MR. BOSTWICK: Cappie Harden.
THE COURT: Come up here,
please, Mr. Harden. If you would
come all of the way up here.
Please remain standing, raise
your right hand, face this
lady, she will give you an oath
before you testify.
CAPPIE CLIFFORD HARDEN -
DIRECT EXAMINATION
called as a witness on
behalf of the plaintiff, first being
duly sworn to tell the
truth, the whole truth and nothing
but the truth, testified as
follows:
THE COURT: Be seated,
please.
THE CLERK: Would you state
your full name, and spell your
last name?
THE WITNESS: Cappie Clifford
Harden, H-A-R-D-E-N.
BY MR. BOSTWICK: How old are
you, Mr. Harden?
A Thirty-four.
Q Are you also known as
Shorty Harden?
A Yes, I am on the streets.
Q And in what city are you
residing at this time, sir?
A I'm living in the
Q Are you employed at this
time?
A Yes, I am.
Q How are you employed?
A I work for a construction
outfit up there running heavy
equipment.
Q Okay. Did you used to live
in the
A Yes, I did.
Q How long have you lived in
and around the
Harden?
A About half my life.
Q Okay. Where did you grow
up?
A
Q Did you graduate from high
school?
A No. I dropped out.
Q Did you join the military
service at that time?
A Yes, I did. The Marine Corps.
Q Did you receive a general
discharge from the Marine
Corps?
A Yes, I did.
Q What kind of jobs have you
held since high school?
A Construction.
Q Construction jobs?
A Yes.
Q Have you been back and
forth between
A Yes, I have.
Q And when was that
discharge?
A I'm not sure exactly the
year. It was the late seventies.
Q Okay. Did you come back to
the
1988?
A Yes, I did.
Q Did you start work at that
time?
A No. Not at that time.
Q How did you support
yourself?
A I was buying and selling
cars.
Q Doing anything else?
A I was selling drugs.
Q What kind of drugs were
you selling?
A Methamphetamine.
Q Where were you living in
the fall of 1988 and the winter
of 1989?
A On
Q Okay. Who were you living
with at that time?
A I was staying in the
basement of an apartment complex my
mother was managing.
Q Okay. I would like the
witness shown what has been marked
as state's exhibit numbers
336, 337 and 338.
I would like to you take a
look at those photographs, Mr.
Harden, and ask you if you
recognize what is depicted in
those photographs?
A Yes. That is the house I
lived in, the apartment
building.
Q Okay. Were you living in
there in January, 1989?
A Yes, I was.
Q And I would like those
photographs shown to the defense
and I would move that they
be admitted into evidence at
this time.
MR. ABEL: No objection.
THE COURT: Be admitted.
MR. BOSTWICK: Mr. Harden, do
you know the defendant, Frank
Gable?
THE WITNESS: I have met him.
MR. BOSTWICK: Do you recall
about when you met Mr. Gable in
relationship to when you
moved back to the
the fall of 1988?
A It was I think in
December, I think it was. I met him
over at a house over on
to a friend of mine's house
that night.
Q Okay. He gave you a ride
to a friend of yours?
A Yes, he did.
Q Okay. Do you recall what
kind of vehicle he was--
A It was a-- a hatch back
Q Was he an associate of
yours at that time?
A No, he was not.
Q Did you ever-- how many
times did you see
Mr. Gable at this house on
A I only seen him there a
couple of times.
Q And where was that located
on
A On Hyacinth and by
Q Okay. Do you know who
lived there in the fall of 1988,
early 1989?
A Johnny Bender, his old
lady, Frank /-RBGS.
Q Frank Gable?
A No. Frank Harman, also
known as Sam.
Q Okay. Okay.
A Janet, her boyfriend.
Q Okay. I would like the
witness shown what has been marked
as state's exhibit numbers
319, 320, 323 and 324.
Take a look at those
photographs, Mr. Harden, and I'll ask
you are they-- do you
recognize the area?
A Yes. These two are of the
house and this is an area
across the street from the
house.
Q Are they a true and accurate
visual representation of the
house and the area right
across the street?
A Yes, they are.
Q Okay. I would like those
shown to the defense and move
that they be admitted into
evidence.
MR. ABEL: No objection.
THE COURT: Be admitted.
MR. BOSTWICK: Do you recall
the time in the middle of
January, 1989, when you saw
the defendant at the Hyacinth
Street house in his vehicle?
THE WITNESS: Yeah, I do
recall an incident. He wasn't at
the house, he was across the
street from the house in his
car.
MR. BOSTWICK: Okay. I would
like the witness shown what has
now been admitted as state's
exhibits number 323 and 324.
They are the ones I just
gave you, I believe. I'm sorry.
THE CLERK: That's okay.
MR. BOSTWICK: Would you tell
us, Mr. Harden, which
photographs gives the
location as to where Mr. Gable--
THE WITNESS: This photograph
right here.
MR. BOSTWICK: Look on the
back.
A Number 324.
Q Okay. I would like that
photograph shown to the jury at
this time. I guess-- I think
I want all photographs, excuse
me, 319, 320, 323 and 324,
please.
Mr. Harden, you indicated
that 324 is the area where he was
parked when you saw him?
A Yes.
Q Is that area immediately
across the street?
A Yes. It's right across the
street from the driveway of
the Hyacinth house.
Q Okay.
Q Mr. Harden, do you recall
about what time of day it was?
A Late afternoon.
Q Was-- do you recall what
kind of car Mr. Gable was
driving?
A It was the same car that
he gave me a ride in earlier in
the year, earlier in
December.
Q And why were you there?
A I was dropping off Jodie.
Q Dropping off Jodie?
A Yes.
Q Who is Jodie?
A This girl I know.
Q Why were you dropping her
off there?
A Because I was tired of her
being at my house.
Q Pardon me?
A Because I was tired of her
being at my house.
Q Okay. How long did you
stay?
A I was only there about ten
or fifteen minutes. I didn't
get out of my car. I stayed
in my car.
Q What kind of car were you
driving, sir?
A My'70 Mustang.
Q I would like the witness
shown what has been marked as
state's exhibit 301, 304 and
305.
Take a look at those
photographs and I'll ask you if you
recognize what those
photographs depict or show?
A Yeah. That's what is left
of my car.
Q Is that the car that you
were driving in January, 1988?
A Yes, it is.
Q Shows the outside and
shows also the inside?
A Yes.
Q Did you have a problem
with your ignition at that time,
sir?
A Yeah. You can see the
wires hanging in this picture
number 305, I guess. It's
where my solenoid on the outside
didn't work by the ignition
switch. I had to twist wires
and touch wires in order to
get it started.
Q You had to hot wire your
car to get it started?
A Yes.
Q Is that the condition that
it was in, in January, 1989?
A That was the condition it
was in up until the time I got
rid of it.
Q That's the car you were
driving in January of 1989?
A Yes.
Q Okay. Do you recall when
you got rid of the car?
A When?
Q Yeah?
A I think it was in February
or March I traded it for a
Harley.
Q Okay. I would like those
photographs shown to the defense
and move that they be
admitted into evidence /-FPLT at this
time.
MR. ABEL: No objection.
THE COURT: Be admitted.
MR. BOSTWICK: When you
observed Mr. Gable, was he alone or
with someone else?
THE WITNESS: He was alone.
MR. BOSTWICK: Did you see
him inside or outside the
vehicle?
A I seen him get out, walk
to the back of the car, get to--
get around to the back of it
and get back in the car.
Q Do you recall how he was
dressed?
A Dark sweats.
Q Did you see anything,
notice anything else about him?
A He had a knife in his
waistband of his sweats.
Q Okay. How long did you
stay there.
A Like, I'd say fifteen
minutes, tops.
Q Did you have any
conversation with Mr. Gable at that
time?
A No, I did not. I didn't
talk to him any time.
Q Okay. Was Mr. Gable there
when you left?
A Yes. His car was still
there.
Q Where did you go?
A Went on about my business.
Q And what was your
business?
A Selling drugs.
Q Did you see Mr. Gable
later that same night?
A Yes, I did.
Q Where?
A At the
Q How did you happen to be
at the
A I got called from Jodie
Swearingen to pick her up at the
hospital grounds. And she
called me twice to pick her up. I
didn't show up the first
time, and I went down there to
pick her up.
Q Do you recall about what
time that was?
A Six-thirty,
Q Where were you when you
received the phone call?
A I was at home.
Q The place on
A Yes.
Q Do you recall how you got
to the
A I drove my Mustang. My'70
Mustang.
Q Do you recall how you got
there from the
residence?
A I just went-- the route I
took?
Q Right?
A I just drove straight up
from where I lived then.
Q How would you know where
to go?
A I didn't. I just happened
to pull in and park. Figured if
Jodie seen my car she would
get a ride, and if she didn't,
I would leave.
Q Do you recall where you
parked?
A In the parking lot by the
now. I didn't know what it
was called at the time.
Q Okay. Maybe if we could--
could the witness step down
from the witness chair. I'm
going to ask him to refer to
what has been marked,
previously admitted, state's exhibit
number three. Do you have
the pointer? Mr. Harden, if you
would step over here so the
jury can hear, see you, excuse
me, and use the pointer to
point out how you entered the
A I came up
right in here and I parked
right about where that car is.
MR. ABEL: Would you point,
again, where your car is?
THE WITNESS: Right here.
MR. ABEL: Thank you.
MR. BOSTWICK: Okay. You can
retake the witness chair.
What did you do after you
pulled in and parked?
THE WITNESS: I just parked
and waited. I wasn't there but a
couple minutes until she
approached.
MR. BOSTWICK: How did Jodie
approach?
A She came up from behind me,
kind of startled me and got
in the car.
Q Did you have a
conversation with Jodie at that time?
A I kind of bitched her out
for bugging me to come and pick
her up at that time of night
when I was busy doing things.
Q Why did you go get her?
A I've helped Jodie out
quite a bit through the years, you
know, the last year or so
when we knew each other. If she
needed money, I would give
her money, help her out.
Whenever I could. She is a
young kid.
Q Did you give her dope,
too?
A No. I wouldn't give her
dope. Mostly when she wanted
money it was for groceries.
I gave her food stamps that I
acquired through my dope
deals, but I didn't give her dope
or money so she could go out
and buy dope.
Q So what happened after
Jodie got in the car?
A That's when I seen the dome
light of the car come on.
Q Okay. What car?
A The car that was across
from me.
Q Okay. Could you reapproach
the diagram? Could you use the
pointer and point out this
other car, where it was in
relationship to your car,
sir?
A Right about here.
Q Okay. You can retake the
witness chair. I would like the
witness shown what has been
marked as state's exhibit
number 477. Do you
recognize--
A That's the car.
Q Is that the car you saw on
the night?
A Yes, it is.
Q I would like that shown to
the defense and move that it
be admitted into evidence.
MR. STORKEL: Your Honor, I
would like to ask a question in
aid of objection.
THE COURT: Please do.
MR. STORKEL: Mr. Harden,
have you previously been shown
this photo?
THE WITNESS: I have seen it
once.
MR. STORKEL: Okay. And at
the time you saw the photograph,
prior to seeing it, had you
described what the vehicle
looked like?
A Yes.
Q Okay. And you're saying
that you had only seen this car
one time, is that correct?
A Yes.
Q And then when you looked
at this photograph you're saying
that you recognized it as
soon as you saw the photo, is
that correct?
A Yeah. Like I say, I buy
and sell cars. I know what cars
look like.
Q Is this the location that
you're saying that the car was
in on the night of January
17th?
A I'm not saying that at
all.
Q Your Honor, we have no
objection to it being admitted
just simply for the purpose
of showing what Michael
Francke's car looked like.
THE COURT: It will be
admitted. He has testified that--
that is what he has
testified to. It will be admitted.
MR. BOSTWICK: I would like
that shown to the jury, Your
Honor.
Mr. Harden, is that the car
you saw on the night at the
THE WITNESS: Yes, it is.
MR. BOSTWICK: You saw it
parked in the location that you
have already testified to?
A Yes, sir.
Q Okay. Mr. Harden, what did
you notice? What did you see?
A I seen the dome light of
the car come on /-FPLT so I
didn't leave right away, and
I seen Frank get into the car.
Q Why didn't you leave right
away?
A Stick around and see what
Frank was up to.
Q You saw the defendant get
in that car?
A Yes, I did.
Q How did you know it was
the defendant?
A Because I recognized his
face.
Q How many times had you
seen him prior to this particular
night?
A Only a couple.
Q Why did you recognize his
face?
A Because I made it a habit
to remember the face of people
that I thought were rats or
informants.
Q Did you see how he got
into the car?
A No, I did not.
Q Okay. Was anybody with
him?
A No. I did not see anybody
else with him.
Q Did you see him doing
anything inside the car?
A No. I couldn't see him
once he got into the car. He
closed the door and the dome
light went off.
Q Okay. What happened after
that?
A That's when I seen the
other gentleman /OE/OE approaching
the car /-RBGS.
Q What did this other
gentleman look like?
A Looked like a businessman.
Q Where did this other
gentleman come from?
A One of the buildings right
there by the parking lot.
Q Okay. Where was he in
relationship to the car when you
first saw him, sir?
A He was approaching it on
the driveway.
Q Okay. What did this person
do?
A He walked up to the car
then and that's when I heard him
yell, you know,"Get
out.""hey, what are you doing in my
car." And he started
running towards the car.
Q And then what did he do?
A That's when I seen Frank
come out of the car /-RBGS and
stab the man one time in the
chest. And that's all I seen.
Q That's all you saw?
A That's all I seen. I was
busy starting my car and getting
out of there.
Q Busy starting your car and
getting out of there. What do
you mean by that?
A I had to twist the wires
together and jump it.
Q Okay. Did you have to bend
over?
A You had to squat down to
the right. It was on the console
in between the seats, I had
to find the wires and then
twist them.
Q What did Mr. Gable do
after he stabbed this man?
A I didn't see anything
after that. I was busy, worried
about myself.
Q Did you see where Mr.
Gable went?
A No, I did not.
Q Did you see where this
businessman went?
A No, I did not.
Q Where did you go?
A I went home.
Q What happened to Jodie?
Was she with you at that time?
A Yes, she was.
Q Did you take Jodie home
with you?
A Yeah, at that time I did
take her to the house. Told her
to shut up and forget what
she ever seen.
Q Why did you tell her that?
A I didn't want to be
involved.
Q Did you hear any car alarm
go off?
A No, I did not.
Q How come you didn't call
the police?
A I don't call the police.
Q Why not?
A I'm not a rat.
Q Okay. When do you recall
hearing about the homicide of
Mr. Francke?
A A few days later.
Q Why didn't you report it
to the police after you heard
about it, what you saw?
A Like I said, I'm not a
rat.
Q Do you recall being
contacted by the police in November
of 1989?
A Yes, I do.
Q And asked if you knew
anything about it?
A Yes, I do.
Q The homicide of Mr.
Francke?
A Yes.
Q What did you tell them?
A I told them I didn't know
what they was talking about.
Q Why didn't you tell them
anything in November of 1989?
A I'm not a rat.
Q You were contacted again
in January of 1990. Did you tell
them what you knew in
January?
A Not the first couple times
they talked to me.
Q Why were you reluctant to
talk to them?
A As I said, I'm not a rat.
Q Did you eventually tell
them what you saw?
A Yes, I did.
Q Why did you eventually
tell them what you saw when you
originally told them you
didn't know anything about it?
A Because they proved to me
with evidence that they knew I
was lying.
Q Did they threaten you in
any way?
A No. They did not.
Q Did they promise you
anything?
A No, they did not.
Q District Attorney's office
threaten you in any way?
A No, he has not.
Q District Attorney's office
promised you anything?
A No.
Q You have been convicted on
more than one occasion of
possessing drugs, is that
correct, Mr. Harden?
A Yes.
Q How many times have you
been convicted of possessing
drugs?
A Three.
Q June of'89?
A Yes.
Q March of'90?
A Yes.
Q February,'91?
A Yes.
Q Also convicted of Failure
to Appear which means you
failed to show up for court?
A Yes. End of February, the
later one of February,'91.
Q Also been convicted of
Assault back in-- back in the
seventies, 1976?
A Yes.
Q Placed on probation by
Judge Norblad on the recent
convictions?
A Yes, I did.
Q Okay. A couple charges
were dismissed, is that correct?
A They-- they dismissed an Ex-convict
in Possession of a
Firearm and a Delivery
charge because they were weak, if I
pled guilty to the Failure
to Appear and the Possession.
Q Okay. Judge Norblad allow
you to go into a drug treatment
program prior to sentencing?
A Yes, he did. I
successfully entered and completed a six
month inpatient drug treatment
program up in
Q Okay. And when was that?
A July of'90 until just
recently here.
Q February?
A February or March.
Q Okay. Did you complete
that program and show proof of
that to Judge Norblad before
he sentenced you?
A Yes, I did.
Q Are you on probation to
Judge Norblad right now?
A Yes, I am. I'm on what
they call ISP, which is intense
supervised probation, where
I go in and give two urinalysis
a month.
Q What happens if you get
caught with a bad urinalysis?
A I'm in what they call the
Drop program where your first
dirty UA gives you five days
in the
your second dirty UA you do
fifteen days in jail, the third
dirty UA you do thirty days
in jail, and the fourth one you
go back in front of the
Judge.
Q What is a dirty UA?
A Proof of using
methamphetamine, any other kind of drugs,
pot, anything.
Q They caught you once,
didn't they?
A Yes.
Q What happened?
A Five days
Q What happens next time?
A Fifteen days in jail.
Q State Police give you any
money?
A For what?
Q Did they give you any
money?
A No.
Q District Attorney's office
give you any money?
A No.
Q Give you any deals here to
testify?
A No, they have not.
Q Have you been represented
by an attorney?
A Yes. I have my own private
counsel.
Q What is his name?
A John W. Jensen.
Q Did you offer to tell the
press what you seen, what you
saw at the
A They offered to bail me
out one time if I told them.
Q How did they go about
doing that?
A I was in county jail. I
was in the hole. I got a kite to
call this number.
Q What is a kite, Mr.
Harden?
A It's a flyer sent in by
somebody from the outside.
Q Okay. And what did he--
did they tell you?
A To call this number.
Q Did you call the number?
A Yeah.
Q Who did you talk to?
A Some guy named Steve
Jackass-- Jackson or something like
that.
Q What did he want?
A Wanted to know what I
seen.
Q Was he going to bail you
out?
A He offered to. He said he
would talk to his, quote
unquote,"his
boss."
Q Okay. Did they bail you
out?
A No.
Q Okay. Thank you, Mr.
Harden.
That is all I have.
MR. STORKEL: Your Honor,
this might be an appropriate time
for a break. I think there
will be extensive cross
examination of Mr. Harden.
THE COURT: What is
extensive?
MR. STORKEL: More than
thirty minutes.
MS. MOORE: Let's get
started.
THE COURT: We didn't start
until like-- go ahead.
MR. STORKEL: Okay.
CROSS EXAMINATION
BY MR. STORKEL: Good
afternoon, Mr. Harden.
A Good afternoon.
Q The first time you talked
to the police was on November
20th, 1989, is that correct?
A If that's what it says.
Q That's what the report
says. And you actually made some
statements to the police on
that date, isn't that correct?
A If that's what it says.
Q Okay. And I'll be
referring to that report which puts
down what you said.
First off, before you were
able to identify Frank Gable the
police showed you a
photograph of him, isn't that correct?
A No.
Q The report states that you
needed to see a photograph of
Frank Gable before you could
be sure that you knew Frank
Gable or not?
A No. I don't recall that.
Q Okay. So you're saying
that the police officer that wrote
the report is wrong about
that, is that correct?
A I don't recall even seeing
a picture of Frank while I was
there.
Q And then if the police
officer is saying that he showed
you a picture then he is
incorrect, is that correct?
A That's right.
Q Now, also at that time,
the report states that you stated
that Frank had given you a
ride home from the Bender's at
one time in a maroon colored
A I guess, yeah. If that's
what it says.
Q That's what it says. What
color do you consider to be
maroon?
A A reddish color.
Q Okay. Now, this report
also states that what you
remembered when you were
talking to the police on November
20th, 1989, that the first
time that you met Frank Gable
was after
house by the Salem PD. Do
you recall making that statement?
A If it's in the report.
Q It's in the report. So, at
that time, then, you had been
telling the police that that
would be the first time you
met Frank Gable, is that
correct?
A If that's what it says.
Q That's exactly what it
says. And at that time you were
trying to be accurate and
truthful, at least about when you
met Frank Gable, is that
correct?
A No, it's not.
Q Okay. Were you
deliberately lying to the police?
A Yes. Yes, I was.
Q Now, at that time, the
second time that you said that you
met Frank Gable was a few
months prior to your November
interview, isn't that
correct?
A Excuse me, would you
reword that?
Q Okay. During the
police, you told them that
the second time that you had
ever seen Frank Gable was
just a few months before that
interview which took place
on November 20th. So, if we go
back a couple months that
would be October, September?
A If that's what it says.
Q That's exactly what it
says. So then that is what you
told the police, is that
correct?
A If that's what is wrote
down there.
Q Okay. And you said that
the time-- that second time that
you saw Frank Gable that you
remembered that you saw him
getting a beer out of the
refrigerator. So, is that correct
if that's what the report
says?
A If that's what it says.
Q Okay. Now, also, in this
report /-RBGS you stated that
you had known Jodie
Swearingen for about a year and that
you had laid her a couple of
times, is that correct?
A Yes
Q /-FPLT if that's what is
wrote down there.
Q And that doesn't surprise
you that that's in the report,
does it?
A No.
Q Okay. And you were aware
that Ms. Swearingen was under
the age of eighteen, weren't
you?
A I'm not really aware of
the fact if she was or not.
Q You thought that she was a
young girl though, didn't you?
A No. She didn't look like a
young girl.
Q And so it would be your
statement that you didn't know
whether she was eighteen or
not, is that correct?
A That's right.
Q Now, in that statement you
also stated that in January
sometime, Jodie Swearingen
called you at your mom's house
and wanted you to drive her
from her dad's house in
to
A If that's what is wrote down
there.
Q That's exactly what is
written down there,
Mr. Harden. And next you
told the police that you told
Jodie that she must have
"hit her head," and that's a quote,
if she really thought you
were going to go to
her?
A I think the phrase I used
was you must have bumped your
head.
Q Well, the report says in quotes
"hit her head." Okay. So,
according to that report,
you had no intention of picking
up Jodie Swearingen in
A No. Not in
Q Did you figure that would
be just too much for Jodie to
be asking? Is that correct?
A No. I think if you recall
I think I sent one of my
associates in one of my cars
to pick her up. I can’t
recall, you might read
further down there it might say
that, I don’t know.
Q This is the November 20th
report and what you said is
that you told her that she
must have hit her head if she
thought you were going to
come to
in that report you said that
sometime about dusk that
Jodie Swearingen showed up
at your mom’s house, is that
correct?
A If that’s what is wrote
down there.
Q Okay. That’s what is
written in the report. Now, you
stated that you then gave
Ms. Swearingen a ride to West
Jodie Swearingen off at the
Safeway store. So, if that’s
What is in the report, that
is exactly what you told the
Police, is that right?
A If that’s what is wrote
down there, yes.
Q And you remember seeing
Ron Bissonnette at the parking
lot and described him as
white adult male, five five, one
hundred and thirty-five to
one hundred and forty pound, is
that right?
A Yeah. That's what he
looked like.
Q Okay. And then in that
report you stated that you didn't
remember if you had ever
seen Jodie and Frank at John and
Kelly's house at the same
time. So, that's what you were
telling the truth—the police
on November 20th, is that correct?
A If that's what is wrote
down there, yeah.
Q Okay. And you also told
the police that you had a knife
collection, is that correct?
A That's right.
Q Okay. Could you describe
that knife collection?
A What do you mean describe
it, how many knives I had, what
they looked like?
Q Yeah. How many knives you
had and what they looked like?
A Between three hundred and
five hundred knives. Any kind
of knife you had ever seen.
Q Where did you keep those
knives?
A At which time?
Q Where did you have those
knives back in November of 1989
when you were giving this
interview?
A Oh, I had part of them on
my wall on display.
Q Okay. And where were the
rest of them?
A In a-- in ammo boxes.
Q And what kind of different
knives did you have? Why don't
you just describe a couple
different ones?
A Chef's knives, pocket
knives, throwing knives, bayonets,
swords.
Q And did you make a regular
habit of trading these knives
with other people?
A Not trading the knives,
no.
Q What did you do with the
knives?
A Collected them.
Q You always kept them?
A I kept them.
Q Now, in November 20th, you
told the police that you
suspected that John Bender
and Pat Boggs may have stolen
some knives from you, is
that correct?
A That's a fact. Pat Boggs
did.
Q So you-- you were able to
verify later on that Pat Boggs
had stolen some knives from
you, is that correct?
A Yeah. He was with him. I
didn't know, but I did verify
Pat did.
Q Okay. And you recall that
you told the police also that
Pat Boggs had stolen some
other goods from you, is that
correct?
A That's right.
Q What are some of the other
things he stole from you?
A A color T.V., a stereo, a
lot of miscellaneous things.
When you have so much stuff,
you don't know exactly what
all was taken.
Q So you had a lot of stuff
at your apartment, is that
correct?
A Well, yeah.
Q A lot of relatively
valuable stuff, right?
A Well, yeah.
Q And you got a lot of that
from basically your drug
dealing, is that correct?
A Well, yeah.
Q Okay. Because a lot of
times you would trade people drugs
for that stuff?
A A lot of times I would,
yeah.
Q So sometimes the deal that
you would make is they would
give you stuff for the drugs
instead of money?
A Sure.
Q And in the November 20th
report, you stated that you
don't trade or sell your
knives, and you hadn't ever sold a
knife or purchased a knife
from Frank Gable to the best of
your knowledge?
A That's right. I was also
lying to the police at that
time, too.
Q Okay. And you didn't have
any problem lying to the
police, did you? You thought
that was to your benefit,
didn't you?
A At that time, it was.
Q Okay. And this first
interview with the police is
A Yes.
Q Now, the next time that
you talked to the police /-RBGS
was on the afternoon of
the next report states. Is
that correct?
A I guess.
Q Okay. Do you recall
talking to the police any time
between November 20th and
January 26th or January 18th of
1990?
A Talking to the police or
talking to who?
Q Talking to the police?
A About?
Q About anything. Did you
talk to them about other stuff?
A Well, I had got arrested
in between that time under a
phony name and got out. If
you call that talking to the
police, yeah.
Q Okay. So you talked to
them because you were arrested for
giving them a phony name?
A No. I gave them a phony
name at the time they arrested me
and I got out. See, I was a
fugitive.
Q I see.
A You understand that it was
a crime to give a phony name
to the police?
A Well, most of the things I
did back then were crimes.
Q Okay. And when you-- after
you gave them that phony name,
you again got out of jail,
is that correct?
A Yes, I did.
Q And then-- the way you got
to talk to the police on
January 18th of 1990 is
because you were arrested on some
warrant for crimes, is that
correct?
A Yes. Yes, I was captured.
Q Okay. And after you were
captured, you were transported
to the
police interviewed you?
A I recollect, if that's
what happened that day.
Q Okay. And they told you
that they had had a little
difficulty locating you
because you had these warrants out
for you, is that correct?
A That's right.
Q Now, when you talked to
the police on January 18th and,
again, we'll be going
through the report, and this is the
reports that were given to
us by the District Attorney's
office. You stated in that
report /-RBGS that after you
gave Jodie a ride to Safeway
/-RBGS because she wanted to
go there, that you drove her
out to the Bender residence on
Hyacinth Street and dumped
her there /-FPLT?
A If that's what is wrote
down there. I don't recall every
conversation I had with
them. I had quite a few
conversations with them.
Q Quite a few talks?
A Yes, definitely.
Q And told them quite a few
lies?
A Yes, I had.
Q Now, in that report,
that-- you related that you had
heard some talk on the
street about the Michael Francke
murder. Would it be fair to
say that you heard quite a bit
of talk on the street about
the Michael Francke murder?
A What do you consider quite
a bit?
Q Well, would you-- I
would-- I guess the question would be
is you heard a lot of
different people talking about it?
A I heard a few things about
it, yeah.
Q Okay. And a lot of the
people that were in the drug world
knew that Michael Francke
had been murdered?
A I can't speak for anybody
else but myself.
Q Well, you had heard that
he had been murdered?
A Yes.
Q And you had read the
newspaper and a heard a lot of the
different theories about why
he was murdered, didn't you?
A No. I didn't follow the
newspaper.
Q So really your information
would have been just talk from
the street like you told the
police?
A More or less.
Q Okay. And during that
interview then you told the police
that you had heard about the
murder from Jodie Swearingen.
That's what the report
states?
A I guess that's what I
said.
Q Okay. And then also you
told that-- after you talked to
Jodie Swearingen, that you
thought maybe John Bender was
involved?
A If that's what is wrote
down there.
Q That's what is wrote down.
At that time, you're telling
the police you thought maybe
John Bender was involved and,
also, you told the police
that you talked to Sam Harmon
/-FPLT and that he told you
some information about the
Michael Francke homicide.
And so, if that's written in the
report, that doesn't
surprise you either, does it?
A No, it doesn't.
Q And then /-RBGS you told
the police that you thought that
you obtained five knives
since the day of the murder from
John Bender?
A At least that many.
Q Okay. Maybe-- maybe you
had even given him more knives?
A I had given him or he had
given me?
Q No, that he had given you?
A Okay. Yeah.
Q Okay. And would it be
likely that some of these knives
that John Bender gave to you
were in exchange for drugs?
A Yeah. I would probably say
for sure they were.
Q Okay. And you also told
the police that you believed that
one of the knives, a folding
two bladed pocket knife might
have been the murder weapon?
A I don't recall, but if
that's what it says.
Q That is exactly what the
report says. It says may be the
murder weapon as it was the
one you obtained from Bender
most recently after the
murder. And then you further stated
/-RBGS that you had gotten
that knife from Bender, two or
three, after the
Bender and his wife, Kelly,
both came to your apartment
located at
dollars for that knife?
A I guess. If that's what is
wrote down there.
Q That's exactly what is
written down. And then you told
the police that the knife
was located either at one of two
places in
a friend of yours. Why did
you think the knife was located
at one of those two places?
A I thought I still had it
with me at the time.
Q Now, again, this is during
the January interview that
you're having with the
police?
A Which January interview?
Q
A I thought you were talking
about the one on January 18.
Q We're moving on.
A Okay. See, you have to
clarify when you change days so I
know which one you're
talking about, if you would.
Q Okay. We'll clarify that.
A Thank you.
Q Now, in this same report
of January 18th the way the
police have written up the
report, Mr. Harden, is first
they go through January 18th,
and we have covered part of
the report there, and then,
in the same report, it moves on
and changes the date to
where we're looking at right
now.
A Okay.
Q And now this is two days
after the police first talked to
you in January. And what the
report states is, at that
time, Harden reiterated the
information he was giving was
truthful. And by
"reiterated" it means you were emphasizing
or telling the police over
and over the way you're telling
them now is truthful. Okay.
That's what the report states.
And then, it states /-RBGS
that you stated you were not at
the murder scene. That you
had just heard about it. And
that you had re told
previous accounts of it from what you
heard through Jodie
Swearingen and your friend Sam who the
police identified as Frank
Harmon. Would you agree that
Frank Harmon is somebody
that you would normally call Sam?
A Yes.
Q And you persistently
maintained that you were at the
murder scene.
A I was at--
Q Right. You persistently
maintained that you were not at
the murder?
A You just said I was at
just a minute ago.
Q Okay. Perhaps I missread
the report. I'll read it very
carefully here. It says you
persistently maintained that
you were not at the murder
scene. Okay. So that would be an
accurate representation of
what you told the police on
January 20th, is it not?
A I guess. You're reading
it.
Q That is correct. Now,
first of all, are you familiar with
the area around the
A You mean the area around
it, the immediate area around it
or the neighborhood or what.
Q First of all, are you
familiar with the
Hospital grounds themselves?
A I have been there.
Q Okay. Have you ever worked
at the
A No.
Q Okay. Do you know the
numbers of the buildings on the
A Why would I know that?
Q Okay. So it would be fair
to say, then, that you really
don't know specifically the
numbers of the buildings /-RBGS
or specifically what happens
at the different buildings at
the hospital, is that
correct?
A No.
Q Okay. In other words, by
no, you mean yes?
A Yeah.
Q Okay. And you are familiar
with the neighborhoods around
the
A Yes.
Q Okay. And that is because
you lived in that general area?
A Well, I drive by the
place. At that time, I would drive
by it fifteen, twenty times
a day.
Q Okay. And because of all
of the continually driving by,
you obviously got familiar
with the neighborhood?
A Well, that, too.
Q And kind of at least knew
where the
was?
A Yeah. You could say I
admit I know where the State
Hospital is.
Q Okay. And on January 20th,
at
you were being asked by two
police officers, one a
Detective McLain from the
State Police, and several other
detectives. And then do you
recall that they drove you to
the
A Is that wrote down there?
Q Yes, it is?
A Then I guess they did.
Q Okay. Do you have any
independent recollection of your
own that they drove you there?
A Not right off the top of
my head.
Q Okay. If you search your
memory closely, could you
remember them taking you to
the hospital grounds?
A I don't know. I don't.
Q Okay?
A I don't know.
Q You really don't have any
recollection of that?
A I don't know what days or
dates, you know, they did all
of this stuff. No, I don't.
Q Okay. But you remember
that they took you there?
A I think they did once.
Q Okay. Do you remember what
part of the hospital grounds
that they took you to?
A Which time? I mean they
took me to more than one part of
the hospital grounds.
Q Okay. What are some of the
different parts of the
hospital grounds that they
took you to?
A Parking lots.
Q Okay. So they drove you
into the parking lot. What other
areas did they drive you to?
A Just parking lots.
Q Okay. Do you remember them
taking you to any other areas?
A No.
Q Okay.
A If you mean inside the
building, they didn't drive me in
side none of the buildings,
no. They didn't take me inside
of none of the buildings,
no.
Q Okay. So they didn't take
you inside any of the building
s?
A No.
Q Did they take you anywhere
else outside of the buildings
on the
A Yeah, parking lots because
we were in the car.
Q Okay. Did they take you to
any other place besides the
parking lot?
A They took me to Arby's.
Q And what did you do at
Arby's?
A I sat and ate.
Q Okay.
A I missed my chow.
Q Okay. And the police paid
for what you had to eat, is
that correct?
A Well, I was in jail
clothes and didn't have no money on
me. They kind of had to.
Q And did you go to the
you went to Arby's or
before?
A I don't recall.
Q Now, at about
still talking to the police?
A Is this
Q
A Okay.
Q And at that time,
according to the report, you advised
that you now recalled that
rather than Jodie Swearingen
just showing up at your
residence, that you recall
receiving a phone call from
her and you sent Adam in his
car to
A I think I told you that
just a little bit ago, didn't I?
Q You said-- we were talking
a little bit ago and as you
basically made it clear, you
like to go by date, November
20. And on
that you sent Adam
Hernandez, that you picked him, to send
him up?
A I told you in the
conversation that I sent one of my
associates in one of my cars
to pick her up. Okay.
Q Okay. We recognize now
that a couple months after the
November 20th interview,
yes, you are saying-- you're
saying now that instead of
telling Jodie she hit her head
if she thinks you're going
to go pick her up at
what you're telling the
police is that you sent one of your
associates, Adam, to
A Yeah. I didn't go. Right.
Q You did not go. You sent
Adam Hernandez to go?
A Right.
Q And that you were aware
that Adam's last name was
Hernandez?
A (nodding in the
affirmative)
Q Now, is it still your
testimony at this point that you
sent Adam Hernandez to
A I think so. That-- if
that's what is wrote down there.
Q Okay. Well, let's maybe
use your own memory or your own
recollection a little bit on
that. What is-- what do you
remember about that now?
A I don't remember.
Q Okay. So now you can't
remember whether you sent someone
to pick her up?
A That's right.
Q Now, about
police that you wanted to
end the interview. And at that
time they took you back to
the
Now, the next morning,
getting this from the
report, you were interviewed by the
police again. And the police
talked to you for about an
hour and a half and then
they didn't really write too much
in the report about what you
said, but, at about twelve
o'clock, you were taken out
to the
again, a second time. And
you were, again, taken to the
parking lot. So, do you
recall that? You at least were
taken to the parking lot in
front of the
more than one occasion?
A I don't remember.
Q So this happened on
year and two months later
now and you really don't have any
recollection of whether that
happened or not?
A That's right.
Q Have you used-- do you
think that any drugs that you may
have used since that time
may have affected your memory
somewhat?
A I was in incarceration
since that time /-FPLT and in a
drug treatment program since
that time so I don't see how I
could have used any drugs
that would have altered my
memory.
Q Okay. What was that time
that you ended up doing five
days in the
A A dirty UA, yes.
Q What does a dirty UA mean?
A Use of drugs.
Q Okay. About what time did
that happen?
A I don't remember.
Q Okay. But you recall that
one time when you were on your
probation you used drugs?
A I think it was March,
maybe.
Q Okay. Would that have been
1990?
A 1991.
Q 1991. So that was just a
couple months ago then?
A Yeah. This is May.
Q Now, on
again at the
that you could at least
remember the police had quite a few
interviews with you?
A Yeah, I do recall they had
quite a few interviews with
me. I don't recall the dates
and the times, no, I don't.
Q Okay. And at the interview
just the day before, which was
present /-FPLT?
A If that's what it says.
Q That's what it says. So,
at that point you had your
attorney with you. And I
assume he advised you to tell the
truth, is that correct?
A I don't recall the
conversation to tell you the truth.
Q Okay. Now, after the
January 22nd interview, and in this
particular report they
really don't use specificity too
much about what you actually
said, they transported you
back to the
in jail for a couple days.
And they came back on January
24th, 1990, and they again
picked you up at the
County jail and they
transported you to the State Police
District II headquarters.
And during that interview, you
told the police that
although previously you said you had
been with Frank Gable
earlier in the day, what the report
states /-RBGS is you did, at
that time, admit that you had
been untruthful about having
been with Gable earlier in the
day. So now in that January
24th report, basically, then you
were telling the police that
you were lying about being
with Frank Gable earlier on
the day of the 17th, is that
correct?
A If that's what it says.
Q That's what it says. You
told them that. You were lying
about that. Would it be fair
to say that you thought that
that statement that you had
been with Frank Gable earlier
in the day would make the
State Police more likely to
believe the story you were
telling them?
A I don't recall what was
going through my mind at the
time.
Q Now /-RBGS we're coming up
to-- it's
24th, 1990, and, at that
time, the report states that
Sergeant Salle and another
officer again drove you around
the area of the
A I don't recall it. No, I
don't.
Q But it wouldn't surprise
you that they took you out there
again to take a look at the
A If that's what it says.
Q That's exactly what it
says. Now, would it surprise you,
Mr. Harden, that you had
been taken out to the Dome
Building to look at the
grounds prior to ever being shown
an aerial photo in this
case?
A I seem to recall-- I don't
remember exactly when it was
they showed me the pictures.
Q Okay. Well, according to the
reports, on January 20th
they took you out to the
grounds. And, according to the
same reports, after they
took you out to the hospital
grounds, they then showed
you an aerial photograph?
A Doesn't say they showed me
any before that?
Q No, it doesn't?
A So they may have or they
may not have.
Q So what the report is,
though, is that you were taken to
the grounds, shown the
grounds, and then, after you saw the
grounds, then you saw the
aerial photograph?
A I don't know. I wasn't
doing the investigation.
Q Okay. So it wouldn't
surprise you, though, if that was
the sequence of events?
A I don't know.
Q Now, did you really drive
back and forth by the state
hospital fifteen or twenty
times a day?
A At least that many times.
Q Would it surprise you that
when you gave a statement to
the police on
you drove by the state
hospital about twice a day?
A I don't recall. If that's
what it says, I must have said
that to them.
Q Okay.
A I lived on
is located.
Q Okay. And so now you're
pretty-- but you have got your
own recollection that you
drive by the hospital at least
fifteen or twenty times a
day?
A I was just giving a figure
to them. I couldn't tell
exactly. Can you tell me how
many times you drive by a spot
during a day?
Q I'm not going to pin you
down and say did you drive by
seventeen times. Ballpark,
though, you think fifteen or
twenty times is pretty
accurate?
A It depends on the day, how
much dope I was selling.
Q So the more dope you were
selling, the more times you
would be driving by the
hospital?
A That's right.
Q Now, in the same January
21st statement /-RBGS that you
made to the police /-RBGS
you told them that Jodie
Swearingen was about
seventeen years old. Do you recall
that?
A If that's what it says.
Q That's what it says. And I
guess what that would mean is
at least at that time you
knew that Jodie Swearingen was
under the age of eighteen.
Would that be fair to say?
A I guess.
Q Okay. Can you think of
anyone-- any way that that would
mean that she wasn't under
the age of eighteen?
A I don't see where it
matters.
Q Do you think that there is
any problem with somebody that
would want to have sex with
somebody that is not an adult?
A Depends on the two people.
Q So it might not be a crime
in your mind?
A I don't know.
Q Now, in the
asked you where did you
park, do you remember? And your
statement was, at that time,
is not really precisely
exactly where I parked at.
Do you recall making that
statement?
A Is that what it says.
Q That's exactly what it
says.
A I don't recall making it,
no.
Q Okay. But it wouldn't
surprise you if you told the police
that you didn't remember
where you parked at that time?
A Anything I told the police
at that time wouldn't surprise
me.
Q Were you on drugs at that
time?
A What was the date?
Q This was
A Not unless they were given
to me without my knowledge
while I was in jail.
Q Is it possible you were
coming down from drugs at that
time?
A No.
Q You weren't using drugs
then?
A In jail, no.
Q Let's just step back just
a little bit prior to going to
jail on
A Yes.
Q Were you using drugs then?
A Yes.
Q Okay. Would it be fair to
say that you were using them
just before you had been
arrested?
A It's fair to say.
Q Okay. Now, you stated in
that statement that when Jodie
Swearingen called you to
pick her up, you didn't have any
problem at all with picking
her up, is that correct?
A Which statement? Picking
her up where?
Q
A Picking her up where?
Q At the
A I guess not. If that's
what it says.
Q Okay. Now let's try to go
back a little bit on your own
recollection, if-- if you
have any. And do you have any
recollection as to whether
or not you would have had a
problem picking up Jodie
Swearingen at the
Hospital?
A What do you mean by a
problem?
Q Do you think that it would
have been a burden on you?
A It was an inconvenience,
yes.
Q Now again, and I'm very
carefully stating what-- which
statement so that we don't
lose track of ourselves and the
time we're at,
it's
talking to the police /-FPLT
about where you were parked
when you told the police
what you say what you saw.
A What did it say I saw when
I was parked there?
Q Well, Mr. Harden, I'm
going to ask you a number of
additional questions and
when we get to that area, I'll ask
you those things.
A I just wondered.
Q Right now what you're
telling the police is about how far
away you were. The first
thing that you say was that you
were approximately one
hundred yards away. It wasn't very
far away at all. And the
police officers that was--
questioned you then
stated,"Now when we pulled out there
earlier today, I don't think
that is a hundred yards across
there." And you
stated,"Maybe fifty yards. I know, you
know, it's hard to
guess."
A Well, I'm not an expert at
judging distance, so I
couldn't tell you.
Q Okay. So, when you're telling
the police basically you
were guessing?
A Probably. If that's what
it says.
Q And it appears that when
you were out there maybe you had
a chance to revise your
distances a little bit, is that
possible?
A I don't think so.
Q Now, going back to what
you recall today, do you recall
seeing Michael Francke
inside the car itself?
A No.
Q Would it surprise you that
back on
during that interview that
happened after
the police asked
you,"But you saw Francke inside the car?"
And your response
was,"Yes, I did."
A I think they meant Frank
at the time.
Q And that is despite the
fact that they used the name
Francke when they asked you
the question?
A When you're asked a lot of
questions, Frank and Francke,
you know, when you're talking
about two people the names
sound a lot alike, I may
have said it.
Q It would have been pretty
easy for you to get mixed up,
huh?
A About the names, yes.
Q And during that same
interview /-RBGS they asked you this
question. They
said,"You said you had the window rolled
down about six inches, do
you know if you were looking out
through the open area or you
were looking through the
glass?" And you stated
at that time,"I don't recall. I
can't remember if I was
looking out the crack, the crack
was like half the window
anyway." So, if that's what the
statement says, then, that
is what you said on that date,
is that correct?
A Yes.
Q And, again, and this is
that same interview, January
21st, and you were talking
about Francke, not Frank Gable,
and it said,"Could you
tell if he fell into the car or away
from the car?" And your
response was,"I couldn't tell. The
door was open, and I assumed
he fell forward. Well, he fell
more or less on Gable
himself." Does that accurately
reflect what you told the
police that day?
A If that's what is wrote
down there.
Q Now of course that could
easily change in later
interviews, is that correct?
A I don't know.
Q Okay. Well, because your
story was kind of continually
changing interview from
interview, would it be fair to say
that?
A I don't know.
Q Okay. Well, if the
interviews themselves show that, would
you agree that your story
changed quite a bit?
A Everything but what I told
them I seen.
Q So then it would be your
testimony today that nothing
that you said that you saw
changed in any of your stories?
A Not what I seen.
Q Your Honor, I'm going to
spend some additional time with
Mr. Harden. Does the Court
feel that a break is appropriate
at this time?
THE COURT: We'll do it.
(jury out) /TPHOU
MS. MOORE: Can counsel approach
the bench?
THE COURT: Sure.
You may step down.
(recess) 3:15-
IN THE CIRCUIT COURT OF THE
STATE OF
FOR THE
THE STATE OF
Plaintiff,
Vs.
FRANK EDWARD GABLE,
Defendant.
BE IT REMEMBERED that,
pursuant to notice duly given to all
parties in interest, the
above-entitled cause came on
regularly for Trial, in the
Circuit Court of the State of
23, 1991, the Honorable Greg
West, presiding.
Ms. Sarah Moore, Deputy
District Attorney, appeared on
behalf of the plaintiff.
Mr. Thomas Bostwick, Deputy
District Attorney, appeared on
behalf of the plaintiff.
Mr. Robert Abel, Attorney at
Law, appeared on behalf of the
defendant.
Mr. John Storkel, Attorney at
Law, appeared on behalf of
the defendant.
BONNIE MALLOW, RPR, CSR
(Ore/Cal)
Official Court Reporter
Phone: 588-5138
TESTIMONY OF CAPPIE CLIFFORD
HARDEN
Direct Examination 3
Question in Aid 16
Direct Examination-
continued 17
Cross Examination 27
ReDirect Examination 95
I, Bonnie Mallow, do hereby
certify that I am a duly
appointed and acting
official court reporter for the Third
Judicial District of
capacity during the hearing
of the foregoing cause.
I further certify that the
proceedings were taken down by
me in stenotype and
thereafter reduced to typewriting under
my direct supervision, and
that the foregoing is an
accurate and complete
transcript of all portions so
requested.
IN WITNESS WHEREOF, I have
hereunto set my hand in the City
of
day of, 1991.
Bonnie Mallow RPR, CSR
(Ore/Ca)
Official Court Reporter
Registration No. 065743
THE COURT: Why don't we have
Mr. Harden return to the
witness stand, please. And
you're still under oath. And the
jury, please.
(jury in) 3:55
THE COURT: Please continue.
MR. STORKEL: Thank you, Your
Honor.
Mr. Harden, earlier you
stated that you got a general
discharge from the Marine
Corps. Could you tell us why you
got a general discharge?
THE WITNESS: Because I was
doing time in the county jail.
MR. STORKEL: And what was
that for?
A I was on an Assault
charge.
Q So then it would be
accurate to say that you got that
discharge because of
criminal conduct while you were in the
Marine Corps?
A No. I think it's specified
unable to adapt to military
life. I think that was the
exact heading under my general
discharge.
Q I see. And that stemmed
from that criminal charge?
A No. I was AWOL at the
time.
Q I see. And then from-- in
1988, you came to the
area, is that correct?
A One time, yes.
Q Okay. And at that time one
of the things you were doing
was buying and selling cars?
A Yes.
Q And also at the same time
you were selling
methamphetamine?
A Yes.
Q Did you use the cover of
buying and selling cars as a way
to show that you had some
legitimate income?
A No.
Q It was just something that
you just did a long with
selling methamphetamine?
A Yes.
Q And it's your testimony
that at no time you ever gave
Jodie Swearingen any dope,
is that correct?
A To my knowledge, no.
Q Now this is specifically
in relation to you, is there
some way you could have
given her dope without your
knowledge?
A No.
Q Okay. Now, in the earlier
part of your testimony /-RBGS
you stated that the reason
that you remembered Frank Gable
is that you make a habit of
remembering the faces of rats
or informants, is that
correct?
A I-- people I thought were,
yes.
Q Okay. So if you suspect
that somebody is, then you try to
remember their face?
A That's right.
Q And did you suspect that
Mr. Gable was a rat or in
informant?
A Yes, I did.
Q What do you think of rats
or informants?
A Not a whole lot.
Q Do you think they're some
of the worst people around?
A I wouldn't say that.
Q Okay. More specifically,
would you say-- not a whole lot,
what are your thoughts about
that?
A Not a whole lot about
what?
Q Well, you stated just a
moment ago that you don't think a
whole lot of someone that is
a rat or an informant?
A I don't think highly of
them.
Q Okay. Then you would have
a low opinion of somebody?
A I really don't-- I guess
you would say that, yeah.
Q Now, you said that you had
privately retained an attorney
to represent you, is that
correct?
A Yes.
Q And what is his name?
A John W. Jensen.
Q Prior to testifying /-RBGS
in court today, did you or
your attorney work out some
type of understanding with the
District Attorney's office?
A An understanding? What do
you mean by that?
Q Did you come to some sort
of an agreement?
A Agreement about what?
Q For instance, whether or
not you yourself could be
prosecuted for any crimes?
A No.
Q Okay. You have absolutely
no agreement with the District
Attorney's office?
A No, I don't.
Q Did your attorney, John
Jensen, work out any type of
agreement with the District
Attorney's office on your
criminal charges?
A No, he has not.
Q At the time your criminal
charges of Possession of
Controlled Substance,
Failure to Appear, and your probation
violation were pending, did
your attorney John Jensen
negotiate with the District
Attorney's office?
A I can't speak for him, no.
Q Okay.
A I don't know. You would
have to ask him that.
Q So, did you think that you
had any kind of agreement with
the District Attorney's
office when you went in to court
and plead guilty to those
charges?
A Just the standard plea
agreement to drop the two for the
other two.
Q So, you recall now that
you did have a plea agreement
with the District Attorney's
office?
A I guess you would call it
an agreement. Just a standard.
I have had cases before, no
different than any other case
that I have ever been in
front of.
Q Right. And so it would be
your understanding from your
prior experience with the
system that you pled guilty to
some charges and you had
some charges dismissed?
A That's right.
Q And what were the charges
that you had dismissed?
A A Possession of a Firearm
that was found in the building
I was in, and a Delivery
charge.
Q Okay. So they dismissed a
charge where you had-- there
was some evidence that you
delivered controlled substances,
drugs?
A They never produced no
evidence. No. Mine was a house
raid. It was not a
controlled buy or anything like that,
no. They just raided my
house and found drugs there and
they just stuck me with
everything they could when they
arrested me. Standard
procedure.
Q Okay. Do you think that
there would be any possibility
that the District Attorney's
office would charge you with
any of the deliveries that
you're admitting on the stand
today?
A I don't know.
Q Do you recall your
attorney working out any kind of
agreement regarding the fact
of whether or not you would be
prosecuted for anything that
you told the State Police
about what happened on the
hospital grounds?
A I don't recall that. No. I
don't-- you'd have to ask my
attorney something like
that.
Q Okay. Would you be
surprised if you learned that you
weren't going to be
prosecuted for any statements that you
had made to the police about
what you're saying happened on
the hospital grounds?
A Yes.
Q What do you understand
your agreement to be?
A What agreement?
Q Do you understand that you
have any agreement whatsoever
with the District Attorney's
office?
A About what?
Q About any type of
prosecution on any charges?
A Pertaining to?
Q Pertaining to this case?
A I don't know.
Q Now, Mr. Harden, I would
like to review a few things
because some things that you
have told us today, we want to
make sure that we understand
exactly where you're coming
from. First off, now, you're
absolutely positive that you
never had to see a picture
to recognize Frank Gable when
the police talked to you in
the fall of 1989, is that
correct?
A What do you mean? No, I
don't need a picture, no.
Q Okay. And it's your
recollection that they didn't show
you any picture of Frank
Gable, is that correct?
A I don't remember it, no.
Q And, in fact, would it be
your testimony that you would
deny ever having seen a
picture of Frank Gable during that
interview?
A Without knowing for sure,
I couldn't deny or admit to
anything.
Q Okay.
A Without knowing for sure.
Q Okay. Now, when you said
that Frank gave you a ride home
from the Bender's one time
in a maroon colored
that the truth or was that a
lie?
A That was the truth. I
didn't say he gave me a ride home.
I said he gave me a ride to
a friend's house, if you will
think, because, in fact, he
dropped me off on
and Commercial.
Q So then /-RBGS if you told
the police that Frank gave you
a ride home from the
Bender's one time in a maroon colored
A Yes. If I said home, yes.
Q You said a ride home from
the Bender's, so that was a
lie, then?
A Yes. I lied to them
numerous times.
Q You said that you gave two
dollars to Frank Gable for
that ride home. Was that the
truth or was that a lie?
A I don't recall to be
honest with you.
Q So, really the truth would
be that you have no idea
whether you gave Frank Gable
any money for that ride or
not?
A That's right.
Q Now, on
that you-- well, first off,
let me ask you a question so
that you know who I'm
talking about and so I know who I'm
talking about. You
said,"Janet." When you would be
referring to somebody named
Janet, who would that be?
A That would be Frank
Harmon's sister.
Q And how long did you know
Janet?
A At that time not very
well.
Q Have you gotten to know
her better since then?
A I wouldn't say better, I
would say more.
Q Okay. On
you remembered that Janet
had moved out of John and Kelly's
place /-RBGS the first time
that you met Frank Gable /-FPLT
after the
Salem Police Department. Is
that the truth or is that a
lie?
A I don't recall.
Q Okay. So, then the truth
would be-- is you don't really
remember the first time that
you met Frank Gable?
A No. The truth is the first
time I met Frank Gable was
that night when he gave me a
ride home.
Q Had-- you just said a
moment ago-- and correct me if I'm
wrong, just-- didn't a
moment ago you say that-- you said
that Mr. Gable didn't give
you a ride home, he gave you a
ride to your friend's house?
A Well, a ride. I'll put it
a ride. In fact, he gave me a
ride to Woody's house
because he lived there, but I didn't
let him take me all of the
way to the house. I had him drop
me off on a corner because I
didn't trust him.
Q I see. So now instead of
what you told the police on
November 20, you remember
now that you were dropped off on
a corner?
A At
Q Okay. And in regards to
that statement /-RBGS where you
told the police a date when
you first met Frank Gable, now
you can't remember the date
when you first met Frank Gable,
is that correct?
A I can't put a date to that
night, no.
Q Now, on November 20th you
said that the second time that
you saw Frank Gable was a
few months ago /-RBGS at a guy's
house near 16th and
that a lie?
A That was a lie. I told
them a lot of lies.
Q We understand that. And
then right after you made that
statement, then you said the
guy's name is John, and he
drives a green Nova, and
John lives near smelly Shelli. And
you said that you saw Frank
Gable getting a beer from
John's refrigerator. Would
that also be a lie?
A Yes.
Q Previously you stated that
you didn't know whether or not
Jodie Swearingen was
eighteen years old. Was that the truth
or was that a lie?
A At which time did I know
she was that age or not.
Q Today?
A I know it today, yes. I do
know it today. But back then,
did I know it? I don't think
I did.
Q Okay.
A She didn't look eighteen.
I mean, come on.
Q When you-- when you said
that you had had sexual
intercourse with Jodie
Swearingen a couple of times, was
that the truth or a lie?
A It's the truth.
Q To your knowledge, did
Jodie Swearingen have sex with
people for drugs?
A I don't know what her
social life was. I can't say.
Q Okay. You have no idea
about her social life?
A No.
Q Okay. When you told the
police that you had known Ms.
Swearingen for about a year,
was that the truth or was that
a lie?
A Yeah. It's the truth.
Q Okay. And during that time
you didn't learn anything
about her social life?
A I don't know the social
life of every girl I go out with.
I go out with quite a few
girls.
Q Now, in your
that Jodie was screwing
everyone and you think that Jodie
has a boyfriend named Ron.
Was that the truth or was that a
lie?
A Truth.
Q Would that be some
knowledge about her social life?
A Just a statement made. Not
knowledge, I didn't say it for
a fact. I just said-- I just
made a statement.
Q Now, when you told the
police on
that Jodie called you at
your mom's place and wanted you to
drive to Jodie's dad's house
in
to
have hit her head if she
really thought that you were going
to drive to
a lie?
A I told her she must have
bumped her head if she thought I
was going to go get her.
Yes, I did.
Q So then that was the
truth?
A Yes.
Q And that's when she called
and asked for a ride?
A Earlier in the day, yeah.
Q When you told the police
that, again, on November 20th,
1989, that you didn't
remember if Jodie Swearingen and
Frank Gable had been at John
and Kelly's house at the same
time, was that the truth or
was that a lie?
A I don't recall.
Q So, would it be your
testimony today that you have no
recollection of whether or
not you saw them there at the
same time?
A No. I'm saying I don't
recall telling the police that.
Q At this time, do you have
any recollection about that?
A Not right now, no. I don't
recall.
Q When you told the police
that you had a large knife
collection, was that the
truth or a lie?
A Well, it's the truth. They
still have quite a few knives
of mine in evidence right
now.
Q So then the police seized
a lot of your collection?
A A little better than three
hundred, I think.
Q When you told the police
that you didn't trade or sell
knives, was that a lie or
was that the truth?
A What do you mean trade or
sell for them or give them
away?
Q To give them away?
A At that time, no.
Q So, your practice would
be, although you would accept
knives from people, that you
wouldn't give any knives away,
is that correct?
A Not the ones I wanted, no.
Q When you told the police
on
dropped off Jodie Swearingen
in
talk with Ron Bissonette,
was that the truth or was that a
lie?
A That was a lie.
Q When you told the police
that you had heard talk on the
street about the Francke
murder, was that the truth or a
lie?
A It was the truth.
Q And it would be your
testimony today that you don't
remember the date of the
first time that you met Frank
Gable, is that correct?
A The date, no.
Q When you told the police
that John Bender was involved in
the murder of Michael
Francke, was that the truth or was
that a lie?
A That was a lie.
Q Now, you told the police
that you thought you had
obtained the murder weapon
that was used to kill Michael
Francke from John Bender,
was that the truth or was that a
lie?
A It was a lie.
Q Now, it is true that you
were giving the police
information about what you
were saying you knew about the
Michael Francke homicide, is
that true?
A I lied to them a lot.
Q Okay. About what you knew
about the homicide, correct?
A Well, I had lied a lot
about what I did, but not what I
seen that night. I did see
Frank Gable stab Michael
Francke.
Q Now, as we move on here,
you say-- you said previously
that you had seen Jodie
Swearingen talk to Ron Bissonette
/-RBGS in the parking lot of
the Safeway in
you previously stated that
that was a lie. So, that part of
what you told the police you
had seen was a lie, is that
correct?
A That's right.
Q So you did lie about some
of the stuff that you told the
police that you had seen?
A I lied about a lot of
things /-FPLT I told the police.
Q Did you, when you told the
police that you would tell
them where the knives that
you had obtained from John
Bender could be located, was
that the truth or was that a
lie?
A That was a lie so I could
go to the two houses I went to,
to let the people know I was
in jail, to take care of my
stuff.
Q So you kind of worked the
police to your advantage there?
A Yes, I did at that time.
Q Were those people actually
there?
A The people at the house?
Yes, they were.
Q So then they did find out
that you were in jail, to take
care of your stuff?
A That's right.
Q Did you have a chance to
tell them to take care of your
stuff?
A Yes.
Q Now, at
of your rights and signed a
standard rights card, and do
you have any recollection of
that? That they advised you of
your rights when they were
asking you these questions?
A I don't recall.
Q Now, this is again on
after the homicide. You
stated to the police that the
information you were giving
was truthful. And you stated
you were not at the murder
scene, that you just heard about
it, and retold your previous
accounts of hearing it /-RBGS
through Jodie Swearingen and
your friend Frank Harmon, and
persistently maintained that
you were not at the murder
scene. Now, despite the fact
that you were reiterating to
the police that the
information you were giving was
truthful /-RBGS and
persistently maintaining that you were
not at the murder scene, is
that the truth or was that a
lie?
A That was a lie.
Q Now you do have an actual
recollection that you were
taken out to the
parking lot, is that
correct?
A Yes.
Q And you, when you told the
police that you couldn't
remember precisely where you
were parked, was that the
truth or was that a lie?
A Which time?
Q On
A I don't recall.
Q So would it be fair to say
at some point in time you told
the police you didn't
remember where you parked?
A I don't think-- I don't
think I told them that. I don't
know. I can't tell you. I
don't remember.
Q Okay. So you don't
remember whether you remembered where
you parked or not?
A I don't recall. I don't
remember making a statement to
them whether I didn't
remember where I parked or not.
Q Now, when you later told
the police on January 20th,
1990, that you sent Adam
Hernandez to
Jodie Swearingen, is that
the truth or was that a lie?
A That I had sent Adam?
Q Yes?
A That was the truth.
Q Okay. So, you're saying
that you recall that you did send
Adam Hernandes to
that correct?
A I recall telling them that
I did, yes.
Q Do you recall that that is
what actually happened?
A I don't remember.
Q So now you don't have any
independent recollection of
whether you did that or not?
A Whether I sent Adam? No, I
don't.
Q So, as far as that is
concerned, you just don't have any
idea?
A That's right.
Q At the time you told the
police that, did you think that
was true or did you think
that was a lie?
A I don't remember. I don't
remember what I was thinking
that day.
Q Now, at some point you
tried to-- you quit lying to the
police and-- and you started
telling the truth, is that
correct?
A Yes.
Q Would it be fair to say
that in-- by the time we got to
February /-RBGS of 1990,
that you were no longer lying to
the police but you were
telling them the truth?
A The only statement I can
say for sure was not a lie to
the police was the one I
signed.
Q So, it is very possible,
then, that in any report /-RBGS
that you gave to the police
you might have been lying?
A Yes.
Q On
sent Adam Hernandes to
and that Adam Hernandes
drove your Chevrolet short van that
is gold in color with
when you told the police
that statement, again, on March
/-RBGS 15th of 1990, do you
recall whether that-- whether
or not that was the truth or
that was a lie?
A Like I say, I can't really
tell you because I can't
really remember whether I
did or not. I told you that a
minute ago. I don't
remember.
Q Yeah. This is a second
time that you told the police
this, and later on in your
relationship with them. I wanted
to see if that jogged your
memory at all.
Now, you, of course, have
been driven out to the parking
lot on more than one
occasion by the state police on the
recollection of what the
parking lot looked like on January
17th, 1990? Or not 1990, on
A What do you mean as to
what it looked like?
Q Could you describe it?
A It looked like any other
parking lot. It's round. It has
an island in the middle.
There is two of them, a driveway
on each end plus an access
to the parking lot. I do asphalt
for a living. It's a parking
lot. It's what I do for a
living. It's striped, it has
poles in it in front of some
of the parking stalls with
names on them. What else would
you like to know?
Q And did you see what some
of those names on the parking
structures were when the
police took you out to the
A I don't recall noticing
now.
Q But you might have noticed
but you just don't recall?
A No. To this day, I don't
think so, no.
Q Okay. So to this day you
don't really recall what any of
those signs say?
A No. I don't know what any
of them say.
Q Do you recall it being
light or dark?
A It was dark.
Q Okay. And what do you
recall about cars in the parking
lot?
A They were parked.
Q And now-- you have stated
that you recognize different
types of vehicles, is that
correct?
A Yes.
Q And so you're not likely
to forget what a car looks like,
is that correct?
A Well, I can't say that for
sure. People forget a lot of
things, you know. I can't
tell you exactly for sure what a
car looked like.
Q Can you describe the car
in the parking lot beside the
car that you saw in the
photograph today?
A I think there was a blue
one sitting next to it, four
door. About the same make, a
little bit older maybe on the
other side of it.
Q Do you recall anything
else out in the parking lot? Just
the parking lot in general
or--
A Just Frank.
Q Any cars that were there?
A No. Like I said, the only
thing that drew my attention
was the light coming on.
Q About what time do you say
that you were there?
A It was after six-thirty
because my mother plays bingo
every night and I had
already given her money to go to
bingo.
Q She plays bingo every
night?
A She makes a practice of
it. Not every night but-- not
every night, but regularly.
She is a bingo junky.
Q And what time-- if you
were trying to recall,
approximately what time do
you think it was?
A Around
Q Okay. Do you recall
talking to the police about what time
you were there?
A No, I don't. I think I
told them a couple different
stories.
Q Okay. Did the police tell
you that they had evidence
about what time you were
actually there?
A I don't recall.
Q Wasn't it true that one of
the things that caused you to
talk to the police was that
you knew that they were telling
you things that led you to
believe that you couldn't fool
them?
A No. They just provided
enough evidence in my eyes to let
me know that they weren't
lying and they knew that I was--
Q So they gave you
information that let you know you were
lying, right?
MR. BOSTWICK: Your Honor, I
think I'm going to object to
this particular area. I
would ask that the jury be taken
out and discuss it with the
Court.
THE COURT: Let me ask Mr.
Storkel if he is going to
continue in the area. If he
is, we'll have to do that, I
guess.
MR. STORKEL: Your Honor, I
think I can just move on to
another question.
THE COURT: All right.
MR. BOSTWICK: Thank you,
Your Honor.
THE COURT: You're welcome,
Mr. Bostwick.
MR. STORKEL: Now, in
February of 1990, you told the police
that Jodie Swearingen jumped
in your car from an unknown
direction. Earlier this
afternoon you testified that you
now recall what direction
she came from, is that correct?
THE WITNESS: That is
correct.
MR. STORKEL: And what
direction do you recall?
A She approached my car from
the rear.
Q Now, isn't it true you
told the police that it was just
coincidence that you
happened to pull into the right lot at
the right time to pick up
Jodie Swearingen?
A That's right.
Q You just kind of got lucky
about that?
A She got lucky. She is the
one that got the ride.
Q I see. Now, when you were
in the parking lot, what did
you think that the building
that is located next to the two
lots was called?
A I had no idea.
Q What do you think that the
building next to those two
lots is called now?
A Well, later, I learned it
was called the
Q Okay. How did you learn
that?
A It has been public
knowledge for quite a while. I think
most people in
Building until this case
came about.
Q Now, when you gave the
police your statement /-RBGS on
phoned you at your residence
to come and get her, and that
it had taken you twenty to
thirty minutes before you
arrived at the
truth or was that a lie?
A Which part? It took me
that long to get there.
Q Did it take you that long
to get there?
A Yeah.
Q And what part of that
statement is-- you seem to be
indicating that part of that
statement was a lie, what part
would be a lie?
A I just was clarifying your
question. That's all I was
doing.
Q Okay. And about how far do
you live from the
Hospital grounds?
A Right now or then?
Q At that time?
A Oh, I would say maybe two
and a half miles.
Q Okay. And are there city
streets that you would normally
drive on to get to the
A Straight up
Q Okay. And you just told us
that it took you about twenty
to thirty minutes to go
straight up
A No. I said it took me that
long to get there. I didn't
say it took me that long to
drive there. I didn't drop what
I was doing and run. I was
doing other things. As a matter
of fact, she had to call me
twice to come and get her.
Q Now, when you told the
police that you arrived at the
A At that time it had been
called the
every interview that I had,
so I pretty much assumed that
that's what it was called.
Q Okay. So that's something
you learned while you were
being interviewed?
A I don't know if I learned
it while I was being
interviewed or in the paper
or when I learned it. It just
became knowledge to me.
Q Okay. Your Honor, I would
ask that Mr. Harden be handed
exhibit 605, defendant's
exhibit 605.
Go ahead and examine the
letter, Mr. Harden.
A I have.
Q Have you examined it?
A Yeah.
Q Do you recognize that
handwriting?
A Yes. It's mine.
Q Okay. And who did you send
that letter to?
A My nephew.
Q And what is your nephew's
name?
A Richard Swaim.
Q And is-- does that appear
to be a true and accurate or
does that appear to be
actually the original letter that
you sent to your nephew,
Richard Swaim?
A It seems to be. It has my
handwriting on it. It's not a
copy.
Q Okay. About when did you
send that to Richard Swaim?
A I don't know. I wrote a
lot of letters to a lot of people
when I was in jail.
Q Okay. Do you remember what
year you wrote it?
A 1990 or'89. I don't know.
Q Do you remember what month
of 1990?
A No, I don't.
Q Your Honor, I would ask
that defendant's exhibit 605 be
admitted into evidence at
this time, and ask that it be
shown to the state so they
may examine it.
MR. BOSTWICK: I think we
have seen it, Your Honor. We have
a copy. We have no
objection.
THE COURT: Be admitted.
MR. STORKEL: I would ask
that-- did they hand the letter
back to you?
THE WITNESS: No.
MR. STORKEL: I would ask
that the letter be handed back to
Mr. Harden.
Mr. Harden, I would ask that
you go ahead and read that
letter outloud to the jury
at this time.
THE WITNESS: This whole
letter?
MR. STORKEL: Yes?
THE WITNESS: It's kind of
like my private thing to my
nephew. Do I have to read
the whole thing?
MR. BOSTWICK: I object to
that. The letter speaks for
itself.
THE COURT: The letter speaks
for itself. If there is a part
that you would like to
discuss with him at this point in
time, I would let him read
that part or talk about that
part.
MR. STORKEL: I'll do that,
Your Honor.
THE COURT: All right.
MR. STORKEL: Now, the
beginning of the letter states-- and,
of course, you're probably
better at reading your
handwriting than I am. It
appears to say,"Hey, Swinging
Swaim," is that
correct?
THE WITNESS: Yes.
MR. STORKEL: Is that kind of
a nickname for your nephew?
A Yeah.
Q And now, you say at-- it's
on the first page, you go,"I
know it has been a long time,
but you know how it is on
the run. Hey." From
that sentence, would that
give you any idea about what
time you wrote this letter?
A No.
Q Do you think that it's at
a time after you were picked up
on the warrants by the
police on January 18th of 1990?
A I would assume so.
Q Okay.
A Sometime after that, yes.
Q Okay. And that is because
at that time, then, you were
put in
A That's the only time I
ever wrote any letters is when I
was in jail.
Q Okay. And then, again, you
state that they have you on
Ex-convict in Possession of
a Firearm, Possession of
Methamphetamine, Delivery of
Methamphetamine and Failure to
Appear. And then--in the
first degree. Okay. With a PV,
too. Back it all up in
have is Possession of Meth,
residue on a scale.
So, in that section are you
telling your nephew what
charges you're being held
for in the jail?
A Yes.
Q Okay. And that was in
January of 1990, is that correct?
A (No response)
Q You were being held on
those charges?
A I was being held from
January, 1990, to July of 1990,
yes. I was being held at
those months.
Q Okay. And then at the
bottom it says, but it was-- and
then it goes--
A But it was Procane.
Q Procane. I didn't
understand what it was. What is
Procane?
A It was an over the counter
drug they sell.
Q Okay. So that would lead
you to believe, then, that that
would be something that
would be legal for you to possess,
is that correct?
A That's right.
Q Now, in the next section
you state-- well, the next
section basically you're
making a statement. Why don't you
go ahead and just read that
sentence and then I'll ask you
a question about it? At the
top of the second page. Read
the first sentence.
A"fuck all that rat shit.
The people taking it had better
look in the mirror."
Q And keep going because I
think the way I read it that
would be just part of the
sentence?
A"because I have the
State Police giving me people that
have given my name up and
didn't want me to publish." I had
no list, but that's the
point you're getting at. No, I did
not have a list of people. I
just had names that were given
to me that people said this
and people said that. I was
high-siding, you know.
Q Okay. Uh-huh. And who--
but you were actually-- who were
you actually giving that
information about, the list of
names from?
A I had no list. I was just
going by names that they had
said that people-- this
person said this or that person
said this.
Q Okay. Who is "they?"
A The State Police.
Q And then moving on to the
next statement, again, it's
hard to read your
handwriting. Go ahead and read the next
sentence and then I'll ask
you a question about that?
A Do you want me to read the
whole letter?
Q At this point, I'm having
trouble reading your
handwriting there.
A"they want me to
testify against Frank Gable on the
Michael Francke case. They
need my testimony to make the
rat. Gable was paid by the--
who was paid by the
Police to rat, so, what do I
do /-RBGS?"
Q Okay?
A"fry a rat or
what."
Q Okay. So, when you say
"
A (No response)
Q You use--
A"pigs."
Q Okay. Not the
word"police?"
A Excuse me.
Q So, what did you-- when
you were-- so basically you were
posing a question to your
nephew as to whether or not you
should fry the rat, Frank
Gable, is that correct?
A No. I was putting a
statement as whether or not I should
testify or not.
Q I see. And that phrase
“fry a rat” which is just kind of
a figure of speech then?
A Yeah.
Q Now, the next—let’s move
on to the next page. And at the
top of that page, why don’t
you go ahead and read that first
sentence?
A “They’re offering me
freedom and cash if I testify." The
cash I was referring to was
the reward money that was
offered at the time for
information leading to the arrest
and conviction of the
murderer of Michael Francke.
Q And who
would"they" be?
A (No response)
Q I mean--
A I was high-siding. It
could have meant anybody.
Q Okay. So, basically /-RBGS
when you stated "They're
offering me freedom and cash
if I testify," that was
certainly something you were
at least thinking about, is
that correct?
A I was blowing smoke up my
nephew's ass to try to justify
my having to come here and
testify against somebody because
it's against what I believe
in.
Q Now, in the next sentence
you state,"What would you do?
Let a rat walk and do time
yourself or fry a rat and go
free to walk the
streets--"
A"without a tail."
Q"without a tail."
What does that phrase,"without a tail,"
mean?
A It's just a figure of
speech. I couldn't tell you the
frame of mind I was in at
the time I wrote this. I really
couldn't tell you. Like I
told you, I just was high-siding
in a letter to my nephew
trying to justify having to
testify.
Q And of course we're not
trying to find out exactly what
frame of mind you were in,
but let's go back to that
phrase,"without a
tail." Isn't it true that is kind of
street slang for walking the
streets without any criminal
charges hanging over you?
(Mr. Harden belched)
A Yeah. You could say that.
Without any probation or
anything, which I have.
Q Okay. Now, at the bottom
you state,"I'll get them one at
a time anyway, on the
streets /-FPLT or in here. It makes
no difference to me."
Who are you thinking of getting?
A I think if you read ahead
of that that may clarify that
statement. I'm not sure. Let
me read it. I think it's
referring to people talking
about me as a rat and me
telling them line them up
and prove it.
Q Tell them--
A I think it says line it up
and I'll prove it, fight them.
It's referring to the people
that ratted on me, saying I
was a rat.
Q Okay.
A I think that's what it's
referring to. If you read it
closely, that's what it is.
Q What you're saying is that
you would be getting the
people that ratted on you
for being a rat, is that correct?
A That don't make no sense
what you just said.
Q Okay. Let me-- it's one of
those kind of double phrases
in a sentence so maybe I
confused you.
A Do you want me to tell you
what it means to me? What I
said in the letter at that
point?
Q Yeah?
A I was telling him that I
would get everybody-- the people
that had ratted on me and
were calling me a rat, yes.
Q Okay. That's--
A Since then, I have not.
Don't even associate with them
type people any more.
Q Kind of had a change of
heart since then?
A No. A change of life style
you might call it. I'm clean
and sober now.
Q At least since March of
1991?
A Everyone messes up now and
again.
Q And then you signed
it,"Your uncle, the red rider." Is
that like your nickname?
A Another nickname I had,
yeah.
Q And then it
goes,"P/S, let me know where your dad is, I
have a ten gauge message for
him."
A Yes.
Q Did you--"P/S, let me
know where your dad is, I have a
ten gauge message for
him," what does that mean?
A Obviously what it said. At
the time?
Q Well, yeah. At the time,
what did you mean at the time?
A That I had a ten gauge
message for him.
Q What--
A As in a ten gauge shotgun.
Q I see. So, it's kind of
a--
A In other words, I don't
like his dad I think is what it's
saying, yes.
Q I see. And then, at the
end, then, after that then you
signed it,"Shorty."
And then you go,"I'm keeping the family
name, they have me in
max."
A Max.
Q So what does that
word,"max," mean?
A Maximum security for
write-ups. I had thirty-two major
write-ups while I was in
there.
Q What is a write-up? Would
you describe that to the jury,
what a write-up is?
A You get wrote up for
conduct. You know, disorderly
conduct, not doing what they
tell you to do or this and
that.
Q Mr. Harden, back when you
were using drugs /-RBGS before
January 17th of 1989, how
did you use them?
A I feel that's my own
business.
Q Did you inject the drugs?
A I still say that's my own
business, how I used them.
Q Your Honor, I would ask
that the witness be instructed to
answer the question.
THE COURT: Mr. Harden, you
were asked a question and nobody
over here has objected to
it. You need to answer it.
THE WITNESS: Yeah, I did intravenously,
yes.
MR. STORKEL: Okay. And about
how much were you using when
you injected those drugs?
THE WITNESS: Each time?
MR. STORKEL: At that time?
Yeah, each time?
A About a quarter gram.
Q That is all of the
questions I have at this point, Your
Honor.
REDIRECT EXAMINATION
BY MR. BOSTWICK: Mr. Harden,
have you had any agreements
with the District Attorney's
office in regards to any
charges arising out of the
homicide of Michael Francke?
A No, I have not.
Q You don't have any charges
pending at this time, do you,
Mr. Harden?
A No, I do not.
Q Would you say you were
reluctant to tell the State Police
you were at the scene of a
murder?
A Yes, I was.
Q You were reluctant to
testify about it? Don't you--
A Yes, I don't like being
here today.
Q Thank you, Mr. Harden. That
is all I have.
THE COURT: Do you guys want
this letter?
One second.
MR. STORKEL: Mr. Harden,
have you received a subpoena from
the defense?
MR. HARDEN: Defense?
MR. STORKEL: Yes?
MR. HARDEN: Ye.
MR. STORKEL: Your Honor, I
would just ask that Mr. Harden
be instructed that he remain
available to come in on that
subpoena. We will be happy
to contact him through the
District Attorney's office.
MS. MOORE: Your Honor, he
can also contact him through his
lawyer, Mr. Jensen.
MR. HARDEN: Through my
attorney.
MR. STORKEL: Or through his
attorney.
THE COURT: His attorney is
here in the courtroom. Does the
subpoena tell him what day
and time to be here?
MR. STORKEL: Yes.
MR. HARDEN: Yes.
THE COURT: Unless you're
instructed some other time, you
should be here when the
subpoenas tell you.
MR. HARDEN: Unless I'm told
here not to be here on the 7th,
be here on the 7th, is that
right?
MR. STORKEL: That's correct.
MR. HARDEN: Sure.
THE COURT: You may step
down.
MR. HARDEN: Thank you.
MR. BOSTWICK: We have no
further witnesses this afternoon,
Your Honor.