A  No, I didn't.
Q  Did you ever see any grass on the floor of the living room?
A  No, I didn't.

MR. SEGAL:  I ask to have this color photograph marked as Accused Exhibit, sir.

COL ROCK:  A-15.

(A-15 was marked and examined by the IO and CPT Somers.)

Q  Sergeant Tevere, would you please examine the photograph which has been marked A-15 for identification and indicate to the investigating officer whether you can identify the subject matter of that photograph?
A  Yes.
Q  What does that photograph depict to you?
A  This is a picture of the hallway from the living room facing toward the master bedroom.
Q  And what do you see in the end of that hallway in the master bedroom?
A  Mrs. MacDonald, the body of Mrs. MacDonald.
Q  On the floor?
A  Right.
Q  Would you look at that photograph and tell us where on the floor you observed grass, mud marks or any other noticeable foreign matter other than an item of clothing in the lower half?
A  No, I don't.
Q  I ask you to look at photograph marked A-7 for identification and ask you to again note whether you see any foreign matter that you might refer to grass, mud marks or visible water stains?
A  No, I don't.
Q  I ask you to look at photograph marked A-8 for identification and indicate to the hearing officer whether you see any of those foreign objects we referred to?
A  No, I don't.

MR. SEGAL:  I ask to have an additional photograph marked, sir, as Accused Exhibit A-16.

(Colonel Rock marked the exhibit and it was examined by CPT Somers.)

Q  Sergeant Tevere, I ask you to look at the photograph that has been marked as A-16 for identification, which purports to be another view of the living room of the MacDonald house, and ask you to examine this photograph to see whether it shows any indications of foreign matter such as we've been discussing this afternoon?
A  No, it doesn't.
Q  Did you see the photographers take any photographs at all while you were present in the MacDonald house?
A  No, I didn't.
Q  Did the photographer arrive as you were just leaving for the purpose of going to the PMO?
A  Yes, he did.
Q  And you indicated already what the name of the photographer was?
A  I didn't say.
Q  You recognized him as the one you have seen at the PMO before?
A  Yes.
Q  How long would you estimate you were in the MacDonald house from the time you first came in by yourself and made your first observation until you left with Colonel Kriwanek?
A  Fifteen minutes.
Q  Would that be at a minimum?
A  Yes.
Q  And during the course of that time, is it fair to say that some where in the approximation of twelve to fifteen military policemen, CID investigators and medical personnel had been through the MacDonald house in the course of this investigation?
A  About a dozen.

MR. SEGAL:  I have nothing further at this time, sir.

COL ROCK:  Counsel for the government?

Questions by CPT SOMERS:
Q  Sergeant Tevere, I show you the pictures which has been marked A-5 and A-6, which you have previously looked at.  The defense has asked you about a piece of blue material, which is visible in this picture and a piece of white material which is visible in this picture.  Now I'd like to test your memory a little bit, if I could.  You have said that you do not remember seeing either of those pieces of material on MacDonald.  Is that correct?
A  Yes, it is.
Q  Now are you saying categorically that it was not there or simply that you do not remember it being there?
A  I don't remember it being there.
Q  You are not saying that it was not there or it could not have been there?

MR. SEGAL:  That's objected to.  This is direct examination, not cross examination.  The question may not be put in that fashion to this witness.

COL ROCK:  Counsel, this is redirect examination.  Your objection is overruled.

WITNESS:  Would you repeat the question, please?

Q  You are saying that you do not believe that these things were there but you are not saying that categorically that they were not there, or could not have been there?
A  That's correct.
Q  I show you a picture now which has been marked as A-7, which I do not believe you have previously seen.  Would you look at it, please?  Do you see some material which appears on the stairs of the hallway?
A  Yes.
Q  You do.  Now when you first went down that hallway into the living room the very first time, did you see that material?
A  Yes.
Q  Does that picture depict the position of that material at that time correctly?
A  Yes.
Q  I show you now a picture which has been marked A-16.  Look, if you will, at the coffee table.  Is that the position that coffee table was in when you first saw it?
A  Yes, it is.
Q  Do you see some debris near or under that coffee table?
A  Yes.
Q  What does that appear to be to you?
A  Some type of magazines.
Q  Is that the appearance that that table and the accompanying debris had when you first saw it?
A  Yes.
Q  Did you glance in the kitchen?
A  Yes I did.
Q  Is there a phone in that kitchen?
A  Yes, there was.
Q  Do you remember seeing it?
A  Yes, I do.
Q  Do you remember the position of the receiver?
A  Yes, it was a wall phone.  The receiver was lying straight down on the ground.
Q  Did you ever see anyone remove that phone, touch it or tamper with it?
A  No, I didn't.

CPT SOMERS:  I have no further questions.

Questions by MR. SEGAL:
Q  Sergeant Tevere, did you give a signed statement to the investigator for the criminal division on 17 February 1970 at 0900 hours?
A  Yes, I did.
Q  And are you holding a copy of that statement before you at the present time?
A  Yes, I am.
Q  May I direct your attention to the eleventh line from the bottom of the first page of that statement?
A  Yes.
Q  And in that sentence that begins on the 11th line from the bottom, did you state to the CID investigators the condition as far as clothing of the body of Mrs. MacDonald?
A  Are you referring to where I said the female was dressed in pajamas and appeared to have struggled with someone?
Q  Yes, sir.
A  The pajama top was partially open and one of the breasts was exposed.  Is that where you are referring to?
Q  That's right, sir.  Did you in fact state that to the CID on the 17th of February?
A  I didn't give the statement to the CID.
Q  To whom did you give it?
A  I wrote the statement in Colonel Kriwanek's office.
Q  In other words you wrote it to yourself.  Did you type it also?
A  No, I did not.
Q  Now is that statement correct in which you said that the left breast--that one of the breasts of Mrs. MacDonald was exposed when you saw her body on the floor in the master bedroom?
A  Yes.
Q  Is it possible in the photographs that you have been shown today for you to have seen an exposed breast if the blue cloth had been placed in the fashion that the photograph reveals?
A  Possibly.
Q  Possibly.  Do you have any recollection at all seeing the blue cloth placed over her body?
A  No, I don't.
Q  I beg your pardon?
A  No, I do not.
Q  You do not have any recollection?
A  No.
Q  What about the white object which appears to be a white towel covering the midsection of Mrs. MacDonald?  Do you have any recollection at all having seen that on the morning of February 17th?
A  No.
Q  Is it fair to say that your best recollection of that incident was that she had neither of those two items on her when you first observed her body with her left breast exposed and her midsection exposed?  Is it fair to say that?
A  Yes.

MR. SEGAL:  I have nothing further.

CPT SOMERS:  Could I have a moment, please?

COL ROCK:  I have several questions of the witness.
Questions by Colonel Rock:
Q  Have you ever taken any first aid courses or instruction in first aid in your military career?
A  Yes, I have.
Q  In those courses do they ever describe anything about shock or how you can identify it in an individual?
A  Somewhat.
Q  Well, from your layman's view point do you think Captain MacDonald was in shock at any period of the time that you were there with him in the bedroom?
A  It appeared so.
Q  Appeared so.  I believe you testified to the fact that Captain MacDonald told the MPs to give him mouth-to-mouth resuscitation.  Is that correct?
A  Right, he said he thought he was going into shock and that we should breathe into his mouth if he did pass out.
Q  Then at that time you feel he was not in shock?
A  No.
Q  But would you say as a medical officer he probably recognized the fact of this as a possibility?
A  Yes.
Q  Is that your general impression?
A  Yes.
Q  The photographs have been shown with some blue cloth on the floor.  From the position of that blue cloth can you recollect whether or not that was generally the position in which Captain MacDonald had been lying while he was on the floor?  Perhaps maybe you should see the photograph to refresh your memory.

(Col. Rock left his desk and approached the witness.)

Q  Does either of these photographs--do you think that Captain MacDonald's body could have covered that cloth or was he in some other position?
A  He could have been covering the cloth, yes.
Q  As that photograph is viewed, and considering that this is Mrs. MacDonald's left and this is Mrs. MacDonald's right, was Captain MacDonald on her left or her right?
A  Captain MacDonald was on her left side.

COL ROCK:  I have no further questions.  The record should reflect that I was showing the witness Exhibits A-5 and A-6.  I do have one other question written down.

Q  You stated you were in the kitchen area, correct?
A  Yes, sir.
Q  And examined the phone?
A  I saw the phone--I did not go into the kitchen, I--
Q  You did not go into the kitchen?
A  Right.
Q  Was there a light on in the kitchen?
A  I believe so.
Q  And please tell me once more, I want to be certain, what position was the receiver of that phone?
A  The one in the kitchen?
Q  Right.
A  The receiver was down on the ground.
Q  It was dangling by its cord?
A  Right.
Q  Was the kitchen phone a wall type phone, or the normal telephone on a cabinet?
A  It appeared to be a wall phone.

COL ROCK:  I have no further questions.

CPT SOMERS:  I have nothing further, sir.

MR. SEGAL:  Nothing further.

COL ROCK:  Sergeant Tevere, you are advised that you will discuss your testimony with no person other than either counsel.  You are excused and subject to recall.

(Witness saluted the investigating officer and departed the hearing room.)

COL ROCK:  Are there any other matters to be brought to the attention of the investigating officers at this time?

CPT SOMERS:  None by the government, sir.

MR. SEGAL:  No, sir, not for the accused.

CPT SOMERS:  If I may, do you wish me--

COL ROCK:  No, I will handle that aspect tomorrow.  This investigation is adjourned until 0830 tomorrow morning.

(The hearing adjourned at 1645 hours, 8 July 1970.)

(The hearing reconvened at 0855 hours, 9 July 1970.)

COL ROCK:  This investigation will come to order.  Let the record reflect that counsel for both sides are present.
    I wish to make an announcement reference the question of the law clerks.  Mr. Segal, I have considered the accused's request to have present at this hearing the three law clerks who are employed by your office.  I have decided that these three gentlemen will be permitted in this hearing to assist the defense.  Naturally I expect them to conduct themselves in a manner with the conduct of all parties to these proceedings.

MR. SEGAL:  May I express my thanks to the investigating officer, sir, and just ask to be able to notify Mr. Haynes at this moment who is present and may join us.

Co Rock: Please do.  Is counsel for the government ready to present the next witness?

CPT SOMERS:  Yes, sir.  May the counsel for the government ask a question, however, regarding this most recent ruling?  I presume that there, by the same theory, can be no objection to the government having an administrative assistant of this type who is do the same, approximately the same duties.

MR. SEGAL:  On the same assumption that the person is either a lawyer or a law clerk, and it would not be Captain Thompson whose participation in this case at this point is under question before Third Army.  Otherwise I would have no objection, sir.

CPT SOMERS:  This is an attorney and not Captain Thompson.

COL ROCK:  That request will be granted when it may--are you now making the request or were you just inquiring?

CPT SOMERS:  I am making the request.  I do not actually have that person present.

COL ROCK:  The request is granted under the caveats mentioned by the counsel for the accused.

CPT SOMERS:  Very good, sir.  Yes, sir, I am prepared with my next witness.

COL ROCK:  And who is that?

CPT SOMERS:  Sergeant Duffy, sir.

(Sergeant Robert J. Duffy was called as a witness, was sworn, and testified as follows.)

Questions by CPT SOMERS:
Q  Would you state your full name, please?
A  My name is Robert John Duffy.
Q  Your grade?
A  E-5, sir.
Q  Your organization?
A  A Company, 503d.
Q  Your station?
A  Fort Bragg, sir.
Q  And your armed force?
A  United States Army.
Q  What was your duty on the evening of the 16th and 17th of February of this year?
A  Routine patrol, sir.
Q  Did you have an occasion on that patrol to hear a radio call concerning an incident at 544 Castle Drive?
A  Yes, sir.
Q  What did you do in response to that?
A  I proceeded to Corregidor Courts, sir.

MR. SEGAL:  Excuse me, Sergeant Duffy; I am having a little difficulty hearing you because of the air conditioning.  To the extent you would keep your voice up, I would be much indebted.

Q  What did you do when you got to Corregidor Courts?
A  I was in the vicinity, sir, and I just--I stayed around the area, just in case my assistance was needed.
Q  And was assistance called for?
A  Yes, sir, there was a call for any patrols to go to that address, which was 544 Castle Drive.
Q  What did you do in response to that?

COL ROCK:  I know it is normal for you to look at the face of the person who is questioning you, however, to make it even more clear, if you will address your remarks to me, then I think maybe we can all hear better.

A  Yes, sir.
Q  You were saying that the original call was not for you?
A  No, sir, it was for the patrol supervisor.
Q  I see.  You said that there was a call for any patrol in the area?
A  Yes, sir, I did.
Q  What did you do when that call came in?
A  I asked the radio operator for the address again.
Q  And then what?
A  Well, sir, he gave me the address 344 Castle Drive, which I went to that house first.  I was right by the house at that time.
Q  What happened there?
A  I knocked on the door, sir, and I rang the bell and I stayed in the vicinity for a couple of minutes, sir, ringing and knocking on the door.
Q  Then after you had rung the bell and knocked on the door, what did you do?
A  Well, sir, I didn't get no answer and a couple of seconds later a patrol, which was the patrol supervisor, Sergeant Hagney, came over and told me I was at the wrong house, and he gave me the correct address and I followed him.
Q  And did you go to the correct address?
A  Yes, sir, I did.
Q  What did you do when you arrived at the correct address?
A  Sir, as I was getting out of my vehicle, there was two other vehicles there, and all personnel was getting out.  I noticed that--I was under the presumption that there was somebody in the house because I seen like something move by the window, so I yelled out go around the back, there's someone in the house.  But as I came closer to the house, I noticed that it was a refection of the MP helmet liner going towards the door from the night light to the window, just a reflection, sir.
Q  Okay, did you, in fact, go around the house?
A  Yes, sir, I did.
Q  What did you find when you got around behind the house?
A  Well, I was standing by the door.  I found Specialist Four Morris standing there.  As I approached him Specialist Four Morris told me that--go inside the house.  So as I entered the house I seen Specialist Four Mica standing by the door.
Q  By what door?
A  The master bedroom.
Q  Sergeant Duffy, if you will approach Government Exhibit 1, perhaps you can point out for us the position of Specialist Mica.
A  Yes, sir, Specialist Mica was standing right over here in the corner, sir.
Q  Of this utility room?  Look at this diagram and orient yourself.  This sort of symbol is a door.
A  He was standing right here, sir.
Q  You are pointing to the doorway between the utility room and the master bedroom?
A  He was mostly in the master bedroom, sir.
Q  You are pointing to an area, however, close to the doorway?
A  Right, sir.  I was under the impression it wasn't this wide.
Q  You were under the impression that it was wider?
A  Yes, sir.
Q  What did you do when you came into the house?
A  Well, sir, I couldn't see nothing at the present time, so I asked Specialist Mica on a number of occasions to move over, at which time I had to push him over, and as I got by him I seen the two individuals lying on the floor of the master bedroom.
Q  Can you give us a brief description of these individuals?  Were they male or female?
A  Yes, sir, there was one female and one male and the female was lying on her back, and the male was lying in a position parallel to her on his side with his arms around her neck, holding--struggling, just a girl friend, you know, just around her neck, very tight.
Q  Well--you now--have you subsequently discovered who these two individuals on the floor were?
A  Yes, sir, I did.
Q  And who were they?
A  Sir, it was Captain MacDonald who was lying on the floor parallel to the body, which was Mrs. MacDonald.
Q  I show you two pictures, which have been marked as A-5 and A-6 and ask that you look at them, please.  Can you tell us what room of the house this depicts?
A  Sir, it reminds me of the master bedroom as I walked in and seen this exhibit over here.

MR. SEGAL:  May we identify which one he is talking about?

Q  You were just pointing to picture A-5?
A  Yes, sir.
Q  Are those two pictures, A-5 and A-6, essentially the same room?
A  Well, sir, from the position I was standing, I couldn't see A-6.
Q  You are saying that's not the angle you saw?
A  No, sir, I only seen it from this angle, A-5, Exhibit A-5.
Q  But are those two pictures of the same room?
A  Yes, sir.
Q  Do you see a body in those pictures?
A  Yes, sir.
Q  Do you see on top of the body two pieces of cloth?  One blue and one white?
A  Yes, sir.
Q  When you looked at that body, presumably now Mrs. MacDonald we are talking about, when you looked at that body, did you see either of those two pieces of cloth?
A  Sir, I remember distinctly remember the towel being there, but as for the blue cloth, I cannot recollect at the present time, sir.
Q  You say you do remember that towel being there?
A  Right, sir.
Q  Is that the white piece of cloth you are referring to now?
A  Yes, sir.
Q  What were the lighting conditions in that room?  Was there a light on?
A  Yes, sir.  It was very bright.  Everything could have been seen.
Q  There was some sort of light?
A  Yes, sir.
Q  Did you see any mud, foreign debris or water spots on the floor?
A  No, sir, I didn't.
Q  After you got into the master bedroom, what did you do?
A  Well, sir, as I noticed, Captain MacDonald was trying to move himself up at which time he uttered a few words which I couldn't recollect now, but I do distinctly remember him saying, “Go check the kids.”  And he pointed, you know, like he was trying to point to the back room then, sir.
Q  What did you do then?
A  Sir, I naturally ran to the back and I ran down the hall, sir, and I ran into the first room on my right, like there was another foyer, with another room right to the foyer.

COL ROCK:  Could we have him address the diagram?

CPT SOMERS:  Would you please walk up to Government Exhibit 1 and indicate to us, please on this exhibit the path you took?

A  Yes, sir.  I was standing about here, sir.
Q  Indicating just inside the door between the utility room and the master bedroom?
A  Yes, sir.
Q  And then what?
A  When Captain MacDonald said, “Check the kids,” I ran from this entrance here and came down the hall and I ran into the first bedroom over here, sir.
Q  How far did you go into that bedroom?
A  About three or four feet, sir.

COL ROCK:  Let the record reflect that it is the rear bedroom.

(The witness resumed his seat.)

Q  What did you do in that bedroom?
A  Well, sir, there was a small child, you know, I couldn't tell you what age exactly, but she was lying there and she was bleeding from her neck and from her shoulder, sir.
Q  Was she moving?
A  No, sir, she wasn't.
Q  When you saw that what did you do?
A  Sir, I started running out the back door to call for an ambulance.
Q  When you came out of the back door did you encounter anyone else?
A  Yes, sir.  I ran in to Specialist Four Dickerson who was tapping me on the shoulder, and I turned around as I was leaving and he said to me that there was a baby that was also killed.
Q  In where?
A  In the other bedroom that was on the left.
Q  Is that the bedroom that is referred to as the front bedroom?
A  Yes, sir.
Q  All right, then what did you do after you ran into Dickerson?
A  Sir, I ran out of the house and went to my vehicle and called for an ambulance.
Q  How did you leave the house?
A  The same way I came in, sir.  I ran out the rear of the bedroom into the master bedroom through the utility room.
Q  And you went where?
A  I went to my vehicle and called for an ambulance.
Q  Were you present in this vicinity when the ambulance arrived?
A  Yes, sir.  After I went from the vehicle I went back and told Specialist Four Morris because he was the first one there, and I was noticing that there were people from Womack who arrived there, and they were in the master bedroom.
Q  Did you see any of these people from Womack?
A  Yes, sir.  I saw two.
Q  How were they dressed?
A  Sir, I faintly remember one was wearing a regular white uniform, sir, but there was also one that was wearing a fatigue jacket and dungarees and boots, sir.
Q  I see.  Did you go back into the house?
A  No, sir.

CPT SOMERS:  I have no further questions.

MR. SEGAL:  Sir, before proceeding with the cross examination of Sergeant Duffy, I would suggest that this would be an appropriate juncture to clarify that the--the record in regard to A-9 and A-16.  In fact, sir, it appears that I caused inadvertently, to have the photograph of the MacDonald living room that was originally marked A-9 remarked again as A-16.  I would ask at this time that both numbers be retained, but with the indication on the record that they both refer to the same single photograph.

COL ROCK:  This will be done, and I would suggest in the future that we use preferably the number A-9.

MR. SEGAL:  Very well, sir.

Questions by MR. SEGAL:
Q  Sergeant Duffy, at any time after you left the MacDonald household up until today have you ever been interviewed by either military policemen or criminal investigation division investigators to give your version of what you saw and what you did at the MacDonald house on February 17th, 1970?
A  Yes, sir, I did.
Q  May I ask when you were interviewed or when you gave such a statement.  Approximately the date when that took place.
A  Sir, I didn't write no statement.
Q  When were you interviewed then, that you recall?
A  Sir, I was first interviewed by Captain Douthat and two weeks, later, sir, I was interviewed again by Captain Somers.  A week later, sir, excuse me.
Q  So that you've never been asked to sign any formal written statement by any investigators or prosecution.  Is that right?
A  No, sir.
Q  And the only time you've ever been interviewed with anyone that you had reason to believe was associated with the investigation of this case was the prosecution's case when you spoke with Captain Somers?
A  Yes, sir.
Q  May I ask how long before this hearing began you were interviewed by Captain Somers?
A  Appropriately two weeks, sir.
Q  Appropriately two weeks ago?
A  Yes, sir.
Q  And you had been interviewed at some time before that by Captain Douthat, the military assigned counsel Captain MacDonald?
A  Yes, sir.
Q  Now Sergeant Duffy, when you had a chance to look over the scene of the MacDonald household, did you arrive at a conclusion that certain investigatory and law enforcement steps should be taken by the military police in regard to what you saw there?

CPT SOMERS:  I object.  He's asking him to draw a conclusion which is, which he cannot do, besides which it's irrelevant.

MR. SEGAL:  I think that the investigating officer will learn from this line of questioning that the Sergeant made certain observations, he arrived at certain conclusions, and then he made certain requests for action be taken to certain other persons present, and those requests are of course, relevant.  They've already been alluded to on cross examination of other witnesses.

CPT SOMERS:  Then I suggest that counsel ask him as to those issues.

COL ROCK:  The objection is overruled subject to the defense establishing a reasonable line of inquiry in this matter.

Q  Let me rephrase the question, if I may, Sergeant Duffy.  Did you, when you at some point received information about the serious incident at the MacDonald house, request or suggest that certain steps be taken by the military police in order to further the investigation or the incident that you had been advised about?
A  Sir, I--there were steps to be taken, sir, and I took the first steps I could which was the right steps.
Q  Now did you have occasion to believe that--did you have occasion to ask anyone for permission to set up a roadblock on Highway 87 going from Fort Bragg towards Fayetteville?
A  Yes, sir, I did.
Q  And why did you request permission to do that?
A  Sir, I figured that if the individuals was still on Fort Bragg we would have a possible chance of catching the suspects if there were any.
Q  And at the point you asked permission to set up a roadblock had you received any information about the suspects yet, by radio or any other means?
A  Yes, sir, we were under the presumption that we knew a description, sir.
Q  How did you get the information about the description?
A  From the radio operator, sir.
Q  And where were you at the time that you received that description?
A  Sir, I was on Knox Street between 87 and Gruber.
Q  Was that before you went to 344 Castle Drive?
A  No, sir, that was after.
Q  After you had been to 344 Castle Drive.  Was it before you went to the MacDonald house at 544?
A  No, sir, that was after.
Q  After that also?
A  Yes, sir.
Q  In other words, you had received information about the description of the persons who--who were believed to be involved in this episode by radio after you left the MacDonald house that early morning.  Is that right?
A  Right, sir, but also, sir, these descriptions weren't confirmed yet.  You know, still like four individuals.  Nobody knew exactly what those individuals were dressed like.
Q  Did you receive any information while you were in the MacDonald house about the description of the persons who were responsible for the incident there?
A  No, sir.
Q  Are you telling us the first time you knew that it was believed that several individuals who were responsible for the incident and the injuries that you saw in the MacDonald house was after you left that place and the radio call?
A  Sir, could you rephrase that?
Q  In other words, I want to--when you were in the MacDonald household, did you hear from any of the other MPs or from Captain MacDonald, you know, what was supposed to have happened to him and his wife and his children?
A  No, sir.
Q  So you had no idea other than you saw the various injuries and dead people there?
A  Right, sir.
Q  Why did you leave the MacDonald house?  Was it on instruction from someone?
A  No, sir.  Well, I left the house at first to call for an ambulance, and the second time I came back I stayed in the back of the house, sir.
Q  And then after you had left the back of the house is when you heard the radio broadcast about certain suspects.  Is that right?
A  No, sir, I went back into my jeep and I went back on patrol, patrol the vicinity of the area, sir.
Q  And was it at that time you heard the radio message?
A  It was about that time.
Q  And who was this who ordered you to resume the patrol of your area?
A  Well, sir, no one.  My area was over at Spring Lake, sir.  This was around the vicinity of Corregidor Courts and Anzio Acres, patrol around there.
Q  All right, someone did give you an instruction to patrol the area in and about the MacDonald home?
A  Right, sir.
Q  Who gave you that instruction?
A  The radio operator, sir.
Q  The radio operator from the Provost Marshal's office?
A  Yes, sir.
Q  And after you had taken up the patrol that you had been instructed to by the radio operator, is that when you heard the description given about possible suspects?
A  Sir, I can't actually say when I actually heard it.  It was about that time.
Q  And what was the description you heard?
A  Well, sir, I was under the impression there were four individuals, two male Caucasians, one male Negro and one female.
Q  Do you recall being given any other information at that time about the suspects?
A  Just that one of the suspects had a fatigue jacket on and that's all that--I don't recall anything else.
Q  When you received that information, is that when you decided to request permission to set up a roadblock on Highway 87?
A  No, sir.  I spotted an individual at Mallonee Village.
Q  And what about that individual?
A  Well, sir, the individual, a Staff Sergeant, he said he was waiting for a ride, so I took his ID card, I asked some regular routine check and then I took him to the Provost Marshal and re-leased him to the desk sergeant.
Q  And what I am trying to find out, when in the sequence of events did you ask for permission to set up this roadblock?
A  Right after I left the PMO, sir.
Q  After having brought this individual in who was found on the highway?
A  Yes, sir.
Q  And how did you make that request?
A  Well, sir, as I was heading toward 87 and Knox I requested to the desk Sergeant that if I could set up a roadblock on Knox and 87 to check on all out-coming vehicles from Fort Bragg.
Q  And that was in regard to the investigation for the suspects in the MacDonald incident?
A  Yes.
Q  Is that right?
A  Yes, sir.
Q  And what, if any, information or instruction did you receive in regard to that request?
A  Well, sir, they didn't know.  At that time they didn't--couldn't get a hold of the desk sergeant, but they told me to stay in the vicinity.
Q  So what is the next thing that you heard in regard to your request to set up a roadblock on Route 87?
A  Sir, I only requested it once.
Q  Did you ever get a firm answer, yes or no, whether you could set up the roadblock?
A  No, sir.
Q  Did you at any time receive information that Lieutenant Paulk had refused permission to set up a roadblock?
A  No, sir.
Q  Do you recall when you were being interviewed by Captain Douthat, who is sitting here to my right, being asked a similar question about the roadblock?
A  Right, sir.
Q  Now, Sergeant Duffy, do you recall when Captain Douthat interviewed you, and he showed you a floor plan of the MacDonald house?
A  Sir, I don't recall that.
Q  Well, let me show you a document here first and ask you whether you can identify it as being a Photostat of some original that you have seen in the past.
A  Right, sir. I agree.
Q  What does this represent to you?  It is in fact a Photostat of a floor plan of the MacDonald house that you were shown by Captain Douthat?
A  Right, sir.
Q  And did you in fact sign the original of that floor plan with your signature, Robert J. Duffy?
A  Yes, sir.
Q  And does the Photostat of your signature appear here?
A  Right, sir.
Q  Now I ask you to look at a two page document which is entitled Sergeant Robert J. Duffy, MP, and which purports to be as a summary interview with you, and I ask you to read it at this time and tell us whether in fact on reading this you recall giving this information to Captain Douthat.  Now you just take your time and read those two pages.
A  Yes, sir.
Q  Have you had occasion now to read the two page document that I have put before you?
A  Yes, sir.
Q  Does that refresh your recollection to the things that you have discussed with Captain Douthat when he interviewed you?
A  Right, sir, I agree with that, sir.
Q  You do agree with what's contained in that statement?
A  No, sir, not exactly.  At the time when I was talking with Captain Douthat, I was under the impression that I was giving the duty officer at the time, which was Lieutenant Paulk, with reference to the desk sergeant that I was talking to; but at that time I was under the impression that it was Lieutenant Paulk that refused me.  I was never given a negative answer and I was given no firm answer.
Q  Let's back up for a minute.  Let's clarify what we've discussed by you with Captain Douthat and you can explain why you said what you did.
A  Right, sir.
Q  Do you recall in fact Captain Douthat telling--or you telling Captain Douthat that you had asked for permission to set up a roadblock at Route 87 going into Fayetteville?
A  Right, sir.
Q  Now do you recall telling Captain Douthat that Lieutenant Paulk had refused you permission for the roadblock?
A  I told Captain Douthat that, yes, sir.
Q  Now I understand that this morning you are of a different opinion, that it was not Lieutenant Paulk who refused you permission for the roadblock.
A  No, sir, I was never refused permission for a roadblock.
Q  In other words, what you are saying now is that you made a request to set up a roadblock, but that you never got an acknowledgment that you could go ahead and do it?
A  Right, sir.
Q  What made you think, when you spoke with Captain Douthat that the request had some connection with Lieutenant Paulk making a decision about it?
A  I guess, sir, all the confusion and all that, it was just that I said the desk sergeant, and when I was talking to Captain Douthat I said something about Lieutenant Paulk.
Q  Because you knew Lieutenant Paulk was the duty officer at that time for the Provost Marshal Office?
A  Right, sir, he was the duty officer.
Q  And Captain Douthat was the first person who ever spoke to you about your knowledge of what took place on February 17th.  Is that right?
A  Right, sir.
Q  And when you went into the MacDonald house, I gather that you saw at the door, between the utility room and the master bedroom Specialist Mica.  Is that correct?
A  Yes, sir, I did.
Q  Now was there anybody else besides Mica standing there at the door?
A  Sir, I don't know who was standing behind me, but in front of me there was nobody in front of Mica.
Q  Did you see anybody standing in the master bedroom that was military policemen?
A  Besides Mica, sir?  Nobody, sir.
Q  Now do you know who the persons were who were behind you in the utility room?
A  No, sir, I'm sorry.
Q  At that time I understand that you pushed past Specialist Mica and went into the master bedroom yourself.
A  Yes, sir, that's correct.
Q  Now you were able to see two bodies that were lying there on the floor at that time?
A  Yes, sir.
Q  And you were able to see the body of Mrs. MacDonald lying there next to Captain MacDonald.  Is that right?
A  Yes, sir.
Q  And you were also able to see that some portions of her body were not covered by clothing of any sort?
A  Sir, I couldn't recollect off hand, sir.
Q  Perhaps you might refresh your recollection by looking at the statement you gave to Captain Douthat, and perhaps might expedite this if you look at page two of this statement, Sergeant Duffy, about the fourth line down.
A  Yes, sir, I see.
Q  Now looking at the statement that you gave to Captain Douthat, did that refresh your recollection as to what you believe you saw in the master bedroom in regard to Mrs. MacDonald's body?
A  Yes, sir.
Q  Could you tell the investigating officer what you recollect in that regard?

CPT SOMERS:  If we are going to continue to refer to the statement, may I ask that it be introduced as an exhibit?

MR. SEGAL:  No, I have no intention of introducing it as an exhibit, sir.  I'm only asking the witness, having read this, has his recollection refreshed.  If the government would like to see it, it may see it, it may use it if it likes, but I'm not going to mark it as an exhibit for the accused.

COL ROCK:  I wish to announce that because of the relatively large number of legal, purely legal questions that seem to be arising during the course of these proceedings, that in order to expedite the proceedings and not delay them any more than necessary, I am authorizing my legal advisor himself to specific questions of this nature, hopefully with the thought that we can proceed more expeditiously.

CPT BEALE:  Mr. Segal, if you intend to use this particular document to refresh this witness' memory I would suggest that the witness be permitted to read this document and then you remove the same document from the table; then you ask him any questions you care to.  If his memory is in fact refreshed then you have accomplished your purpose.  If in fact his memory is not refreshed, then of course you will have to figure out some way to offer this document into evidence if you desire to have the content of that before this hearing officer.

MR. SEGAL:  I quite agree, sir, and would suggest that the document not be offered, not to put its contents before the investigating officer, but rather as an aid to the witness if he accepts it as his own recollection of what he said.

Q  I would ask Sergeant Duffy at this time if he would care to read--for another opportunity to read the two page statement, and then I will remove it from your desk in accordance with the ruling of the legal advisor.
A  Yes, I would.
Q  Very good, sir, why don't you let us know when you are finished.
Q  All right, Sergeant Duffy, I trust you've had an adequate opportunity to read the statement again that you gave to Captain Douthat.  Have you has an adequate opportunity to look at it now?
A  Yes, sir, I looked at it, sir.
Q  Let me ask you again, do you recall seeing any portion of the body of Mrs. MacDonald that was not covered by clothing that was exposed to view?
A  The only part I can remember, sir, is the face.
Q  And do you remember seeing any part of Mrs. MacDonald's stomach, and I will use the word I think you may have used, “sticking out.”
A  Sir, I was under that impression, but when I seen Exhibit A--I recollect in my mind, it wasn't clear, but her stomach wasn't sticking out.
Q  Are you saying that because you were shown the two photographs here a few minutes ago by the prosecution that that has refreshed your recollection as to what it was?
A  Yes, sir.
Q  Now let me ask you this, Sergeant Duffy, if I may.  If I were to tell you that two prior military policemen do not recall seeing that object which you say was the white towel on the body of Mrs. MacDonald, and as a matter of fact they seem quite definite they did not see the white towel before, would that cause you to change your opinion as to the way Mrs. MacDonald was covered on the morning of February 17th 1970?
A  No, sir.
Q  It would not?
A  No, sir.
Q  Now do you recall the time, Sergeant Duffy, that Captain Douthat interviewed you, him showing you these two color photographs of Mrs. MacDonald's body?
A  No, sir, he didn't show me no photographs at all.
Q  You saw no pictures at all that time?
A  No, sir.
Q  Did Captain Somers show you any photographs when you were interviewed by him?
A  Yes, sir.
Q  And did he show you the two photographs that have been referred to this morning, or the two photographs that appeared to be similar to those?
A  There could have been.
Q  And were you asked by Captain Somers when he interviewed you, whether you recall the white towel being on the midsection of Mrs. MacDonald?
A  Yes, sir.
Q  And do you recall what you told him at that time?
A  Yes, sir.
Q  What did you tell him?
A  I told him I remembered it, sir.
Q  Did you tell him you were certain the towel was there?
A  Yes, sir.
Q  What about the blue item of cloth which appears to be over the chest of Mrs. MacDonald and then running down on the floor beside her?
A  Sir, it couldn't have--I mean it could have been there, but I couldn't recollect that.  I couldn't state that it was there at the time I walked in.
Q  Was there anything unusual or significant about the white towel that caused you to remember that, but that this dark blue item across her chest and along the floor beside her did not stick in your mind?
A  No, sir, I wasn't investigating the scene.  I was there and I was startled and I just seen what I can remember, sir.
Q  Did you tell Captain Douthat when he interviewed you that Mrs. MacDonald did not appear to you to have been sexually molested?
A  No, sir.
Q  You did not tell him that?
A  I told him that she hadn't appeared to be sexually molested.
Q  You said she did not appear to be sexually molested?
A  Right, sir.
Q  Well, on what facts or observations did you make of Mrs. MacDonald's body that caused you to arrive at such an opinion?
A  Well, sir, she appeared to be clothed, one way or the other, sir.
Q  She appeared to you to have been clothed?
A  Her clothes weren't ripped off.  There was no part of her body in my mind now that gave me the assumption that she had been molested.
Q  You were of the opinion when you saw the body that this looked like a body who might have been pregnant, were you not?
A  Is it possible, sir.
Q  And is that the reason why you were of the opinion that she might have been pregnant--was the fact that you observed that her stomach was enlarged or sticking up a little bit?

CPT BEALE:  Just a second, Sergeant Duffy.
    Mr. Segal, now of course this hearing officer realizes that you have a perfect right on cross examination to lead your witness, and are permitted great latitude in this particular respect, but naturally Colonel Rock is interested in hearing what this witness has to testify to, and I think that perhaps, and although you may lead him into an area, that you should not suggest the answers to questions by the forming of your questions.

MR. SEGAL:  May I suggest, Captain Beale, that unless this witness's testimony on the balance of cross examination is somewhat different than it has been up to now, I expect that he will have to--the investigating officer will have to hear impeaching testimony of this witness from Captain Douthat, so it would be unfair, I think, to produce Captain Douthat's testimony until this witness can be given an opportunity to either confirm or deny what we have reason to believe what he said to Captain Douthat; and to further assure the court that he is not being misled, we have made reference to a document that may be examined by the government, as I said.  I will give the government a copy if necessary, and I do not think it is improper at this point to at least ask him whether he accepts or denies what we believe to be prior inconsistencies made to counsel for the accused.

CPT BEALE:  Then is your statement to be construed that you intend to impeach this witness?

MR. SEGAL:  Unless some of his answers are changed, we think that ultimately by the calling in rebuttal in defense case of an independent witness, possibly Captain Douthat, when in fact we will seek to impeach his testimony, and that is the purpose of the cross examination, although it is conceivable the witness might change his testimony on reflection or further consideration of his prior answers.

CPT BEALE:  Mr. Segal, you may continue.

MR. SEGAL:  Thank you, sir.

Q  Sergeant Duffy, if I may, is it possible that you told Captain Douthat when you were interviewed by him approximately a month ago that you saw, I believe, you saw Mrs. MacDonald's stomach sticking out at the time you walked into the MacDonald bedroom?
A  At that time, sir, I said I wasn't too sure.
Q  You were not too sure?
A  No, sir.
Q  Are you saying that you did indicate that you thought you saw her stomach sticking out?
A  Sir, it could have been possible because when I first got there I arrived--she was kinda heavy, she wasn't, you know fat or nothing, she was just kind of heavy.  And later on I was told that she was pregnant.  It is possible that she could have been pregnant but I just didn't notice when I got there if she was pregnant.
Q  I want to ask you one last time, so that I am certain your answer is clear and I am not misunderstanding what you are saying.  Are you now saying that you did tell Captain Douthat, or you did not tell Captain Douthat that you believe you saw Mrs. MacDonald's stomach sticking out?
A  Sir, could I mean physically or clothed?
Q  Well, first of all that you saw sticking out--I believe those two words, sticking out, are words that you may have used in the interview with Captain Douthat.
A  Sir, like I said, I was under the impression if the woman was pregnant at the time I was talking to Captain Douthat, then that is how come I made the statement, sticking out, and I was under the presumption that she was pregnant at the time and that's what I meant.

COL ROCK:  Perhaps I can clarify this.  When you say, “sticking out” do you mean it as many people interpret it as protruding, that the stomach is enlarged?

WITNESS:  Right, sir.

COL ROCK:  Not necessarily that the stomach is naked to your eye?

WITNESS:  No, sir.

COL ROCK:  The reason that I ask this question, counselor, is that I have many times heard this phrase used and it doesn't necessarily mean that it is visible to the naked eye.

MR. SEGAL:  I am in total agreement with you, sir, but at this point, at least in the next question, I want to ask Sergeant Duffy to look at the photograph marked A-6 and ask you to tell us if you see the stomach of Mrs. MacDonald protruding in a fashion that one might characterize as sticking out?
A  Sir, I do see her stomach, but also be advised that I wasn't standing in that position at no time in the MacDonald house.
Q  I don't think you've answered exactly the question that I put to you, and that is, first of all do you see in the photograph her stomach sticking out?
A  Yes, sir.
Q  Well, will you indicate to me by holding up the photograph so that the investigating officer may see it, and pointing with your finger where you think you saw her stomach sticking out?
A  Right, here, sir.
Q  Are you indicating where this blue material is?
A  Underneath there, sir.
Q  Now did you make any other observations about the MacDonald bedroom which you thought were unusual?
A  Yes, sir.
Q  What was that?
A  I noticed up in the roof there was little chips on the ceiling, sir.
Q  How many chips did you see on the ceiling?
A  Sir, I didn't see them--I just noticed they were up there.
Q  From the condition of those chips, that is whether there was paint over them, or anything hanging from them, did you form the opinion that these were recently made marks?
A  Well, sir, I didn't judge nothing, sir; I just noticed that they were up there, sir.
Q  Where were they in reference to Mrs. MacDonald's body on the floor?
A  Well, Mrs. MacDonald was like--as I walked in the house she was up here a little bit and these were marks right overhead.
Q  Well, perhaps if you'll take--may we take a prior exhibit marked A-4 and first ask you to look at this exhibit, which is a diagram of the floor plan of the MacDonald house, which has already been marked on by a prior witness.   Now what I want you first to do is look at the marking for the MacDonald bedroom and tell the court whether or not you would, one, agree that this is approximately the way you saw the bed and the two bodies on the floor.  I would further advise you that the body in red is Mrs. MacDonald and the body in blue would be that of Captain MacDonald.
A  Yes, sir, that's about correct, sir.
Q  Very good.  Now what I would like you to do is to take a green marking pen and mark on this diagram the position of--on the floor--directly underneath where you would have seen the marks on the ceiling.  Do you follow what I am saying?
A  Right, sir.  Like I say, sir, they were on the ceiling but they were not all accumulated in one spot.
Q  All right, if you would either by making a series of small dots, if you can do that, or if they were insufficiently small radius to make a circle.  Indicate to us on the floor the position directly under the ceiling that you observed.
A  I don't know about this radius, sir, but also be advised that there was a few more around the area.
Q  Does this represent where you have now made marks with the green pen the location of the largest number of those marks on the ceiling?
A  Not the exact location but in that--
Q  In that approximation?
A  That's right, sir.
Q  Would you just circle the dots so that it is clear?  And if you would, please, Sergeant Duffy, on the margin over here sign your name and put today's date, July 9th, 1970, also in a green marking pen.
 
(Accused Exhibit A-4 was handed to the IO.)

Q  I want to show you another photograph of the body of Mrs. MacDonald as it was photographed in the bedroom, this photograph having been marked A-5 for identification, and I ask you to look at this photograph and tell me whether this is taken from the general vicinity of the door to the utility room leading into the master bedroom?
A  Right, sir, generally.
Q  And that would be more or less the angle of the direction at which you were looking at Mrs. MacDonald's body, at least initially anyway?
A  Right, sir.
Q  Now would you indicate to the investigating officer by holding up this picture in front of you, where you think Mrs. MacDonald's stomach was sticking out, as you referred to, on the photograph?
A  Like I said, sir, in my statement, when I told the recorder, I was under the impression that, you know, she was kind of hefty.  I wasn't too sure if she was pregnant or not, sir.
Q  But what I would like you to do, if you could, please, Sergeant, point out on the picture that's marked A-5 where it seems to show you her stomach sticking out?
A  Right here, sir.
Q  You are indicating on this object which appears to be a white towel, you are talking about the bottom edge of this object here, right above the crotch of Mrs. MacDonald?
A  No, sir, it is just about this vicinity over here, sir.  Like I said, you know, I--I didn't know she was pregnant at the time.  She could have been just a little hefty.
Q  Are you saying that because you received this information by reading, I guess, the newspaper after that she was pregnant that that--you know--caused you to think about the subject about her stomach and whether her stomach was sticking out or not?
A  Well, sir, when I came into the house I was--I was under the impression the lady--the lady was--she was kind of heavy and when I found out from the newspaper reports, MPs and other various information that she was pregnant.
Q  So reading the newspaper reports and the MPs reports caused you to influence your judgment about what her physical condition was?
A  Well, it could have been, I guess that's right, sir.  I agree.
Q  Let me ask you, how long did you actually look at Mrs. MacDonald's body on the floor there in the bedroom?
A  Approximately two and a half minutes.
Q  May I ask you what you were doing, or what caused you to stand there and make the observations for two and a half minutes?
A  I was stunned, sir.
Q  I beg your pardon, sir?
A  I was stunned.
Q  Well, I gather Specialist Mica was apparently stunned by the door and you had to push past him.  Is that right?
A  Yes, sir.
Q  And you came into the master bedroom and you also were standing there looking at the body of Mrs. MacDonald and Captain MacDonald?
A  Right, sir.
Q  In your judgment you stood there what seemed to be two and a half minutes just looking. Is that right?
A  That's approximately right, sir.
Q  What else was happening around you during that period of time?
A  Sir, I was--I was--I wasn't aware of it.  Captain MacDonald was starting to move, trying to push himself up.
Q  And did that cause you then to begin to act and do things and put aside your sense of shock at the scene you saw there?
A  Once Captain MacDonald started moving, yes, sir.
Q  Now I want to show you a different photograph, if I may, Sergeant Duffy, than the ones you have seen before.  This is one that has been marked previously A-1 for identification--no, we have not marked it.  This doesn't appear to have a marking, sir, and I believe it will be marked as a-17 for identification.

COL ROCK:  This hearing will recess for fifteen minutes.  The witness is instructed and advised that you will discuss your testimony with no person other than either counsel.  Do you understand that?

WITNESS:  Yes, sir.

(The hearing recessed at 1000 hours, 9 July 1970.)

(The hearing reopened at 1025 hours, 9 July 1970.)

COL ROCK:  The hearing will come to order.  Let the record reflect that the parties who were present at the time of the recess are currently present and I note that the counsel for the government has one additional individual with him.

CPT SOMERS:  If I may, sir, I would like to introduce at this time Lieutenant Julian Ossman who is here in the capacity of my administrative assistant.  He is an attorney and a member of the bar of the state of Missouri.  He will take no active part in any way in this proceedings.

COL ROCK:  The record will so note.  The record will also note at the time of the recess counsel for the accused had presented to me a photograph allegedly of Mrs. MacDonald's body which has been labeled Accused Exhibit 17.

(Continued questions by MR. SEGAL)
Q  I would like for you to look, Sergeant, at A-17 photograph and ask whether you could indicate with your finger the position in which you saw, you first saw Captain MacDonald's body when you came from the utility room into the master bedroom.
A  Yes, sir.  Captain MacDonald was lying parallel to Mrs. Donald with his head on her shoulder and his arms around her.
Q  I am going to turn the photograph around and ask again if you would indicate with your finger the position that you saw Captain MacDonald's body.
A  Well, sir, he was lying parallel to Mrs. MacDonald, not completely parallel but a little on the angle, and his head was like on her shoulder and his arm was like around, around her, top of her chest, right here, sir.

COL ROCK:  Was he on his stomach?

A  Sir, he was like on his side of his stomach.
Q  And his head was resting you say on the upper part of the arm of Mrs. MacDonald as the arm is illustrated here in this photograph?
A  Right here, sir, it was more or less down on her shoulder, right in this section over here, sir.
Q  And would you indicate which arm of Captain MacDonald was lying on Mrs. MacDonald?
A  His left arm.
Q  His left arm?
A  Yes, sir, his left arm.
Q  Was it across the chest here or between her chest and her neck?
A  It was an angle, sir, like this.
Q  Would you be good enough to stand, and using my body as the body of Mrs. MacDonald, lay your arm across in a fashion you saw Captain MacDonald's body?
A  Yes, sir, I can comply.  Like his arm was very lightly around her like this.
Q  And her arm was raised in the fashion that I am indicating--in the photograph?
A  Yes, sir.
Q  Thank you very much.  Let the record reflect that Sergeant Duffy has illustrated by showing that the arm of Captain MacDonald as he recalled it was lying across the upper chest of Mrs. MacDonald.  Would that be an accurate description as you recall it?
A  Yes, sir.
Q  And to the best of your recollection, does the photograph as you see it here show the correct position of Mrs. MacDonald's left arm which is the one that was extended and on which Captain MacDonald apparently was partially in contact with.
A  Yes, sir, this part up here, sir.
Q  What I want to make certain of though, does the arm appear to be in about the same position as it appeared--does it appear to be higher or lower or anything different than you recall it?
A  It appears to be in the same position, sir.
Q  When you were looking at this scene, did Captain MacDonald make any movements or sounds initially?
A  Yes, sir.
Q  What was he saying or doing at that time?
A  Well, sir, he was like pushing himself up off the floor, and he was mumbling a few words I couldn't understand, sir.  What I did understand was, “Check the kids.”   That's what I distinctly heard.
Q  At that time, that's when Specialist Mica went to Captain MacDonald and began to attempt to administer to him?
A  Well, sir, I didn't see that exactly happen.  I ran to the bedroom.
Q  You ran into the bedroom.  You mean into one of the other bedrooms in the house, particularly the rear bedroom?
A  Yes, sir.
Q  And when you left the MacDonald bedroom how many MPs would you say were there in the room?
A  Well, sir, I really can't say.  I was more concerned in going to my jeep and calling for an ambulance.
Q  Well, now you went down the hall first to check the bedroom, but what I want to know is when you went out of that master bedroom to check the rear bedroom, the one that's marked rear bedroom, do you know how many MPs there were behind you in the room?
A  No, sir.
Q  After you checked the other bedroom is that when you went back out through the utility door to go out to your jeep?
A  Yes, sir.
Q  Now when you went back into the master bedroom on your way out of the house, did--how many MPs did you observe in the master bedroom?
A  There was a couple of them, sir, but I can't right now give you an estimated count.
Q  Do you recall the names of those you do recall seeing?
A  No, sir, I don't.  The only one I can remember is Specialist Four Morris who was standing by the doorway, sir, to the rear entrance of the house.
Q  You say by the doorway, you mean--was he in the utility room or in the master bedroom or outside the house?
A  Outside, sir.
Q  Is there a concrete step outside the utility room?
A  Yes, sir, I think so.
Q  And he was standing outside near or by that step?
A  Right, sir.
Q  And were there other MPs that you passed on your way out of the back door to your jeep?
A  No that I can recollect, sir.
Q  Was there any other military police vehicles out along the front of the house and in the street?
A  Yes, sir, there was quite a few, sir.
Q  Did you see Lieutenant Paulk or pass Lieutenant Paulk at that time?
A  Sir, I faintly remember seeing his face but I couldn't exactly picture where or when.
Q  How about Specialist Dickerson, do you recall seeing him?
A  Yes, sir, I remember Specialist Dickerson.  In fact, he was the one that told me about the other bedroom.
Q  He was the one that told you about the other bedroom.  Was that before you made your radio call?
A  Yes, sir.
Q  And is he the person you met in the hallway in the MacDonald house there in the foyer?
A  Well, sir, I was coming out of the rear bedroom when Dickerson told me that there was a baby that seemed to be dead in the other bedroom.
Q  Where was Dickerson?  Was he in the hallway or in one of the bedrooms?
A  Well, he went into the first bedroom on the left and I went into the first bedroom on the right.
Q  Did you see him actually inside of that bedroom?
A  No, sir, I just seen him like go in, sir.
Q  Well, can you indicate to us, as far as you were able to discern how far into the bedroom he went?
A  Yes, sir.
 
(Witness approached Government Exhibit 1.)

A  Well, sir, as I left the master bedroom I ran down the hall into the rear bedroom and Dickerson was right behind me.  I just seen him like go in.  I didn't see him stop or how far he went in.  I couldn't answer that.  That's when I went into the rear bedroom.  I just kept going down the hall, sir

MR. SEGAL:  Return to your seat, Sergeant.

(Witness did as directed.)

Q  How far did you, yourself, go into the rear bedroom?
A  About three or four feet, sir.
Q  And that puts you how many feet away from the bed in that bedroom?
A  I couldn't say--about six feet, sir, approximately.
Q  Approximately six feet?  And what light was there on in the rear bedroom?
A  There was no light in the rear bedroom.  It was just that the master bedroom had an abundance of light, and when I came down the hall there was sufficient light to see the individual in that bedroom.
Q  And what did you observe?
A  I observed a little girl laying down.  I couldn't tell you approximately how old she was, and she was like bleeding from her neck and she was in a twisted position, like her head was looking toward the front door or this side of the wall, approximately where I was standing.
Q  And when you saw her, did you do anything else other than make the observation and then leave or did you stop and do something in the room?
A  After I made the observation, sir, I left the scene.
Q  You never did then check at close range the vital life signs of that particular child?
A  Well, sir, I noticed--it was very bloody there, sir and I assumed she was dead, but just in case, I ran out and that's when I called for an ambulance.
Q  You were not certain, of course, that the child was dead at that time?
A  No, sir, I was under the presumption she was, sir.
Q  But you had not checked the vital life signs of that child, had you?
A  No, sir.
Q  You were under the impression that the best way to handle that situation was to get the medical personnel and an ambulance on the scene?
A  Right, sir.
Q  And how long was it until the ambulance arrived?
A  Well, sir, the ambulances were already on their way.
Q  The question was, how long after you ran out to make your call did the ambulance arrive?
A  About, maybe four or five minutes, sir.
Q  Now after you made the call, you came back into the house again?
A  No, sir, I was in the back of the house.
Q  You say in the back, do you mean the back exterior or the back interior?
A  Exterior, sir.
Q  So you never came back in again that particular morning?
A  Not that I recollect, sir.
Q  At the time you were in the master bedroom did you observe anything else unusual about the condition of the bedroom other than the bodies on the floor?
A  Yes, sir, I noticed the house was very messy.
Q  What was messy about the master bedroom that you noticed?
A  Well, I noticed like the drawers, like stuff was hanging out of the drawers and as if someone had looked through them.
Q  And that was based upon your seeing the drawers in the open condition of what room?
A  Master bedroom, sir.
Q  Was it more than one drawer that appeared to have been pulled open?
A  I can't recollect, sir, but I just thought it was one drawer open, and stuff was hanging out.
Q  Did you observe a telephone in the master bedroom?
A  No, sir, I'm sorry I didn't.
Q  Did you observe any weapons in the master bedroom?
A  No, sir, I'm sorry.
Q  You don't have to be sorry about it.  All I want to know is what you did or did not observe.  There is no reason to apologize for it, Sergeant.
A  Excuse me.
Q  That's all right, there's no reason to be concerned.  I just want you to tell the investigator--officer what you did recall and what you do not recall say so, also.
    I'd like to show you again the photograph marked A-17 and ask you if you observe anything unusual on the floor beside the body of Mrs. MacDonald?
A  There's a knife there.
Q  What is it that you observe?
A  I noticed a knife, sir.
Q  And the knife is located where in this photograph?
A  It seems to be by the closet, sir.
Q  And I ask you to look at A-6, another photograph of the MacDonald master bedroom and ask you if you make the same observation of the knife being present?
A  Yes, sir, I do.
Q  Did you, yourself, however, on the morning of the 17th of February take note of the knife on the floor at that time?
A  No, sir, I didn't.
Q  I ask you to look again on photograph marked A-6 and ask whether you observe a telephone in this photograph?
A  Yes, sir, I do.
Q  And that phone is located on the dresser there?
A  Yes, sir.
Q  And the phone--do you see anything unusual about that telephone?
A  It is off the hook, sir.
Q  You mean the handset is off the receiver--off its cradle?
A  Yes, sir, right, sir.
Q  Now I ask you to look at the bureau drawers--how many of them are in the photograph?
A  Six, sir.
Q  Now in this photograph do you see any bureau drawers open?
A  No, sir.
Q  But you do, in fact have a specific recollection, do you not, of one or more of those drawers being open when you first came in the room?
A  Not them drawers, sir.
Q  Not those drawers.  Do you know which drawers they were?
A  Right straight ahead, as soon as you came in the master bedroom.
Q  Would you be good enough to point on the chart on the easel there as to which part of the bedroom, the master bedroom that is, that you observed the drawers open on the furniture?
A  Sure, sir.

(Witness approaches Government Exhibit 1.)

A  The furniture over here, sir, in this vicinity over here.
Q  You are indicating along the south wall of the master bedroom.  Was it in the vicinity of the window that is indicated there on the south wall?
A  Sir, I am pretty sure it is in this area right here, right by the corner, sir.
Q  By the corner of the south wall, and along side the wall that's marked on this chart as a closet.  Is that right?
A  No, sir, it would be right over here.
Q  All right, you may sit down.

(Witness returned to his seat.)

MR. SEGAL:  I ask to have marked as A-18 a photograph of what may be the MacDonald bedroom.

COL ROCK:  All right, counsel.

(A-18 was examined by CPT Somers.)

Q  Before showing you this photograph that I've had marked as A-18, because what I want to ask you is not really relevant to this photo, I do understand your testimony correctly, do I not, Sergeant Duffy, that when you went into the master bedroom, you did not observe this knife on the floor that you've seen pictured in two photographs.  Is that right?
A  Right, sir.
Q  And you did not observe the condition of the telephone with the handset off the receiver. Is that correct?
A  That's right, sir.
Q  And that you, yourself, was rather shocked at the scene of the two bodies and the amount of blood on the floor of the MacDonald bedroom.  Is that right, sir?
A  Yes, sir, that's correct, sir.
Q  Is it fair to say that you were not really looking at that time to see if there was a leaf of grass, or two, or wet spots, or mud on the floor, too, were you?
A  Sir, as I was coming in, that's the only thing I seen, was the floor.  I couldn't see the bodies, sir.
Q  I am certain you are correct, but I am saying to you that inside the bedroom, on this carpet that appeared there, you were not in fact looking to see blades of grass or any bit of mud or debris there, but that you were in fact struck by the scene of the bodies and the blood that was there?
A  That's correct, sir.
Q  Now when you went into the hallway, down toward the rear bedroom, did you have occasion to notice anything in the hallway that was unusual?
A  No, sir.
Q  You went as far as the rear bedroom, went into that bedroom, came out again and went out the back door, is that right?
A  Yes, sir.
Q  Between the entrance to the master bedroom and the entrance to the rear bedroom, you did not observe anything unusual about the condition of the hallway?
A  No, sir.
Q  Now I want to show you at this point the photograph that we have had marked A-18, and ask you if in regard--in regard to this photograph whether it appears familiar to you and what does it represent to you?
A  It appears to be the master bedroom.
Q  And does this portion of the master bedroom that is depicted here show you the piece of furniture that you recall having drawers, one or more drawers open on it?
A  Sir, I was under the impression--this piece of furniture over here, sir.
Q  Indicating a chest of drawers, five drawers high that appears on the right side of this pho-tograph.  Is that correct?
A  Right, sir.
Q  You have, I gather, a distinct impression, that one or more of those drawers appeared open as if someone had been going through them?
A  I didn't say they were going through them--I just said they seemed to be open.
Q  All right, now this particular photograph does not show, however, any of those drawers open does it?
A  No, sir, it don't.
Q  And this particular chest of drawers that appears on the corner of A-18, was that directly in your path of view as you came in from the utility room in the master bedroom, that is if you look straight ahead when you came in?  Would the MacDonald bodies on the floor be the nearest thing in your line of sight, and then beyond that would be this particular chest against the wall?
A  No, it was probably the chest of drawers.
Q  The chest of drawers would have been, in fact behind the bodies in your line of view though.  Is that right?
A  Yes, sir.
Q  As opposed to things to the left of your line of view or the right of your line of view?
A  Right, sir.
Q  So when you came into the room, as I understand it now--and as I am standing now here, I would be looking perhaps at the bodies on the floor somewhere near the table that you are sitting at, and where the easel is beyond that is approximately where the chest of drawers would have been.  Again in the line of view, I am talking about.
A  That's right, sir.
Q  Now as a matter of fact, when you looked at those drawers, did you not, from the condition of those drawers, form the opinion in your mind that someone had been through the drawers?
A  Yes, sir.
Q  Now did you have occasion to participate in any search of the premises in or about the MacDonald house?
A  Yes, sir, I did.
Q  When did that happen?
A  Sir, approximately about 0432.
Q  And was that pursuant to the instructions given by someone?
A  Yes, sir.
Q  Who gave the instructions and what were your instructions?
A  Sir, I can't remember who exactly gave me the instruction, but I was advised to walk around the house to see if we could find any bits of evidence.
Q  Were you the only military policeman who was directed to do that?
A  No, there was another one, a Specialist Four Jackson.
Q  A Specialist Four what?
A  Jackson.
Q  Jack?
A  Jackson.
Q  Jackson.  Was he your partner?
A  Yes, sir.
Q  In other words, he was the other military policeman assigned to the patrol vehicle you had been riding that evening?
A  Right, sir.
Q  Now what did you and Specialist Jackson do in regard to this exterior check around the MacDonald house?
A  We stayed sir, about parallel from the side of the house, and we started walking around the back, maybe three or four feet apart from each other and looking down at the ground to see if we could find any bits of evidence, walking towards the back door.
Q  Now I am not sure I understand in what fashion you were moving.  Were you moving parallel with the rear wall of the MacDonald house, or were you moving from the rear wall out to the walk way and back again?
A  Well, from the walk way, sir, to the rear of the house.
Q  And then turning about going back up the walk way until you covered ostensibly the entire area?
A  Right, sir.  We just made one scan going around.

COL ROCK:  Made one what?

WITNESS:  Scan.

COL ROCK:  You mean--

WITNESS:  I mean we started in one line, sir, and moved from the corner of the house to the rear of the house, toward the back door.

Q  Did you find anything unusual out there?
A  Yes, sir, we found an ice pick underneath the bushes, and we found a stick lying by the--back of the house by the door, the front of the door, sir.

COL ROCK:  Does counsel intend to show us the approximate locations?

MR. SEGAL:  It does not appear from the chart on the easel that we could make any meaningful indication.  At this time I was going to request, sir for the government to produce, if it is available, or if it has taken any photographs of the exterior of the MacDonald house with reference to the yard area or the bush that the witness now refers to.  It seems to me that it is now critical at this stage that we have some identification of those objects, and if they are photographed it would be relevant to this proceedings.

COL ROCK:  What does counsel for the government have in the way of comments on this request?

CPT SOMERS:  Sir, we have provided the defense two different sets of pictures.  We have on our easel as Government Exhibit 1 a diagram, and this is in the presentation of the government's case.  I am not aware of any picture other than the ones the defense already has which is going to do any good in this request, and we resist the attempt of the defense to have us introduce evidence which we are not even certain of in our case.

COL ROCK:  Are there any photographs of the particular bush?

CPT SOMERS:  I believe that there is a picture of that bush among the color photographs that the defense has.

MR. SEGAL:  No, sir, I would say that there is only a single photograph of the exterior of that house which shows only, only the rear door.  I am holding that up at this time and exhibiting it to the investigating officer, and as is apparent, there are no bushes of any sort here, and I, as a matter of fact, will represent to the investigating officer, that it could not be seen in this photograph the particular bush the Sergeant refers to.  I further represent to the investigating officer on the basis of our own investigation in this case; we have been given reason to believe by the government investigators and technicians related to the government's case that photographs were taken specifically of a number of the external parts of the landscaping around the MacDonald house because it is recognized that the scene of the finding of this particular item that Sergeant Duffy has referred to is obviously a critical point, and I represent that I believe those photographs exist.

COL ROCK:  Captain Somers, do such exterior photographs exist?

CPT SOMERS:  They may sir.  I cannot say that they do not.

COL ROCK:  Can you make inquiries to determine if they do exist?

CPT SOMERS:  Yes, sir, I can.

COL ROCK:  Would you please do so, and determine if copies can be made available?

CPT SOMERS:  Yes, sir.  Do you want me to do that now?

COL ROCK:  This hearing will recess for ten minutes during which time we'll determine the out-come of the inquiry.  I would like to instruct the witness at this time--you are advised that you will discuss your testimony with no person other than either counsel.  Do you understand?

WITNESS:  Yes, sir.

(The hearing recessed at 1040 hours, 9 July 1970.)

(The hearing reopened at 1108 hours 9 July 1970.)

COL ROCK:  This investigation will come to order.  All parties who were present at the last session are currently in the room.
    Does counsel for the government have answer to the query reference additional photographs?

CPT SOMERS:  Sir, there are photographs of that area.  The CID is attempting now to acquire them and bring them here.  I will have them; I am sure, after lunch.

COL ROCK:  Fine, thank you.

MR. SEGAL:  Sir, we have available an informal photograph, since it's not taken by any, that we know of, that we know of, authority, official authority, but rather taken by a newspaper magazine photographer, and that merely for the purpose of allowing us to proceed with the examination of Sergeant Duffy, so we would not have to adjourn, because we cannot proceed with a little more exactness, I would ask for leave to be permitted to use this photograph, but only for the purposes of making the position of various items clear, but with the understanding at a later time we will produce, if the government will make available the official photographs.  I just suggest this photograph may be helpful to us and enable us not to waste time this morning, and be able to finish the examination, and I would in fact, show the picture and you could decide better.

(The picture was shown to CPT Somers.)

CPT SOMERS:  I have no objection to the use of these pictures for that limited purpose.

MR. SEGAL:  Sir, if I may just indicate to you what I've shown to Captain Somers.

(The picture was shown to Col. Rock.)

MR. SEGAL:  Sir, may we have marked as Accused Exhibit 19, a photograph which I will now identify for the record having been taken from pages 10 and 11 of a monthly magazine entitled True Police Cases for the month of August 1970.

COL ROCK:  So noted.

Continued questions by MR. SEGAL:
Q  Now, Sergeant Duffy, if you would, please, examine the photograph marked A-19 and tell the investigating officer whether you see here the bush which was the one you found an object that you referred to?
A  Sir, from the picture it is kind of hard to see, really, but under the presumption this here, the rear of the building of the MacDonald house, and this is the bush on my left if I was facing the back of the house, it would be this bush over here, sir.
Q  Let me hold the picture up so both the investigating officer and counsel for the prosecution can see the bush you are referring to.
A  Right, sir, this one here, sir.
Q  Do you know who occupies the other building back here, or had you ever had occasion to be in that other building or meet the occupants?
A  No, sir, I haven't.
Q  Now what is it you first found on this inspection?
A  We found an ice pick, sir.
Q  Can you indicate to us on that picture where the ice pick was?
A  It was like on the--you know--underneath where the roots come out, or the stems come out, sir, and it was under the other side or the left side.
Q  Will you hold the photograph so all may see what you are referring to?
A  Well, sir, it is very hard to see from this picture here.  It was like on this side underneath--
Q  There are two rubber cones in those photographs of the type used for traffic markings.  Do either one of those cones appear to you to be in position which the ice pick was found or the location where the ice pick was found?
A  No, sir, it seems like it was near the bush more, like underneath it, more or less underneath the bush, on this left side.
Q  Now was it near either of those cones or between either of those cones?
A  Between these cones, sir.
Q  I would like you, again, if you will, to take a look at Exhibit A-4 which you have previously marked in regard to certain items in the bedroom, and this is the floor plan layout of the MacDonald house, and ask whether you can point with your finger to where the location of that bush would have been, now that you have A-19 to look at and the floor plan to refer to?
A  Right, sir, right on the corner of this house, right back here, sir.
Q  Would you indicate with this green felt marker in a large oval if you will, indicating the approximate size and place of that bush?
A  Yes, sir.
Q  All right now would you mark with the initials “IP” the point at which you saw the ice pick?
A  Right here in the middle.
Q  You have written the “IP” as I see it here actually within the circle to represent this bush?
A  Right, sir.
Q  And the reason for the marking in that was because of the location of the ice pick?
A  Right, sir.
Q  And it was actually under the bush itself?
A  Right, sir.
Q  Now did you also find any other item besides the ice pick?
A  Yes, sir, once we noticed the ice pick, nobody touched it, and we made note of it to the proper people, then we stared sweeping around towards the back door, and I noticed a stick was lying on the ground.
Q  You noticed a stick that was lying on the ground?
A  Yes, sir.
Q  Now could you, first of all, look at A-4 again and initially indicate with your finger about where you believe that stick was located?
A  Sir, I think by the back step, here, sir.
Q  I'm sorry I could not see you, Sergeant.
A  Right here, sir.
Q  Now would you again take the green marker and sort of make a straight line indicating the position of the stick, if you can?  Also, please mark S for the stick.  Would you be good enough, Sergeant, to put the letter S in a circle.
A  It wasn't on a curb though, sir.  It was like a step.
Q  I'm going to show you another picture and you may be able to help us.  We are initially having you mark the diagram.  This diagram has already been previously signed by Sergeant Duffy.  Would you describe, please, for the investigating officer, Sergeant Duffy, the appearance of the stick in terms of size, dimensions, anything unusual that you may have noted on it?
A  Well, sir, the stick was approximately about this long, maybe about nine or ten inches.
Q  Well, you are holding your hands apart.  You are not holding them nine or ten inches apart, are you?
A  Well, sir, I'm no carpenter, really.
Q  Use the table, if you will and indicate to us some point of the table as to what you remember the length of the stick to be.
A  The stick was about, maybe the length of this table.
Q  This table would be approximately thirty inches long, I would suggest.
A  Approximately, sir.
Q  And was it a thin stick or a thick stick?
A  Well, it was about, I'd say an inch and a half, sir.
Q  You are holding your fingers apart about an inch and a half?
A  Approximately, sir.
Q  Did you notice anything else on the stick at the time beside the fact that it was wet?
A  It was chipped, sir, and there was blood spots on it.
Q  Blood spots on it?
A  Yes, sir.
Q  Did the spots appear to be wet or recent spots?
A  Well, sir, from my memory it was raining that night.  The whole stick was wet.
Q  Were the red spots actually red in color or brownish in color?
A  There were like reddish.
Q  Now first of all I'll show you a photograph that we'll have marked A-20 for identification which is--

COL ROCK:  That's a rear view of the MacDonald residence.

MR. SEGAL:  I ask to have an additional smaller photograph marked as A-21.

CPT BEALE:  Mr. Segal what is the source of this particular picture here?

MR. SEGAL:  The prosecution provided it.

CPT BEALE:  The prosecution did provide this picture.

MR. SEGAL:  Yes, sir.

CPT SOMERS:  It did.

COL ROCK:  Okay, fine.

MR. SEGAL:  Sir, we may be able to offer what I think the government would agree is an official measurement of that stick, and I refer to--in other words, we do have a report from an investigating--so that we can offer.

COL ROCK:  It is indicated on that photograph, but I can't read it.

MR. SEGAL:  We will make reference to the report, sir.

(A-20 and A-21 was shown to CPT Somers.)

Q  Now, Sergeant Duffy--

CPT SOMERS:  Excuse me, I will interpose an objection.  This is extremely far outside the scope of direct examination.  The government, if left to pursue its case, will present evidence which will provide the investigating officer with the dimensions of the stick, the place it was found, and any other information which may be coming out now on cross examination of the witness, which--who is not the witness we intend to present this evidence for.  And so, we do now interpose an objection to continuing this line of questioning as being beyond the scope of direct examination.

MR. SEGAL:  Well, sir, if I may be heard in that matter, it really is hard for me to conceive what would be more relevant to the investigating officer than to have one of the possibly two men who found the items in question here.  It seems to me that these items apparently have some relevance to the killing of the people involved and that's also a matter of great interest to the investigating officer.  It further seems to me, sir, that the government having produced a witness who was on the crime scene, who was asked to describe certain things about it, may not limit the defense to only that room, or that floor, or that portion of it which he just asked him about, but having opened up the line of inquiry about what this witness saw at the crime scene, it seems to me to be imminently clear that we have a right to bring out the additional factors that he saw and in particularly where they are so clearly relevant to this investigation.

COL ROCK:  The objection is overruled.

Q  Sergeant Duffy, would you be good enough to look at A-20 and tell the investigating officer what this photograph represents to you?
A  The back of the house, sir.
Q  The MacDonald house--the back of it as you observed on February 17th 1970?
A  Yes, sir.
Q  Now would you indicate whether it was on the left side of this photograph or the right side of the photograph that the bush that you have indicated on A-4 was located?
A  The bush was on the left side, sir.
Q  And that would be, as you are now looking at this photograph right on the table here, is to the left side of this photograph?
A  The bush was--right, sir.
Q  Now would you indicate to us with this photograph, if you can, the whereabouts of the stick that you found and made reference to?
A  Yes, sir, it was approximately right over there, sir.
Q  Now would you hold up the photograph so that both the investigating officer and counsel for the prosecution may indicate where it was?
A  Approximately here, sir, right here.
Q  You were indicating by your finger that it is somewhat parallel to this stone step here.  Is that right?
A  Yes, sir, although a little crooked.
Q  But as opposed to being right angles, it was more or less parallel without being actually straight, leading up the steps.  Am I right in that regard?
A  Yes.
Q  And one end of it rested apparently according to your finger pointing partially on what appears to be the sidewalk.  Is that correct?
A  Right, sir.
Q  And the other end rested partially on the dirt or grass area immediately to the left of the sidewalk?
A  Right, sir.
Q  Now is that a fair description of how you saw it?
A  It is a fair description, yes, sir.
Q  Now I ask you to examine at this time a photograph that has been marked A-21 for identification and ask you to tell whether it resembles at least something that you saw outside the MacDonald's?
A  It resembles it, sir, but that's not the stick.
Q  That is not the stick?
A  Not to my judgment, sir.
Q  Would you tell me what made you think that that's not the stick?
A  It seems like it was chipped at the end, sir.  I can't notice no chips at the end.
Q  Now I will ask you to hold up the photograph and if you will point with your finger again to the photograph to the portion of the stick that you believed was chipped and indicate to the investigating officer--
A  Sir, I can't see--could you be more specific sir, because I can't--I can't move the stick around.
Q  Well, Sergeant Duffy, I never saw the stick on February 17th, and I can ask you if you believe that some portion of the stick was not in the same fashion as the stick that is shown here--would you point to which portion of it--and I know you can't tell which end was which at the time, but it is at an end or was in the middle, show us that.  In other words, give us the best help you can in trying to use this particular photograph as a guide.
A  It appears to me that one of the ends was, like it was broken off, sir.
Q  And you made that determination about it being broken off from what observation about that stick?
A  From the way I was looking at it, it seemed like there was chips on the chip itself, marks, chips like maybe it was torn off, like it was broken off.
Q  And these reddish spots that you saw on the stick, can you indicate to us again, using A-21 where about on the stick the reddish spots would appear?
A  Well, sir, I can't answer that.  It was like all over the stick.
Q  All over the stick?
A  Not all over, sir.  Like I can't say the whole stick was full of blood, there was just many spots of blood.  I couldn't exactly point out each particular spot.
Q  Are you saying that there was a great many spots of blood although the entire stick was not covered in blood?
A  The entire stick was not covered in blood, but there was spots of blood on it.
Q  Were there a few spots or a great many spots?  You choose the words to characterize it.
A  I can't characterize it.
Q  Do you recall how large any of the spots were?
A  No, sir, I'm sorry.
Q  The chips that you are referring to on the stick, have you ever had occasion to saw a piece of wood?
A  Yes, sir.
Q  Have you ever had occasion to break a piece of wood or see a piece of wood broken?
A  Yes, sir.
Q  Based upon your own experience did the chips that you refer to--did that seem to indicate to you that the piece had been broken or the piece of wood had been sawed?
A  Sir, it was, to my impression I don't think it was sawed off, sir.  I think it was kind of rigged at the end.
Q  Is it fair to say it gave you the impression of having been broken?
A  Yes, sir, I was under that impression.

MR. SEGAL:  Sir, at this time I would suggest that the government would perhaps stipulate with the defense that the measurements that are marked on A-21 and are noted there in quite small writing, and also enclose as a part of a summary of the report of the Criminal Investigation Laboratory at Fort Gordon, Georgia, in this case, and that the summary of this report, as a matter of fact, was prepared by Captain Somers, and the summary was made available to counsel for the accused, and that it would indicate that the piece of wood, which was referred to in A-21 measures 31 inches by one and a half inches by one and a half inches.

COL ROCK:  Does the counsel for the government agree to that?

CPT SOMERS:  Yes, sir.

MR. SEGAL:  Although I must say, sir, that my own reading of this stick with the notation on it indicates that the--that my own reading of it is as follows.  There is a white identification marker on the table in front of the stick, and it reads as follows.  Piece of wood 31 3/16 X 1 5/8 X 1 ½.  But I think we are quite close to the description we are talking about, approximately 31 inches by 1 ½.

Q  Sergeant Duffy, putting aside the search which produced these two sticks, rather this stick and the ice pick--strike that--let me go back--can you tell us anything about the ice pick itself, about the way it was lying under the bush?  This is, can you indicate which way the point was lying, which way the handle of the ice pick was lying?
A  Sir, it was lying like away from Captain MacDonald's house, the point facing out away from the house, and the handle was like underneath the bush, sir.
Q  And may I ask how much distance was there between the ground and the lowest portion of the bush?
A  I'd say about eight inches.
Q  And did you happen to see this ice pick by the use of any flashlight or any other light?
A  No, sir, not that I can remember.
Q  And who picked it up first?  Or who--I don't mean pick it up to say that you did pick it up
--but who, do you recall whether you observed it first or whether the MP who was with you saw it first?
A  I think the other MP seen it first.  It didn't come to my attention.  I was told about it, sir.
Q  Did he then say something to you--look what I found or something to that effect?
A  Well, sir, we notified the proper people that there was an ice pick underneath the--
Q  Back up, Sergeant Duffy.  What I want to know is if the other MP was the one who apparently saw it first, did he saw something to you to draw you to come and look at it, see what he found there?
A  Yes, sir.
Q  What did he say?
A  He said, “I found an ice pick.”
Q  And what was he doing at that time when he said that?
A  He was looking at the ice pick also.
Q  Did he hold back part of the bush or something so that both could get a look?
A  No, sir.
Q  Did either one of you have occasion to pick it up to determine anything about its condition?
A  No, sir, nobody touched it.
Q  Did you bend down to look at the ice pick?
A  A little bit, sir.
Q  And how about the other MP, did he bend down to look at the ice pick?
A  I can't seem to remember, sir.
Q  But having made the observation did he then go around to find some other person who advised him about this particular object that had been located?
A  Yes, sir.
Q  Which did you find first the ice pick or the wooden stick?
A  The ice pick, sir.
Q  You told--do you know who you told about the ice pick?
A  No, sir, I don't exactly remember.
Q  What happened after you told anybody about it.  Did other MPs or CID investigators come out to see it and take charge of that part of the crime scene?
A  Sir, I was instructed to leave it alone, not to touch it, not to move it.'
Q  When you went to the house to notify other MPs did the MP with you also come back to make that report?
A  Could you rephrase the question?
Q  Well, you both saw the ice pick.  After you saw it, did you both go back and tell somebody about it?
A  Yes, sir, we told--
Q  The both of you did?
A  No, sir.
Q  Well, who did?
A  Jackson.
Q  Jackson.  What did you do?
A  I stayed with the search, sir.
Q  You stayed right there?
A  I went on searching, sir.
Q  You were not following me.  What I want to know from you is--Jackson pointed out the ice pick to you, right?
A  Right, sir.
Q  You are both standing right next to the bush and you are looking at it?
A  Right, sir.
Q  Now somebody has to go tell the superiors about what has been located.  Is that right?
A  Right, sir.
Q  Who goes and tells them?
A  Specialist Four Jackson, sir.
Q  Now what did you do when you--I mean he went to make this report?
A  I went on conducting the search.
Q  You mean you went on?
A  Right, sir.
Q  Where did you go on looking while he was going back to report it?
A  We started going around the house, sir.
Q  You stated, “We.”  I understand you said Jackson went to tell some superior and you went on looking.
A  Right, sir, in my first statement--there was a couple of us there.  It wasn't just us two MPs.
Q  No, I understand that, but you told that two of you were detailed to search.
A  Right, sir.
Q  And you came across the ice pick and Jackson called your attention to it.
A  Right, sir.
Q  And then one or the other of you decided to go back and report this to a superior about what had been located.
A  Right, sir.
Q  And according to your testimony, Jackson went back.
A  Right, sir.
Q  And when you--or when he went back to report it, you went on in the meantime checking out the rest of the grounds for more evidence?
A  Right, sir.
Q  And there was nobody standing there by the bush at that particular point, was there?
A  No, sir.
Q  Now were there other MPs out looking on the ground at that time?
A  Yes, sir.
Q  Do you recall when Jackson came back and rejoined you in your search?
A  Yes, sir.
Q  Let me ask you this--when Jackson went back did you see who he reported to or did you hear him make a report to anyone?
A  No, sir.
Q  Do you know what direction he went to make this report?
A  I think he went toward the front of the house.
Q  Toward the front of the house?  Now you had been in and out the back door at least twice before you found the ice pick.  Is that right?
A  No, sir, just once.
Q  You came in, glanced in the house and then went out.  Is that right?
A  Right, sir.
Q  And you never came back in a second time?
A  No, sir.
Q  And you were going in and out the back door?
A  Yes, sir--no, sir, just once.
Q  You went in once and out once?
A  Right, sir.
Q  And you hadn't noticed that particular stick lying on the ground when you went in, had you?
A  No, sir.
Q  And you didn't notice it when you came out, did you?
A  No, sir.
Q  When you came out, did Jackson come out with you?
A  The house, sir?  No, sir.
Q  The other MPs that had gone before you passed that stick, hadn't they?
A  Yes, sir.
Q  Mica was at least one of them, wasn't he?
A  Possibly so.
Q  And Tevere went past you?
A  Right, sir.
Q  So far as you know no MP had either mentioned or noticed that stick prior to your finding it with Specialist Jackson?
A  No, sir, but they were under the impression that the stick was part of the evidence.
Q  But had you heard--how do you know they were under the impression it was part of the evidence prior to your finding it and calling it to someone's attention?
A  Well, sir, there was somebody already back there.  Specialist Four Morris was standing back of the house, sir.
Q  And he was standing back there for what purpose?
A  To guard the house, to watch the evidence, sir.
Q  Do you know whether Morris knew that that stick that was on the ground had relevance to the investigation at that time?
A  I think he did, sir.
Q  What caused you to think so?
A  Because he was standing there, sir.
Q  But he never said anything to watch out for the stick on the ground as part of the evidence in the case, did he?
A  Sir, he could have, I just--
Q  He could have done many things, Sergeant Duffy.  I ask you now did he ever say to you or anyone else in your presence, beware of the stick on the ground, it may be evidence in this case?
A  I can't say, sir, I really can't, no.
Q  Did he ever say it to you?
A  I can't remember, sir, I don't know.
Q  You have no recollection of him saying, do you?
A  Sir, he could have possibly said it, I just don't recollect.

CPT BEALE:  Counsel, please.  Mr. Segal, excuse me.  You are quite well aware of the proper bounds of cross examination, and the fact that the witness has answered your questions to the best of his ability, and you have persisted in trying to insert into this witness' mouth words which he, himself, is not able to give you; and so, therefore, if you would allow the witness to answer the question to the best of his ability

MR. SEGAL:  I would agree, sir, that he should be allowed to answer, but I also think he must be compelled to answer the specific question, which is, does he have any recollection of Sergeant Morris ever telling him that to be aware or to be careful about the particular stick. And that question, sir, is acceptable to a yes or no answer, which I have not yet gotten from this witness, and we are entitled to it.  He may thereafter explain but first he must give a yes or no answer to the question which may be answered in that fashion.

CPT BEALE:  My recollection of the witness's testimony is that he does not remember.  And if he cannot, if it is not within his province and knowledge to give you a yes or no answer then this witness cannot be compelled to give such an answer.

Q  Sergeant Duffy, do you recall Sergeant Morris saying to any other person in your presence to be careful about the stick because it may be evidence in this case?
A  Sir, I can't say that.  I don't remember.
Q  The answer is you do not recall?
A  I do not recall, sir.
Q  At the time that you went out of the MacDonald house prior to the search now, is it fair to say that you thought--or that you saw approximately fifteen to sixteen military policemen outside--in the vicinity of the MacDonald house?
A  That's true, sir.
Q  And that at that time, may I quote you as having said previously that everybody was running into the house when you were going out to do the particular chore that you were going to follow through on?
A  Right, sir.

MR. SEGAL:  That's all.

CPT SOMERS:  I do have some redirect, but in view of the time, would prefer that we defer it?

COL ROCK:  I would prefer that we do, and I would like to remind the witness that you will discuss your testimony with no person other than either counsel.  Do you understand?

WITNESS:  I understand, sir.

MR. SEGAL:  I would respectfully suggest that it is inappropriate for this counsel--for the witness to talk to anyone, that's--he's been under cross examination for certain matters, very serious observations that he's placed before this court, I do not think it is proper now for this counsel to talk to him when he is going to examine him on this very subject.  That this inquiry should receive his testimony free from any possible, any inadvertent or intentional, suggested by any counsel or any other witness.  I think it is not proper to allow him to talk to counsel for the defense at this time or counsel for the government, while he is on the stand, but while we are adjourning because of lunch and recess.

CPT SOMERS:  May I respond to that, sir?

COL ROCK:  Yes, please.

CPT SOMERS:  I think that I have said before what I feel is the rule in this case to be.
    Counsel for the government is not certain whether the defense counsel is imputing to counsel for the government some motive to change this witness' testimony or not.  However, we feel that the status of this witness is that counsel for either side may talk to him at any time he is not on the stand, and that this will not change.

MR. SEGAL:  If it pleases the investigating officer, sir, then I ask then that we now complete the redirect examination of this witness and obviate any such problem.  I am loathe to interfere with the personal plans of all parties concerned, but I think this is a critical issue at this time.

CPT SOMERS:  I assure the defense counsel that I have no intentions at this time of talking to this witness or in any way attempting to change his testimony.

MR. SEGAL:  I will accept Captain Somers' statement that he will not talk to the witness.  I do not mean to question his motive.  I have no idea to impute opposing counsel with anything but proper motives, but I just think that inadvertently any discussion could produce a harmful result.  We ought to have Sergeant Duffy's testimony as he remembers it, subject to the questioning here, and I think Captain Somers has resolved our question or problem by stating to the investigating officer he will not talk with Sergeant Duffy, and I will accept his representation in that regard.

COL ROCK:  That takes care of that matter.  You are excused.  Be here this afternoon, however, for further testimony.

CPT SOMERS: Sir, I presume the defense counsel has no present intention to talk to this witness either.

MR. SEGAL:  That is quite so.

COL ROCK:  You are not to talk to anyone until you are called again this afternoon concerning this case.  You are excused pending your return this afternoon.

(Witness saluted the IO and departed the hearing room.)

COL ROCK:  Gentleman, I now wish to inform both counsel that at 1330 hours today I shall view the scene of the alleged crime at 544 Castle Drive.  In attendance will be counsel for both sides and the accused.  Mr. Robert Shaw of the Criminal Investigation Division at Fort Bragg will act as escort officer.  Throughout the viewing of the scene I may have questions to ask Mr. Shaw.  If so, each question and each answer will be transcribed verbatim. However, in the interest of efficient operation, if counsel for either side have questions, they will write said questions and ask them at a later date when Mr. Shaw is called to testify in the hearing.  If there are no further matters to be brought before the session we will adjourn until 1330.

MR. SEGAL:  Might we have leave to submit in writing any particular points of observation we would like the investigating officer to make this afternoon--at this afternoon's viewing.  I propose perhaps note possibly two or three items, but they will be in writing with a copy to counsel for the government so that if we have occasion to refer to some point which has not been previously pointed out, the investigating officer will not need a hiatus to reexamine.

COL ROCK:  A very good point.  Counsel for both sides may do so.  If counsel for the government would like to do the same, then he may do so.  We will all meet at the house.
    The investigation is recessed.

(The hearing recessed at 1150 hours, 9 July 1970.)

(The hearing reconvened at 1335 hours, 9 July 1970 at 544 Castle Drive, Fort Bragg, North Carolina.  Present were Colonel Rock, his legal advisor, counsel for both sides, the accused, recorder, and Mr. Robert Shaw of the CID and the first question is asked outside the windows at the front of the house.)

COL ROCK:  Have the bars been placed on the windows by the CID?

MR. SHAW:  Yes, sir, they have.  The bars were placed there to secure the windows.

COL ROCK:  Oh, they have.  I see.  It appears rather rusty.

MR. SHAW:  Yes, sir.

COL ROCK:  The bars referred to are those on the front window adjacent to the front door on the lower floor.  The same is true on all windows?

MR. SHAW:  Yes, sir.

(The IO then moved around the house to the right and is standing at the rear corner to the left of the back door.)

MR. SHAW:  Sir, I might point out that this bush and the others have filled out to a large extent.  These bushes here (pointing to the right of the rear door) were almost nonexistent. They were that high (indicating two feet) and they were that way in April, but since that time they have grown and filled out.

COL ROCK:  I see.  Okay, let's go inside.

(Now in the utility Room.)

COL ROCK:  This represents substantially the condition of the--of all rooms in the house as we visit them?

MR. SHAW:  Yes, with one exception; that those items we've collected as evidence are not here.

COL ROCK:  Right.

MR. SHAW:  Those items that have been released to Captain MacDonald are not here.

COL ROCK:  Affirmative.

(The IO viewed the bath off the utility room, the master bedroom, the front bedroom, the center bathroom and the hallway.)

COL ROCK:  Was that open?  (Indicating an opening in the ceiling in the hallway.)

MR. SHAW:  That was opened to allow some air into the house.

(The IO then visited the rear bedroom and moved into the living room.)

COL ROCK:  Do you have any way of knowing, Mr. Shaw, if the same bulbs are in here that were in here at the time?

MR. SHAW:  To the best of my knowledge, they are all the same, yes, sir.

COL ROCK:  In other words it would be approximately the same wattage or should be?

MR. SHAW:  Yes, I think they are the same bulbs.

COL ROCK:  Then they would be identical.  For instance, if this complex here (indicating a ceiling light in the dining area) and perhaps one had burned out, you wouldn't now necessarily know that, would you?

MR. SHAW:  There were no bulbs burned out at the time.  If they had been replaced since then, I would have a way to find out, yes, sir.

COL ROCK:  Right, you would know.

MR. SHAW:  Yes, sir.

COL ROCK:  There would normally be no reason to replace them, would there, unless it was burned out?

MR. SHAW:  Unless it was burned out, that's correct.

COL ROCK:  People normally contact you if a bulb was to be exchanged?

MR. SHAW:  Only myself and one other man would have access to the apartment.

COL ROCK:  Where is the phone in the kitchen?

(The IO standing in the doorway to the kitchen.)

MR. SHAW:  To your right, sir.

COL ROCK:  Has this door been taken off, or was that--(Indicating a door to a cabinet.)

MR. SHAW:  That has been taken off, yes, sir, and sent to laboratory.

COL ROCK:  I would like to know if this light out here works.  (Indicating a light outside the kitchen door.)  There must be a switch someplace.

(A man was sent out to see if the outside light worked and it was determined that the back light was burned out.)

MR. SHAW:  Sir, on the exterior lights, Mrs. Kalin, next door, told me that she has changed the lights two or three times because they want them to keep burning.

COL ROCK:  I see.  Now which lights?

MR. SHAW:  I don't know.  I do know that the one light out here was burning that morning.  This light … (Pointing to the front of the house.)…was burning.  Now whether the kitchen light was burning, I don't know.

COL ROCK:  I'm not really interested on what was occurring at that time.  I am asking what the conditions are currently and whether the switches operate.

COL ROCK:  Mr. Segal, I believe you said you had a list of points which you wish to bring to my attention.

MR. SEGAL:  Would you indulge us for one moment, Counsel, there are a couple of things I want to put in writing.
    I submit these questions to you now in writing and Captain Somers may examine them.

COL ROCK:  Let the record reflect that Mr. Segal, as had been indicated prior to arrival here at the house, has submitted to the investigating officer, certain points which he wishes to have observed during my stay here at 544 Castle Drive.  The first item he has requested is that I examine the lamp on the dining buffet.

(The IO did as requested.)

COL ROCK:  The next item I have been requested to observe are scratch marks on the right arm of the rocking chair next to the coffee table.  Does this light work?  (Indicating the ceiling light in the living room, and it did not.)

COL ROCK:  Does either counsel object if I move this chair to some light?  Counsel for the defense or counsel for the government?

MR. SEGAL:  The counsel for the defense does not object.

CPT SOMERS:  No, sir.  The light is now on incidentally, if you will take notice.

COL ROCK:  Mr. Shaw, has this chair remained on the premises ever since the alleged crime?

MR. SHAW:  Yes, sir.

CPT SOMERS:  Sir, I think Mr. Shaw can tell you even more about this chair than that, in particular.

COL ROCK:  Well, I am not interested in more than that particular one observation at this time.  The next item I have been asked is to observe the new growth on the branches of the bush under which the ice pick was allegedly found.  I have already examined that growth and an explanation has been presented by Mr. Shaw also concerning this growth.

Q--Has any part of this house been rearranged within the last forty-eight hours?  I assume you mean, Mr. Segal, furniture arrangements?

MR. SEGAL:  Yes, sir.

Mr. Rock:  Has any part of the furnishings been rearranged within the last forty-eight hours?

MR. SHAW:  Yes, sir.

COL ROCK:  For what reason?

MR. SHAW:  So that during the visit of the investigating officer the scene would approximate that which I observed on the 17th of February.

COL ROCK:  Final question--has any part of the house been rearranged for the purposes of viewing the house by the 32 investigating officer; if yes, when?  I think the prior answers that question satisfactorily.

MR. SEGAL:  Yes, sir, it does, thank you.

COL ROCK:  Mr. Shaw, do you swear that all the evidence you have given here in this case is the truth, the whole truth and nothing but the truth, so help you God?

MR. SHAW:  I do, sir.

COL ROCK:  I have completed my examination of the interior.  Mr. Segal and Captain Somers, I have one other question that I wish to ask Mr. Shaw.  Mr. Shaw, does some occupant live in the upstairs room which is apparently over the kitchen living room area of Captain MacDonald's quarters?

(The IO is now outside the rear of the MacDonald residence.)

MR. SHAW:  Yes, sir.  That set of quarters is occupied by CW3 Kalin and the particular portion of his residence you mentioned is on the second floor.  It covers the kitchen, dining room and living room of the MacDonald residence, which is occupied by two dependent children.

COL ROCK:  I am satisfied with my examination.  Is there any further reason that you gentlemen wish to stay any longer?

CPT SOMERS:  I have none.

MR. SEGAL:  I have nothing else, sir, at this time.

COL ROCK:  All right then this portion of the hearing will be recessed until we can move back to the hearing room.

(The hearing recessed at 1415 hours, 9 July 1970.)

(The hearing reconvened at 1450 hours, 9 July 1970.)

COL ROCK:  The investigation is now in session.  Let the record reflect that we have returned from a visit to 544 Castle Drive and the persons who were present prior to the break for lunch at approximately 1220 hours are currently in the hearing room.  I believe the counsel for the accused has the floor at this time, or had you turned it over?

MR. SEGAL:  Yes, we have turned it over.

COL ROCK:  I'm sorry, counsel, excuse me.  Counsel for the government, proceed.

Questions by CPT SOMERS:
Q  Sergeant Duffy, when you asked over the radio net whether you could set up a roadblock, were you told then not to set one up or to put it off right then?

MR. SEGAL:  That's objected to.

CPT SOMERS:  I am offering him alternatives and then asking what else he may have been told.

MR. SEGAL:  I suggest that direct examination does not allow to place alternatives to the witness, but ask the witness to state the facts; that is the limitations to direct as opposed to cross.

CPT SOMERS:  I think I am permitted to offer him several alternatives.

CPT BEALE:  Counsel, your objection is overruled.  You may continue.

A  Sir, would you repeat the question?
Q  Yes.  When you asked over the radio network for permission to set up a roadblock, were you told not to do to it then, not to do it at all, to put it off for right then, or something different from all of this?
A  I'd say I was told they couldn't tell me exactly when to set it up, but to stay in the vicinity just in case they got word.
Q  Now you were asked, from one of the pictures, whether you saw a particular item.  Let me, if I may, just show you the picture to facilitate this question.  I show you Accused Exhibit A-6.
A  This is a picture of a knife in the master bedroom.
Q  You see the knife in this picture.  Now, the defense asked about that knife and asked whether you saw it, and you answered that you didn't notice it.  Now, are you saying that the knife was not there or that you didn't notice it there, or that you did look in that section, or what are you saying?

MR. SEGAL:  I must object again to the forming of his question.  I don't think it is proper in these type of questions which are purely susceptible as being responded to by the witness, to place alternatives, because it helps make up the witness' answers, and that is not a proper fashion for redirect examination for a witness whose knowledge is obviously within his own personal view.  He doesn't have to be suggested possible alternatives.

CPT BEALE:  I might suggest probably the best thing for you to do is to direct a question to the witness one at a time with each alternative framed in the question, if that's the way you desire to do it.

Q  All right, again directing your attention to that knife, and your answer to the defense, did you intend by your answer to say that the knife was there and could not be there?
A  No, sir, it is just that I didn't notice the knife being there at the time.
Q  I see.  Mr. Defense Counsel, could I see the statement to which you have been referring?

(CPT Somers was handed a document by Mr. Segal.)

CPT SOMERS:  If I might ask the indulgence of the investigating officer for just a moment.

COL ROCK:  Surely.

MR. SEGAL:  May the record reflect, sir, that counsel for the accused has given to counsel for the government a copy of a statement which has been referred to previously in cross examination of Sergeant Duffy as the statement that was taken by Captain Douthat on behalf of the accused, and which this witness has read and says it represents what he told Captain Douthat.

COL ROCK:  Affirmative, the record will so indicate.

Q  Sergeant Duffy, have I ever at anytime attempted to make you testify in any way untruthfully?

MR. SEGAL:  That's objected to, sir.

CPT BEALE:  Sustained.

Q  Have you testified here as truthfully as you possibly can?

MR. SEGAL:  That is objected to as presumed the witness has testified to the best of his knowledge.

CPT BEALE:  Sustained.

CPT SOMERS:  No further questions.

Questions by MR. SEGAL:
Q  Sergeant Duffy, just one brief matter.  Did you ever receive a radio call back to your request for authorization to establish a road block on Route 87?
A  No, sir, I didn't.

MR. SEGAL:  That's all.

COL ROCK:  I have two questions.  Did you at anytime, while in the bedroom, master bedroom, go to either the body of Mrs. MacDonald or to Captain MacDonald?  Did you approach their bodies?  Did you assist Captain MacDonald or get near either of the bodies?

WITNESS:  No, sir.

COL ROCK:  You have seen this exhibit A-6, which I now have in my hand?

WITNESS:  Yes, sir, that's correct.

COL ROCK:  Judging from the position of where you were standing, and observing, do you think it is logical that you would have seen such a small object as that?

WITNESS:  No, sir, I wasn't standing from a position like that.

COL ROCK:  Did you ever, at anytime, enter the living room?

WITNESS:  No, sir.

COL ROCK:  I have no further questions.  Does--did you notice whether any lights were on in either the outside front of the house, or in the outside rear of the house?

WITNESS:  Sir, I'm pretty sure the lights--I'm pretty sure, I'm not too sure--but at the front there was a light on that night because that's where I got mixed up on the reflections from the MP helmet liners.

COL ROCK:  But you are not sure about the back light?

WITNESS:  When I went around the back, sir, it wasn't dark or nothing.  I mean maybe there was a light from another building, but it wasn't dark at the back doorway as I walked in.

COL ROCK:  When you made your search, I believe you said around 0430 in the morning, what were the weather conditions at that time?

WITNESS:  Sir, it was cold and rainy.

COL ROCK:  Did you personally have a flashlight to use?

WITNESS:  Sir, I can't remember if I had a flashlight then when I was searching, but it required MP duty that you--

COL ROCK:  I am asking just about that time.  Do you remember having a flashlight to use at the time of your search?

WITNESS:  I can't remember that, sir.

COL ROCK:  I have no further questions.  Any further questions by either counsel?

MR. SEGAL:  Yes, sir, if I may.

Questions by MR. SEGAL:
Q  Sergeant Duffy, do you recall when MP Jackson called your attention to the ice pick, did you have his flashlight at that time?
A  Sir, I cannot recall.

MR. SEGAL:  That's all.

CPT SOMERS:  Nothing further by the government.

COL ROCK:  I wish to advise you, Sergeant Duffy, that you are not to discuss your testimony with any individual outside this courtroom other than counsel for the accused or counsel for the government.  Do you understand?

WITNESS:  Yes, sir.

COL ROCK:  Now you are excused, subject to recall.

WITNESS:  Yes, sir.

(The witness saluted the IO and departed the hearing room.)

COL ROCK:  At this time I'd like to request from counsel for the government whether you have any information relative to the additional photographs about which the counsel for the accused inquired this morning?

CPT SOMERS:  I have those photographs.

COL ROCK:  You do have them.  Are counsel still interested in those photographs?

MR. SEGAL:  Yes, sir.

COL ROCK:  I'd like to make those available to counsel for the accused.

CPT SOMERS:  Sir, I have only one set and I do intend to use them in the government's case.  I will be glad to show them to them.

COL ROCK:  And they will be presented in due course?

CPT SOMERS:  Yes, sir, I intent to present them here.

COL ROCK:  If you will, please, allow counsel for the accused to look at the photographs and we can take--what would you figure?  How many photographs are there?

CPT SOMERS:  Three, sir.

COL ROCK:  Would you figure a ten minute recess would be appropriate?

MR. SEGAL:  That would be more than adequate, sir.

COL ROCK:  We will recess for ten minutes.

(The hearing recessed at 1505 hours, 9 July 1970.)

(The hearing reopened at 1513 hours, 9 July 1970.)

COL ROCK:  The hearing will be open.  Let the record reflect that all parties present at the close are in the hearing room.  Proceed, counsel.

MR. SEGAL:  I would like the record to show, sir, that during the recess that was granted by the investigating officer, the government handed to counsel for the accused three black and white 8 ½ by 11, glossy photographs which would appear to be photographs taken outside the MacDonald house, apparently in the evening or early morning hours.  There are two requests I want to make in regard to these.  First of all, sir, I would ask the government to identify for us the name of the photographer who took these, and if the government knows, the time and date the photographs were taken.  Secondly, sir, I would inquire at this time as to whether the government has any other photographs of the outside of the MacDonald house that was taken on February 17th or February 18th, 1970, because on examination of  these photographs, while the investigating officer has not seen them possibly as yet, it seems to me that these will not necessarily assist in clearing up all the questions in regard to the alleged items of physical evidence that were found outside, and I think this would be a useful juncture in which we should determine ultimately what we are going to have in the way of outside photographs.

COL ROCK:  Let me address the first point first.  Does the government have the information relative to the date and time the photographs were taken and by whom?

CPT SOMERS:  The photographs were taken on the morning of the 17th of February 1970.  By whom I am not certain at this point.

COL ROCK:  Are there any more photographs of the outside of the house?

CPT SOMERS:  Sir, the files in this case are voluminous.  I have not seen all the files in this case and I do not know the answer to that question one way or the other.

COL ROCK:  May I see those photographs, please?

(The photographs in question were handed to the IO.)

COL ROCK:  Captain Somers, do you know whether there is in existence a photograph showing the alleged location of the stick that has been discussed?

CPT SOMERS:  I do know that there is no such photograph.

COL ROCK:  Counsel for the accused, I think that at the present time that these are all the photographs pertaining to what we have discussed thus far and I would like to proceed.

MR. SEGAL:  May I just state one thing, Colonel Rock.  That is I want to make a representation to this hearing that on the basis of our investigation on behalf of the accused in this case, we have very strong reason to believe that a photographer from the investigation laboratory at Fort Gordon, Georgia, was present on the morning of the 17th and took a substantial number of pictures of the exterior of this building; that there even exists a photograph showing the government's photographers at work.  I would further represent, sir, that it is so elementary in criminal investigation to have had exterior photographs of the building where weapons were found outside that may be relative to the crime, and where the existence of activities of various persons may have left the outside, it is inconceivable to me, sir, the government at this juncture had made available the photographs of the scene which will be useful to this investigation.  I am particularly troubled, sir, and I will state it to you at this time, that the photographs that were handed to us do not establish my point of reference which regard, for instance, to any clearly visible portion of the house that we have been dealing with, particularly there's no photograph here which establishes the relationship of this bush to the rear door of the house, and I submit to you, sir, that there is an obvious connection here that ought to be explored, and the government is aware of, I just feel, at this time, that there can't be any possible valid reason for the delaying in making available to this inquiry those photographs for the exterior of the house, and particularly the side and the rear, and that while I don't propose to delay any more this afternoon, I would really sincerely urge upon the inquiry that a direction be given to counsel for the government to perhaps pursue further with the authorities at the investigation lab at Fort Gordon, whether they do not have available additional black and white photographs of the exterior of the house that could be presented to this court next week, when certain laboratory technicians will be here.  At this time, as I said, I cannot envision any prejudice to the government, and I think it will substantially expedite the inquiry in this matter.

CPT SOMERS:  Sir, I do not represent to you that there are no other photographs available of the outside of the house.  I could not say that if I wanted to, because I don't know what else there may be.  I know a good deal of what's in this case.  I cannot represent to know everything in it.  I have shown counsel for the defense three pictures in question, pictures of the weapons.  Those are the only pictures--I've described them as weapons--they have been used as such.  They may or may not have been used that way, but those are the only pictures that I am aware of showing these objects.  Now, the government does intend to present a case and try to make it clear the placement of the weapons and any other point which at least it deems to be critical in this case, so it would appreciate the opportunity to do so before being judged by the defense as to whether or not what we have done is adequate.

MR. SEGAL:  I don't want to prolong the discussion, Colonel Rock.  I just want to say to you that it is not my understanding, first of all, I only request of the hearing--investigating officer, the investigating officer's direction to the government's counsel to produce only the photographs of the alleged weapons.  It was my understanding that what we were discussing was the production of photographs of the outside of this house, which will be relevant to our understanding of what took place on the back of the location of the shrubbery here, and so that we might understand what were the possibilities that were available to the investigators, and whatever facts the investigators will be testifying to that were possibly be made more clear by reference to the photographs.  I do not understand that the investigating officer was giving to the government the right to pick and chose which photographs he would present, but we would have the black and white photographs showing the external portion described and they would be then used to refer to as needed in this case.

COL ROCK:  At this juncture, Mr. Segal, I am satisfied that we have represented here in these photographs what is germane to what has been covered at this juncture, and I would like to proceed.

CPT SOMERS:  If I may, sir, I would like to recover those three photographs before I do proceed.  Let the record reflect that I have now taken the three photographs in question.

CPT SOMERS:  The government's next witness is Specialist Four Morris.


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