II Q You said something that peaked my interest. You 11 2 I said you were in jail with Mark Free i

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1 ) 1 ' i You said something that peaked my interest. You said you were in jail with Mark Free i diversion center with Mark Free? Yes, ma'am. 5 When was that? mean in the 6 went there May the 1st of May rd of the year Excuse me. 8 May the 1st of -- 9 That's when got there. He was there a couple of 10 weeks before me. Okay. ll right. 1 MS. COLSTON: Thank you, Mr. Mullinax. That's 1 all have. 1 THE COURT: nything el -Se, Mr. 0' Dell? 15 MR. O'DELL: No, Your Honor. 16 THE COURT: ll right. Step down, Mr. Mullinax. 17 Who is the State's next witness? 18 MS. COLSTON: Let me see her~. Wayne Benson. 19 ****************** 0 WYNE BENSON 1 was called as a witness by and on behalf of the State, and after being first duly sworn, was examined and testified as follows: DRECT EXMNTON 5 BY MS. COLSTON: -80-

2 ! :' ) 1 Good afternoon, Mr. Benson. Good afternoon. That's great. You sound great. Just keep speaking up just like you are. Tell the jury who you are 5 and where you live at. 6 'm Wayne Benson. live on ~ells Ferry Road in 7 Rome, Georgia. 've lived there for-ab6ut 0 years. 8 Did you use to work in Cedartown, Georgia? 9 Yes, ma'am. 10 Where did work at? worked for Builder Station. 1 How long did you work for Builder Station? 1 Thirty-nine years. 1 ll right. Were you working there, were you so 15 employed there back on January the th of 000? 16 Yes, ma'am. 17 nd what time do you generally get off of work? 18 round 6:0. 19 Okay. nd you head on back towards Rome? 0 Yes, ma'am. 1 Towards your home, Bells Ferry Road? That's correct. Was that the case on January the th, 000, sir? That's correct. 5 What -- first of all as you -- did you -- do you -81-

3 1 ' 1 1,, travel the route of Highway 7, of course, from Cedartown to Rome? Yes, ma'am. nd is that the route you traveled on the night of 5 January the th, 000? 6 Yes. 7 What is is there anything that night that first 8 caught your attention as you were driving down the road? 9 First, what kind of vehicle were you in? 10 n S-10 pickup. n S-10? 1 Uh-huh. 1 What color is your S-10? 1 Blue. 15 nd is there anything that caught your eye as you 16 were coming down the road that night, sir? 17 Well, as came around the curve there at 18 Northwest Georgia Campers, this Toyota pickup truck stopped 19 in front of me and immediately stopped. nd was 0 wondering why he stopped and there was a blue car sort of 1 darted off the road. Okay. Let me slow you down. Okay. Okay? So can make sure understand perfectly 5 everything you're trying to say. -8- '...

4 ) 1 Okay. Now don't know where the camper place is. Uh-huh. Can you give me a little.bit more than that, tell 5 me where the camper place is? 6 t would probably be haj._f a mile north of Floyd 7 College coming towards Rome. 8 Okay. 9 On the right hand side of the road. 10 Okay. Going past Floyd.college on the right hand side of the road, the camper place? 1 Uh-huh. 1 nd you saw the truck and it was in what lane? 1 t was the inside lane, traveling towards town. 15 ll right. That's the lane closest to the median? 16 No, ma'am, it was on the right hand side coming. 17 The out 'm sorry. t was the outside lane. 19 t was in the outside lan~? 0 Yes, ma'am. 1 nd the truck was in the outside lane? Uh-huh. nd you said it was stopped or almost stopped or what? 5 t stopped. -8-

5 1 ; 1! '!1 1' '!1 5 color. ) t was stopped? Uh-huh. nd what color was that pickup truck? light color. 'm not really sure about the 6 Let's talk about color for just a minute. 7 Okay. 8 re you colorblind, Mr. Benson? 9 Yes, ma'am. 10 ll right. So are you just guessing at these colors that you were seeing prett_y". much? Can you see hues? 1 don't. understand colorblindness because don't have that. 1 So can you explain to us what you see as? person who's. 1 colorblind when you look at color such as the color that 15 have on right now? What color does that appear to you? 16 Pinkish color. 17 Okay. Very good. nd the color that this 18 gentleman right here that's got t~e. jacket over his arms on 19 the front row, what color shirt does th0t look like to you? 0 Blue. 1 Blue? ll right. Let's try one more. Mr., Sutton's jacket, what color would that appear to be to you? 1 grayish color. So colorblindness, you can still tell what colors 5 are? -8-,i

6 ' "! 1 Yes, ma'am. You did real well just then. So you saw this light colored truck. Uh-huh. 5 nd it stopped in the outside lane? 6 Yes, ma'am. 7 On Highway 7 about a half of a mile north of 8 Floyd College; correct? 9 That's correct. 10 nd you said the car -- describe it, what it was doing. 1 You know, was wondering why the truck stopped 1 because the flow of traffic was pretty good right there and 1 it seemed like this blue car just sort of darted off to the 15 shoulder of the road. 16 Was it behind the truck before it darted? 17 No, ma'am, it was in front of the truck. 18 t was in front of the truck? 19 Yes, ma'am. 0 nd it darted off to the shoulder of the road? 1 Yes, ma'am. That's correct. nd what did the truck do? The truck immediately speeded up after it stopped. Okay. 5 t stopped and immediately too"k off and changed to -85-

7 :1 1 the i inside lane. So the truck was at first behind the blue car? Yes, ma'am. 5 i car? 6 Uh-huh. The blue car pulled -- it stopped behind the blue 7 nd the blue car pulled off arid...the truck went on 8 and sped up? 9 Yes, ma'am. 10 Then what did the blue car do? wasn't sure what the blue car was going to do so 1 just sat there or, you know, slowed down and it 1 immediately pulled back out into the lane of traffic. 1 Did you have to slow back to let it in? 15 Yes, ma'am, slowed down to l~t it back in. 16 Were there other cars around you, Mr. Benson? 17 There was a few passed me. 'm sure of that. 18 Okay. 19 Because we were all wondering.what was going on 0 here. 1 Okay. So there were s.everal vehicles around - - Yes, ma'am, behind. -- and a few may have passed you. Uh-huh. 5 nd then how fast were those two vehicles -86- :.

8 ) ',/ traveling or do you know?.. They sped off pretty fast. They were moving along pretty good. Okay... 5 From acceleration, they.~igked up speed pretty 6 fast. 7 t the point that the car pulled out in front of 8 you and you had to let off and let that car in, how close 9 were you to that car? 10 bout as close as am to you. nd tell me what you notided about that blue car t was just a bluish colored car. t had fancy 1 wheels on it. think it had propably been customized. t 1 had the body style of maybe a Honda. 'm not sure about the 15 make. 16 Okay. 17 But it was a low profile vehicle. 18 low profile vehicle? 19 Uh-huh. 0 How many doors did it have? 1 t was a four-door. t was a four-door? Uh-huh. nd did you notice anything else about it besides 5 it had fancy wheels, low profile. re you talking about -87-

9 '. " 1 kind of low to the ground? call it aerodynamic. Oh, okay. t was made like a Honda. t was an older model 5 Honda. t wasn't a late model Honda. 6 t wasn't a late model Honda? 7 s near as could tell, it wasn't a late model 8 Honda. 9 What do you call a late'.model v~;rsus an older 10 model? Late '90s, 000. thfrik it would be before that. 1 t would be? 1 think middle '90s. 1 Middle '90s like '95 or arpund there would you 15 say? 16 'm not sure about a moqel of a-honda but. 17 But you call it a late model -- mean, an early 18 model car something that's not a late model? 19 Yes, ma'am. 0 Something like a '95 or older? 1 Right. Yes, ma'am. Yeah.. Yes, ma'am. When you saw this car d6ing thi~~ how far away did they get from you? Well, thought to myself, ~ell, 'll catch them 5 at the traffic light and see what~~ going on and then by the -88-

10 1 i i ' 1! il, i 1/ } time got up enough speed, they both were side by side at the traffic light at Walker Mountain Road. Okay. nd the traffic light, had to slow down for the 5 traffic light because it was in the process of changing and 6 by that time they had done got out of my sight. 7 Okay. They got out of your sight? 8 For a few minutes, yes, ma~am. 9 For a few minutes? 10 Uh-huh. fter they went on through.the traffic light at 1 1 Walker Mountain Road and then you.went thtough the traffic 1 light at Walker Mountain Road, when was the next time you 1 saw the vehicles? 15 Probably saw them going.up the hill at the Coca- 16 Cola plant. was probably three-tenths, four-tenths of a 17 mile behind them. 18 What hill? 19 The little rise there at the Coca-Cola plant 0 on 7. 1 What else is around there? There's another business there next to the Coca- Cola plant. 'm not sure. nd then on up past the Coca- Cola plant you have some other businesses. 5 Do you know a business hamed ngelica? -89-

11 1 Yes, ma'am. Where is that in relation to that? t would be about where the young man left the 5 Really? 6 Yes, ma'am, would think it would be right in 7 there somewhere about where the young man left the road. 8 Okay. s that on that little hill? 9 Yes, ma'am, it's sort of on, guess, on the rise 10 right there. nd so what did you see when you went up the 1 little hill yourself, Mr. Benson? 1 Well, it's not that much of. a hill that would 1 obscure what you could see. You could still see the -- ci '-' 0 '-'- :r J l JJ.CJ J) Right. -- flow of traffic. was coming up through there, you know, and 'd dismissed ~hat had happened. So all of a sudden seen this truck veer o~f to the left. across the media and start up the southbound lane in a northerly direction. Before we get to there, when you said that you dismissed what had happened, what.-had you seen the cars 5,, doing with each other as they were going down the road? Well, once they went under the traffic light there, didn't -- you know, ac~u~lly Wasn't -- didn't -90-.

12 pay that much attention to them anymore. think they were still, you know, running side by side. Side by side? Well Either one of the vehicles. in front of the other? Well, now as the little truck left the road -- he was in the left hand lane, the inside lane. The inside lane. nd the car was in the outside l~ne. The car was not running even with him but it was sitting behind him just a little bit, about bumper width, ~- gues~ 1 ~you know. To the back of him or to the side? Yes, to the back of the truck -- sort of to the back, the best can recall. Okay. nd then what happened? Did you see anything just as the truck left the road? There was there was a -- 1 d6n't know -- a flash of some kind. mean, it could have been dirt or something. When the truck left, it stirred up some dirt or something. t could have been dirt flying up? t could have been. was -~ like say, was, probably two to three tenths of a.wile behj_nd them. ll right. wasn't really that -- right on their tail '.

13 ... ~ 1 fl H 1 You described a flash of some kind. lj been a flash or light as well as dirt also? /1. J t could have Yes. Yes. Oh, yes, ma'am, it could have been dirt when he left the road, you know, that came up. 0 () l'.l ll ;'> a: "" 17 w [L [L "' (/") a: w f- a: 0 [L CJ.! a: ! 1 Either way? You don't know which one it is? No, ma'am, do not. Okay. nd then the truck went a~ross - - how - - where did it go from the minute it left the pavement on the northbound side of the highway? t crossed the media and got -- Jent into the southbound lanes. t got into the. inside lane and ran the highway, went past one guardrail. The~ he went past another guardrail and that second guardrail, the truck veered completely off the highway, ran the length of the guardrail and when it got to the end, the guardrail is sort of rounded over, it's started rolling up on the guardrail and flipped about twice and ran it up on its wheels. What did you do? immediately pulled off to the side of the road and called Did you at that point pay any attention to what happened to the blue car? No, ma'am. fter -- when got up there 5!1 everything was clear. blue car. don't know what happened to the -9-

14 i: 1 Okay. Did you - - did you see it again? No, ma'am, did not and haven't seen it since. 've been looking for it but haven't seen it. nd you wish you had got that tag number a million 5 times; haven't you, Mr. Benson?.. 6 Yes, ma' am, many a time.. 7 nd did you when you got pulled off the road 8 and know that it was a hectic situation, hectic scene, did 9 you call 9-1-1? 10 Yes, ma'am. ll right. Were you the<first to call? 1 s far as know was the fir~t. 1 Okay. nd did they take your report? Yes, ma'am. They didn't tell you, w~'v~ ~lready got it? No, ma'am do? Okay. nd after you calletl 9-1-l, what did you. 19 immediately went across the road and tried to help the young man and the doors were jammed on the truck!! and we couldn't get into the vehicle. Okay. How long was it before th~ police arrived? t probably seemed like an eternity if you -- t wasn't very long. r think the fire department got there first if remember right. -9- They have a fire

15 \i department right off the road up there in Clemmonsville. f!. So it was pretty quick? t was fairly quick, yes, ma' a1. police? Did you stay with the vehicle.for a while and the Yes, ma'am, was there until they got the young man out of the vehicle. ll right. Did you see the poce block off a 9 J lane of traffic and waving cars around.and such as that? 10 Yes, ma'am. When the truck and the car the car being 1 slightly behind the truck and before it went off the road, 1 the other traffic, the traffic that you said may have passed 1 you or whatever, did you even notice where that was? 15 No, ma'am, not really. 16 Okay. You were just focusing on those two 17 vehicles? Well, once saw the truck understand. -- you know, was concerned about the people f[ coming out of Rome; that they were going to have a head on but they managed to Managed to avoid that? -- avoid that, yes, ma'am. 5 ll right. Hang on just a second, Mr. Benson, and -9-

16 1; 1 i: let me see if there's anything else. lj MS. COLSTON: Thank you, Mr. Benson. The defense will have some questions for you so if you will just 5 l hang tight. MR. BERNTHY: Thank you, Ms.. Colston, Judge. 6 *************** 7 CROSS-EXMNTON 8 BY MR. BERNTHY: 9 Good afternoon, Mr. Benson. 10 Good afternoon Mr. Benson, where were you working that evening? was working at Builders Station in Cedartown. ll right. How long -- what time did you leave work about? round 6:0, between 6:0, around 6:00, 6:0. 16 nd you left work and drove immediately south on 6 [ u L < L,) [ u if 7 coming back to Rome? Yes, sir. Do you recall where you f frst' saw this white truck 0 that crossed the median and wrecked and this blue car? 1 t was about a mile, about a mile and a half before the accident. bout a mile and a half? bout a mile, mile and three tenths. 5 Just before the college coming into town, past the -95-!

17 ' 1! :1 1. ' i 'i college? That's correct. nd you first saw them there and followed them in, you say, about a mile and a half before the accident? 5 t would be about a mile, mile and a half, yes, 6 sir. 7 Okay. nd how fast did you say.that the truck 8 almost stopped or might have stopped at, one time? one time?!! What's the question? Did you say the truck stopped or almost stopped at The truck stopped ! i i Okay. nd then it proceeded on? Yes, sir. How long a time period are you thinking this mile and a half distance you covered, how long did it take you 17 were behind these vehicles before the accident happened? 18 Not over five minutes. 19 t could have been as little as two minutes? 0 1 i Yes, sir, it could have been. ll right. nd you say you ~aw the accident? 5 :1 1: '1!, Yes, sir. nd the blue car kept going? Yes, sir. Were there any other vehicles between you and the

18 1 if!1 i blue car and the accident? ' Not that recall. Okay. You didn't see any red trucks out there, 5 did you, with some children and guys in it? No, sir. 6 7 nd do you remember about what - - now the accident, you say you stopped immediately? when you saw Yes, sir. Pulled on up to it and st9pped? Uh-huh. Were there some other cars.. sto1pe'd on the opposite 1 lane coming towards you? Yes. Yes. re you talking aboui coming south, going to ; phone? 0 1 Yes, sir, they -- some had stopped. nd did you let one of those talk on your cell No, sir. One of those people? Nobody talked on my phone but me. Were you by yourself? weren't you? Yes, sir. 5 there assisting? nd you got out. Was someone else already up,. -97-

19 ) 1 There was some other people there, three or four men standing around, trying to -- the time got across the highway. One guy up there already trying to see if the guy 5 was all right? i Yes, sir. nd then you called? even ~eft ::a:~hicle. called on the other side of the road before j! Because left my cell phone in the truck..1, nd you called 9-1-1? Yes, sir. Do you remember what time that was? No, sir, do not. 16 MR. BERNTHY: May approach,_ Your Honor? [By Mr. bernathy] Let me show you this call ' where ve looked here where there is an accident with injuries on 7 South there, memory about that call? Does that refresh your 1.! ' : MS. COLSTON: 'm going to o~jectj Your Honor. can't refresh his memory from a 9-1~1 document. THE COURT: Well, he can He MR. BERNTHY: Judge -- 5 THE COURT: Yeah, he can. -98-

20 1 i ~ l! 1, i i [! i!; MR. BERNTHY: Thank you. THE COURT: He can refresh his memory from anything that reflects -- not that he's tes~ifying that! t that's accurate but just does it refresh his own recollection after looking at it. MS. COLSTON: Okay. thirik his recollection, he said he didn't know. THE COURT: Well, he cap look and see and if that refreshes his recollection, th~n he ~~n testify from his own recollection if it's.-- 9:19? , think to clari:f.. in lay people's language 1 1 that means 7:19. THE COURT: Well, you can't -- listen. He may look at it and if it helps him remember his own memory, that's fine but that's not his record and he can't testify Does that help refresh your memory? Sir, can't. know it would be between six and -- mean, between 6:0 and 7:00. Could it have been around 7~19?. MS. COLSTON: Could see th~ document Mr...,_. bernathy is looking at. don't see a copy of it. Thank you. 5 [By Mr. bernathy] So you called the police -99-

21 ' i i 1 \ immediately? anyone would? Yes, sir. 5 Yes, sir and you tried to render assistance just as 6 Now do you recall talking to the officers there on 7 the scene and that you were a witness and told them what 8 happened? 9 Yes, sir, that's correct. stayed there till 10 they got there and talked to them till they told me could leave. 1 nd Detective Moser wrote a report on this. Did 1 you tell him you were about six or so car lengths behind the 1 vehicles? 15 would say so. was probably two to three 16 tenths of a mile behind the vehicles. 17 'm not trying to trick you, Mr. Benson. just 18 want to get the picture out. So that 1 ~ about right; isn't 19 it? nd you remember suddenly the white truck left the 0 roadway? 1 Uh-huh. Now you recall Mr. Moser showing. you a picture, showing you, Mr. Benson, a picture of a P6ntiac Sunfire, showing you a picture to see if this was the car? 5 He showed me a picture, yes, ~ir

22 1 :1 i '! ' i 5 " i ' 1 1!. ' i! 6 1: ' 1i! You told him that wasn't it? Yes, sir, that's correct. ll right. Now you had testified they were sideby-side at the traffic light? Yes, sir, that's correct. How -- 'm sorry. The little blue car -- the pickup got in the inside lane. t speeded up and the blue car immediately pulled back out in the line of traffic. t speeded up. He caught the truck at the traffic light. nd believe you told the police that they were 1 running about the speed limit; is that correct? 1 Yes, sir. : 1 ' ri !1 0! 1!: nd did you notice, were there one, two or three people in the little blue car? have no idea how many people were in the car. You told them it was a dark blue car; didn't you? t was a dark blue car, yes, sir. nd 'm colorblind, you know. color. i :1 i ', 5 was a dark blue. Well, that's what was about to ask you. t looked blue to me. t might have been a violet Could it have been black? No, it was not black. t was definitely blue. t -01-

23 ) il i: \i ti lj ll right. nd when you called the police, how, long did it take before say the fire truck got there?!1 fl! ' know. Probably five minutes. That's all right. wasn't concerned about that~ about seeing if we could help the young man. 'm not really sure, you r was concerned Sure. nd you cooperated and told the police and :[ told us today all that you know? 10 Yes, sir. ll right. nd the blue car'that the police 1 showed you was not the car that was there that night? 1 No, sir. 1 nd you called in the accident. s far as you 15 know you were the only person that called it in? 16 Yes, sir, as far as know; was the first one. 17 nd want to make this perfectly clear. You told 18 the ladies and gentlemen of the jury a moment ago that you 19 followed the car maybe five minutes and said it could have 0 been two minutes, but somewhere you say about five minutes 1 you followed the car before the accident happened, the car and the truck? From the time seen the truck and till the accident happened, it was probably a five minute lapse of 5 time in there, yes, sir. -0-

24 J, ;; Okay. So whatever time you called 9-1-1, all this was going on from five minutes back during that time period, 1, ij all of this incident? moment. any cars? Yes, sir, between the time it happened and -- Mr. Benson, thank you so much. Hold just one Mr. Benson, were you shown any-other photographs of Yes, sir. How many did you look at? have no idea. Did you look at the cars one at a time or did you 1 look at a grouping? 1 looked at -- they had a book with several cars 1 in it and looked at them, yes, sir. 15 So when you looked at this one car that you said 16 it wasn't it, was it in the book or did they just show it to 17 you individually? 18 t wasn't in the book. 19 They just brought it and showed it to you by 0 itself and you told them that wasn't it? 1 Yes, sir. s that when they showed you a whole book of uh-uh. That whole book of pictures, they 5 showed them to me earlier by the City. -0-

25 1 i ', i i i said, where he first encountered the victim. THE COURT: That's not the same thing. MS. COLSTON: thought that's what he said. THE COURT: No. That is not -my understanding. 5 [By Ms. Colston]: Excuse me, Mr. Benson, what were 6 telling me? f straight. Repeat the question so that we will get this The first time you saw the vehicle, the vehicles, 10 the truck and the car, right there at the camper place -- What? the distance from there to the accident? 1 Exactly. 1 'd say a mile and three tenths according to my 1 15 mile and three tenths? 16 bout a mile and three tenths, a mile and a half. 17 You clocked it you said by your speedometer? 18 Yes, ma'am. 19 nd traveling -- how fast were you traveling? 0 was going about forty, forty-five. 1 nd they were traveling much faster? Yes, ma'am. They were traveling about sixty? From where first saw them at the traffic light 5 ls roughly three tenths of a mile. -05-

26 ) ) 1 :\ i!!!!:j But what seemed like five minutes to you was -- :1 whatever time it took to cover a mile to a mile and a half, in distance --! i Yes, ma'am. 5 6,,!1 least? -- at sixty miles an hour or probably better, at 7 Uh-huh. 8 9 MS. COLSTON: THE COURT: Thank you, sir~ Since probably confused things, let 10 me MR. BERNTHY: Okay. Thank you, Judge. 1 THE COURT: Was the place you saw the pickup truck stopped at the camper, as you described it, at the camper place, was that the very first point in time you saw these vehicles? J _l 16 THE WTNESS: Yes, sir, that's correct. 17 THE COURT: ll right. Not at the THE WTNESS: t was not right at the camper 19 place. t was right past the camper place. 0 THE COURT: ll right. But you had not seen them 1 earlier down at the college or -- 5 THE WTNESS: THE COURT: you first saw them? THE WTNESS: No, sir. leading up to that? That's where came around the curve, the bend in - or; -

27 ) ) 1 the road and when did, the truck stopped and stopped. THE COURT: apologize for confusing anybody. MR. BERNTHY: Thank you, Judge. 5 THE COURT: was confused and transferred that 6 confusion to everybody else and apologize confused. MS. COLSTON: THE COURT: Not me, Your Honor, wasn't No, that's right. didn't confuse 10 you or Mr. bernathy. Y'all were both quick to let me 1 know that was going to be wrong but wanted to clear that up. 1 MS. COLSTON: Let me ask Mr. Benson one last question. [By Ms. Colston] Did all this take place in Floyd, County? ' i! i: 1:,1,, Yes, ma'am. MS. COLSTON: Thank you. ************* RECROSS-EXMNTON BY MR. BERNTHY: Mr. Benson, nobody is confused now, don't think. Let me ask you something because Ms. Colston just said going about 60 miles an hour this mile and some sort of distance. You said the car came to a stop at one time or the truck? -07-

28 ) 1,, ( l! j!!i!!!: 1: i ' 5 jl i ' t Yes, sir, it did. t momentarily stopped, just long enough for the blue car to get out of its way. stop; didn't you? nd you said you slowed down and came almost to a Yes, sir, slowed. Yes, sir. light? That's what you told the police? Uh-huh. nd then you proceeded on, went by the traffic What do you mean, went by the traffic -- 1 close to the traffic light? Well, when they slowed down to stop, were they 1! 1 ' 15 i 16 No, sir, uh-uh, they were three tenths of a mile this side of the traffic light. They were south of the traffic light. Okay. nd then they proceeded on under the 17 traffic light -- 18! 19 i ' 0 1 ' tj,. 1: ' 5, i! Yes, sir. -- before the accident? Yes, sir. thought maybe, you know, when they got to the traffic light and they stopped, could see them and see what was going on. Right. Because figured it was a girlfriend/boyfriend dispute or something. il 08- l! '.i, " /!

29 i!! ) 1 i!1 ll How far past the traffic light did they go on down! before the crash occurred before the shoong? Half a mile. So the total distance, do you know from the first 5 time you saw the car as you traveled to,the accident site, 6 how far was the total distance? 7 mile and a half, a mile and three -- somewhere 8 around a mile and a half, would think. 9 nd your testimony is still you think it took 10 three minutes, five minutes to cov~r this distance with the stopping and going? 1 Not over five minutes, wouldn't think. The flow 1 of traffic was pretty steady MR. BERNTHY: MS. COLSTON: ll right. Thank you. Thank you, Mr. Benson. 16 THE COURT: Thank you, sir. Mr. Benson, don't talk to anybody about your testimony, please, sir, but you're free to leave as long as the district attorney 19 knows how to get in touch with you if necessary. Okay? jl. i '. Thank you, sir. You're free tci leave. We're going to take a mid-afternoon recess right now. Ladies and Gentlemen, if you'll go in the jury room. Please be at ease. Don't discuss the case as 've given you those instructions. We'll resume in a little over ten minutes. Court's in recess. Y'all be -09-

30 1 back in ten minutes. [Court reconvenes after the brief recess.] THE COURT: Bring the jury in [The jury enters the courtroom.] THE COURT: Sound your next witness, please. Who is your next witness, Ms. Colston? MS. COLSTON: Oh, 'm soriy, Your Honor. Michael Taylor. 9 THE COURT: Michael Taylor. 10 MS. COLSTON: He's not out there? Okay. We'll call Capt. Marshall Smith then. Marshall Smith 1 THE COURT: Counsel, come up just a second. 1 1 [naudible colloquy between C6urt and counsel outside the presence of all others.] 15 THE COURT: Go ahead and swear Mr. Smith, please Before you begin, just talked to counsel and there was an inquiry from a juror through the bailiff. s understand it, you wanted to know.about asking a 19 question, ma'am? s that right? Of whom? 0 1 1! JUROR: sking any witness. do have a witness in mind. THE COURT: That's already through testifying? JUROR: Yes. THE COURT: Okay. Here's the way that would work. 5, ' i '!! Okay? First of all the jury needs to understand that -10-

31 ) 'i i ' ' 1!: l; ' i 5 " 6 il the lawyers know the parameters, the limits of questions that can and can't be asked. ll right? But if you feel, a juror feels that th~re is a question that he or she wants to ask, whether to clarify or whatever, write it down, hand it -- before the witness leaves, raise your hand, hand the question to the bailiff in written form or tell me to wait while you write it and then 've got to show.it the lawyers. f it's an objectionable question, they have the right to object to it. have the right to object to it and 1 i ' ' tell you simply that it's not a question or a matter that can be inquired into or can be asked but if it's 1 1 ', appropriate, 'll ask the questi9n for you. JUROR: Thank you. THE COURT: Okay? Fair enough? Okay. ********************** MRSHLL SMTH 18 was called as a witness by and on behalf of the State, and l1 il after being first duly sworn, was examined and testified as follows: DRECT EXMNTON BY MS. COLSTON: Good afternoon. Good morning. 5 nd don't know what to call you anymore. What's 1!1 l' '! --