Transcriber, Marlene Fattore
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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 —
- DAVIS:Judge, I object.
THE COURT: Sustained.
- 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?
- 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.
- 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, —
- MENAR:Your Honor, he’s already testified to that, Your Honor, on direct.
THE COURT: That makes it a good question for cross examination.
- 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.
- 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.
- DAVIS:I omit a question, Judge, if I could, I’m sorry?
THE COURT: I think we’ll end it right there.
- DAVIS:Can I just —
THE COURT: Thank you very much. No. Thank you. Thank you. You can step down.
- DAVIS:Judge, it’s extremely significant, can I make a —
THE COURT: No. I reopened it.
- MENAR:Your Honor, but I have a clarification to make.
THE COURT: No.
- 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.
- 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?
- 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.
- 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.
- 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.
- 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.
- 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 —
- 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.
- DAVIS:I object as to what she said, Judge.
THE COURT: All right.
- 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?
- DAVIS:Judge, I object to asking the witness for a legal conclusion as to what —
THE COURT: No, observations.
- MENAR:Your Honor, it’s an observation of the state of mind.
THE COURT: All right. All right.
- 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?
- DAVIS:I object, it’s hearsay, Judge.
THE COURT: It is. We don’t have a foundation for what you’re going for.
- MENAR:Your Honor, —
- DAVIS:It’s also cumulative, Judge.
- 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.
- 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.
- MENAR:I’m sorry, Your Honor?
THE COURT: No personal knowledge.
- 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 —
- 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.
- 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?
- 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.
- 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.
- MENAR:Yes.
THE WITNESS: Okay. Sorry.
THE COURT: Yes. Thank you very much for your time.
THE WITNESS: Thank you.
- MENAR:I have another witness to call, Your Honor.
THE COURT: Witness to what?
- 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.
- 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.
- 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?
- MENAR:Yes, Your Honor.
THE COURT: Go ahead.
- DAVIS:Judge, if I may just have a second.
CROSS EXAMINATION BY MR. DAVIS:
Q All right. You indicated that there were two incidents, sir, in which you had a confrontation with the defendant at your house?
A Yes.
Q And, during the second incident you indicated that he kicked the door and you had initially said he kicked the door, pulled a knife and then made a finger gun, is that correct?
A No, I did not. I said that he had kicked the door, it had come slightly open, he spat on my wife, spat on me, then he pointed his finger like a gun, gone out the door, went down the steps, went into his right-hand pocket, turned around, had the knife waived to me like that and that is when I was shouting to my wife, I think he had a gun, I think he’s got a knife, no, he’s got a knife. And that’s when the police came.
Q Okay. In fact, your wife called 9-1-1 during this incident?
A Correct. Yes.
Q And, do you recall whether or not she told the police that he had a gun pointed at her husband?
A She told the police that she said that, I — hang on — no, she did not.
THE COURT: All right. What — it’s not proper to cross examine this witness about what his wife told the police.
- DAVIS:It’s not consistent, Judge.
Q Did you yell in the background at the time that he had a gun pointed at you?
A No. I yelled, “I think he has a gun, no, he has a knife.” That’s what I yelled. That’s exactly my words.
Q Now, in fact, you did file charges concerning the gun?
A Yes.
Q And those charges resulted in the defendant being acquitted, isn’t that true?
A No.
Q Not guilty of —
A No. No, that’s not true.
Q — of pulling a knife?
A I filed charges and when I went up to the judge I said to the judge, “I think he needs some help.” That’s what I said. And, you know, the judge was going backwards and forwards, well, I don’t want to put him in jail, I don’t want to do this, I don’t want to do that. And I says, well, it’s up to you what you want to do. And I don’t even know what the outcome was. I went there and went to court and said my peace and that was it.
Q The plaintiff is your daughter, is that correct?
A Yes.
Q Biological?
A Excuse me?
Q Biological.
- MENAR:Your Honor, that’s irrelevant, where’s the relevancy to that?
THE COURT: Sustained.
Q You love your daughter?
A Of course.
Q You angry at the defendant?
A Yes, I am. Yes.
Q You’ve had quite a few arguments with the defendant about a car seat?
A Yeah, I thought that he should buy car seats for his children, sure.
Q He was paying $500 a month —
A No, he was not.
- MENAR:Your Honor, that’s —
THE COURT: Mr. Davis, argumentative. Stricken.
Q So you had arguments about a car seat. You had different arguments —
A Yeah, would you like me to tell you what went on?
THE COURT: No. Thank you. Thank you very much.
THE WITNESS: Okay. Okay.
- DAVIS:Nothing further, Judge.
- MENAR:Well, I just have one more question, Judge, that was redirect.
REDIRECT EXAMINATION BY MS. MENAR:
Q Is that probably, you know, well caused anger that you have towards the defendant would that cause you to lie under oath?
A No, certainly not.
Q And the love that you have for your daughter, would that force you to lie under oath?
A No. No. Certainly not.
Q And are you afraid for yourself or for your daughter?
A Yes.
Q And, are you afraid of your life or are you
—
A I believe that Nate at some time will hurt somebody, yes.
- DAVIS:Objection. Objection.
- MENAR:Okay. I don’t have anything else, Your Honor. I withdraw that question.
THE COURT: Thank you. You can step down, sir. Thank you very much.
THE WITNESS: Thank you, ma’am.
THE COURT: All right. You’re finished, right?
- MENAR:Your Honor, I have one more witness that is to the event that took place in the Wawa. However, you know, if the defendant’s willing to —
THE COURT: Bring the witness in.
- MENAR:Okay.
A M A N D A B U R E K, PLAINTIFF’S WITNESS, SWORN
THE CLERK: State your full name, spelling your last name.
THE WITNESS: Amanda Burek, B-u-r-e-k.
THE CLERK: I’m sorry, B-u?
THE WITNESS: R-e-k.
THE CLERK: Okay. Thank you. Have a seat in that chair.
DIRECT EXAMINATION BY MS. MENAR:
Q Okay. Amanda, there was an incident that took place on —
- DAVIS:Judge, I object to the statement that an incident, I mean, I just —
- MENAR:I apologize, I withdraw it, Your Honor.
Q Something happened in November of 2000 in a Wawa that you were a witness to. Can you tell us about it?
THE WITNESS: Between these two parties?
Q Yes, between the two parties. What did you see?
A There was a Wawa incident where he threw her up against the wall when she was pregnant with her son at the time, and I threw myself in the middle of that to stop that fight and a bunch of other people came over to stop that one. And then there was another incident over by Klockner School where he came after us with a golf club.
Q When did that happen about?
A In ‘99
Q Okay. Tell us about that incident in ‘99.
A After when he chased us we went over towards Ms. Sutton’s (phonetic) house, and we went over on the porch and we were talking to Ms. Sutton for a little bit. And then after that he came back but we stayed out on the porch and then he left, and then we went towards Wawa again and that’s when we saw my friend, and I yelled for him to come back and he drove back, and we hopped into my friend’s car and we left.
Q Okay.
THE COURT: Mr. Davis. You’re finished, right?
- MENAR:Okay, Your Honor.
THE COURT: Yes or no?
- MENAR:Yes, I am.
THE COURT: Okay.
CROSS EXAMINATION BY MR. DAVIS:
Q You testified that in November of 1999 there was an incident with a golf club?
A Yes.
Q And this occurred on a porch?
A No, it happened in front of the playground side of Klockner School.
Q Okay. And so, where were you when it happened?
A I was right next to Martine at the time.
Q And where was she?
A Martine was right next to me.
THE COURT: In a car? On the park?
THE WITNESS: Oh, no, standing outside on the sidewalk. Sorry.
Q You were standing on the sidewalk?
A Yes.
Q Was there any other incident earlier that day concerning a golf club?
A No, just that time.
Q Any other incident afterwards?
A Not, just the Wawa one, too. That’s about it.
Q Not about the golf club on that day, no?
A No.
Q At the Wawa you indicated that you saw — that the defendant pushed her?
A He picked her up like this and threw her up against the wall. By her shirt. And picked her up like a couple feet off the ground and threw her. Like slammed her against the wall, actually.
Q And this was when?
A In ‘99.
Q November 1999?
A Yeah.
- DAVIS:Nothing further, Judge.
THE COURT: All right.
- MENAR:I have redirect, Your Honor.
REDIRECT EXAMINATION BY MS. MENAR:
Q I got a little confused on this. You testified that you were on the grounds of this school or by the sidewalk of the school prior to the defendant appearing? What is your testimony?
- DAVIS:Judge, this is a tremendously leading question. Were you there? Are you —
Q Where were you when the defendant showed up?
A Where —
Q Once the defendant showed up with a club, —
- DAVIS:Objection.
Q — with the golf club, where were you?
THE COURT: Fine.
A Where were we? We were on the side of Klockner School, right by — where were we, I forget. We were like right by — we were on the side of Klockner School at the time. But I forget where we were coming back from.
Q Okay.
- MENAR:I don’t have anything else, Your Honor.
- DAVIS:No recross, Judge.
THE COURT: All right. Thank you very much. All right. That’s it for your witnesses, Ms. Menar?
- MENAR:Yes, Your Honor.
THE COURT: Okay. Thank you. Mr. Davis.
- DAVIS:Okay. Make the standard application to dismiss and submit that the plaintiff hasn’t credibly demonstrated even if you give every inference of fact at this juncture. We’ve had two supporting witnesses who were on the other side of the world from what the plaintiff testified to. Mr. Kurt
— I’m sorry, —
THE COURT: We still have enough to raise a fact issue. I have to resolve it by some credibility questions.
- DAVIS:I will call the defendant.
THE COURT: We have ample testimony of the criminal mischief.
- DAVIS:I always make the motion, Judge.
THE COURT: All right.
- MENAR:Your Honor, I have a short closing summation. Very short.
THE COURT: No.
- MENAR:Okay.
THE COURT: We’re a little short of summations, Mr. Davis has —
- MENAR:Oh, I’m sorry.
THE COURT: — some witnesses, I think he wants to put on first, okay? Mr. Davis.
- DAVIS:I would call Nathaniel Wallace, III.
THE COURT: All right.
N A T H A N I E L W A L L A C E, III, DEFENDANT, SWORN
THE CLERK: State your full name.
THE WITNESS: Nathaniel Wallace, III.
THE CLERK: Okay, thank you. Have a seat in the chair right there.
(Mr. Wallace appears to speak with an accent and speaks fast, and at times is difficult to discern)
DIRECT EXAMINATION BY MR. DAVIS:
Q All right. Mr. Wallace, what’s your current address?
A My current address is Naval Air Station, Virginia Beach, Virginia.
Q And, are you employed there?
A Yes, I am employed with the United States Navy.
Q And, are you in school there?
A Yes, I am.
Q And, what’s your relationship to the plaintiff?
A I went out with her for two years, prior to joining the Navy, she’s the mother to my children.
Q Can you slow down, I couldn’t hear that.
THE COURT: I could. The mother of his two children.
Q I’m going to skip over a lot of the background. Beginning in November of 1999, you heard testimony from the plaintiff and some of her witnesses concerning some incidents that occurred between you. Let’s first discuss the incident at the Wawa. What, if anything, occurred at the Wawa in November of 1999?
A I seen Martine at Shoprite, she was smoking, I didn’t say nothing to her then. Me and my friend Mike Ramos (phonetic) proceeded to walk through the woods. Came across the Wawa and Martine was sitting outside of the Wawa on the curb, I went up to her and asked her why she was smoking a cigarette when she was pregnant. She said, it’s my body, I can do what the hell I want with it, if I want to smoke a cigarette I can have a cigarette. I told her shouldn’t be doing that because it could kill our child or he could have bronchitis when he gets older. She said she would do what she want. So, when she stood up, she backed away from me and everybody — we started being in an argument, started yelling, everybody jumped between us, and a uniformed officer came outside the Wawa and asked her what was going on and she said nothing. And he told me to stand to the side, he asked her again, anything happen, and she told him no. He asked her, you want to file a complaint, she said no. He said, all right then. I left. Proceeded to go to my home. I walked back in front of — I went and got a golf club from my house, went to the school parking lot to hit golf balls, after that I walked Martine on Ms. Sutton’s porch, then Ms. Sutton came out and spoke to me, proceeded to go to the parking lot and hit golf balls.
- MENAR:I didn’t hear one word.
Q So we’re leading into the second incident that —
THE COURT: All right. I’m sorry. Could you repeat that? Ms. Menar didn’t hear it.
- MENAR:Yes, that very last sentence I didn’t.
THE COURT: Neither did I.
A The very last sentence?
- MENAR:And then you went to hit golf clubs?
A Golf balls, yes.
- MENAR:Okay. Golf balls. And what did you say after that, that’s what I didn’t hear?
A In the school park. Klockner School.
Q You heard the testimony of the plaintiff concerning your chasing a car, smashing a curb, and other allegations concerning the golf club attack. What happened?
THE COURT: Ms. — okay, go ahead.
A We were outside hitting golf balls, Martine drove the car with her, Amanda, and three other guys in the car. They pulled up, when the guy said something to me I didn’t hear what he said because he was about a good 50 feet away from me. I walked to the car to the side of Martine just so I’d ask her what she was doing, and she didn’t say anything. The guys proceeded to tell me to leave Martine alone, (indiscernible) like Harvey, (indiscernible). So, I told him he needed to get away from me and to leave, and they drove off.
Q And, all right. You saw some e-mails that were entered into evidence and some letters. Can you explain briefly what happened in your relationship between your leaving for the Navy and the end of this relationship as far as it being (indiscernible)?
A Before I left for the Navy we were supposed to get married, originally, and she never wanted me to go to the military. Why was I moving to the military, I told her I was doing it for her and my children, and when I left, half-way through boot camp she broke up with me. And, she sent me letters, some were nice and some were, you know, telling me unless I get money I wouldn’t see my children, basically. And, it was just bad from there.
Q Have you ever punched the plaintiff?
A Never.
Q Ever kicked her?
A I have never kicked her.
Q Slapped her?
A No.
Q Threatened to do any of those things?
A No.
Q Have the two of you had some conflicts concerning parenting time and visitation?
A Yes.
Q Have you been, in fact, permitted to see your kids?
A Excuse me?
Q Have you been allowed to see the kids in the last seven months?
A No.
Q Has your mom been able to see the kids?
A No.
Q All right, the incident that led actually to this order. November of 2001. November 24th. Can you tell the Court in your own words what if anything happened at that time?
A On November 24th Martine was coming by with the children at 8 o’clock in the evening. I waited for her to come by, she did not show up. At 9 o’clock I left the house because my friend was going away, it was time for him to go home back to Virginia.
THE COURT: I’m sorry, you’ve got to speak a little more slowly or a little more loudly. One or the other.
- DAVIS:Or both.
THE COURT: I’m having trouble hearing you.
- DAVIS:Or both, Judge, I can’t hear him from here either.
THE WITNESS: Yes, ma’am. Yes, ma’am. Sorry.
A At 9 o’clock I left the house, I went to go get some friends because it was my last couple days here before I go back to Virginia, back to my duty station.
Q Okay. Just for clarification, the first sentence you started to say something about 8 o’clock. I couldn’t hear it from here, it was too fast.
A At 8 o’clock in the evening Martine Bayes was supposed to bring the children over and stay until midnight for me to see my children. She did not bring the kids over, I waited an hour for her to come by, she did not come by. At 9 o’clock I proceeded to leave my house, I visited friends on the way, then went to James Etten (phonetic) house, he lives in same apartment complex as her friend. As we were walking through the area, talking to each other, I see her car outside in the parking lot, I knock on her friend Melanie’s house, I knocked on her door. Asked her, Martine there, she said, no, Martine’s not here. I said, well, her car’s right there, she said, she’s not here. I said, all right, if you see her you tell her I want to see my kids before I go. She said, all right, and I said goodbye. We walked around, he departed to walk the dog, I went to go get my bicycle because I was leaving it in the parking lot, she pulled up the curb. I turned around, went back, they got out of the car, I asked her where she was at, she was supposed to bring the kids by she did not bring them by. And, basically I told her, you know, I made dinner for her and the children and she acted like she didn’t care. She said, I didn’t know you did all that. She got kind of (indiscernible) about it. So, while I was talking to her Kurt interjected (sic) in the conversation and he was in his car, he stood up, after that we got in a scuffle, then I got mad and I proceeded to cut her tire. She went to call the cops and I left. That’s what happened.
Q Did you threaten her at any point?
A No.
Q Did you chase Kurt around the car with a knife?
A No.
Q Would you have any objection to the Court entering an order under your FD docket that would put some kind of restraint between you and the plaintiff?
A No.
- MENAR:Your Honor, that’s got nothing to do with —
THE COURT: Yes, it does. I’ll allow it.
- MENAR:Okay.
A No.
Q What are your future intentions with the plaintiff?
A With the plaintiff? My future intentions, I would like to see my kids. If she’s willing to speak to me anytime in the future or we resolve this, be civil for the children, then so be it. As long as I can see my children.
Q Are you angry with the plaintiff?
A No.
Q If no restraining order was entered — withdrawn. Do you have any desire at this point to harm the plaintiff in any way?
A Absolutely not.
THE COURT: All right. Ms. Menar. I’m sorry, were you finished?
- DAVIS:Nothing further. You’re right, Judge.
THE COURT: Yes.
- MENAR:Okay.
CROSS EXAMINATION BY MS. MENAR:
Q You just testified before that you slashed — in your exact words, if I have it right on my notes — you slashed the tire and then she went to call the cops. Is that —
THE COURT: Right.
A Yes.
THE COURT: He admits he — excuse me. I’m sorry, I didn’t hear the question.
Q You know, if I wrote down your answer right you testified that you slashed the tire and then she went to call the cops?
A Yes.
Q Okay. So at the time that you pulled the knife out and you slashed the tire, the plaintiff was standing in your proximity?
A She was standing about a good eight feet from me. Kurt car was parked in the middle of the parking lot, her car was parked on the other side. I walked over and cut her tire.
Q Were you talking at that point while you were slashing the tire?
A No, I was not.
Q You weren’t talking?
A I was not talking to her, no.
Q Did you say anything?
A No.
Q You said nothing?
A I said nothing.
Q Okay. And, did you punch the witness before, Kurt?
A Yes.
Q And at what point did you punch him?
A We were talking (indiscernible), he interjected and he stood up.
Q And that was before you pulled out the knife?
A This is before I pulled out the knife, yes, ma’am.
Q And, where was the plaintiff at that point?
A She was standing about a good foot from me, ma’am.
Q I’m sorry?
A She was standing about a foot from me.
Q A foot from you?
A Yes.
Q And, you’re in the Navy now, right?
A Yes, ma’am.
Q You testified that you are. And, you have access to weapons in the Navy?
A No, I do not, ma’am, it’s not my job to access weapons. My job’s a multi-aircraft, aircraft carrier, ma’am.
Q Are you ever going to have access to weapons in the Navy?
A No, that’s not my job, ma’am.
- DAVIS:Objection, speculation.
THE COURT: Sustained.
Q Do you have training on — you don’t have any type of training how to use any type of weapon then?
THE COURT: Sustained.
- MENAR:Okay.
THE COURT: It’s irrelevant to whether or not there should be a restraining order in the first place. All right?
- MENAR:Okay.
THE COURT: It’s totally irrelevant.
Q How much longer do you have in the Navy?
A In the Navy, about two and a half years, ma’am.
Q Two and a half years?
A Yes, ma’am.
Q And what do you plan to do after that?
A I plan to do after that, ma’am?
- DAVIS:Objection, relevance.
THE COURT: Sustained.
- MENAR:Your Honor, it is relevant because it’s got to do with whether the defendant does place a significant threat that’s going to be a long term threat or not.
THE COURT: Fine. I’ll allow it.
- MENAR:Because if he continues to be in the Navy he will eventually have —
THE COURT: I’ll allow it.
A I can not possibly say what I will do in the future, ma’am, it would come down to my re-enlistment, if I relist or not, I’ll decide then.
Q I’m sorry.
- DAVIS:I couldn’t get it either.
THE COURT: He might re-enlist, he might not. Doesn’t know.
A I don’t know, that’s too far in the future, ma’am.
Q You haven’t decided?
A Have not decided.
Q So you haven’t decided yet to have a military career yet?
A No, ma’am.
Q Okay. And, you testified that in the incident of the Wawa, you testified that you were afraid for the child’s health because the plaintiff was smoking a cigarette.
A Yes, ma’am.
Q Did that concern cross your mind also when you picked her up and put her against the wall?
- DAVIS:Objection. Hasn’t been —
THE COURT: There’s some testimony. It’s the plaintiff’s testimony.
- MENAR:It is.
- DAVIS:Well, Judge, it hasn’t been established and he shouldn’t even ask about picking him up.
THE COURT: It’s the plaintiff’s testimony, she’s allowed to ask the question. There’s a basis for it.
A As I recall, ma’am, my testimony, I did not say I picked her up and put her against the wall.
Q What was your testimony then?
A I said she stood up, I did not put her against the wall, did not throw her against the wall.
Q Did you ever grab her arm?
A No, I did not grab her arm, ma’am.
Q Did you bruise her?
A No, ma’am. If I had bruised her the cops —
Q Did you pull her chains?
A Ma’am, if I would have bruised her the cop would have seen it and I probably would have been in jail that night.
Q Did you ever pull her chains though?
A I did not pull her chains, her chains came off.
Q How did the chains come off?
A They came off when everybody was in between me, the chains popped off. Everybody jumped in between us, we got in an argument now, her chains came off in the mix.
Q Oh. So your testimony is the chains came off in between you. Were you forcing yourself at all on her? Was there any physical contact between you and the plaintiff?
A No, ma’am, I stood up and everybody jumped in between us.
Q I can’t hear what you’re saying.
A I stood up, everybody jumped between us, he jumped between us, he was arguing, (indiscernible) anything from happening now. That point, when the officer came outside, uniformed police officer came outside asked everything okay, she says, fine, yes, everything was fine.
Q She said —
A Yes.
Q Well, that wouldn’t have been her testimony. All right. And, you also testified that right after that with the golf club by the school, right, on that date? That there were guys there that talked to you?
A Yes.
Q How many guys were there?
A About three, ma’am.
Q Okay. And, although it’s hearsay, he testified that, you know, that they told you to leave her alone. Why did they ask you to leave her alone, were you threatening the plaintiff? Were you saying anything at that point?
A I was not saying anything at that point, I was minding my business playing golf in a field, ma’am, they pulled up to my position.
Q And asked you to leave her alone without anything that you said — you never said anything to them or you didn’t say anything before that?
A Ma’am, I did lore these people to pull up in the car, they came up and asked me to leave her alone. I had no idea what she told them.
Q And, now you also testified that you were very concerned about seeing your children, and you know, you want to see your children. How many times have you tried to contact the children since you’ve been in the Army?
A Since I’ve been in the Navy, ma’am?
Q Since you’ve been in the Navy and prior to the temporary restraining order, it wouldn’t be fair for me to ask you after that because you probably wouldn’t, but prior to the temporary restraining order how many times have you tried to contact your children?
A (Indiscernible) my children (indiscernible). Numerous times while I was at boot camp, ma’am, I asked her to write letters, asked how my children was doing, she replied to me they were doing fine. I asked her to send pictures via e-mail, letter, and she said they were in the mail and should have came and never came out. I asked numerous times, I asked the Navy to help me with my children and see my children. When she filed a restraining order I went down here and filed —
Q No, I didn’t ask you that, I asked you how many times have you tried to contact your children.
A I was letting you know now.
- DAVIS:He’s giving the story, Judge.
THE COURT: It’s responsive. It’s responsive.
A I’m letting you know, ma’am. And while she was in a restraining order, I tried to get — it was like, to force her to let me see the children before I go back on sea duty.
Q How many times did you send birthday cards to your children?
A Birthday cards, ma’am, I was in the middle of a ship. Ma’am, I was on a boat. I was sailing out in the Atlantic. When both of my children’s birthdays had passed I was out on the U.S. Virgin Islands, I had no access to birthday cards —
Q Did you send them e-mails to wish them a happy birthday?
A Ma’am, I had no access to computers, I worked and I don’t know if that would be a violation of the restraining order and I wasn’t taking that chance.
Q Prior to the restraining order, I’m referring to?
A Prior to the restraining order I was in boot camp, ma’am, and was not allowed to write then.
Q But you were allowed to write to the plaintiff because we have letters that were sent from boot camp, is that correct?
A Not during the time — I went to boot camp April 25th, my son’s birthday’s on April 30th. That beginning of the first week we were not allowed to write at that time, even to write her, (indiscernible) to write my mother, ma’am.
Q Okay. So, at no point did you ever send any direct correspondence for your children?
A I told them happy birthday in a future letter, but that was it. And I had no other way to get in contact with them because there was a restraining order on the next birthdays.
Q Prior to the restraining order how many times did you speak to your children on the telephone?
THE COURT: For the record, the children are —
- DAVIS:Two.
THE COURT: — they were born on April 30th of 2000 and April 9th of 2001.
- MENAR:They were too young. I withdraw the question, Your Honor, I apologize. I don’t have —
Q Oh, also, do you have any knowledge as to what time do the children go to bed?
A What time do the children go to bed? She wrote it to me in a letter but I did not call her at that time.
Q Okay. Do the children go to bed before midnight?
A Yeah. She tries to put them to bed before midnight, ma’am.
Q Do you recall a time then?
A No, ma’am.
Q And you testified then that the plaintiff had agreed to meet you with the children between 8 p.m. and midnight with a — how old were they at the time? They were one year old — Your Honor did the math before, they were very very young.
A But this was a special circumstance because I was leaving back for the military in three days, it’s not like I was there everyday and I asked to keep them up past midnight, ma’am. Haven’t seen my children once since that time.
Q Did you have to leave in three days?
A Yes, I did have to leave in three days.
Q Did you have to leave from the Army when you came to visit?
A I did not have leave from the Navy, ma’am.
Q I’m sorry?
A Did not have leave from the Navy.
Q You did not have leave from the Navy?
A No, ma’am.
Q And, why were you in New Jersey then if you didn’t have leave from the Navy?
A Because when I talked to Martine on the phone prior to me leaving she had some problems with people who were threatening her because of an issue that occurred and I was worried about her and she had a lot of people looking for her, and I came down. Supposedly to give some aid to her and make sure my children were fine.
Q And, you were leaving in three days so there could have been opportunity on the next two days, you didn’t have to meet her between 8 and midnight?
A I had to be back within three days.
Q And, why did you slash her tire?
A Because, I was upset at the time, she said not to slash my tire.
Q I’m sorry?
A She said not to slash her tire.
Q You were upset at the time and she said not to slash the tire?
A Yes, ma’am.
Q Why was she saying not to slash the tire?
A I had no idea, ma’am, that’s what came out of her mouth.
Q So you wanted to slash the tire?
A Yes, ma’am.
Q Did you threaten her with the knife at any point?
A No, ma’am.
Q And, —
THE COURT: Anything further?
Q Were you enraged when you slashed the tire?
A I was not enraged, ma’am.
Q So did you slash the tire out of what, a hobby?
A No, ma’am.
Q You weren’t enraged when you slashed the tire?
A I was not enraged, ma’am, I was upset.
- MENAR:Okay. I don’t have anything further, Your Honor.
THE COURT: Mr. Davis, anything?
REDIRECT EXAMINATION BY MR. DAVIS:
Q What happens to your career in the Navy if a restraining order is entered against you under the DVF?
THE COURT: Irrelevant.
- DAVIS:Well, Judge, isn’t it — it’s —
THE COURT: Irrelevant.
Q One omitted question. Have you been contacted since the TRO was entered by the plaintiff?
A Yes, ma’am. I mean, yes, sir.
Q And, what was the nature of that contact?
A She contacted me via e-mail while (indiscernible) the top gun, told me that Mike Ramos had died. Had died. And told me that the children were fine.
THE COURT: I’m sorry, I didn’t understand.
- DAVIS:I —
- MENAR:I have no idea what that was.
- DAVIS:Neither did I.
A I’m sorry. I was in the state of Nevada, ma’am, at Top Gun, she contacted me via e-mail that Mike Ramos, one of my friends that was with me had passed away. He had a motorcycle accident, she told me the children were fine.
THE COURT: All right, that was nice.
- MENAR:Your Honor, —
Q And that was subsequent to the TRO being entered?
A Yes, it was, sir.
- DAVIS:I have nothing further.
THE COURT: All right. Thank you. Ms. Menar.
- MENAR:Well, Your Honor, I had no first knowledge as to that. There was no testimony on direct as to that e-mail. I haven’t seen the e-mail, you know, I object to even the consideration of that post temporary restraining order e-mail.
- DAVIS:That’s why I said it was an omitted question, Judge.
THE COURT: All right. You can step down, sir, thank you.
THE WITNESS: Yes, ma’am.
THE COURT: All right. This matters’s before the Court for a hearing on a complaint filed under the domestic violence act. The Court has jurisdiction under the act because the parties have two children together. There is no question that there’s a qualifying relationship under the domestic violence act.
Now, the Court has jurisdiction for that reason under the act and also because the incidents complained about occurred in New Jersey. Further, we have the right venue here because that’s where the plaintiff resides and where these incidents occurred. And, the defendant does not currently reside in New Jersey but was in New Jersey at the time these incidents happened. He’s on active duty in the Navy.
There is no question that there was an act of criminal mischief in this case, that’s not in dispute. Criminal mischief is purposely or knowingly damaging the property of another. And, by the defendant’s own testimony, by the plaintiff’s testimony, by her witness’ testimony the defendant took out a knife, a pocket knife, a simple pocket knife and jabbed the plaintiff’s tire. So that’s an act of criminal mischief. The question is whether because that act of criminal mischief a restraining order ought to issue in this case. And, I find that it ought not issue in this case. We do not, in this case, have proof to by a preponderance of the evidence that the Court can credit with respect to any of the other incidents complained about this, nor do we have a consistency that makes the Court think that the protections of the domestic violence act should come into play at this point in time.
The testimony of the plaintiff and her witnesses was all over the lot. And the inconsistencies are blatant, anyone was paying attention. I don’t know if it’s because people weren’t paying attention at the time. The plaintiff has herself hearing the terroristic threat because she was standing next to the car at the time the defendant pulled out the knife and stabbed her tire, and said, “If this is how you want it to be I can make it that way.” According to the plaintiff’s witness who was with her at the time she wasn’t even there when the knife was pulled out, she had gone to her friend’s house to call the police. So, the plaintiff puts herself in one place and her own witness contradicts her. She has an incident between her father and her in June of 2000, her father has the incident between — not her father and her. Her father and her are involved in an incident with the defendant. Her father testifies he has the incident between the father and the mother and the defendant.
The plaintiff when she amended her complaint here to add the Wawa incident put it at 11/2000, today it’s 11/’99, and has the defendant grabbing her around the neck, in what she had the Court add to the complaint, and shaking her, and today she’s lifted up and pushed against the wall. The testimony is fraught with inconsistencies. In the meanwhile the golf club incident, I credit the plaintiff, you know, the plaintiff has testimony about the defendant having the golf club, there’s nothing in the evidence that would support the conclusion that the defendant was lying in wait for the plaintiff or something like that. He says he was out there hitting some golf balls. The plaintiff’s testimony is she’s kind of riding around with her friends and happens to go by the defendant. So this is a chance encounter in which the defendant has a golf club and what does he do, not go after the plaintiff, he hits the sidewalk with it.
Even taking all of plaintiff’s testimony to be true, which is difficult given the numerous, numerous inconsistencies in this case, I am however convinced that the parties should have restraints not under the domestic violence act because I can’t find that there’s a need for an order to prevent further violence between these parties, but there’s going to be a restraining order under the FD. What is the FD number in this case?
- DAVIS:Judge, it’s FD-11-1788-00.
THE COURT: All right.
- MENAR:Your Honor, if I just may note for the record?
THE COURT: There’s nothing to note.
- MENAR:Okay.
THE COURT: The —
- DAVIS:I believe it’s the same plaintiff and defendant designations, Judge. If that’s —
THE COURT: Same plaintiff and defendant designations, and the plaintiff and her mother under the FD, and the defendant, all have joint legal custody of the children, is that right?
- DAVIS:That’s correct, Judge.
THE COURT: All right. That remains. With respect to primary residential custody, it’s the plaintiff and her mother. With respect to parenting time, where are you now, sir?
- DAVIS:When do you have to go back?
THE COURT: I mean, I know you’re in the courtroom right now. Where are you stationed?
- DAVIS:Judge, he would like to see them today if possible. He’s going back tomorrow —
THE COURT: Mr. Davis, can I get somebody to answer one question?
- DAVIS:Yes, Judge, I’m answering it. He has to go back tomorrow.
THE COURT: All right.
- DAVIS:When will he be back on leave again, is that your question, Judge?
THE COURT: Yes. I don’t want to address tomorrow first, I want to address the long term first, all right?
- DAVIS:Going on a cruise, they’ll be back December 23rd, he’s going to be at sea until then.
THE COURT: He’s going to be at sea until December 23rd of 2002?
- DAVIS:Apparently, Judge.
THE COURT: Okay. Then, you are going to have some leave? When defendant has leave the plaintiff has testified here today that she does not want to keep him from his children and that she wants him to be involved in his children’s life. That’s what her testimony was. So, when the defendant returns, if available, through the grandmothers who have both been present in this court proceeding, parenting time is to be arranged. Not through the mother and the father, through the grandmothers. Do either grandmother object to that. So, in other words, Mr. Wallace’s mother will call Ms. Bayes’ mother, is there objection to that on your part, Ms. Bayes, to arrange the parenting time?
UNIDENTIFIED SPEAKER: Your Honor, (indiscernible).
THE COURT: You’re not willing to play that role?
UNIDENTIFIED SPEAKER: No, I don’t —
- MENAR:Your Honor, could it be court —
UNIDENTIFIED SPEAKER: There are a lot of reasons for it.
THE COURT: That’s fine.
- MENAR:Could it be court —
THE COURT: Then, Ms. Wallace will call the plaintiff Ms. Bayes. And those two will discuss a time. The defendant’s only going to be here on leave and the time for parenting time can be worked out then when he’s here. The time should be worked out at that point in time. In the meanwhile the parties are to have no communication with one another.
- DAVIS:E-mail regarding the children, Judge.
THE COURT: They may write each other about the children. There are to be no personal remarks. The e-mails that the plaintiff introduced, not constitute harassment in the sense that they are not — excuse me, did not constitute threats in the sense that they are not threatening e-mails, they are disgusting, but good taste is of the test for a restraining order. But there’s no reason that parties should be addressing each other in that manner who are parents of the children. And every e-mail and every letter, remember, is something that the other side is going to have in writing. That’s the only communication, about the children. Unless there is some kind of life threatening emergency for one of the children.
- MENAR:Your Honor, —
THE COURT: And there needs to be contact beyond e-mail.
- MENAR:Your Honor, my client has a suggestion that if the parenting time could be court supervised, —
THE COURT: No.
- MENAR:– at least until a risk assessment can be completed.
THE COURT: No. I don’t believe that there
— on the basis of the plaintiff’s own testimony here in the courtroom today, she said that he was a good father and that she was not trying to keep him from the children. Why do I need a court expert when I have the mother testify to that way?
- DAVIS:Judge, just for the —
THE COURT: There are consequences for testimony, it’s not a game.
- MENAR:Your Honor, my client didn’t testify that he was a good father. She testified that she wanted him to be in contact —
THE COURT: Correct.
- MENAR:– with the children, but not that he was a good father. She never said that he was a good father.
THE COURT: Ms. Menar.
- MENAR:She never said that he was a good father.
THE COURT: Ms. Menar, have a seat.
- DAVIS:Judge, I know I —
THE COURT: Have a seat. I have found the domestic violence complaint unsubstantiated. When Mr. Wallace comes back from the service in December he is going to be, I would imagine, Mr. Wallace, you’re going to be staying at your mother’s home, is that correct?
- WALLACE:Yes, ma’am.
THE COURT: The visitation in the beginning, because there hasn’t been a lot, should not be overnight visitation until there’s been some time at home. It should be blocks of hours during the day. In the early evening, to coincide with their bedtime. All right. Understood. That’s the way the —
- DAVIS:Counsel and I should be able to arrange that, Judge. The only hanging issue and I know Your Honor didn’t want me to raise it before because it wasn’t responsive to your question, but my client is going away for seven months and he would really like to see his children today.
THE COURT: I’m getting there.
- DAVIS:I’m sorry, Judge.
THE COURT: All right. What time are you leaving?
- WALLACE:Tomorrow I’ll be leaving at 3 a.m. in the morning. Tomorrow morning, ma’am.
THE COURT: All right. It is now five minutes to 3. Where are the children now, Ms. Bayes?
- BAYES:They’re at their godmother’s house.
THE COURT: All right. We can have parenting time then today from 3 — well, how far is it from here? Where are the children?
- BAYES:It’s about a half an hour.
THE COURT: All right. You’re going to go pick them up now? All right. And, Mr. Wallace and his mother will come to pick up the children. Do you have a car seat for them?
- WALLACE:No, I do not, ma’am.
THE COURT: You do not have car seats?
- WALLACE:No, ma’am.
THE COURT: All right. Well then, you’re not going to put the children in a car seat without a car, luckily it’s a clear day, is it still clear outside? All right. Then you could walk. Not going to put them in a car without a car seat.
- DAVIS:Can they be dropped off and picked up at the defendant’s residence, Judge?
- MENAR:Your Honor, my —
THE COURT: Yes, do you have a car?
- BAYES:Yes.
THE COURT: And you have a car seat, I’m sure.
- MENAR:You have a car seat, right, yeah.
- BAYES:Yeah.
THE COURT: All right. The plaintiff will then bring the children to the defendant from 4 until 7.
- MENAR:Your Honor, —
THE COURT: She doesn’t have to stay. The grandmother can go out to the car to get them.
- MENAR:Your Honor, my client — the parenting time has to take place at the paternal grandmother’s house?
THE COURT: Correct.
- MENAR:Okay. My client has an objection to that, Your Honor, because there are several circumstances that have taken place at that house. And, if the plaintiff wants to have —
THE COURT: There has not been one ounce of testimony in a three hour proceeding about anything that occurred at the grandmother’s house.
- MENAR:Well, Your Honor, they were all prior to two years.
THE COURT: Good.
- DAVIS:Counsel and I can also speak and modify this by consent, if there’s romp around or something else that perhaps we can find mutually acceptable, Judge.
THE COURT: That’s fine. This is unless the parties agree otherwise. Mr. Wallace.
- WALLACE:Yes, ma’am.
THE COURT: If there is one contact other than what I have said, one word of harassment, there’s no communication under this order except in writing. If this order is violated I will enforce this order. It is a Court Order. Do you understand?
- WALLACE:Yes, ma’am.
THE COURT: A violation of this order, just like any other violation of any other court order can be punished civilly or it can be punished as a criminal contempt. And, I will not have an order of this court violated. Do you understand?
- WALLACE:I fully understand, ma’am.
THE COURT: There’s no contact except in writing. The parenting time is to be set up by your mother when you’re available. And it’s to be set up for daytime hours in blocks, and I saw the grandmother shaking her head. She understands what the reason for that is as well. It’s not overnight parenting time now. These children through no fault of your own haven’t seen you since November, that’s nearly half a lifetime at that age.
* * * * *
C E R T I F I C A T I O N
I, Marlene Fattore, the assigned transcriber, do hereby certify the foregoing transcript of proceedings on tape number F219-02-JAG, Index from 01 to 4339 is prepared in full compliance with the current Transcript Format for Judicial Proceedings and is a true and accurate compressed transcript of the proceedings as recorded, and to the best of my ability.
_______________________________
Marlene A. Fattore AOC #526
J&J COURT TRANSCRIBERS, INC. Date: ___________________
SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION, FAMILY PART
MERCER COUNTY, NEW JERSEY
DOCKET NO. FV-11-1328-04
A.D. #_______________________
MARTINE L. BAYES, )
)
Plaintiff, ) TRANSCRIPT
) OF
- ) DOMESTIC VIOLENCE
) HEARING
NATHANIEL WALLACE, III, )
)
Defendant. )
Place: Mercer County Civil
Courthouse
175 South Broad Street
Trenton, NJ 08650
Date: April 12, 2004
BEFORE:
THE HON. THOMAS P. KELLY, J.S.C.
TRANSCRIPT ORDERED BY:
NATHANIEL WALLACE, III
APPEARANCES:
STEVEN D. JANEL, ESQ.
Attorney for the Plaintiff
NATHANIEL WALLACE, III, Defendant
Appearing Pro se
Transcriber, Marlene Fattore
J&J COURT TRANSCRIBERS, INC.
268 Evergreen Avenue
Hamilton, NJ 08619
(609)586-2311
FAX NO. (609)587-3599
E-mail: [email protected]
Audio Recorded
Audio Operator, C. Fiore
I N D E X
PAGE
WITNESSES
NATHANIEL WALLACE, III
Examination by The Court 3, 19
Cross Examination by Mr. Janel 26
MARTINE BAYES
Direct Examination by Mr. Janel 5
AMANDA BUREK
Direct Examination by Mr. Janel 14
EXHIBITS ID. EVD. P-1 D.V. Complaint, 11/25/01 11 40
P-2 Complaint, 11/13/02 12 40
P-3 Written Letter, 6/24/01 13 40
P-4 Electronic E-mail, 6/30/01 13 40
DECISION
By The Court 31
THE COURT: Is this the matter of Bayes v. Wallace, Docket Number FV-11-1328-04. You may enter your appearance.
- JANEL:Thank you, Your Honor. Steven Jenal on behalf of the plaintiff Martine Bayes.
THE COURT: All right. You are Nathaniel Wallace?
- WALLACE:Yes, sir.
THE COURT: Mr. Wallace, would you stand? Ms. Bayes, will you stand please?
M A R T I N E B A Y E S, PLAINTIFF, SWORN
N A T H A N I E L W A L L A C E, III, DEFENDANT, SWORN
THE COURT: All right. Tell me your name please.
- BAYES:Martine Bayes.
THE COURT: All right. Please be seated. Your name again, please?
- WALLACE:Nathaniel Wallace, III.
THE COURT: All right. Mr. Wallace, I’ve got to address you first.
EXAMINATION BY THE COURT:
Q Did you receive a copy of the domestic violence complaint filed by Ms. Bayes?
A Yes, sir.
Q I need you to speak a little louder because we’re recording you and you’re very very low with your volume. Okay? Can you do that please?
A Yes.
Q Did you receive a copy of the complaint, Mr. Wallace?
A Yes, sir.
Q Did you read the allegations?
A Yes, sir.
Q Now, do you understand that this is a non-criminal proceeding here today. If I determine that an act of domestic violence occurred I will be issuing a restraining order. The intent, of course, is to keep the parties to separate and apart and to prevent further domestic violence. I will not be sentencing you under the criminal code of the state of New Jersey. Do you understand that?
A Yes, sir.
Q Mr. Wallace, in view of those circumstances that you received a complaint, you said you read it, I ask you, do you admit or deny the allegations that are contained therein?
A I admit part of it.
Q What do you admit?
A The part about calling her a stupid Columbian bitch.
Q Well, the next part is also in there and it says, “I should have killed you when I had the chance.”
A I did not say kill, I said, I should have took care of you when I had the chance. And I meant legally, about the children.
Q All right.
THE COURT: Are you ready to proceed?
- JANEL:Yes, Your Honor.
THE COURT: All right. You may proceed.
- JANEL:Thank you. Your Honor, to dispense with openings, I’d like to call my first witness Martine Bayes.
THE COURT: All right. How many witnesses are you intending to apply?
- JANEL:I have one witness who’s sequestered outside, Your Honor.
THE COURT: All right. Go ahead.
DIRECT EXAMINATION BY MR. JANEL:
Q Ms. Bayes, could you state your full name please?
A Martine L. Bayes.
Q And, how old are you, Ms. Bayes?
A Twenty.
Q Could you state your present relationship with the defendant?
A He’s the father to my two children.
Q Okay. And, at some time were you in a romantic relationship with him?
A Yes.
Q And when did that end?
A Three years ago.
Q Okay. Did something happen on April 7th which brings us here today?
A Yes.
Q Could you tell the Court —
THE COURT: Now you’re whispering. Now, you got to keep your voice up, all right. I want to hear you. He’s got to hear you, and we need a nice clear record, all right. Would you do that, please? Pull that microphone closer to you as well. Thank you. Last thing I heard was the relationship ended about three years ago, okay? Go ahead, counsel.
Q Ms. Bayes, could you tell the Court what happened on April 7th of 2004?
A Okay. I went to drop off the kids 10 o’clock in the morning so he could have visitation time due to the fact he was home from the military. I dropped them off 10 o’clock, nothing happened, his mother was there. I went back to pick them up at 4 p.m. after my classes ended and the kids were not dressed, were not ready, picked them up. After getting them ready, was walking out of the house as Nathaniel Wallace is following me out of the house, I’m trying to put my kids in the car, he’s hollering about how he’s coming home in four weeks and he wants the kids for the entire week when he comes home. I told him, no, I explained to him he has the weekend. He told me, that’s his mother. And I told him he could take me back to court then, he said then he’s going to partially take away some of the child support that he’s giving me now and I continued to walk my kids to the car. While I’m getting my kids in the car he’s yelling at me, “I should have killed you when I had the chance, you can thank Tom Rubino for saving your life that day.” I’m still getting my daughter in the car while he was standing behind me yelling at me. I go around to the driver’s side of my car to get in my car and he’s yelling at me, “You’re a stupid Columbian bitch.” And then I drove off.
Q You said that your children were with you. How old are your children?
A My son will be four April 30th. My daughter is three.
Q Okay. And, is the defendant the father of those children?
A Yes.
Q Was there anybody else there who heard the defendant say what he said?
A Yes.
Q And who was that?
A My friend Amanda Burek.
THE COURT: Who?
THE WITNESS: Amanda Burek.
THE COURT: Where was she?
THE WITNESS: She was in the passenger seat of my car.
THE COURT: She was in the car.
THE WITNESS: Yes.
THE COURT: All right.
Q At the time that this was happening when the defendant said what he had said, how did that make you feel?
A I was very scared of him, I’ve always been afraid of him. I don’t like when he stands behind me and I can’t see what he’s doing, it scares me. And at the time that he was yelling at me that he should have killed me when he had the chance, he was directly behind me over my shoulder while I was putting my daughter in the car and I was very scared and I rushed to the other side.
Q Okay. And eventually did you call the Hamilton Township Police?
A I actually drove directly to the Hamilton Township Police Station right after the incident.
Q And, just so we’re clear, where did this incident occur?
A At his mother’s house, 71 Morgan Avenue.
Q In Hamilton?
A In Hamilton Township, yes.
Q Has there ever been any occasions prior to this one where Mr. Wallace has committed an act of violence or threatened you?
A Yes.
Q And, could you tell the Court about that?
A Well, the previous one to this case, there was one in November of 2001, 2002. It was 2002, November of 2002. I was going out, I had made plans to go out with a friend to a hockey game that evening and I left my car at another friend’s house because that’s where we were going to meet. Prior to returning to the car, we saw him as we were driving up to my car, we saw him passing us on his bike. We proceeded to my car and as I’m getting to my car he’s coming back on his bike and I wanted to go to my car and just leave and he would not allow me to. The guy I was with, the guy friend I was with, had gotten out of the car and was trying to talk to him. He was accusing both of us of doing something together and being together, and that was not the case. He eventually hit my friend and then he pulled out a knife, slashed my tires, and chasing me with it.
Q Other than that, has he ever hit you or physically hurt you in the past?
A Yes.
Q And, could you tell the Court about that?
A There was a time, do not recall the date, but he had punched me in the face trying to get — while I was trying to get to my son in his room when I was living with him. He pushed me down out in front of his house when I was coming home from being out with one of my friends. He has hit me several other times though I can not recall exactly what the reason was. I have had several bruises from him, I never went to the courts for it.
THE COURT: You were saying you’ve never went to the courts for it?
THE WITNESS: No.
THE COURT: All right.
A I was very afraid of him to do anything about it. And he had complete control over me when I was living with him and during the time that I was with him, when he had hit me. Also, there was another time that I did not file complaints about but the police do know about in Hamilton Township, he had choked me up against a Wawa wall and my friend, again Amanda Burek, had gotten in between the two of us to stop the fight.
Q Just to follow up with that. I have a copy of a domestic violence complaint dated November 25th of 2001. Could you take a look at that real quick. Just the first page is fine. Ms. Bayes, would you agree with me that that’s your signature there?
A Yes.
Q And you would agree with me that you did make a complaint to the Hamilton Township Police Department. This was with regard to the slashing of the tires and the hockey game incident, correct?
A Yes.
- JANEL:Your Honor, can I have this marked as an exhibit?
THE COURT: You could have it marked.
- JANEL:Thank you.
THE CLERK: P-1.
- JANEL:Thank you.
Q And, Ms. Bayes, what was the result of this restraining order back in 2001?
A It was seen. It took about six months to get into the Court. But, it was seen in front of Judge Grall. She had dismissed the case due to the fact that she said that she did not want to ruin his career in the military and dismissed the case and said that there should be no contact between me and him unless it’s regarding the children. And, that is where it was left, nothing further was ever done about it.
Q Okay. And, if I may show you, on November 13th of 2002 you made a complaint with Hamilton Township Police Department. Is that your signature, Ms. Bayes?
A Yes.
Q Okay. And the complaint was based on the fact that he had forwarded to you offensive and threatening e-mails, is that correct?
A Yes.
THE COURT: What was the date?
- JANEL:November 13th of 2002. And if I actually could mark this complaint as an exhibit.
THE COURT: Can have it marked.
- JANEL:Thank you.
THE CLERK: P-2.
Q Now, Ms. Bayes, was this in regard to two e-mails that you had received from the defendant? Or, an e-mail and a letter that you had received from him?
A Yes.
Q And if I show you photocopies of those would you agree that those are the correspondences which were forwarded from the defendant to you?
A Yes. Yes.
Q Okay.
- JANEL:May I have these marked, please, Your Honor?
THE COURT: When are they dated?
- JANEL:The first one is a letter dated June 24th of 2001. The second is an e-mail dated June 30th of 2001.
THE CLERK: P-3 and P-4.
Q Ms. Bayes, presently how do you feel about being around the defendant?
A I don’t like it, I’m very afraid of him. He makes me nervous and I feel like I always have to watch what I’m doing.
- JANEL:I don’t have any further questions at this time, Your Honor.
THE COURT: What are you asking this Court to do?
- BAYES:I would like to get a final restraining order so I don’t have to have him around me, so I don’t have to be afraid for my life anymore.
THE COURT: Before I hear from you, Mr. Wallace, of your side, I want to hear the other witness, since it apparently has to do with what happened on the date of the most recent complaint. What’s that witness’ name, please, again? Is that Amanda Farek?
- JANEL:Burek, Your Honor.
THE COURT: Burek.
- JANEL:B-u-r-e-k.
A M A N D A B U R E K, PLAINTIFF’S WITNESS, SWORN
THE COURT: What is your name?
THE WITNESS: Amanda J. Burek.
THE COURT: All right. You may be seated. Ms. Burek, I’m going to ask you to keep your voice up nice and loud like I am, all right, so I can hear you? And we have a good recording. Counsel, your witness.
- JANEL:Thank you.
DIRECT EXAMINATION BY MR. JANEL:
Q Ms. Burek, could you state where you presently reside?
A I was in the passenger seat of Martine’s car.
THE COURT: Listen to the question.
THE WITNESS: Oh.
THE COURT: We asked you where you reside. You said in the passenger seat.
Q I know you’re a little nervous. Just, if you could just listen to the question and answer to the best of your ability. Ms. Burek, where do you live now?
A I don’t want to —
Q You don’t want to disclose it?
A Yeah.
Q Why?
A Because I don’t —
THE COURT: You don’t have to disclose it. All right? Do you live in Mercer County?
THE WITNESS: No. I live in —
THE COURT: No. Okay. Go ahead, counsel.
- JANEL:Thank you, Your Honor.
Q Did you witness an incident between the defendant and Ms. Bayes on April 7th?
A Yes, sir.
Q Could you describe to the Court what you saw?
A I was sitting in the passenger seat and we were talking and whatever, and I was talking to her kids, I had my back turned, and he came over to the window and was — I mean, threatened her and said that, while we drove away, that he called her a stupid bitch, Columbian or whatever, he called her a bitch Columbian or something like that. It was in those phrases. But, he said other things though. I mean, but he scared me. Q Well, —
A I didn’t know what he was going to do when he came up to the window. I mean, I had backed up so fast.
THE COURT: You said that he threatened her. I mean, when you call somebody a stupid bitch, you know, I mean, it’s nasty, but —
THE WITNESS: I mean, he even threatened her for her life. He was like, —
THE COURT: What did he say?
THE WITNESS: He said that, “You’re lucky Tom Rubino saved your life.” And that means if he would have got — if he never saved her life, that means he would have killed her at that time, from before, with a couple other incidents that happened.
THE COURT: Do you know what that meant? “You’re lucky Tom Rubino saved your life.” Do you know what that means?
THE WITNESS: That means, I guess, because he would have got to her. He almost killed her a couple times already.
THE COURT: Is that because someone told you?
THE WITNESS: No.
THE COURT: Did you see that happen, or?
THE WITNESS: I was there for a couple witnesses, for what he did to her.
THE COURT: Well, what else did you see him do to her?
THE WITNESS: This was a long time ago. That was over at Wawa when he threw her up against the brick wall when she was pregnant with her son.
THE COURT: Okay. Any other time you see him do anything to her?
THE WITNESS: The other time when he chased us with a golf club, when we hopped in our friend’s car and we drove off with them.
THE COURT: Is it because of what your prior experience has been that you were afraid on this last occasion?
THE WITNESS: I’ve been afraid of him ever since.
THE COURT: All right. And, do you see the person who made those threatening statements and did the things that you said in the past happened, in your presence here today?
THE WITNESS: I don’t see him at all.
THE COURT: I mean, is he here in the courtroom?
THE WITNESS: Oh. Yes, he is.
THE COURT: All right.
THE WITNESS: I’m sorry.
THE COURT: Is that the man right there, in the shirt?
THE WITNESS: Yes, sir.
THE COURT: All right. Counsel, you have any other questions of this witness?
Q Just, when you were with Martine, Ms. Burek, (sic) on the date that this happened, how did she appear to you?
A Scared. We went to her mom. And then after that we went straight to the police station.
Q And you’re a good friend with Ms. Bayes, correct?
A Yes, sir.
Q And, you’re a pretty good gauge on how she’s feeling and how she reacts?
A Yes, sir.
- JANEL:That’s all I have at this time, Your Honor.
THE COURT: All right. You may step down, as they say. Mr. Wallace, you’ve heard the testimony that I’ve heard with respect to these matters. And, of course, the history which is relevant in these cases and required to be heard about by not only the statute, the law itself, but also the case law. What do you have to say?
(Mr. Wallace appears to speak with an accent and speaks fast, and at times is difficult to discern)
- WALLACE:May I first ask a question, please?
THE COURT: Yes.
- WALLACE:I didn’t want to interrupt you or anything, you know. My lawyer wasn’t able to be here today because he had other appointments prior to this.
THE COURT: It’s too late now.
- WALLACE:It’s too late.
THE COURT: We’ve got everybody sworn in.
- WALLACE:I’m sorry, Your Honor.
THE COURT: And, you should have said something right away and I would have entertained that. But now I already started this case and now I took half the evidence already. People have been sworn, so this case now has jeopardy attached, as far as I’m concerned.
- WALLACE:Okay.
EXAMINATION BY THE COURT:
Q What do you have to say about this matter?
A She came over my house, dropped the kids off, I came home from the military on leave prior to going to Dayton (sic), Nevada. And, she came in, picked the kids up, we didn’t say anything. I got on the phone and was talking to my friend and she was getting the kids ready to go and she was walking out the door, I said, hey, I said, I’ll be home in like four weeks. She goes, “Eh”, like that, so I say, I want the kids for a week. Like that. This is prior to me going on a six month appointment in the Navy. And she said, well, you only get them on weekends. I was like, what do you mean I only get them on weekends, like that. I said, ask my mother, we don’t get them on weekends, like that, (indiscernible), every time I come home I get the children for a reasonable amount of time. And, she’s like, she turns around and says like in a snotty attitude, well, I guess we got to go back to court then, won’t we? And she walked out the door, I said, yo, what are you trying to do to me, like that. And she didn’t answer me. And so I said, we’re being nice, you know, I’m not saying anything to you, whatever, I said what are you trying to do to me? I said, why? Why? Why you coming to my house, doing this to me? There was also from a prior engagement where Amanda said she came to my house, start some drama. But, she said I was behind her, when I told her I should have killed, which I didn’t say I was going to kill her, because she was in the back seat, behind the driver’s seat in the back seat of the car putting one of the kids in the car. I leaned across the window with Amanda there, I said, “I should have took care of you before”, I said, “I’m done with this.” This meaning, legally with the kids, child support, visitation, and everything, because this has been an ongoing problem for about almost a year now, visitation wise. And she goes, “What?” Like that. I said, yeah, you heard me the second time. And I repeated it. After that she drove away, I said, “You’re a fucking stupid Columbian bitch”, like that. And she drove away, and next I know cops came to my house, said they got a warrant for me for arrest because I threatened to kill her and I called her a stupid Columbian bitch, which I did. But I didn’t threaten to kill her at all.
Q Who is Tom Rubino?
A Tom Rubino’s my friend, he lives around the corner from me. And, that’s who he is.
Q Why do both witnesses against you mention Tom Rubino, along with language that you said, “You should thank Tom Rubino for saving you the last time.” Why did they both say that?
A The incident with Tom Rubino, told her Tom Rubino should have saved her life. Tom Rubino was not there at all for that incident. So it was referring to know — for Rob Nelson — me, Rob Nelson, and Tom Rubino was side the Wawa talking and arguing about a prior incident. Would you like to know about the prior incident?
Q Well, they talked about several prior incidents, both of the women. Of course, the plaintiff here talked about filing prior domestic violence complaints, prior quasi-criminal complaints, complaints. She said that you have punched her in her face before. That you pushed her down. And these were things when you were living together. He hit me other times, she said. None of these got reported. There was an occasion where he pushed me up against the wall and people had to come and separate us. In November of ‘02 you slashed her tires on the car and chased her with a knife, she said. These were things that were testified to, I just took the notes.
And the other lady here, Ms. Burek said she was present when you threw the plaintiff against a wall somewhere at one of the fast food places, I think I heard her say, and he chased us, referring to you, with a golf club. Now, that’s what I heard. Do you want to address any of those things? Are they all figments of the imagination of these people?
A No, they are not all true. All right. At a prior incident, she says she’s afraid for her life from me and she doesn’t like being around me at all but yet constantly she gave me her phone number to talk to her on her cell phone, and we talked on the cell phone, I was in Key West Port on a Det there. We talked on the phone for like two or three hours at a time on certain days and we had a good time on the phone talking. She come to my house and I talked to her over my house. I mean, she comes by, was out in the kitchen, she starts talking to me, whatever, and things like that. And, but the last time, I believe it was after Christmas, the day after Christmas, I called her up, I wanted to see the kids, she came to bring the kids by, and instead of brining the kids by, because I yelled, can I talk to you for a minute? I was talking to see how she’s doing and I noticed that she had Amanda Burek in the back seat and Rob Nelson in the front seat of the car, and for somebody to be afraid of their life, this is something I wouldn’t tell somebody if I was afraid for my life, I wouldn’t tell them that, I don’t sleep with your best friend, and I hate you, and blah, blah, and all this stuff, but she’s afraid for her life when she comes up to me and said this to me. But at the same time I didn’t get mad, I didn’t say anything to her. I spoke to Rob. I spoke to Rob, I didn’t get mad, I didn’t do nothing to him either. So, to me that does not portray somebody that’s afraid for their life to do things like that. And, I have never made an attempt on her life to kill her or anything like that. As far as punching her in the face? Did not punch her in the face. I’m 250 pounds, if I was to punch her in the face people would notice. Nobody said anything. My mom wouldn’t go for that, because she was living — my ma does not play that. And my uncle’s a cop. I did not punch her in the face. And as far as the Wawa incident? She was sitting on the curb smoking a cigarette, because she was pregnant, I did pick her up off the curb. I did not choke her. I did not throw her against a brick wall. She said I choked her, Amanda said I pushed her against the brick wall. I didn’t do neither one of them. And, I had to do one or the other.
And as far as chasing them with a golf club. We went through this before, the last restraining order. I had a witness here for this. I did not chase her with the golf club, they didn’t even left the car. I was outside. We was in a field hitting golf balls, my friend Mike Ramo, he’s dead now. And, that’s for that. And I never chased her or anybody else in my entire life with a knife, ever. You look at the previous court records, I did not chase her with a knife. It was known that I did not chase her with a knife. Yes, I did cut her car tires. Yes, I did hit her friend, but I did not chase her with a weapon or at any time made an attempt on her life, nor did I go after anybody with a weapon.
Q I understand what you just said, is you said that you did slash her tires?
A Yes, we went to court for it and I did slash her tires. Again, it was about visitation because she did not bring the children over and was saying that she was going to bring the children over. And I happened to be in the same parking lot where she parked the car because I have a friend who lives in that apartment complex and I see them on the way out, I was riding my bike out. And then, we were talking, we got in an argument and that was the end result me cutting the tire. Yes, it was wrong, but I did it, and it was paid for.
THE COURT: Counsel, any questions of Mr. Wallace?
- JANEL:Yes. Actually, if I can show him P-3 and 4.
CROSS EXAMINATION BY MR. JANEL:
Q Mr. Wallace, could you look at P-3, please?
A Yes.
Q And you would agree with me that that’s an e-mail that you sent Ms. Bayes?
A Yes.
Q Could you read the highlighted portions to the Court, please?
A “I hope you enjoy (indiscernible) life, you stupid bitch, not our kids. You will never get anything again. Try to act stupid and I will (indiscernible) person you (indiscernible) candy ass, so get high and play in the field while you’re blindfolded.” And this highlighted portion is, “Like I said, you probably fucking somebody, also damn you to hell, you may — devils — and fuck you, and obliviate with your pitchforks.” Next highlighted area. Let’s see, where does it start at. “So, fuck you up the ass with a hot poker, you’re a piece of shit, I hope you real mom can see how a bastard you turned out to be, have a nice fucking life, you stupid cunt.”
Q And on P-4, could you read the highlighted portions of that?
THE COURT: Is P-4 one of your e-mails?
- WALLACE:No, it was not, it was a written letter.
THE COURT: It’s a written letter?
- WALLACE:Yes.
THE COURT: Did you write it?
- WALLACE:I’ll read it —
THE COURT: All right.
A “You’re just full of shit.” I did write this, yes. “You’re just full of shit. I did this shit for you and our kids. I bet your ass, you couldn’t wait until I left, you go around sucking dick and fucking and drinking and getting high like a dirty slut that you were born to be.”
Q And then on the bottom, when you signed it, what did the P.S. say?
A Oh. (Indiscernible).
Q Okay. And just so we agree, there have been incidents in the past where you’ve slashed her tires?
A Yes, I slashed her tire, yes.
Q And you agree with that?
A Yes.
Q And, it’s your testimony that you’ve never hit her?
A I never punched her in the face or hit her like that, no.
Q Have you ever grabbed her or physically held her?
A Yes.
Q Against her will?
A I picked her up. I let her go. And her friends just immediately jumped in between everybody. I did not choke her or anything like that.
Q Okay. Have you ever threatened to hurt her or kill her before?
A Threatened to kill her? Never threatened to kill her.
Q Did you ever threaten to hurt her before?
A No.
Q Okay. Do you have any type of prior criminal record?
A Prior criminal record?
Q Yes.
A I’ve had like criminal mischief on there, but that’s all due to my knowledge. But now I don’t know what’s on there or what’s not, I never really looked at it. I went to court for certain things but it got dismissed.
Q Okay. So, just because I’m looking at the domestic violence temporary restraining order and the Court checked off that you do have a criminal history and I just wanted to ask you?
A Yes, I seen that, too.
Q So, to the best of your knowledge you do have some convictions for violence under the criminal code?
THE COURT: Well, that’s recent, that. That’s 2004. Maybe that’s issued at the same time. If you look at the number W-2004 means Warrant for 2004, is your year, and then there’s the warrant numbers, 496 is the warrant, 1103 is Hamilton Township code.
- JANEL:I agree with that, Your Honor. Actually, I was referring to question number two, unfortunately they didn’t attach —
THE COURT: The SBI number is there. Yes.
- JANEL:Yes, they didn’t attach the criminal case history to the complaint though, so I just was inquiring as to whether or not the defendant had ever been convicted of any violations of the criminal code.
THE COURT: All right. Anything else?
- JANEL:I just have one more question, Your Honor.
Q At any time over the past years — I believe you testified that you guys would talk for hours and had discussions about all sorts of things, correct?
A Yes.
Q Okay. I have here a copy of Judge Grall’s order dated June 12th. Says, “Plaintiff and defendant may write or e-mail each other in regard to the children only. Parties should not address each other personally.” Do you agree, does that refresh your memory of what Judge Grall entered in her order?
A Yes.
Q Okay. And you would agree with me that at times you violated that provision of the order?
A She called and talked to me.
Q Okay.
A And she came over to my house.
Q Okay. So, you never actually started any conversation with her at any time in the past two years?
A We both initiated the conversation. The way I understand it was that if she wanted to speak to me about something and, it could be done. But, other than that, she didn’t want to talk to me, I could talk to her about the kids and e-mail. But other than that she talked to me about everything, and she gave me her phone number, her cell phone number.
- JANEL:You know, I would just ask that this whole order be marked.
THE COURT: We already have it. I could take judicial notice of all court orders anyway.
- JANEL:Okay. I wasn’t sure if it was in the file because it was on the FD docket, Your Honor.
THE COURT: Yes. Can I have those e-mails, please? And that letter. All right. You know, the allegation here is that there is harassment. Now, harassment is basically an act of domestic violence that is defined as all of the different forms of domestic violence are. It’s really formed by the code, the criminal code that defines harassment, 2C:33-4. It says, “A person commits this petty disorderly persons offense of harassment if, with purpose to harass another that person makes or causes to be made a communication anonymously” which is not the case here, “or at extremely inconvenient hours”, that’s not the case here, “or in offensively course language or in any other manner likely to cause annoyance or alarm.” It’s that last phrase, “in any other manner likely to cause annoyance or alarm.”, that really I think is the theory of this case. And, you know, when somebody calls somebody a Columbian bitch, that is not really — I mean, it’s not nice, but it’s not harassment just by that language alone. And if that were the case I probably say you don’t have a basis for a restraining order. But this goes on, there’s more to it than that. Okay.
The language that was heard by the plaintiff who obviously is an interested party just like you are, Mr. Wallance, in the outcome of this case, you know, she wants to win, you want to win, in a sense, so you’re both interested, and both of you have come up with different versions of what was said. We have an Amanda Burek who obviously is a witness for the plaintiff. It’s her friend. She was in the car. And her testimony is that, you know, I was just sitting there and he came up to the window and he threatened her. And I asked her, well, what do you mean he threatened her, what did he say? And he said, well, he said something about, you’re lucky that Tom Rubino was there, and in so many words, saved your life, because I should have killed you then. And he called her a bitch, you know. As I said, that language, calling somebody a bitch or even something worse than that perhaps, in and of itself is not language. But when you start using language like, you’re luck Tom Rubino saved your life, all right, and you have to understand the context of this is I believe there was an argument because he was after more parenting time with the child and she was denying it. So we have this energy going on here, all right, an argument that led to this argument about, you know, his getting access to his kids. And her saying no to his overtures for more time, and you’re going to have to take me to court. Well, that’s the framework of this thing.
Now, even that kind of a statement alone, all right, about Tom Rubino and I should have killed you when I had the chance, and I do find that that was said because I do find that it’s the kind of thing that I think this particular gentleman would say under the circumstances based on what I find to be a rather significant prior history. If you read the e-mails, you know, it’s pretty nasty stuff. And, you know, it has to do again with almost the same kind of arguments. The same issues between the parties. And, the prior history of domestic violence that was reported here in this case, threatening e-mails, those alleged, and tires were slashed, admittedly. And she says and he denies, that he’s punched me in my face, he’s pushed me down on the ground, he’s hit me other times, and this is all the time when I was living with him and I didn’t report it because he was very controlling she said, I was afraid of him. He pushed me against a wall, and then of course, that turns out to be at some fast food place and that happened to be witnessed by Ms. Burek as well. And she said, Ms. Burek said, you know, I’m afraid of him. And when I asked her why it was based upon her experiences with Mr. Wallace and she doesn’t have the same contact with him as Ms. Bayes has had.
And then, you know, when you make a statement like that, I should have taken care of you or I should have killed you when I had the chance, what useful purpose does that serve? None. It has no useful purpose whatsoever. You could argue all you want about these kids, and your rights and her rights. And you could say nasty words to each other. You can call each other every name in the book, because we’re not here to legislate or to punish for the lack of social etiquette. But, when you start saying things that have a threatening tone to them they lose their constitutional protection of free speech. Now, if there was no history, okay, maybe even then, you know, what’s that mean, you know? But the woman says, I was afraid, I’m afraid of him, I don’t like him when he’s behind my back. And then she says why she’s afraid of him, because of this history.
We do know there is some history and I can see from the communications in the past that, you know, there’s some nasty language here. You know. When people say, you know, fuck you up the ass with a hot poker, you are a piece of shit, you know, certainly they’re not communications of love. Words like, “You’re just bull shit, I did this shit for you and our kids, and I bet your ass couldn’t wait until I left so you could go around sucking dick, fucking, drinking, and getting high.” Again, you know, there’s a lot of animosity in that language to say it mildly. This is the kind of person who when they say that they’re that angry that will do things that are alleged as being the history here and I do find that that’s more likely true than not. Obviously it may not be exactly the same way as it’s been described here, but I believe that it’s more likely true than not true that it happened because I have to decide which is the more credible version of it and credibility here really is what’s more likely true than not. It’s not proof beyond a reasonable doubt in this particular area.
I think you were arguing about trying to get more time with your kids when you were on leave, it was being resisted and denied, and you were angry about it and you said the things that you said. Now, you know, you could say things like, or call her all the names you want, really, and I think they are as I said constitutionally protected, but then when you say things like, I should have killed you when I had the chance and you’re lucky Tom Rubino — and it’s interesting, you know, that both witnesses remembered that kind of language, you know? And it’s those kind of oddities that make things have the ring of truth, Mr. Wallace, and that’s the reason I believe that it was said. And, that kind of language, based on the history loses, because as I said, the constitutional protections of free speech, and it becomes threatening and it does cause serious annoyance and alarm. Now how do I know it did? Because immediately both parties not only indicated that they had fear of you and they were afraid of you, but they went immediately to the police department to file complaints about it. That’s what people do when they’re afraid. And that’s my ruling. I believe that side of the case to that extent. And therefore, I am issuing a restraining order that will prohibit, hopefully prohibit, under the pain of arrest any further domestic violence.
I will not prevent you from seeing your two children because the children are not involved in this dispute and should not be. I don’t know what their exposure has been, but. When is his next visitation to take place?
- BAYES:I know his mother is supposed to have the kids this Friday.
THE COURT: And, until what time?
- BAYES:Friday at 3, until Sunday at 4 p.m.
THE COURT: Sunday at what?
- BAYES:4 p.m.
THE COURT: 4 p.m.
- BAYES:Yes.
THE COURT: No, they can be lifted. The plaintiff, of course, retains the custody. You’re in the Navy, is that right?
- WALLACE:Yes.
THE COURT: All right. All right. You can see the kids on Friday at 3 o’clock. What do you drop them off?
- BAYES:His mother normally meets me at Burlington.
THE COURT: I’m sorry?
- BAYES:His mother normally meets me at Burlington County Courthouse to pick up the kids.
THE COURT: All right. That’s how it’s done?
- BAYES:That’s how it’s done.
THE COURT: And then how do you get the kids back?
- BAYES:She drops them back off to me at the courthouse.
THE COURT: All right. How often does he see the kids?
- BAYES:It depends on his schedule. I have always made it a point to let him have them when he comes home. I just can’t let him have them for the entire week because the kids do stuff during the day.
THE COURT: How long is your leave?
- WALLACE:Actually, my leave got extended until the 14th at 24:00.
THE COURT: I can’t hear you.
- WALLACE:Actually, the 13th at 24:00 I have to be back on the plane.
THE COURT: You got to be back when, April 13th?
- WALLACE:Yes.
THE COURT: Well, today’s the 12th.
- WALLACE:Yes, I know.
THE COURT: So, you’re going back tomorrow then?
- WALLACE:If not tomorrow, today, probably, yes, sir.
THE COURT: All right. And when are you expected back again?
- WALLACE:Anywhere’s from —
THE COURT: If you don’t know I can accept that, you know.
- WALLACE:See, I Say, at the most six weeks from now, (indiscernible).
THE COURT: Where are you stationed?
- WALLACE:Virginia.
THE COURT: Norfolk?
- WALLACE:No, NAS Oceana, Virginia Beach.
THE COURT: All right. How does his mother get in touch with you?
- BAYES:She has my cell phone number.
THE COURT: She calls you?
- BAYES:Yes.
THE COURT: All right. When you come home you can have your mom call her and you can have further visitation. I’m not trying to cut off his contact with his children, I am trying to cut off his contact with you. All right? For the reasons that I said.
Two other things have to happen, Mr. Wallace, as a result of this court issued restraining order. One is you have to be fingerprinted and I will get it done today in view of the fact that you’re shipping out for Virginia Beach soon. It’s not for any criminal purposes, it’s for the domestic violence registry. It’s done in the other courthouse. Are you paying a — penalty under Title 25 is waived in this case. Here’s where you get the fingerprints, it’s in the other courthouse. All right? Down the street. I don’t know, I always point that way but what I’m trying to say is the old courthouse on Market Street on the corner, that’s where you get it done. That document tells you where and when. I would get it done today so you could get it cleared up out of there. Otherwise the Mercer County Prosecutor’s Office will deliver it for you.
All right, I’ll bring an order out to both of you. What I’m doing basically is restraining the contact, that I am taking off the two children from him being restrained from having contact with, obviously for the reasons he’s going to visit with them. Your residence and your employment are included in the restraints. 71 Morgan Avenue is your place, right?
- WALLACE:It’s my home address, yes.
THE COURT: And I have a social security number here listed, tell me if I’m correct, 135-76-7689?
- WALLACE:Yes.
THE COURT: Is that correct? All right. Ongoing support and medical coverage for the parties in question is continued.
I am retaining for the purposes of this record since I referred to them, P-1, P-2, P-3 and P-4 in the file. P-1 is something that I can recognize judicially, it’s a domestic violence complaint under a docket number. One is a harassment complaint dated June 30th, 2001 out of Hamilton. And the others are the other written and electronic communications.
Mr. Wallace and counsel, if you’ll step into the hall we’ll bring the order out to you as soon as it’s printed out and I get a chance to review it. It’ll be just a couple of minutes.
- JANEL:Your Honor, would the Court entertain a fee certification or not?
THE COURT: I don’t think so in this particular case.
- JANEL:Okay. Thank you.
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C E R T I F I C A T I O N
I, Marlene Fattore, the assigned transcriber, do hereby certify the foregoing transcript of proceedings on tape number F-156-04-TPK, Index from 420 to 3746 is prepared in full compliance with the current Transcript Format for Judicial Proceedings and is a true and accurate compressed transcript of the proceedings as recorded, and to the best of my ability.