HOUSTON – A Lowndes County drug recognition expert says Ramona Robertson was impaired by some drug when she drove on Highway 32 on Dec. 7, 2012.
Several witnesses today testified after seeing a video showing an emotional Okolona deputy police chief on a DUI traffic stop played for trial today in Chickasaw County Justice Court.
Robertson is accused of violations allegedly discovered during a traffic stop in December 2010.
Judge Judge Ernest Cunningham of Marshall County presides in the Houston courthouse for a proceeding expected to occupy all of Monday.
Robertson was arrested last February after Circuit Judge Andrew Howorth agreed enough evidence existed to charge her with DUI, speeding, failure to comply and possession of a controlled substance without a prescription.
Robertson appeared in court with her attorney Edward Lancaster.
The state is represented by District Attorney Ben Creekmore and County Attorney Elizabeth Ausburn.
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(Below is a running account of today's proceeding. Please excuse the typos or other glitches likely as I type rapidly. Some testimony is paraphrased.)
STATE CALLS Deputy Mistrot, Lowndes County. (Pronounced MIS - trow)
CREEKMORE questions. Mistrot deputy since 1998. Assigned to the Patrol Division.
(Asks him about Drug Recognition Program?) Trains officers to help them recognize drugs and whether people are impaired, also if under influence is caused by the drug or another reason. (Training program?)Yes. Training 9 days, classroom, tests before and after. Pass-Fail. [Describes how program works, performing evaluations, go through protocols. Assess impaired persons.] Training is provided in Mississippi by out-of-state instructors, a few from MS. It’s an international program.
(Creekmore presses how to know what impairment is caused by, if it’s not alcohol.) No. Did classroom training, clinical training, master evaluators, extensive written exam. Certified by state master instructors. Certificate comes from International Association of Chiefs of Police. (Since certification, have agencies relied on you as an expert to evaluate individuals about how under influence?) Yes. [Describes how he conducts his evaluations, categorizes impairments, makes report.] Mississippi recognizes DRE opinions in cases such as this.
(Hands him a document. What is it?) My personal vitae. (Creekmore - asks court to accept him as an expert witness in drug recognition.)
LANCASTER - Asks if judge will allow him to question Mistrot. (Judge - I’ll allow a short voir dire.)
(Where have you testified before?) This is first. (Ever published?) No sir. (Are you aware that Vicadin, Hydrocodone and Loratab are the same substances?) Somewhat, yes. (Do you take legal training about the law?) Yes sir, some. (In your report ... OBJECTION - Not sure that’s proper for voir dire. LANCASTER - Says he took some legal courses. CREEKMORE - He’s certified as an expert. JUDGE - Court notes the argument. Sustained the objection. LANCASTER - Do you know what MIranda is? MISTROT- Yes I do.
Judge certifies him as an expert. 2:24 p.m.
CREEKMORE - (Attention to Dec. 7, 2012. Recall contact to be involved in DUI investigation in Houston?) Yes, I do. By Trooper Burrows by telephone. What his observations were. Asked me to respond in his investigation. (Then?) Responded to Chickasaw ... to the hospital. Said she was willing to do a blood test. Said I’d be there as soon as I could. Met them at the hospital advised me she had refused. Isn’t environment where I can do my evaluation. We went to new location. (Then?) Searcy and I went into building, others stayed outside. Once we got in there, already had talked to troopers... read her Miranda. She told me she did not want to do the evaluation. Said troopers had done her wrong. I told her I wasn’t trooper and was contacted. Happy to explain why I’m there. Told her about DRE. Said she’d heard about it. She made statements... OBJECTION - No proof of voluntariness. She invoked her right to silence. Anything after that is inadmissible. CREEKMORE - I can try to clear it up. Can try to lay a better predicate. LANCASTER - It’s all inadmissible.
CREEKMORE - Two things going on. Deputies said she didn’t want to go through DRE evaluation. I didn’t hear anything said by Ms. Robinson that she wanted a lawyer or didn’t want to answer questions. Other than initial statements by deputy, I haven’t heard any questions. All he’s said here statements were voluntary. LANCASTER - They don’t have a tape or a video, no proof except this man’s word that she confessed. We only found out Friday at 3 p.m. This violates her rights to Miranda.
CREEKMORE - One other argument. The law is settled that on any type of field sobriety, it doesn’t fall under Miranda. We submit that the evaluation conducted was in that nature of field sobriety. LANCASTER - I don’t see how it’s that when they’ve handcuffed her and taken her down to the old jail. This is violation of Miranda. It is not field sobriety. JUDGE - AFTER MIRANDA, she objected to DRE. Not clear she changed her mind. I didn’t hear clearly what that statement was. .. how she changed her opinion. Would like that question asked again.
CREEKMORE - (let’s go through these questions very carefully. Don’t say anything about statements she may have made. No. 1, when you read her Miranda rights, what exactly did she say to that?) She advised she did not want to do field evaluation. (Did you ask her any questions before she said anything else?) NO sir. She began to voluntarily provide information. (In response to questions from you?) NO sir, they were not. (After that point, how long did you remain in the room observing her?) Less than 5 minutes.
JUDGE - I AM GOING TO SUSTAIN YOUR OBJECTION. After Miranda, about questions. To Creekmore, you may proceed in light of that.
CREEKMORE _ (WITHOUT SAYING ANYTHING SHE TOLD YOU, did you observe her?) Yes. (Responses, way she spoke?) Yes. (Able to make any determinations as DRE?) LANCASTER ON HIS FEET - Miranda also accompanies motions or actions. JUDGE - OVERRULE OBJECTION.
Mistrot - Based on observations, and trooper information, I have zero doubt she was impaired, under what context I cannot say. (CREEKMORE - Under influence of some drug?) Yes sir. (Had you completed evaluation, would you have been able to know more about category?) If I had completed, I could have told you what categories were involved. (Review anything like video?) Yes, got copy from Searcy. In its entirety and officer reports.
(Creekmore - Hands him document ... recognize it?) Looks like medication. (Did you review that?) Not prior to my report, no sir. (Have you ever reviewed it?) Yes. briefly. (Lancaster reviews documents.) (Looking at the screen, recognize this?) Looks like footage of the video.
(We’re going to play the first minute or so ... Trooper Burrows in Chickasaw County. Observe this.) .... (Did you review first 5 minutes?) Made some notes ... 53 secs, crossed center line, later tire goes over center, another time, goes over fog line, another over center line, another center line, crosses center line, drifts across line, improper passing, drifts toward center line, blue lights go on. (Reviewed the tape entirely?) Yes. (Same person at 911 office, evaluated?) Yes sir. (At 911 office, determined she was under influence of some drug?) Yes. (Notes you made about her driving, consistent with what you expect from observations of her?) Yes, totality indicates impairment.
(In your video review, behavior on the side of the road?) Yes. (Did anything change your mind that she wasn’t under influence/) No sir. That’s cyclic behavior... I've stopped many people. Officers included. Her confrontation is not typical of what I’ve seen with other officers. (Heard all testimony today ... anything change your opinions about whether she was under influence?) No sir. (Testimony about ... reading on PVC ... any impact on your conclusions?) This is typical behavior from an impaired driver. Administer portable breath test to rule that out. With 000 - indicates no presence of alcohol. (Anything about field test... about alcohol?) One thing to touch on ... about her pupils.... not being reactive. Only one drug category that doesn’t react to light ... (Did you check type of hydrocodone?) No, never handled anything they seized. (In your review of pharmaceutical records... anything make you want to change your evaluation in this case?) No sir ... looking at many of meds she’s prescribed ... still doesn’t give her a right to be out on the road. (Reviewed the types of meds she was prescribed on or near Dec. 7, 2012?) Seen a history, briefly.
(How describe her meds?) Narcotic analgesics ... hydrocodone, with acetaminphen. (Hand him document - Crime Lab results of 18 tablets in her car. When it said hydrocodone with what?) Ibuprofen. (Anything in her history with that?) No sir. (Do you review med histories in your investigations? As a DRE, have you been trained to know what these substances do to ability to operate vehicle, make decisions?) Yes, I have. (If someone takes these meds as prescribed, would you ... as law enforcement and DRE ... have serious concerns about ability to ... OBJECTION - HE’S NOT A TOXICOLOGIST. JUDGE - I’M GOING TO ALLOW IT.
As far as this history and dealing with her as I have, no doubt ... she was impaired. These medications were impairing her ability to operate the motor vehicle. (Would you want that person you encountered to go with you and back you up in an emergency situation?) NO sir. OBJECTION RENEWED. JUDGE - SUSTAINED. 3 P.M.
(What did you find from video?) Saw several times she was impaired. Behavior inconsistencies.
LANCASTER - To cross examine. (Asks that video be played again for Mistrot’s review.)
(You weren’t claiming to be there?) No sir. (Told this came from Searcy’s car?) No, Burrows. This looks like Searcy’s. [Another defense attorney will question Mistrot.]
(Lancaster - nowhere along here does she touch that yellow line. But it’s not against the law to touch it?) That’s right. (She never crosses the line in this tape. Truth is, it was trooper who crossed line at end of video?) Emergency lights activated allow him to cross that line. (That’s all.)
(Creekmore - DID ANYTHING he asked you change your opinion about her impairment of driving?) No sir. My opinion she was impaired.
STATE RESTS. 3:09 P.M.
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LANCASTER - We have witnesses. Can we take 5 minute break? Judge - OK. 10 minutes.
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11:22 - Judge back in courtroom
AUSBURN To question - MHP Officer CINDY SERCY, DUI certified, working Dec. 7, 2012.
(How came in contact with Robertson?) Myself and Trooper Burrows patroling on Hwy 32. He got a call to watch vehicles. Saw somebody coming at high rate of speed. We turned and followed. Clocked 77 in 55 zone. Five times crossed center line. Vehicle passed a vehicle, Burrow later passed, then I did too. Tape running the whole time. Traffic stop at Hwy 15. I walked on passenger side. He knew who it was in the car. He started questioning her, why going so fast, why all over the road. She said haven’t drunk nothing, haven’t took nothing... what do you want me to do. She said taken Soma for her back about 6 hours ago. She said she knew she went off road, was upset. He said whatever it was wouldn’t show up in a sobriety test. She said she’d been riding around with Chief Ivy all day. Said she didn’t have any weapons. I found OC spray, got a little unruly with me. Said she would take drug test. Throughout whole stop, she would go to calm, to enraged to crying. She said she went off road, I am upset.
She was crying, said she ran off the road. She told him to stop treating her like a criminal. Asked her what medication she was taking. Probably 5-10 minutes into the stop, she acknowledged she had taken a pill for her back. She stated Dr. Smith ... crying, I am sick and tired of taking this medicine, prescribed by Dr. Smith. (Later, about drawing blood, what did she say?) She said to me, I took alcohol/blood test and will take another, let’s go right now to hospital. Also said she was on other drugs after having teeth work done. Later said she’d lost her mother and her brother. Found a pill in her shirt pocket and pills in the car door. About 18 pills in bottle. She stated it was for ... crying ... because she had just lost her brother and her mother, going through a hard time. Also said mad at Ivy.
(She said she’d had one Soma, a muscle relaxer, 6 hours before?) Yes. (Also found Lortab in an unmarked bottle?) Yes. She said had to lock them up to keep people from stealing them. (In the police car?) Yes. When first started, admitted Soma, Later she said Prozac and Lexapro. She was stopped in District 1 on Hwy 32 at Hwy 15. Prepared an arrest report. (Shows her a document. Asks about field sobriety test.) Her speech was very impaired. Walking around, very unsteady. Could tell she was under the influence of something. [Describes tests given to Robertson.] Says Burrow had to explain test 4 times to her. Could not hold her balance while being instructed. She was falling all over the place. She said, “S#$t, I can’t do this. Lord help me.” Changed her story, gave list of other things she had taken. [Talks about mood swings, eye pupils not dilated.]
(Did she say Lortab in that list?) No, she didn’t. (Want to show tape. If she wants to explain, can she stop the tape?) JUDGE - ASKS IF DEFENSE HAS PROBLEM WITH THAT. NO.
11:39 - [Tape shows patrol car with blue lights passing two other cars. It’s dark on highway. Can see lead car’s tail lights up ahead. Blue lights are not on now. You can see another car up ahead of lead car. Now, blue lights are on lead patrol car. Searcy’s car stops behind Burrows’ vehicle. He gets out of the car, You can hear him telling her to advise they have stopped a car. Can hear a woman talking in the background to him as he leans into the front vehicle. Driver gets out of car. Can see Burrows shining light into her eyes.] BURROWS ASKED her if she was on any drugs. She said, nothing at all. Then she says Soma for back, six hours ago. Driver says she has been crying. Says she’s been upset. Hear woman say she hasn’t taken any kind of medication, been riding with chief.
[Video continues. They are instructing driver to do certain things, checking for weapons. Hear woman telling them other things. Says she will take a drug test. Burrow tells her to gear it down. Woman tells him to gear it down. He told her he’d gotten calls about her driving. She denied it. She says let’s go to the hospital. Says only takes something at night to sleep. Says she takes hydrocodone. Asks if she went over the line? Did I? Yes, you did. Takes a pill at 6 a.m. Soma isn’t a narcotic, she says. Says she put pills in bottle to keep people from stealing it. Burrows has video come closer. Can see Robertson standing beside the road, blue lights reflected in her face. Burrows begins steps on sobriety test... see his left hand index finger moving back and forth for her eyes to follow. Searcy says Robertson wasn’t following his finger with her eyes. Says she was taking meds because she had teeth removed. Searcy says Robertson did not explain why she was working on a day with back pain and teeth removed.]
[Video with test to close eyes with head back and count to 30. Next is to walk then turn. She’s having difficulty keeping balance. She becomes very emotional when trooper asks her to recount drugs she’d taken. Tells him what pills she takes every day. Says she’s been in car with Chief Ivy all day. Says Vicadin is for severe back pain. Searcy says Vicadin is same as hydracodone. Robertson says she hasn’t taken hydracodone today, only Soma. Becomes very emotional. Says to ask the chief if she’s taken any medicine. Says she forgot to tell them she takes Lexapro, an antidepressant. Ultimately, they handcuff her. She gets emotional again as they try to get her into the patrol car. “Ramona, get in the car!” Searcy can be heard to shout.]
[ See video of Robertson in car, inside light on. Searcy gets into the car. This is on the way to the hospital. Robertson is crying and talking, breathing heavily. Searcy tells her to calm down, worried she will begin to hyperventilate. Robertson whimpering, her head back on car seat, breathing very shallow. Arrive at the Houston hospital emergency entrance. Difficulty getting her out of the car.]
(Next video shows when they are in the hospital. Searcy says Robertson refuses to sign agreement to have her blood taken. Can see Robertson walking around in exam room, then sits on bed. Can’t hear what she’s saying. Looks like MHP officer continue to try to get her to allow hospital personnel to draw her blood, but she refuses.] 12:35 p.m.
AUSBURN back at podium. Search says also a drive from hospital to Old 911, and emotions going up and down. Deputy follows them to Old 911, to perform DRE test on Robertson. Once he read her Miranda rights, she said didn’t want to speak to us further. Crying, talking about meds for teeth removal, other drugs, loss of relatives. She attempted to do field sobriety tests. Deputy stopped her for her safety. Asked her to sit down. She advised she’d locked up her Lortabs. (Did her behavior changed after hospital?) Her emotions ranged widely, there too. 12:39
LANCASTER - TO CROSS-EXAMINE SEARCY
(Lancaster - Search for weapons?) Yes sir. (What is OC Spray?) Spray used to spray into person’s eyes, less than lethal. Found spray. (She said she forgot she had it?) Yes. (She says she will take a test like one deputy made her take when he said she was drunk on narcotics?) Yes. (Said she’d had trouble with Officer Tate before?) Yes. We got another call ... from Sam Warren. (Looking at video again..... asks questions as the video runs.... ) No lights on at this time. (Asks if he can see her driving?) No. (Did you see her go over line?) No, Trooper Burrow did. It’s not on my video. Prior to my video... (Not on your video... that’s not my question. It’s not on that video, is it?) No.
(You skipped over a part ... what I’m getting at... you got another call from Tate?) I don’t recall ... I got a call from Trooper Kelly, at hospital ... (Tate?) I don’t recall. Trooper Burrow got a call but I don’t recall. (Continue video - hear incoming call... you say, Hey Jimmy?) Yes sir. (She said several times was all she had that day was a Soma. Then you say she tried to change her story? Right?) Yes sir. (Basing on her statement ... that she took a list of about six meds daily?) Yes. (But wasn’t she repeating Soma?) But she also stated she had Lexapro... added to that list, that day. I stated it here. (Asks to find it on the video... hear her say she was crying... [goes through litany of why she’s upset] ... [hear her say med from Dr. Smith in Okolona] ... Doesn’t she say she’s been riding with chief all day? Did she say she had pulled teeth?) She said she had this... at some point said had teeth pulled, taking med from Dr. Smith, one was for her pulled teeth.
(Do you know she had a scarf around her neck?) Yes, later pulled it off at a stop. (Do you feel you’re being used politically?) No sir, has nothing to do with this. (Did you see her earlier in Okolona?) Not really, Stood by the car. Didn’t speak much ... asked if she was OK, officer says we’re just talking. I left. I didn’t actually talk directly to her. 12:58
AUSBURN - (When got call, what time?) Around 10 o’clock. I didn’t speak to her directly, a crowd of officers. Said they were good. She was in her vehicle. It was parked. (Had no reason to observe her?) No. (Asked about her being a sensitive person? How many DUIs handled since been a trooper?) Over 100. (Customary to take video?) Yes. (Type people you stop ... taking narcotics, on disability, sensitive, throw fits. What are you trained to observe?) Behavior, their speech, also notice how their eyes don’t lock, not being able to sit still. Go from beligerrant to crying to still. You pick up on those things. (What about political?) Trooper Burrows and I made traffic stop upon our observations. When I on Hwy 32... turned on video. When he turned up mike, I could hear her on the rumble strip. Stop made on 77 mph speed, weaving off road, on wrong side of road. (Treated it like any other stop?) Yes. Calls come over radio like this throughout the day. We observe the vehicle and make stop based on what we observe.
RECESS FOR LUNCH. 1 HOUR.
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FIRST DAY'S POST ...
9:00 A.M. -
Creekmore declines opening statements. Defense says defendant will testify.
CREEKMORE - Calls Sgt. Chaney Burrow. MHP officer. (Difficult to hear, even in small courtroom.) Officer tells about his training, responsibilities. Primarily on patrol. DUI, seat-belt violations.
OFFICER – On duty Dec. 7, 2012, about 4 p.m. (Asks him about information about defendant, if he received any?) Got a call claiming “state” the defendant was in. Alerted me to her condition. I don’t know... hour or so later ... (Creekmore - we have some subpoenaed officers for rebuttal. But ask that they leave the courtroom. Two men exit.)
(Received a call? Alerted to?) Uh... OBJECTION - He’s entered a hearsay statement. Can only use that to explain why he did what he did. (Asking simply what information he received to explain why he conducted his investigation as he did. JUDGE - OVERRULED.) Information that Ramona was in pretty bad shape supposedly. I was headed to Houston, call from Chickasaw #4 about 10-50 on a county road... that’s an accident involving a DUI driver... around 9:00 p.m.
I went to that location and took control of a DUI subject, back to jail. Run him on Intoxilizer. Call prior to going to accident was ... different. (When he called, time?) Was about 4 p.m. OBJECTION - Still hearsay. JUDGE - OVERRULED. (After phone call, alerted about Chief Deputy, what wer eyou looking for?) I knew at that time of day, she wouldn’t be leaving Okolona that early more than likely. Got call, finished up with accident. Got another call, said condition ... I knew it wouldn’t be long before she headed home. When I left jail, went down Hwy 32 to grocery store ...asked backup to come. Met at that store. vEry short time and Ramona came by. At that point, I got behind her, turned camera on to get her on DVD.
(Where were you when first encountered Robertson?) When I saw her come by grocery store. In Chickasaw County. (Did you know about districts?) I was still in District 2. (Type of investigation?) DUI. (Did it cross district lines?) Not knowing where they are now, I understand they changed but the judgeship didn’t. Stop made about 1/2 mile east of Wesley Chapel. (Prior to seeing her driving, what were you concerns about her?) Safety of people on the road that she was going to be meeting and hers. After I followed her ... it was quite obvious ... (Prior to following her?) Yes, from reports I was getting.
(About her ability to drive?) yes. (Later .... OBJECTION - He’s testifying, needs to ask a question. JUDGE - I would agree.) (Concerns about her driving? Observe?) Yes I did. (What manner was she driving?) Starting ... near CR 430, turned camera on. She went around curve, she crossed yellow line, all around curve straddling or crossing double yellow line. At that point I started to try to figure where a safe place to stop. Gor around the curve, she went across and up the rise. I was thinking that the work station would be good stop. After the rise, she nailed it... mashed the gas and passed two cars. (After that?) She came back with yellow line. I knew I couldn’t pass at that time, didn’t want her to know I was behind. She accellerated away from me. When she topped hill and I flipped on my lights, got around cars. As coming behind her, clocked her at 77 mph. Limit 55 on Hwy 32 Extended.
(When turn blue lights on?) I was catching up and figured about stop. A wide spot just east of Hwy 32-15. Had already called the backup. She said she was passing. I said I was going to make the stop. Initiated blue lights, when she started pulling over.. Robertson ... she left the road, running too fast. Side of road is wider than usual, kind of a pull-off. It had a good bank on it. She pulled off right there. I really thought she would go off side of bank. (How did she pull off?) Very abruptly. Left highway too fast. She hit fog line 3-4 times.
(Your observations ... mean anything?) I indicated from my call.. possible of hre being under influence. NEW OBJECTION.
(After that?) Came to rolling stop... 30 seconds, backup pulled up to my side. I got out and approached vehicle, She hung license out and pulled back. I asked her what’s wrong. She was thick-tongued, slurred speech, got to telling me about problems with chief that day, he and she had been in to it, rambling on about problems. I asked about weapons. She said in her purse. Proceeded to get her out of the vehicle. (Her demeanor as she got out?) very unstable. Well, the way she walked.. her speech. She was very moody... from talking like you and I were, then crying episodes, then anger episode, like a big circle. Told her we’d do sobriety. She said she’d take any test. I put her on a machine .... knew it wasn’t alcohol. She blew Triple-Os. Knew it wasn’t going to show.
(How long after you started questions until you left the roadside scene?) Probably an hour. I called substation, to call master sergeant. He headed in my direction. (During that hour, was her demeanor consistent with how you described mood ranges?) Yes. Moody, thick-tongued. (Before field sobriety test, what observed?) Speech. Dark, couldn’t see her eyes. Then checked them, her pupils were not constricted, not dilated. Between. Light was having no effect on her. I got kind of concerned. When eyes are unstable, you know two drugs that are combatting one another - one wants to restrict the eyes, the other doing opposite. OBJECTION - He is no expert. JUDGE - Sustained.
(Asking about indicators of impairment. Do eyes... was that normal for you to look at their eyes? Did you pay attention to that factor as an indicator of impairment?) Yes, speech going to hear that. Mood swings, see that, then you become more cautious. That’s why I asked where her guns were. Backup found gun in pocket of her jacket. She said she didn’t know it was in there. A little hostile at that point. After search, we started to do field sobriety after we got her settled down. (But paid attention to her eyes? Like any other?) Yes. (What about eyes?) Like I said, pupils were between normal and constricted. (Observed her driving?) Yes. (Crossed how many times?) Four or five times. On tape.
(Before field sobriety test, could you determine under influence?) Yes sir. Way she was acting. First check eyes. Flashing lights and flashlight ... pupils looked like they were locked in position. (Did you ask her about that?) I did. First she said nothing. Then later on she said she was taking Synthroid, Soma, water pills, Zyrtez, Augmentum and Lexapro. (Did you find any medication on her person?) Yes, we found a blue prescription bottle with no label in driver’s side door. Had 18 hydracodone in it. They were sent to the lab.
(Can you tell by looking at them?) They had a number on them. (On scene. You see types of drugs on the street. Some from hospital or pharmacy, other type may be leafy substance?) These were pills. (Could you tell they were off street or made by pharmaceutical?) Pharmaceutical, they had a number of them. (Indicated?) Pharmaceutical company made. (Controlled or what?) I did not write the number down on pill. At time, ran it and stated it was hydracodone and Ibuprofen. (Controlled?) Yes.
(Took those into custody?) Yes. (Crime lab?) Yes, hydracodone and Ibuprofen. (What did he mean to you... to see 18 pills in container?) That they were illegally obtained narcotics. (Why?) Bottle had no label. Later on no prescription for that dosage. (If someone had prescription... OBJECTION - If they want to charge her with this or any other felony, we had right to know it. JUDGE - Any response? CREEKMORE - I believe... affidavit was entered, charing Ms. Robertson with possession of a controlled substance without a prescription. Proof of other crimes, other than DUI. But proof of what she’s been charged with. Testimony is relevant.
JUDGE - Part of file defendant has been charged with. Misdemeanor possession, I believe, rather than felony. Other charge. (Creekmore - Tell court why unusual for those pills in that container?) If you have a prescription for that substance, have it in a prescription bottle, don’t transfer it to another bottle. Prescription should be issued to you. (Did she say she had taken other pills?) She said she had prescription for hydracodone. Said she took in morning and when she got home. Her prescription for 10 milligram. The ones she had were 7.5x200. Her prescription was for ... not dosage I found in that bottle. Bottle found in driver’s side door, compartment. Backup found it.
(Did she say had other medication on her or in vehicle?) NO. Said hyrdracodone she took was at home. (Other meds found?) One other tablet ... right shirt pocket. Tablet, uncontrolled med, methylcarbonal? Not sure how to say that. Didn’t look for that on reference manual. Earlier. (Did you do field sobriety test?) Yes. Observation, vehicle clues, weaving, across lane lines, drifting, speeding, stopp She was having problems. Very abrupt when left side of road. Initial observation. No alcoholic beverage odor. (Go to test. What do you usually do?) Asked her about any impairment. She said she did not. It’s protocol, ask about physical impairments. (How have impact?) Depend on what it is. If have artificial knees or hips ... she stated no. I asked about glasses. She stated yes. Removed them. No contacts. Looked a her pupils. Concerned by size of them.
(If you’re going to do this test generally, how many different tests do you put subject through?) Six or seven categories to horizontal gauge. Then do vertical, walk and turn. One-legged stand. (Last one?) Sometimes do, lack of conversion. (What is that?) Where hold a finger in front of eyes. I make two circles and come into face to see what pupils do. Then do test... subject standing feet together, hands by side. Instruct them when to start counting, then raise your head up. Will know if they’re running fast or not. They don’t know you’re walking around them.
Horizontal gauge ... looking for pupil size. [Describes what he looks for in all these tests. Tells how symptoms relate to various drugs.] Indicated she was impaired. Looks for involuntary jerking of the eyes. (What does it mean? Is it normal?) It’s not. An indication of impairment. She couldn’t keep her balance. Another test, had to start her on three or four times. Never completed walk and turn test successfully. She would try. Dealt with it 7 or 10 minutes. (Concerns about her then?) Absolutely, that she was under the influence of something, wasn’t alcohol.
(Next test?) Yes. Couldn’t get her balance .... one-foot standing test. She was totally not able to do that test. (Ever successfully complete anything?) No sir. We stopped. (Asks about other tests.) Says she said, “S#$%, I can’t do that.” She said ... said she took various pills... listed them. Romberg test ... stand with head tilted back, count to 30 seconds. She went under 20 seconds.
(What happened after tests?) I notified Agent Todd, told him what I had, mentioned pupils to him. (Why contact drug recognition expert?) To help me sort out what’s going on with this individual, as far as drugs in her system. (Does MHP rely on DRE to assist with these?) I do. STandard, up to officer’s call. (What else do?) Contact my master sergeant. He arrived right after talked to Todd. We started getting ready to transport her to hospital. She kept stating that she wanted us to draw blood. (Ask her or volunteer?) First, she offered... carry me to the hospital. She said would submit to blood test. Transport to Houston hospital. We were in process of placing her in car. She became very irate.
(Behavior when got to hospital?) We put her in the vehicle... would not comply. But same thing at vehicle at hospital. (Could you have ended DUI investigation, left and allowed her back into her vehicle?) No, she was impaired. Asked female officer to transport her. (Did she comply?) No sir. We had to force her into the vehicle. (At hospital, how long until you left?) When we left the hospital, we went to 911. She refused any test. Told him to we were going to 0-911 from the hospital. At hospital approximately 30-45 minutes. (Observe her there?) It got worse. She was not going to cooperate. Wanted chief to take her home. Wouldn’t do anything unless Chief Ivy told her to do it.
(Did you have probable cause to get blood tested?) Yes, already talked to the judge. (Did you get test?) Talked to master sergeant, talked to Judge Turner, said he would sign it. Would have been a totally restrained draw. We decided not to do it. She would have to be strapped down and forced. (Did Ivy asked her to volunteer?) I don’t think so. Never let him talk to her. (Were you afraid she was a danger to herself?) Not at that time. (Was she unsteady on her feet at hospital?) Yes, sir. There’s video of her, almost sat in a garbage can.
(How far to 0-911 from hospital? Was she transported there?) Yes sir. (Did she submit to exam by drug recognition expert?) Only two people allowed during that testing - Todd and female officer. I wasn’t there. (Creekmore asks to enter into evidence some reports. OBJECT. JUDGE Will allow them.)
10:45 - Tender witness to defense.
CREEKMORE - One piece of evidence, need court’s instruction on how to proceed. We have video about officer’s report. Ask it to be received. Would you like to view that now or later? JUDGE - We could do it later, but we’ll review it later. CREEKMORE - Ask it be accepted into evidence. (Creekmore to trooper - Hands him CD. Have you reviewed this?) Yes. Contains footage from vehicle camera that night. JUDGE - IS THAT THE CD? CREEKMORE - Yes sir.
DEFENSE - Do you intend to play it? CREEKMORE - IT has been provided. Ask to play it in its entirety. I now defense counsel has reviewed it. JUDGE - This is justice court, discovery is limited. But this was made available to defense? (Yes) We will accept it. DEFENSE - How to mark it? JUDGE - THIS will be Exhibit B.
(You made out arrest warrants on four different charges?) Yes. (What were they?) DUI, possession of controlled substance, speeding and failure to comply with police officer. (After probable cause hearing?) Right after.
DEFENSE - Can we take a break?
JUDGE - NEED TO? DEFENSE - NO.
10:51 - Defense to cross-examine MHP trooper.
(Aware when you came on duty that defendant had been on duty how long?) I didn’t know who was on duty when I came. (Participated in an arrest before you apprehended her?) Not an arrest, no. (Did I know she had been on duty when you apprehended?) I didn’t now about that day. She was in a patrol car. I didn’t know anything until I got a call, that was later on that evening. (During this stop, how long on side of road?) About an hour. (First saw her, where?) At store coming out of Okolona, just east of CR 430. Pulled her over at Hwy 15, about 1/4 mile prior to that. (Followed her without blue lights until she passed two other cars?) As I said, about to initiate blue lights ... then she whooped out and passed them. (Did you turn lights on before she passed those cars?) No I did not. (Did you pass cars?) Not right then. (During this period, you pulled her over... did she have a towel or something over her mouth?) Not around mouth, maybe around her neck. Later told me she had some teeth pulled earlier that day. (Did she say pills in bottle given to her by the dentist?) No. Dentist isn’t going to give you 18 hydracodone in an unmarked bottle. (Didn’t she tell you that?) No. (Say she had a bad back?) Not until later.
(Was she verbally and emotionally upset when you pulled her over?) Circling, calm go to upset. (Say she’d been crying about the loss of family members?) No. She cried and said she lost some. (On tape, wasn’t she saying she couldn’t do things because of her bad physical condition?) Not steadily. It was mentioned, not every breath out of her mouth about her disability. (Time you pulled her over?) About 8:35 p.m. (To hospital?) I didn’t keep up with that time frame. (During this hour, if she had controlled substance, her body would continue to ingest it?) Ingest it? Hospital would have revealed that she was potent at stop than at hospital. Like a drunk, on a stop, unless he’s going up ... after peak... he will be reading less. (No breath test or blood test at this point?) Correct, she refused. (You say she failed sobriety tests?) Yes. (Eye test? Any of it, did she fail?) Not first. She did OK on lack of conversion. Not concerned about alcohol.
(Called DRE because it was a close call?) NO sir, not close at all. (Did Berthay say where he saw her?) Berthay called me about a call to him. That person saw her. (Was that you?) No, I was at jail locking up a drunk.
11:01 - That’s all
CREEKMORE – (You were asked where officer was who observed her behavior. What about site she responded to?) Officer showed up ... on side of the road. He called us. (Why you were on Hwy 32?) Yes sir. (Is that uncommon?) No. (Usually comes into 911 about erratic driver?) Deal with it like any others. (She said had no physical problems?) She said none, at first. (No blood test to support conviction on DUI?) No, she refused. We have field sobriety and video. (What was other evidence for DUI?) A video. In evidence. (Does video corroborates your testimony about that night?) Very much so. (Evidence for speeding?) Yes. (Possession of pills without prescription?) Absolutely. If I had someone else on side of road with hydracodone without prescription, they would have gone straight to jail. OBJECTION - Calls for a conclusion.
JUDGE - May witness be excused? CREEKMORE - Retain him. 11:05 a.m.