SUPERIOR COURT OF NEW JERSEY                                  CHANCERY DIVISION, FAMILY PART     

                         MERCER COUNTY, NEW JERSEY

                         DOCKET NO. FV-11-878-02

                         A.D. #_______________________

MARTINE L. BAYES,        )

                         )   

         Plaintiff,      )      TRANSCRIPT

                         )          OF

       v.                )   DOMESTIC VIOLENCE

                         )        HEARING 

NATHANIEL WALLACE, III,  )

                         )

         Defendant.      )

 

                         Place:  Mercer County Civil 

                                   Courthouse           

                                 175 South Broad Street

                                 Trenton, NJ 08650

 

                         Date:   June 13, 2002

 

BEFORE:     

 

  THE HON. JANE GRALL, P.J.F.P.    

                                               

TRANSCRIPT ORDERED BY: 

 

  NATHANIEL WALLACE, III

 

APPEARANCES: 

   

  PAULA MENAR, ESQ.

  Attorney for the Plaintiff                  

 

  DAVID PERRY DAVIS, ESQ.

  Attorney for the Defendant

 

                              

 

 

 

 

 

                         Transcriber, Marlene Fattore

                         J&J COURT TRANSCRIBERS, INC.

                         268 Evergreen Avenue

                         Hamilton, NJ 08619

                                   (609)586-2311

                         FAX NO.   (609)587-3599

                         E-mail:   jjcourt@optonline.net

                               

                         Audio Recorded

                         Audio Operator, M.A.M.

 

I N D E X

                                         PAGE

WITNESSES

 

KURT ZITSLER

Direct Examination by Ms. Menar           4

Cross Examination by Mr. Davis           5

 

OFFICER RON GAYDA

Direct Examination by Ms. Menar           9

Cross Examination by Mr. Davis          15

 

TREVOR BAYES

Direct Examination by Ms. Menar          16

Cross Examination by Mr. Davis          20

Redirect Examination by Ms. Menar         23

 

AMANDA BUREK

Direct Examination by Ms. Menar          25

Cross Examination by Mr. Davis          26

Redirect Examination by Ms. Menar         28

 

 

 

 

I N D E X (Cont.)

 

PAGE

WITNESSES

 

NATHANIEL WALLACE, III

Direct Examination by Ms. Menar          30

Cross Examination by Mr. Davis          39

Redirect Examination by Ms. Menar         50

 

DECISION

 

By The Court                            52

 

 

 

 

 

 

 

 

 

 

 

 

THE COURT:  Okay.  Thanks.  I just didn't hear what he said.

THE WITNESS:  I'm sorry.

Q    Okay.  And, what happened after that?  After the tire was punctured, what happened then?

A    He got on his bike and then left because Martine had her friend call the cops.

Q    Okay.  And, the police came to the scene then?

A    Yes.

Q    As you recall?  And, what do you do after that?  After the police came, did you talk to the police?

A    Yeah.

Q    And, what happened after you talked to the police at the scene?

A    They weren't going to drive out and look for him so they suggested that she file a --

MR. DAVIS:  Judge, I object.

THE COURT:  Sustained.

MS. MENAR:  Okay.  I withdraw that, Your Honor.  I don't have anything else.

THE COURT:  Okay.  Thank you very much.  I'm sorry, do you have any questions for the witness?

MR. DAVIS:  A few, Judge.  Also, I'm supposed to be in front of Judge Kelly for a case management conference at 2 o'clock.  Obviously, he knows that this is going to take precedence and I'm just wondering whether, you know, somebody can give him a call and let him know.

THE COURT:  Sure.

MR. DAVIS:  Thank you.

CROSS EXAMINATION BY MR. DAVIS:

Q    What did you state the nature of your relationship was with the plaintiff?  How did you two know each other?

A    I knew her from middle school and she also dated a friend of mine.

Q    And, did you date her?

A    No.

Q    Now, you testified that when you pulled up with the plaintiff that there was an argument between the plaintiff and the defendant?

A    Yes.

Q    Did you hear what they were arguing about?

A    Yes.

Q    Did you hear the defendant say that, where were the kids, that he expected the children to be brought by earlier?

A    Yes, he did.

Q    Did you remember if he gave a time?

A    No.

Q    Now, didn't you at some point interject yourself and say, look, she was with me, here's the tickets, we were at a hockey game?

A    Yes.

Q    And, did he tell you that this was none of your business?

A    No.

Q    He never said that?

A    No.

Q    There was no heated exchange at all between the two of you?

A    No.

Q    He never said -- I might have just asked you this, --

MS. MENAR:  Your Honor, he's already testified to that, Your Honor, on direct.

THE COURT:  That makes it a good question for cross examination.

MS. MENAR:  I mean, I apologize, the same answer that he's trying to --

Q    But, there was no heated exchange, correct?

A    No.  Correct.

Q    All right.  You didn't at any point say that this is -- he didn't at any point say to you, the defendant, this is a matter between the plaintiff and I, correct?

A    No.

Q    But you did overhear him expressing that he was upset over not seeing the children?

A    Yes.

MR. DAVIS:  I have nothing further, Judge.

THE COURT:  All right.  Thank you.  I have a question.  You said that after you were hit that the plaintiff went to her friend's house and then the knife was pulled after that.

THE WITNESS:  Yes.

THE COURT:  Okay.  Thank you.

MR. DAVIS:  I omit a question, Judge, if I could, I'm sorry?

THE COURT:  I think we'll end it right there.

MR. DAVIS:  Can I just --

THE COURT:  Thank you very much.  No.  Thank you.  Thank you.  You can step down.

MR. DAVIS:  Judge, it's extremely significant, can I make a --

THE COURT:  No.  I reopened it.

MS. MENAR:  Your Honor, but I have a clarification to make. 

THE COURT:  No.

MS. MENAR:  Okay.

THE COURT:  I've heard everything I need to hear from this witness.  Thank you.  Yes, you can stay outside or you can wait inside, sir, wherever you want.

MR. DAVIS:  Judge, just for the record I had one more question that was --

THE COURT:  Mr. Davis, let's go ahead.  You're finished, right?

MS. MENAR:  No, Your Honor, I'm not.  I have another witness.  The police officer Mr. Gayda.

THE COURT:  The police officer didn't see anything.

MS. MENAR:  Your Honor, he did see the -- he questioned both of the parties.

THE COURT:  He saw the ripped tire.  There's no dispute that the tire was ripped.

MS. MENAR:  He saw the ripped tire.  He has firsthand knowledge as to the statements that were given by the witness and by the plaintiff immediately after.

THE COURT:  I have their testimony, I'm not taking hearsay testimony.  It's hearsay.  I'll allow it if there's an inconsistency.  Get him.

MR. DAVIS:  Judge, I'd ask for a proffer as to what the police officer's going to testify to.

THE COURT:  We just had it.  Go ahead, get him.

MS. MENAR:  Yes, Your Honor.

(Tape Off, Tape On)

THE COURT:  It's been a very long morning.

O F F I C E R   R O N   G A Y D A, PLAINTIFF'S WITNESS, SWORN

THE CLERK:  State your name and spell your name for the record, please.

THE WITNESS:  Ron Gayda, G-a-y-d-a.

THE CLERK:  Thank you.  You may be seated.

THE WITNESS:  Thank you.

THE COURT:  All right, thank you.  Go ahead, Ms. Menar.

DIRECT EXAMINATION BY MS. MENAR:

Q    Officer Gayda, where do you know the parties from?  Do you --

A    Referencing a police report from November 24th of --

MR. DAVIS:  Judge, I object to him referencing any police report at least until there's some indication that he was on call.

THE COURT:  Correct.

Q    Can you please just let us know, you know, out of your memory if you came to a call on that day that involved any of the parties on November 24th?

A    Yes.

Q    Okay.

A    A disturbance between the two people here.

Q    Okay.  And, do you remember where this was at?

A    Yes, 1255 Klockner Road, it's an apartment complex.

Q    Okay.  And, on that incident did you have an opportunity -- you got to the scene after the incident had already taken place?

A    Yes.

Q    Was the defendant at the premises?

A    No.

Q    Okay.  Was the plaintiff in the premises?

A    Yes.

Q    Was there anybody else on the premises?

A    Yes.  There was another girl there and another gentleman was there.  Mr. Zitsler, I believe his name was.

Q    Okay.  And, on that date did you have an opportunity to observe the scene of what had taken place?

A    Yes.

Q    What did you observe?

A    The auto that she had had a rear driver's side flat tire.

Q    Okay.

A    And she said it was slashed from a knife.

MR. DAVIS:  I object as to what she said, Judge.

THE COURT:  All right.

MS. MENAR:  Your Honor, the declarant is here.

THE COURT:  It's an exception to the hearsay rule.

Q    Do you have any knowledge as to -- or, what are your recollection as to the state of mind of the plaintiff at the time that you were at the scene?

MR. DAVIS:  Judge, I object to asking the witness for a legal conclusion as to what --

THE COURT:  No, observations.

MS. MENAR:  Your Honor, it's an observation of the state of mind.

THE COURT:  All right.  All right.

MS. MENAR:  Of how, you know, --

THE COURT:  No.  Observation of her demeanor.

Q    Can you tell us what was going on with the plaintiff at the moment that you were at the scene?

A    She was upset, physically, you know, I could tell she was upset and she was scared.

Q    Okay.  Do you have any recollection as to any statements made by the parties that would have led you to believe that they were in fear?

MR. DAVIS:  I object, it's hearsay, Judge.

THE COURT:  It is.  We don't have a foundation for what you're going for.

MS. MENAR:  Your Honor, --

MR. DAVIS:  It's also cumulative, Judge.

MS. MENAR:  It took place immediately after the incident where a statement is made immediately after an incident that shook the parties.

THE COURT:  Get the foundation.  Get the foundation.

MS. MENAR:  Okay.

BY MS. MENAR:

Q    When you appear in the -- you know, when you got to the premises, to your observation had an incident of domestic violence just taken place?

A    Yes.

Q    Okay.  And, both parties were how far into -- between the ending of the incident and the time that you were at the scene, how much time had transpired?

THE COURT:  No personal knowledge.

MS. MENAR:  I'm sorry, Your Honor?

THE COURT:  No personal knowledge.

MS. MENAR:  Okay.

Q    Did you happen to --

(Pause)

Q    At what time did you get the call?

A    It was in the evening, I don't recall without referencing a police report.

Q    Okay.  Now do you have any personal knowledge at to the time that transpired between the time that you received the call and the time that you appear at the premises?

A    Very short period of time, minutes.  I don't know how many.

Q    A few minutes?

A    I would say so, without referencing a police report I wouldn't be able to say.

THE COURT:  Well, you can reference the --

MS. MENAR:  Your Honor, --

THE COURT:  -- police report if you need it to refresh your recollection.

THE WITNESS:  Yes, I do, Judge.

THE COURT:  You may use it.

THE WITNESS:  Okay.

A    According to the report, five minutes.

THE COURT:  All right.  Thank you.

Q    Okay.  And, at the time then when you -- five minutes had transpired from the call.  What did you observe or what things did you hear as to the defendant's reaction to what had happened?  What statements did you recall at this point?

A    From the defendant?

Q    I'm sorry, from the plaintiff.

A    She stated that --

THE COURT:  All right.  I'm not going to allow it.  We don't have an excited utterance here.  We just don't have it.

Q    Okay.

THE COURT:  All right.  The police have been called and they have come to the scene and so this is not a statement made relating to or starting a comment while under stress or excitement, cause without opportunity to deliberate or fabricate.  We have the plaintiff's own testimony about what happened and we have another eyewitness' testimony about what happened.  So, to admit what the plaintiff said to the police officer on the direct case would be merely to introduce a prior consistent statement of the plaintiff which at this point we don't have any basis for admitting that and it can't be done by your side.

MS. MENAR:  Okay, Your Honor.  I withdraw the question, I don't have any other questions for the officer.

THE COURT:  Okay.  Thank you.  Is there any cross examination, Mr. Davis?

MR. DAVIS:  Just one.

CROSS EXAMINATION BY MR. DAVIS:

Q    You're trained by the police to take a police report after an incident, is that correct?

A    Yes.

Q    And, is it your practice if there's a threat spoken, would it be your practice to include that in your report?

A    Yes.

MR. DAVIS:  I have nothing further.

THE COURT:  All right.  Thank you, Officer Gayda.

THE WITNESS:  Is that it, Judge, I'm sorry?

THE COURT:  Yes, it is.

MS. MENAR:  Yes.

THE WITNESS:  Okay.  Sorry.

THE COURT:  Yes.  Thank you very much for your time.

THE WITNESS:  Thank you.

MS. MENAR:  I have another witness to call, Your Honor.

THE COURT:  Witness to what?

MS. MENAR:  To one of the prior incidents, Your Honor.  The father of my client.

THE COURT:  All right, I'll allow it.

(Tape Off, Tape On)

T R E V O R   B A Y E S, PLAINTIFF'S WITNESS, SWORN

THE CLERK:  State your name and spell your name for the record please.

THE WITNESS:  Trevor Bayes, T-r-e-v-o-r --

THE CLERK:  You're going too fast.  T-r --

THE WITNESS:  Sorry.  T-r-e-v-o-r, B-a-y-e-s.

THE CLERK:  B-a-y?

THE WITNESS:  E-s.

THE COURT:  All right. 

THE CLERK:  You may be seated.

THE COURT:  Thank you very much.

THE WITNESS:  Okay.  Thank you.

THE COURT:  Go ahead.

MS. MENAR:  Okay.

DIRECT EXAMINATION BY MS. MENAR:

Q    There was an incident that took place on June of 2000 at your home.  Can you tell us what happened?

A    Yes.  That was the time that Nate came over and he was kicking my door.  It was just before getting dark and he came over and he started arguing with me and I told him to go home and then he started kicking in my door and he broke a real nice flower pot that I had given my wife for a present, and that was real unusual, real nice.  I was real annoyed at that.  And, that was the first time that he had sort of got very quick off the mark, he would just become annoyed very quick.  He wouldn't --

THE COURT:  I'm sorry, could you speak up?

A    Sorry.  He became annoyed very very quickly.  Very quick.  And, just started kicking in my door.  And lucky enough, I locked it.  And that was the first instance.

Q    Okay.  And that was on June of 2000?

A    Right about there, I'm not sure of the dates there.

Q    Okay.  And then there was another incident.  Did any other incident take place on June of 2000?

A    There was another instance, I'm not sure of the dates, I'm getting mixed up with the dates, where he did exactly the same thing.  That is when he came over and he started arguing with me for I have no idea what reason, and I said, you must go home, please leave.  And then he started kicking in my door, pulled a knife, threatened to shoot me, went like that with his hand.  Was just going to shoot --

THE COURT:  I'm sorry, I didn't, you have to speak up, sir, I'm having trouble hearing you.

A    Oh, I'm sorry.  My accent.

THE COURT:  No, I don't think so.  I think it's my ears.  Go right ahead.

A    He started kicking in my door again.  Martine was out with the baby.  And then he went and threw something in the back of my truck, picked up something and threw it down.  This was the second incident.  Then he tried to get into the door, while he was there he spits on my wife, and said to me, threatened to shoot me by pointing his hand at my hand like it was a gun, and as he went out the door, went down the step, turned around pulled a knife out of his right-hand pocket and then my wife got on the phone and we called the police.  And the police came and they looked for him and couldn't find him.

Q    Okay.

A    And I took him to court.

Q    Okay.  And, at that time was, you know, Ms. Bayes, was your daughter still in a dating relationship with Nate -- with the defendant?

A    I'm not sure what was going on, and I think my daughter at that particular time was sort of torn in between what she was doing and didn't quite know but was sure that -- she wasn't quite sure which way she was going.  And she was trying to get out of this relationship.

Q    And, do you have any other knowledge of incidents of violence between the defendant and your daughter?

THE COURT:  Personal.

Q    Personal knowledge.  Firsthand knowledge.

A    That I have seen?

THE COURT:  Correct.

Q    Or that you heard of, that you've been there?

THE COURT:  No.

MR. DAVIS:  No.

Q    Not that you've heard from somebody else.

A    Only from Martine.  I --

Q    Not from Martine.  Anything --

A    Not from Martine, I have seen.

Q    That you have seen or that you have been a witness, or has there been any phone call or anything of the sort that you've received or that you've heard?

That's what I mean when I mean heard, firsthand heard, not from somebody else.  You, yourself, from the defendant's mouth.

A    Trying to think of, there's been so much going on.  Yes.  Well, no, I'm not sure if he did it or not.  But there was a lot of stuff going on in my house that I know he had something to do with.  But I can't prove anything.  No.  No, I just can't remember.

Q    You can't remember any other thing that you've heard?

A    I can't remember, no.

Q    Okay. 

THE COURT:  All right.  Thank you.  Mr. Davis.  You were finished, right, Ms. Menar?

MS. MENAR:  Yes, Your Honor.

THE COURT:  Go ahead.

MR. DAVIS:  Judge, if I may just have a second.

CROSS EXAMINATION BY MR. DAVIS:

Q