wolfe transcript - 10022013

8/12/2019 Wolfe Transcript - 10022013

1/55

1

V I R G I N I A

IN THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY

- - - - - - - - - - x :COMMONWEALTH OF VIRGINIA, :

: -vs- : CR12003732-00 : thruJUSTIN MICHAEL WOLFE, : CR12003737-00

:Defendant. :

:

- - - - - - - - - - x

Circuit Courtroom 3 Manassas, Virginia

Wednesday, October 2, 2013

The above-entitled matter came on to be heard

before the HONORABLE MARY GRACE OBRIEN, Judge, in and for

the Circuit Court of Prince William County, in the

courthouse, Manassas, Virginia, beginning at 10:00 oclock

a.m.

APPEARANCES:

On Behalf of the Commonwealth:

CASEY LINGAN, ESQUIRESpecial Prosecutor

On Behalf of the Defendant:

KIMBERLY IRVING, ESQUIRE EDWARD B. MACMAHON, JR., ESQUIRE

R E E N & K E R N S R E P O RCERTIFIED VERBATIM REPORTERS

4116 LEONARD DRIVE

FAIRFAX, VIRGINIA 22030(703) 591-3136


2/55

2

* * * * *

C O N T E N T S

WITNESSES DIRECT CROSS REDIRECT RECROSS

Samson Newsome 3 41 50 53

* * * * *

E X H I B I T S

FOR IDENTIFICATION IN EVIDENCE

Defendants Exhibit No. 2 6 40(copy of Mr. Newsomes notes)


4116 LEONARD DRIVE



3/55

3

1 E X C E R P T O F P R O C E E D I N G S

2 *

3 *

4 *

5 Whereupon

6 SAMSON C. NEWSOME

7 a Witness, was called for examination by counsel on behalf

8 of the Defendant, and after having been duly sworn by the

9 Clerk of the Court, was examined, and testified, as

10 follows:

11 DIRECT EXAMINATION

12 BY MR. MACMAHON:

13 Q Mr. Newsome, can you state your name for the

14 record, please.

15 A Yes, Samson C. Newsome. Im master detective

16 retired.

17 Q And how are you employed now?

18 A I am employed by the Prince William County

19 Police Department.

20 Q Investigating and working on the Justin Wolfe

21 case; correct?

22 A Yes, sir. Thats correct.

23 Q And in early September of 2013 -- excuse me,


4116 LEONARD DRIVE



4/55

4

1 2012, how were you employed?

2 A I was employed by the County Police

3 Department.

4 Q Were you brought back for any specific

5 purpose?

6 A Yes, sir. To assist in the Justin Wolfe case.

7 Q Did you take notes -- Is it your practice to

8 take notes of meetings that you attend?

9 A Generally I take notes at meetings. My

10 practice throughout the years has been to record

11 interviews or interrogations, but I do take some notes,

12 yes.

13 Q How about meetings that you have with

14 attorneys that represent the Commonwealth of Virginia?

15 A Yes, sir.

16 Q And in fact, you did actually attend some

17 meetings with attorneys for the Commonwealth of Virginia

18 in early September of 2012; correct?

19 A Yes, sir. I have.

20 MR. MACMAHON: Your Honor, can I have this

21 marked for purpose of identification first?

22 THE COURT: Sure.

23 Mr. Lingan, do you see what --


4116 LEONARD DRIVE



5/55

5

1 MR. MACMAHON: Im sorry. Ive already given

2 the Commonwealth a copy.

3 THE COURT: Sure.

4 MR. MACMAHON: And Im not sure what exhibit

5 number this would be for purpose of this motion.

6 THE COURT: Why dont we just do it No. 1 for

7 this motion.

8 MR. MACMAHON: Thats fine.

9 THE COURT: No. 1 for this motion.

10 MR. MACMAHON: Your Honor, I think the

11 transcript may be No. 1.

12 THE COURT: Oh, okay.

13 MR. MACMAHON: If I can, Your Honor, I have a

14 copy for you too.

15 (Mr. MacMahon handed a document to the Court.)

16 THE COURT: Thank you. This is a different

17 motion than the motion we heard this summer.

18 MR. MACMAHON: No. We are finishing up on it.

19 THE COURT: This is the second half of the

20 motion, because you are putting -- The first half of the

21 motion I heard was where I heard the tape and I reviewed

22 the transcript.

23 So since it is the second half of this motion,


4116 LEONARD DRIVE



6/55


7/55

7

1 assortment of things.

2 This is a -- the first page of this is a copy

3 of the cover of that notebook, my notebook.

4 Q And do you remember when the first day was

5 that you were brought back to work on this case?

6 A I cant remember specifically what the first

7 date was. I know the date that we went to the prison was

8 September 11th.

9 I dont recall if I was here a day before that

10 or not.

11 Q But before September 11th, you were party to

12 conversations with attorneys for the Commonwealth about

13 how to proceed in the case of a new trial against Mr.

14 Wolfe; correct?

15 A Yes, I believe so.

16 Q If you look at the -- Do you see the bate

17 stamps at the bottom, sir?

18 A Yes, sir.

19 Q Do you see 12576, which would be the third

20 page.

21 A Yes, sir.

22 Q Does this refresh your recollection as to when

23 you may have started working on this case?


4116 LEONARD DRIVE



8/55

8

1 A Yes, sir. It looks like the first date there

2 is September 6th, and has some time.

3 Q These are billing records. Keeping time for

4 billing here. Is that what this is?

5 A Just a moment and let me look at it. Yes,

6 sir.

7 Q And before September 6th of 2012, have you had

8 the opportunity to read the rulings that Judge Jackson had

9 issued in Mr. Wolfes habeas case?

10 A Prior to September 6th? Are you talking about

11 the rulings from, I think, 2009?

12 Q Yes.

13 A Yes, sir.

14 Q You were aware that one of Judge Jacksons

15 major concerns was that the facts of your interview of Mr.

16 Barber on the way back from California were not disclosed

17 to Mr. Wolfes defense; correct?

18 A Yes, sir.

19 Q And you are aware that there was an allegation

20 or a finding by Judge Jackson that that was an intentional

21 act withholding that report; correct?

22 A Based on what I had read from Judge Jacksons

23 ruling, yes.


4116 LEONARD DRIVE



9/55

9

1 Q You were aware that Judge Jackson had found

2 that Owen Barbers testimony that Justin Wolfe was not

3 involved in the murder of Danny Petrole was credible;

4 correct?

5 A Im sorry. Could you repeat that question?

6 Q You were aware on or about September 6th that

7 Judge Jackson had found as a matter of fact that Owen

8 Barbers recantation of his testimony against Justin Wolfe

9 was found to be credible.

10 A Yes, sir. Based on Judge Jacksons ruling.

11 Q And you were aware that Judge Jackson had

12 found that Mr. Ebert and Conways actions in prosecuting

13 Mr. Wolfe were intentional; correct?

14 A That was what Mr. Jackson -- or Judge Jackson

15 had indicated.

16 Q And abhorrent with the interest of justice, do

17 you remember that language too?

18 A No, sir. I dont.

19 Q And you know that the Fourth Circuit affirmed

20 Judge Jackson; correct?

21 A No, sir. I cant say that I was familiar with

22 the Fourth Circuit affirming it, because I wasnt working

23 during that period of time. So I didnt have direct


4116 LEONARD DRIVE



10/55

10

1 access to all of that information.

2 Q Did somebody tell you that the Fourth Circuit

3 had found that the withholding of the -- Well call it the

4 Newsome report. It was an intentional act by the

5 Commonwealth Attorneys in Prince William County in Mr.

6 Wolfes original trial.

7 A Im sorry. Was that a question, sir?

8 Q Yes. Were you aware of that fact on or about

9 September 6th?

10 A Could you repeat the question, please.

11 Q Were you aware of the fact that the Fourth

12 Circuit Court of Appeals found that the decision by the

13 prosecutors in this Court to withhold the Newsome report

14 from Justin Wolfes defense counsel was intentional?

15 A Either directly or indirectly I think I was

16 aware of that.

17 Q Did you know on or about September 6th that

18 Judge Jackson had found that Mr. Eberts testimony before

19 him was not credible?

20 A Yes, sir. I recall reading that.

21 Q And Judge Jackson had said the same thing

22 about Mr. Conway as well. You knew that as well; correct?

23 A No, sir. I cant say that I knew that.


4116 LEONARD DRIVE



11/55

11

1 Q Did you know there were bar complaints on or

2 about September 6th against Rick Conway and Paul Ebert?

3 MR. LINGAN: Your Honor, at this point --

4 MR. MACMAHON: Im laying a foundation, Your

5 Honor.

6 MR. LINGAN: Hes laying mud to drag people

7 through the mud.

8 This is about specific allegations.

9 THE COURT: Yeah. Im going to sustain the

10 objection. I think you need to move on to the issues that

11 are before the Court.

12 BY MR. MACMAHON:

13 Q Had Mr. Conway said anything to you about his

14 reputation being soiled by Mr. Wolfes defense attorneys

15 on or about September 6th?

16 A No, sir.

17 Q Who was the first person you talked to about

18 the process of trying to retry Justin Wolfe for capital

19 murder?

20 A I believe it was Mr. Conway.

21 Q When you talked to Mr. Conway, did you talk to

22 him about getting Owen Barber to testify again?

23 A At some point -- I dont recall having that


4116 LEONARD DRIVE



12/55

12

1 specific conversation, but I know we would have talked

2 about it, yes, sir.

3 In other words, I cant tell you a date or a

4 meeting we would have discussed that. I know it was

5 discussed.

6 Q Do you remember the details of any discussion

7 that you had with Mr. Conway about getting Owen Barber to

8 testify again?

9 A No specific details; no, sir.

10 Q Did you have any conversation with him that

11 Mr. Barber might repeat the testimony he gave in federal

12 court?

13 A I was aware that that was a possibility; yes,

14 sir.

15 Q Who did you discuss that with?

16 A Im sure I discussed it with Mr. Conway and

17 likely Mr. Ebert.

18 Q Did you ever talk to Matt Dullaghan at the

19 Attorney Generals office about that?

20 A Prior to September 6th or when?

21 Q Prior to you going to meet Owen Barber.

22 A No, sir. I dont believe I did. With the

23 exception of possibly back in 2009, I had dealings with


4116 LEONARD DRIVE



13/55

13

1 Mr. Dullaghan.

2 Q Im not asking that. If my question raises

3 that, I apologize.

4 Im focusing on after the Fourth Circuit

5 returns its decision and then you go back and see Mr.

6 Barber; okay?

7 A Yes, sir.

8 Q In that time frame, do you recall having any

9 discussions with Mr. Dullaghan about how to retry the case

10 against Justin Wolfe?

11 A Prior to September 11th? Prior to going down

12 to Augusta County?

13 Q Yes.

14 A I dont believe so. I dont recall that, sir.

15 Q Would you have the same answer if the question

16 included Mr. Ebert or Mr. Conway?

17 A No, sir. It would not be the same answer.

18 Q With respect to Mr. Ebert and Mr. Conway, what

19 discussions did you have with them about the process of

20 retrying Justin Wolfe?

21 A I cant recall specifics of the conversations.

22 Im sure logically it would have included what Mr.

23 Barbers testimony would be if Mr. Wolfe were to be


4116 LEONARD DRIVE



14/55

14

1 retried again.

2 Q Look at the next page 12577.

3 A Yes, sir.

4 Q Is that your handwriting?

5 A Yes, sir. It is.

6 Q What is it -- Do you have any recollection of

7 where these notes came from?

8 A I dont have them dated, which is unusual for

9 me. But I cant recall a specific time of where they came

10 from. But looking at them in the context of them and the

11 way they are worded, it is my opinion that these notes

12 were a result of meeting with the Commonwealth Attorneys

13 office.

14 Q Before September 11th, 2012; correct?

15 A That would require me to look at things before

16 and after.

17 Q Why dont you go a couple pages ahead, 12579.

18 MR. MACMAHON: And for the record, Your Honor,

19 Im referring to the bate stamps from the Commonwealths

20 production at the bottom.

21 THE COURT: Thank you.

22 THE WITNESS: Im seeing the date there of

23 September 6th that I would say it was on or about that


4116 LEONARD DRIVE



15/55

15

1 time, yes, sir.

2 BY MR. MACMAHON:

3 Q Was there any discussion that Mr. Ebert or Mr.

4 Conway should recuse themselves from this case on

5 September 6th, 2012?

6 A I dont recall any discussion. I dont recall

7 whether there was or was not at that juncture on September

8 6th.

9 Q Are these notes accurate about the meeting --

10 Let me get this straight. Ill strike that question.

11 These notes that Im looking at now of 12577,

12 those are notes of a meeting that you had with Mr. Conway

13 and Mr. Ebert; is that right?

14 A Based on -- Im making an assumption based on

15 what Im reading here and what Im looking at. I dont

16 have any notes as to who the meeting was with. But

17 logically, it would have been either with Mr. Conway

18 and/or Mr. Ebert.

19 It could have been a phone conversation on the

20 6th. I dont have anything -- Haven taken a lot of notes,

21 I dont have anything on this one particularly indicating

22 what the origins of these notes are.

23 Q But you dont have any doubt in your mind


4116 LEONARD DRIVE



16/55

16

1 though, do you, sir, that these are notes of a

2 conversation that you had with one of the Commonwealth

3 Attorneys before you went to see Owen Barber; right?

4 A No, sir. I have no doubt about that.

5 Q Okay. What does it say -- Just translate.

6 Your handwriting is a lot better than mine, sir. What is

7 the reference to J.R. Martin in this note?

8 A I dont know, sir. That name has been in this

9 case for a very long time. So being able to just look at

10 the name written on my notes and knowing what the

11 significance was in context of these notes, I cant answer

12 that, sir.

13 Q How about the -- Does that say contact all

14 prior witnesses?

15 A Yes, sir. That would be to try and make

16 contact with all prior witnesses, which would be pretty

17 standard in any investigation.

18 Q And to give them copies of the transcripts of

19 their testimony?

20 A No, sir.

21 Q What does the word transcript refer to here?

22 A I would surmise that that means to review the

23 transcripts. This was kind of a -- That looks like


4116 LEONARD DRIVE



17/55

17

1 something that I wrote to myself to do or needed to do.

2 Q What does the next line say?

3 A AG opinion on prosecution.

4 Q Okay. And what is the source of this

5 information? The source of this information is Mr. Ebert

6 or Conway?

7 A I would suppose that was something that was

8 discussed in that meeting. I cant say specifically what

9 that note or what that line references.

10 Q What meeting Mr. Newsome?

11 A I beg your pardon?

12 Q You said it was discussed at that meeting.

13 What meeting was it?

14 A Well, if it was a meeting that these notes

15 were representing, and Ive already conceded that it would

16 have been a meeting between either myself and Mr. Conway

17 and/or Mr. Ebert, or that it was possible that it was a

18 telephone conversation.

19 Q This doesnt refresh your recollection at all

20 as to where this meeting was?

21 A No, sir.

22 Q And there is a reference to felony murder;

23 correct?


4116 LEONARD DRIVE



18/55


19/55

19

1 unavailable witnesses are under Virginia law?

2 A My understanding of it is someone who is

3 deceased, incapacitated, cant make an appearance before

4 the Court.

5 Q Or someone who has taken the Fifth; correct?

6 A I would assume, yes, sir.

7 Q And thats something that you discussed with

8 Mr. Ebert and Mr. Conway before you went down to Augusta;

9 isnt it?

10 A Thats possible, yes, sir. I cant recall

11 specifically that conversation, but I believe that would

12 be in the realm of the conversation.

13 Q One way to get to use somebodys prior

14 testimony was to have them take the Fifth; right?

15 A Yes, sir.

16 MR. LINGAN: Your Honor, I object to the

17 phrasing of the question.

18 MR. MACMAHON: He has already answered the

19 question, Your Honor.

20 MR. LINGAN: No. He answered a different

21 question first. Hes now rephrasing the question.

22 MR. MACMAHON: Ill try. I thought he

23 answered the question. Ill try again.


4116 LEONARD DRIVE



20/55

20

1 MR. LINGAN: His understanding of what legally

2 unavailable means. Hes assuming the Fifth. He said I

3 would assume the Fifth was one of the possibilities.

4 THE COURT: And then the next question was,

5 did you talk with the prosecutor.

6 MR. MACMAHON: Ill try again, Your Honor.

7 Mr. Lingan is confused.

8 MR. LINGAN: Im not confused. I recognize

9 the tactic.

10 THE COURT: I understand the objection. Its

11 a different question. Ill ask you to rephrase the

12 question.

13 BY MR. MACMAHON:

14 Q Mr. Newsome, in your conversation, somebody in

15 the room said you should use -- we can use prior testimony

16 for someone who is legally unavailable; correct?

17 A I cant testify specifically to that. That is

18 possible. This is not something that I would have done

19 myself. Im not an attorney. So that portion of my notes

20 would have been me making note of something that was said.

21 Q Right. So a lawyer at this meeting on or

22 about September 6th, said, We could use prior testimony

23 for anyone who is legally unavailable; correct?


4116 LEONARD DRIVE



21/55

21

1 A It may have been something that was said. I

2 cant say, counsel whether someone actually said that.

3 But it would be my logical conclusion that that was a

4 statement that was made or a point that was brought out

5 that I made a note of.

6 Q And why did you put a star next to that?

7 A I dont know.

8 Q Do you know whether it was Mr. Ebert who said

9 using prior testimony of legally unavailable witnesses is

10 a plan for the prosecution?

11 A No, sir. Again, I dont even know or I dont

12 even recall who was at a meeting or phone conversation

13 from these notes when I wrote these notes out.

14 Q Who were you meeting with Mr. Newsome?

15 A I would have been meeting with, probably at

16 this time, it would have been either Mr. Conway and or Mr.

17 Ebert.

18 Q Right. You werent meeting with Mr. Lingan at

19 that time; right?

20 A No, sir.

21 Q And you werent meeting with anybody other

22 than Mr. Ebert and Mr. Conway; right?

23 A Yes, sir.


4116 LEONARD DRIVE



22/55

22

1 Q So the person that told you the plan would be

2 to use prior testimony for anyone legally unavailable is

3 either Rick Conway or Paul Ebert; correct?

4 A I already said that; yes, sir.

5 Q And in your discussions about going to see

6 Owen Barber, did the concept of him taking the Fifth

7 Amendment ever come up?

8 A Yes, sir. I would have to say it probably

9 did.

10 Q In what context? Tell us everything about the

11 discussion with you and Mr. Ebert and Mr. Conway wherein

12 Mr. Barber might take the Fifth if you went to see him in

13 Augusta.

14 A I wouldnt be able to do that, sir.

15 Q Tell me as much as you can.

16 A That it was discussed. Counsel, I would be

17 making things up if I said that. Other than it was

18 discussed.

19 Q Just something in passing as you drove on

20 down?

21 A I beg your pardon?

22 Q Was it just a passing comment as you drove to

23 Augusta?


4116 LEONARD DRIVE



23/55


24/55

24

1 Mr. Ebert and Mr. Conway went down to Augusta to see Owen

2 Barber, there was a discussion of the fact that he might

3 take the Fifth if he was threatened with the death penalty

4 again; correct?

5 A It would have been brought up and the

6 statement would have been made, because I made a note of

7 it; theres something to consider.

8 Q And you cant tell the Judge who said that;

9 right?

10 A No, sir, I cant.

11 Q Do you remember whether Mr. Ebert or Mr.

12 Conway said anything about a legally unavailable witness

13 being someone who took the Fifth Amendment?

14 A I cant recall that specifically; no, sir.

15 Q Was that within the realm of possibility to

16 use your language?

17 MR. LINGAN: Your Honor, I object to

18 relevance.

19 THE COURT: Calls for speculation. Sustained.

20 BY MR. MACMAHON:

21 Q You dont have any specific recollection of

22 that at all; correct?

23 A No, sir. I dont.


4116 LEONARD DRIVE



25/55

25

1 Q Now, who set up the trip to Augusta?

2 A It may -- I did not set that up. It would

3 have been someone in the Commonwealth Attorneys office,

4 so far as I know.

5 Q When was the first time that you learned that

6 you and Mr. Ebert and Mr. Conway were going to head down

7 to Augusta to meet with Owen Barber?

8 A It would have been early August, somewhere

9 around -- or Im sorry, late August, somewhere around late

10 August early September.

11 Q Did you know he had an attorney at that time?

12 A No, sir. I didnt.

13 Q Did you ask Mr. Ebert or Mr. Conway if Mr.

14 Barber had a lawyer before you went to go see him?

15 A No, sir.

16 Q It didnt matter to you at all?

17 A I would not agree to that characterization;

18 no, sir.

19 Q But its not something you ever discussed, you

20 agree with that; right?

21 A I beg your pardon, sir?

22 Q Ill move on.

23 So when you -- When was the first time that


4116 LEONARD DRIVE



26/55

26

1 you knew there was a trip planned where you were going to

2 go with Mr. Ebert and Mr. Conway to see Owen Barber?

3 A Probably four to five days prior to -- or Im

4 sorry, it would be more than that. The trip was on the

5 11th. Right around September 1st.

6 Q Did you have a pre -- Did you have a

7 conference to talk about what you were going to do down

8 there?

9 A The purpose of the trip was to ascertain what

10 Mr. Barbers testimony would be if we were to prepare for

11 trial.

12 Q It wasnt the only purpose of the trip; was it

13 Mr. Newsome?

14 A I beg your pardon.

15 Q That wasnt the only purpose of the trip; was

16 it?

17 A As far as my knowledge; yes, sir, it was.

18 Q Hadnt you already been in a meeting where it

19 was decided there was going to be more charges against

20 Owen Barber?

21 A No, sir.

22 Q Are you sure of that?

23 A Yes, sir.


4116 LEONARD DRIVE



27/55


28/55

28

1 Barber; correct?

2 A Yes, sir.

3 Q And that was a discussion you had with Mr.

4 Ebert and Mr. Conway.

5 A Yes, sir.

6 Q So the purpose of the meeting was not just to

7 go find out what his testimony would be; correct?

8 A That was the primary -- I was not going to be

9 telling Mr. Barber that he was going to be charged with

10 something.

11 Q Who was?

12 A That would come under the purview of the

13 Commonwealth Attorneys office.

14 Q The decision to tell him that he was going to

15 be charged with something else was made by Mr. Conway or

16 Mr. Ebert before you went to see him; correct?

17 MR. LINGAN: Your Honor, I object. That calls

18 for speculation.

19 THE COURT: He cant tell. He can tell what

20 they related to him, but he cant tell what they were

21 thinking.

22 MR. MACMAHON: I apologize, Your Honor.

23 THE COURT: Thats all right.


4116 LEONARD DRIVE



29/55

29

1 BY MR. MACMAHON:

2 Q Did Mr. Ebert tell you before September 11th,

3 2012, that he had decided to bring additional charges

4 against Owen Barber?

5 A No, sir. He did not.

6 Q Did Rick Conway tell you that?

7 A No, sir. He did not.

8 Q Did they tell you they were considering

9 bringing additional charges against Owen Barber?

10 A I wouldnt classify it as considering, but

11 that was an option. It was an option that was potentially

12 available.

13 Q But you knew before you got to Augusta, to the

14 jail, that Mr. Barber was going to be told that he had

15 breached his plea agreement and could face the death

16 penalty again; right?

17 A Yes, sir.

18 Q That was something you had discussed with Mr.

19 Ebert and Mr. Conway beforehand; correct?

20 A I was party to the conversation. I didnt

21 have a lot of discussion in the legal aspect of it.

22 Q What did you hear? You say you were a party

23 to the discussion. Who was it that said they were going


4116 LEONARD DRIVE



30/55

30

1 to tell Owen Barber that he had breached his plea

2 agreement and would face death again?

3 A That would have been either Mr. Ebert or Mr.

4 Conway.

5 Q And you heard that, right, before you went to

6 Augusta; correct? You heard one of them say that.

7 A I heard them discuss it; yes, sir.

8 Q And where did that take place?

9 A It would have been in the Commonwealth

10 Attorneys office.

11 Q In that meeting did they talk about recusing

12 themselves from the case?

13 A At this time, I cant say. No, sir.

14 Q Who else was at that meeting where they

15 discussed charging Owen Barber with a death penalty

16 offense again?

17 A I dont recall who all was at those meetings,

18 the early meetings. I cant recall specifically who all

19 were at those meetings. But it would have been myself,

20 Mr. Conway and/or Mr. Ebert. I dont know if Mr. Ebert

21 was at all of the meetings.

22 There were some meetings with, I think Ms.

23 Burnette, from the Attorney Generals office, may have


4116 LEONARD DRIVE



31/55


32/55

32

1 dont remember, then say you dont remember, please.

2 THE WITNESS: Yes, maam.

3 THE COURT: Okay.

4 THE WITNESS: I dont remember.

5 BY MR. MACMAHON:

6 Q Was the plan that if Mr. Barber agreed that he

7 would tell the story that Judge Jackson found to be a lie,

8 if he went back to that, that you wouldnt tell him, he

9 could be recharged?

10 A Could you repeat that question?

11 Q Did you discuss with Mr. Ebert and Mr. Conway

12 what would happen if Owen Barber told you in Augusta that

13 he would tell the story that he told in Prince William

14 County again in 2012?

15 A Did I discuss it with him?

16 Q Yeah.

17 A No, sir. Not that I recall.

18 Q Was there any discussion that if Owen Barber

19 went back and repeated his original testimony that he

20 wouldnt face a death penalty?

21 A That he would not?

22 Q Yes.

23 A I dont recall that. No, sir.


4116 LEONARD DRIVE



33/55

33

1 Q Was there any discussion at all that Owen

2 Barber might actually repeat the testimony that he gave in

3 Prince William County in 2002?

4 A Yes, sir.

5 Q And what was that discussion?

6 A That that was a potential -- that was a

7 possibility that he may testify the way that he did in any

8 initial trial.

9 Q Right. And in that circumstance, was it the

10 plan to tell him that he could be executed, face the death

11 penalty for the testimony that he gave in federal court as

12 well?

13 MR. LINGAN: Thats been asked and answered.

14 THE COURT: Sustained.

15 MR. MACMAHON: I dont think it has, Your

16 Honor.

17 THE COURT: Okay. Go ahead.

18 BY MR. MACMAHON:

19 Q In the context of your discussions, and again,

20 these are with Mr. Ebert and Mr. Conway; right?

21 A Yes, sir.

22 Q You just told me that there was a discussion

23 about the possibility that Owen Barber might revert to his


4116 LEONARD DRIVE



34/55

34

1 original testimony; correct?

2 A Yes, sir. Thats correct.

3 Q And in that circumstance, was the plan if Owen

4 Barber had said, I will say what I said in 2012 again,

5 to tell him that the Commonwealth Attorney would revoke

6 his plea agreement and try to execute him?

7 MR. LINGAN: Your Honor, Id object as to the

8 phrasing of the plan. Again, it calls for him to

9 speculate what may be in someone elses mind, assessing

10 narrowly as to what was articulated.

11 THE COURT: What was articulated? Its a

12 different question. What was articulated with regard to

13 that? Was there something articulated with regard to the

14 possibility of what counsel had suggested to you?

15 THE WITNESS: My understanding was, is that it

16 was going to be explained to him that in light of him

17 testifying differently in the past or making statements

18 that were contrary to his initial testimony, which is

19 under oath that he could face charges as a result of the

20 plea agreement.

21 But at no time did I know of any plan to tell

22 him that unless he testified in this way or this way that

23 he would face consequences. I never knew of any plan or


4116 LEONARD DRIVE



35/55

35

1 any talk along those lines.

2 BY MR. MACMAHON:

3 Q Was there any discussion that if he reverted

4 to his original testimony to just end the meeting at that

5 point in time?

6 A No, sir.

7 Q So you were going to tell him he could face

8 death no matter what happened. Thats your testimony as

9 to what happened with you and Mr. Ebert and Conway?

10 A No, sir. Thats not my testimony.

11 I had no plans of telling him anything along

12 those lines. Thats not part of my responsibility.

13 Q Do you remember Mr. Conway saying anything

14 about what he was going to do in case Owen Barber said

15 Ill testify the way I did in 2002?

16 A Not specifically what he was going to do, no,

17 sir.

18 Q Were you told to ask him if he could come up

19 with a plausible reason for him to change his stories?

20 A No, sir. I was not.

21 Q Were you told to read scripture to him?

22 A Im sorry, sir?

23 Q Were you told to read scripture to Mr. Barber


4116 LEONARD DRIVE



36/55

36

1 at the meeting?

2 A No, sir. I was not.

3 Q Thats just something you did off the top of

4 your head?

5 A Yes, sir.

6 Q Is that something from your training that you

7 read scripture to people that are locked up in prison?

8 A It is something that is consistent with my

9 years as a detective.

10 Q And the purpose of that is to what?

11 A To think about the consequences of peoples

12 actions. Thats a part of my life. It has always been a

13 part of my interaction with people, whether they were

14 defendants, witnesses or victims.

15 Q And he had just told you that he was going to

16 testify the way he did in federal court; right?

17 A Yes, sir.

18 Q So why did you read him scripture? You wanted

19 him to change; right?

20 A I wanted him to tell the truth.

21 Q The truth as you see it; right?

22 A Im sorry, sir?

23 Q The truth as you see it; correct?


4116 LEONARD DRIVE



37/55

37

1 MR. LINGAN: I object; argumentative.

2 THE COURT: Sustained. Its argumentative.

3 BY MR. MACMAHON:

4 Q Did you know before you went to see Owen

5 Barber that he had a release date?

6 A That he had what, sir?

7 Q That he had a release date.

8 A No, sir.

9 Q Do you know what a release date is?

10 A A date that he is supposed to be released.

11 Q You made no effort to find out what his

12 release date was before you went to see him?

13 A Not that I recall, sir.

14 Q So when you asked him if he had a release

15 date, that was just something that intrigued you?

16 A If I asked him that?

17 Q Yeah.

18 A It would be a question that I just asked him.

19 Q And you asked him if he had a job; right?

20 A Are you asking me or telling me that I told

21 him?

22 MR. LINGAN: I object.

23 THE COURT: Wait a second.


4116 LEONARD DRIVE



38/55

38

1 MR. LINGAN: This tape has been played. The

2 Court has heard it. It speaks for itself.

3 Going through did you do this, did you do

4 that, thats not right.

5 THE COURT: Im going to sustain the

6 objection. I have a recollection of the transcript and

7 the tape. They are in evidence, so Ill sustain the

8 objection.

9 BY MR. MACMAHON:

10 Q Were you asked to determine whether Owen

11 Barber was getting paid for a job at the jail before you

12 went down there?

13 A Was I told to ask that?

14 Q Yeah. Were you told to determine that

15 information?

16 A No, sir. Not that I recall.

17 Q Look at 12599, please.

18 A Yes, sir.

19 Q Read to the Court what that says.

20 A From the beginning, sir?

21 Q No. Just where it says star Owen Barbers

22 pay.

23 A Owen Barbers pay, Barbers statement.


4116 LEONARD DRIVE



39/55


40/55

40

1 Barber, he said no; correct?

2 A Theres two --

3 Q Theres threats and inducements, Mr. Barber

4 told you there was no such thing; correct?

5 A I would have to look at the transcript.

6 MR. LINGAN: Your Honor, the tape speaks for

7 itself.

8 BY MR. MACMAHON:

9 Q But you hadnt been asked before you went down

10 there to see if there was any evidence of that at all;

11 right? Is that your testimony?

12 A Yes, sir.

13 MR. MACMAHON: Your Honor, we would move in

14 Exhibit 2. Im not sure if I had done that.

15 THE COURT: Okay. Any objection?

16 MR. LINGAN: No, Your Honor.

17 MR. MACMAHON: If I could just consult with

18 counsel, Your Honor.

19 THE COURT: Sure.

20 (Counsel confer off the record.)

21 (The document referred to above,

22 previously marked Defendants

23 Exhibit No. 2, was received into


4116 LEONARD DRIVE



41/55

41

1 evidence.)

2 MR. MACMAHON: Thank you, Mr. Newsome.

3 THE COURT: Mr. Newsome, if you will wait to

4 see if Mr. Lingan has any questions.

5 MR. LINGAN: Just briefly, Your Honor.

6 CROSS EXAMINATION

7 BY MR. LINGAN:

8 Q Good afternoon. It is actually afternoon now.

9 Counsel has shown you his copies of portions

10 of your notes; is that right?

11 A Yes, sir.

12 Q Did counsel discuss your testimony with you

13 prior to taking the stand?

14 A Im sorry, sir?

15 Q Did counsel discuss with you prior to taking

16 the stand your testimony, what your testimony was going to

17 relate to?

18 A Defense counsel?

19 Q Yes.

20 A No, sir.

21 Q Did he show you these -- The first time he is

22 asking you if you recall these notes is today on the

23 stand?


4116 LEONARD DRIVE



42/55

42

1 A Yes, sir.

2 Q And it is fair to say that some of your

3 answers, especially in the beginning, were your best guess

4 to assume and form a conclusion as to what they may refer

5 to?

6 A Yes, sir.

7 Q And its fair to say these notes throughout,

8 some of them are just to dos to yourself; is that right?

9 A Yes, sir.

10 Q Some things you may come up with on your own?

11 A Yes, sir.

12 Q And some may just be generally ideas that

13 spring in a meeting.

14 A Yes, sir.

15 Q In regards to, I guess, 12577, you were asked

16 questions -- At the top, it says 120 days charge or trial,

17 speedy trial issues.

18 A Yes, sir.

19 Q It says J.R. Martin under that.

20 A Yes, sir.

21 Q Already contacted all prior witnesses,

22 transcript; right?

23 A Yes, sir.


4116 LEONARD DRIVE



43/55

43

1 Q AG opinion and process maybe or PROS; is that

2 right?

3 A Yes, sir.

4 Q Felony murder, and it goes on from there you

5 read the rest -- I guess you didnt read this. Phone

6 records regarding already authenticated, already

7 authenticate firearm evidence as well.

8 A Yes, sir.

9 Q And so we are clear, there was a discussion

10 about Matt Dullaghan in the Attorney Generals office.

11 There was an involvement with the Attorney

12 Generals office regarding some of the interpretation,

13 helping in the interpretation of the mandate; correct?

14 MR. MACMAHON: Your Honor, I object. What he

15 heard -- The form of the question is not -- hes leading

16 the witness what Mr. Newsome may know or not know.

17 THE COURT: He testified that he did not speak

18 with the Attorney General representative. Thats my

19 understanding of his testimony. So Ill sustain the

20 objection.

21 BY MR. LINGAN:

22 Q I think you did mention Ms. Burnette at some

23 point?


4116 LEONARD DRIVE



44/55

44

1 A Yes, sir.

2 Q But to be clear, there were also meetings

3 regarding the time frame of the opinion as well; is that

4 right? Meaning when he had to be tried as well?

5 A Yes, sir. I believe so.

6 Q That you would have been present at.

7 A Yes, sir.

8 Q And you are doing your best to remember who

9 may have been present at various meetings.

10 A Yes, sir.

11 Q And again, the next page, 12578. It says

12 defense speedy trial, continuances of defense,

13 authenticity, phone records, list of witnesses; is that

14 right?

15 A Yes, sir.

16 Q Okay. The next page you are asked about

17 12579, and thats dated 9-6-2012. And it says De Jesus

18 Luis telephone at the top.

19 A Yes, sir.

20 Q Thats an FBI agent; phone mapping; is that

21 right?

22 A Yes, sir.

23 Q Now, do you recall when he became involved in


4116 LEONARD DRIVE



45/55

45

1 the case?

2 A The first time I met him, and looking at this,

3 this was the first meeting that I -- The first time I met

4 him was at the Western District Station on the 6th.

5 Q Could that date be mistaken?

6 A Im sorry, sir?

7 Q Could that date be mistaken?

8 A Its possible.

9 MR. MACMAHON: Strike the answer, Your Honor.

10 THE COURT: The question is are you certain

11 that is the date.

12 THE WITNESS: Based on my notes, yes, maam.

13 THE COURT: Okay.

14 BY MR. LINGAN:

15 Q And then you go on to further discuss phone

16 records on that; correct?

17 A Yes, sir.

18 Q Okay. Then the 9-10-2012, 12582, you were

19 asked about --

20 A Im sorry, where are you?

21 Q Bate stamp 12582.

22 A Yes, sir.

23 Q Speak to J.R. and G.F.; right?


4116 LEONARD DRIVE



46/55

46

1 A Yes, sir.

2 Q J.R. and girlfriend. Ice cream after

3 shooting; correct? Im literally reading that.

4 A Yes, sir.

5 Q And then theres Mr. Dullaghans phone number;

6 is that right?

7 A Yes, sir.

8 Q Talk about getting the witness list from

9 federal court; is that right?

10 A Yes, sir.

11 Q The transcript box, and then you have

12 scratched out known about Owen Barber; is that right?

13 A Yes, sir.

14 Q And the very next page, evidence review,

15 account DEA status, evidence, etcetera, Pass. It says

16 Greg Pass from Police Department.

17 A Yes, sir.

18 Q And it goes on from there -- It appears random

19 notes of to dos, that may be things to do in preparation

20 for an upcoming trial.

21 A Yes, sir.

22 Q And thats what these notes are, things to do,

23 or if you may go through transcripts, notes you made to


4116 LEONARD DRIVE



47/55


48/55

48

1 A Yes, sir.

2 Q Now, counsel refers to 12599, Owen Barber pay.

3 He talks about Owen Barber pay.

4 A Yes, sir.

5 Q Is it fair to say thats a note to yourself;

6 right?

7 A Yes, sir.

8 Q There is no date when that was put in; right?

9 A Yes, sir.

10 Q And it says on top, Just in review, Barber

11 made statement.

12 Can you read that next word?

13 A Which one are you talking about, that Barber

14 made statements?

15 Q Right.

16 A Several times about shooting him.

17 Q Right. And then locate ex-wife of Jason

18 Coleman, Owen Barbers pay, Barbers statement; correct?

19 A Yes, sir.

20 Q Okay. Now, this is after numerous notes about

21 phone records; is that right, various phone numbers.

22 A Are you talking about prior to?

23 Q Before that.


4116 LEONARD DRIVE



49/55

49

1 A Yes, sir. These are some phone records and

2 exhibits that were submitted in Circuit Court prior to.

3 Q So that could mean any number of things. It

4 doesnt say that it was in relation at all to the

5 September 11th meeting; correct?

6 A No, sir.

7 Q For instance, it could be discussing about his

8 --

9 MR. MACMAHON: Your Honor, I object to the

10 hypothetical.


12 BY MR. LINGAN:

13 Q Well, the fact of the matter is, you have no

14 reason to believe that was in relation to the September

15 11th meeting; correct?

16 A Im inclined to believe that it was not in

17 relation to it.

18 Q Now, counsel has been trying to beat around

19 the bush. Im just going to ask you directly.

20 Was there ever -- The September 11th meeting,

21 was it ever designed to force Owen Barber to tell any

22 statement in particular?

23 A No, sir.


4116 LEONARD DRIVE



50/55

50

1 Q Was it simply to see what he would say if he

2 was called to the stand as a witness in this case?

3 A Yes, sir.

4 Q Is your interest in anything other than

5 obtaining the truth?

6 A No, sir.

7 Q And you believe, based on your discussions

8 with him, was that the interest of the Commonwealth

9 Attorneys?

10 A Could you repeat that?

11 Q Based on your discussions with Mr. Conway and

12 Mr. Ebert, was that the intent or the desire of the

13 Commonwealth Attorneys?

14 A That is my understanding, yes, sir.

15 MR. MACMAHON: Just briefly, Your Honor.

16 THE COURT: Sure.

17 REDIRECT EXAMINATION

18 BY MR. MACMAHON:

19 Q Mr. Lingan asked you questions about whether

20 this is typical in a reinvestigation of the case; correct?

21 A I dont recall that question, no, sir.

22 Q Well, going down and interviewing the

23 witnesses, all of the things you know, just typical stuff


4116 LEONARD DRIVE



51/55

51

1 right?

2 MR. LINGAN: I did not ask that question.

3 THE COURT: He didnt ask whether it was

4 typical of the reinvestigation of the case.

5 BY MR. MACMAHON:

6 Q Let me ask you this. Is this the first case

7 that you have been involved in where the Commonwealth

8 Attorney here was found by the Court of Appeals they acted

9 unethically?

10 MR. LINGAN: Your Honor, I object to the

11 relevance of that question.

12 THE COURT: Whats the relevance?

13 MR. MACMAHON: Your Honor, Im trying to lay a

14 foundation for my next question.


16 BY MR. MACMAHON:

17 Q Let me ask you this. On page 12577, do you

18 see that?

19 A 77?

20 Q Yeah. I asked you a bunch of questions about

21 this. Using the prior testimony for anyone legally

22 unavailable.

23 A Yes, sir.


4116 LEONARD DRIVE



52/55

52

1 Q There is no question in your mind that those

2 words came from Rick Conway or Paul Ebert before you went

3 to see Owen Barber; correct?

4 A I dont have any reason to -- Theres nothing

5 that suggests or support to me that it was someone else.

6 Q And the language on direct, you told me that

7 there was discussion of the possibility that Mr. Barber

8 might take the Fifth. Those statements were made by Paul

9 Ebert or Rick Conway as well; correct?

10 A It would have been; yes, sir.

11 Q And thats not something that you made up that

12 is in your notes; right?

13 A No, sir.

14 Q Now, in closing, Mr. Lingan asked you if the

15 whole purpose of the meeting was to learn what Owen Barber

16 would say; correct?

17 A Yes, sir.

18 Q Didnt you tell me that the other part of the

19 meeting was to tell him that he was going to face the

20 death penalty for changing his testimony?

21 A That was not a formulated idea of mine, no,

22 sir.

23 Q But that was a formulated idea of Mr. Conways


4116 LEONARD DRIVE



53/55

53

1 wasnt it?

2 A I cant testify as to what his idea was. I

3 knew that was something that had been discussed. But as

4 to whether he was going to tell Mr. Barber he was going to

5 be charged or not, its not a decision that I would have

6 made.

7 Q I understand that you didnt make the

8 decision, Mr. Newsome.

9 But before you went to see him, there was

10 another purpose to the meeting you have already testified

11 to, which was if he stuck to his testimony from the

12 federal court that the Commonwealth could retry him and

13 try to sentence him to death; right?

14 A Thats correct.

15 MR. MACMAHON: Nothing further, Your Honor.

16 MR. LINGAN: May I?

17 THE COURT: Sure. Go ahead.

18 RECROSS EXAMINATION

19 BY MR. LINGAN:

20 Q Sir, Im curious, was there also some concern

21 that Mr. Wolfes habeas counsel had maybe perhaps taken

22 advantage of Mr. Barber?

23 A Yes, sir.


4116 LEONARD DRIVE



54/55

54

1 MR. LINGAN: Thank you.

2 THE COURT: Thank you, Mr. Newsome. May this

3 witness be excused?

4 MR. MACMAHON: He may, Your Honor.

5 THE COURT: You are welcome to stay in the

6 courtroom or you are free to leave.

7 THE WITNESS: Thank you, Your Honor.

8 (The witness was excused.)

9 E N D O F E X C E R P T

10

11

12

13

14

15

16

17

18

19

20

21

22

23


4116 LEONARD DRIVE



55/55

55

* * * * *

CERTIFICATE OF REPORTER

I, VICKI J. SATTERWHITE, a Verbatim Reporter

do hereby certify that I took the stenographic notes of

the foregoing proceedings which I thereafter reduced to

typewriting; that the foregoing is a true record of said

proceedings; that I am neither counsel for, related to,

nor employed by any of the parties to the action in which

these proceedings were held; and, further, that I am not a

relative or employee of any attorney or counsel employed

by the parties hereto, nor financially or otherwise

interested in the outcome of the action.

_____________________________VICKI J. SATTERWHITEVerbatim Reporter

wolfe transcript - 10022013

Documents