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PATRICK r. LAUER. JR.
Attorney 81 L.w
lllltl M",to, 5'...,
Aidee Bulld.n.
Camp 11111, PA 110 II
(717) 16.1,IHlXI
c.~EP 2 5199Z
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1
2
3 THE COURT: Good morning.
4 HR, KABUSK: Good morning, Your Honor. This
5 is the case Duane Edward Kough, K-o-u-g-h, the Commonwealth
6 of Pennsylvania, Department of Transportation, Bureau of
7 Driver License, case number 97-5213 civil, License
8 Suspension Appeal,
9 By official notice dated and mailed September
10 4, 1997, the Department of Transportation notified the
11 motorist, Duane Edward Kough, operator's license number
12 22220308, that as a result of his violation of Section 1547
13 of the Vehicle Code, relating to chemical test refusal on
14 8/14 of 1997, his driving privilege was being suspended for
15 a period of one year. The Department is ready to proceed.
16 THE COURT: Ready, Mr. Lauer?
17 HR, LAUER: Yes, sir,
18 HR, KABUSK: The Department calls Sergeant
19 Clifford Carlsen,
20
21
22
23
24 BY MR, KABUSK:
25 Q
Friday, December 5, 1997
Whereupon,
CLIFFORD A, CARLSEN
having been duly sworn, testified as follows:
DIRECT EXAMINATION
Sergeant Carlsen, please state your name, and
3
1 sp$ll your last name for the record?
2 A My name is Clifford A, Carlsen.
3 C-a-r-l-s-e-n,
4 Q Where are you employed?
5 A I am a patrol sergeant with the city of
6 Harrisburg Police Department,
7 Q How long have you been so employed?
6 A Nineteen years,
9 Q During the course of your official duties,
10 have you had occasion to investigate an alleged incident of
11 DUI on or about 6/14 of '97?
12 A Yes, sir,
13 Q Would you tell the court about that incident,
14 please?
15 A Yes, sir. on 6/14/97, which was a Thursday, I
16 was dispatched to the area of Thirteenth and Derry streets
17 in the City of Harrisburg, More specifically, 1252
18 Mulberry, which is a connector with Thirteenth and Derry to
19 investigate a traffic accident involving two vehicles,
20 The dispatch officer, upon giving the call,
21 told my -- me and another officer that responded that it was
22 a two vehicle accident. That one of the drivers of the
23 vehicles involved, which was a black male, had been thrown
24 from t.he car, So, henceforth, not only were the police
25 dispatched, but also an ambulance crew as well as fire,
4
1 I responded to the call by traveling
2 westbound on Derry street, utilizing the pOlice unit's red
3 lights and sirens, As I reached the intersection of
4 Thirteenth and Derry, which is approximately fifty feet from
5 the accident scene, I turned off the siren, and as I was
6 crossing through the intersection, I noticed a white male
7 running northbound on Thirteenth street,
8 This white male, as he was running, his arms
9 were flailing allover the place, He was running almost in
10 a state of falling forwards. And behind the white male was
11 a group of eight to ten black males that were chasing him.
12 The black males caught up with the white male
13 in the area of the one hundred block of South Thirteenth
14 street, where they tackled him to the ground and began to
15 beat him. Using the police car, I pulled across the street
16 up on to the curb and disbursed the crowd,
17 It was later that I learned that the white
18 male that the crowd had chased was Duane Edward Kough, Mr.
19 Kough is present today in the courtroom, sitting to the
20 right of Mr. Lauer,
21 Medical assistance was requested for Mr,
22 Kough, He was bleeding about the mouth and the eyes, about
23 the head. He was guarded until the ambulance crew arrived,
24 lie was then put on a gurney and put in the back of the
25 ambulance.
5
1 In the rear of the ambulance, I had a moment
2 or two to talk to him, He was mumbling out of control, He
3 was saying over and over that it was, it was unfair that the
4 crowd did this to him, that he wasn't running away from the
5 accident. And he didn't really understand why the crowd had
6 to beat him up.
7 As he was giving me this account of what
8 happened, I noticed an overwhelming odor of an alcoholic
9 beverage upon his breath, or an alcoholic substance on his
10 breath. At this point, my contact with him ended and I went
11 back to the accident scene, He was safe in the ambulance
12 and the ambulance was taking him to Harrisburg Hospital.
13 I returned to the accident scene where I got
14 the information on the cars involved, I supervised the
15 removing of the driver that had been thrown partially out of
16 the other vehicle, He was also taken to Harrisburg
17 Hospital.
18 I then left the scene to one of the patrol
19 officers to get the vehicles towed from the scene and to
20 clean up the roadway, And I proceeded to Harrisburg
21 Hospital.
22 The time period from when I spOke with Mr.
23 Kough in the ambulance to the time period that I arrived at
24 at the hospital is approximately thirty to forty minutes,
25 Upon my arrival at Harrisburg Hospital, I
6
1 went up to the nurees station and requested the whereabouts
2 of the motor vehiclo accident victim that was brought in by
3 Harrisburg River Rescue, They indicated to me that he was
4 back in the trauma area, I went back to the trauma area
5 where I found Mr. Kough still on a gurney, being treated by
6 about eight to ten medical personnel,
7 I watched the medical personnel treat Mr,
8 Kough for about ten minutes before there was a break, They
9 then -- the doctor in charge then indicated to me that I
10 could go ahead and speak to Mr, Kough,
11 I introduced myself to Mr, Kough and I told
12 him that I was the officer that was going to be responsible
13 for investigating the traffic accident that he was involved
14 in. Mr. Kough became extremely belligerent towards me. He
15 really didn't want to talk about the accident, He wanted to
16 know what I was going to do to the individuals that
17 assaulted him,
18 I explained to Mr, Kough that we would take a
19 report on the assault against him and we would investigate
20 that to the fullest extent we could, but that my purpose
21 here at that point was to investigate the traffic accident.
22 Mr. Kough again reiterated to me that I was
23 to do something about these individuals thaI assaulted him,
24 And, once again, I noticed on his breath an overwhelming
25 odor of an alcoholic substance.
7
1 At this time, I informed Mr. Kough that he
2 was under arrest for driving his vehicle under the influence
3 of liquor, alcohol or a controlled substance, and that I
4 would be requesting medical personnel to be withdrawing
5 blood from him for the purpose of determining what his blood
6 alcohol content was.
7 I also informed Mr, Kough that at this point
8 his Miranda rights do not apply, that his Miranda rights
9 apply only after the blood is drawn, and that we begin
10 questioning about the accident, and that if he failed to
11 provide a sample of his blood, as required, that he would
12 lose his driver's license for a period of one year, and that
13 his refusing to provide this sample of blood would be used
14 against him in a court of law,
15 My explanation to him of that information
16 didn't go as easy as it did here on the stand. He kept
17 interrupting me. He kept yelling obscenities at me. He
18 would stop and he would wad up in his mouth a bunch of blood
19 and spit it at the nurses and the doctors. He would yell
20 obscenities a\; the doctors.
21 At one point he explained to me that he has
22 the fucking right to drive his vehicle whenever he wants,
23 and that we have no right to take his blood,
24 I again explained to Mr, Kough that I wanted
25 to take his blood for the purpose of determining his blood
8
,0,
,
"
1 alcohol content, and that if he refuses to give up the
2 blood, that I will be filing a form with PennDOT and that
3 his driving license privilege would be suspended for a year,
4 Mr, Kough told me to go fuck myself, that he wasn't giving
5 up any blood.
6 He then became so violent in the ER that the
7 hospital staff had to tie him on to the gurney, and at that
8 point I left his side,
9 Q Thank you, During the course of your
with him, did you ask him if he was driving
10 conversations
11 the --
12
13
14
15 statement.
16
17 somehow?
18 BY MR. KABUSK:
HR. LAUER:
THE COURT:
HR, LAUER:
Objection, leading.
Pardon me?
Objection, it is a leading
THE COURT:
Do you want to rephrase it
19 Q Officer, how did you come to think that Mr.
20 Kough was the driver of the vehicle involved in the
21 accidl!mt?
22 A Ther$ was three different ways. On. wao'th__
23 crowd, as I pulled up, was yelling there goes the driver. '
24 MR. LAUER: Objection. That is heany, Your
25 Honor.
9
1 THE COURT: That is perfectly admissible for
2 why the pOliceman does what he does,
MR. KABUSK: That was my argument, Your
THE WITNESS: The second
THE COURT: I didn't get all that.
THE WITNESS: I'm sorry,
THE COURT: Something about the crowd,
THE WITNESS: As I pulled up, Your Honor, and
10 got out of the car, the crowd was yelling that there goes
11 the driver, and they were pointing at Kough,
12 THE COURT: Okay.
13 THE WITNESS: There was a witness at the
14 scene -- a witness, there was about thirty to forty people
15 at the scene, but there was one individual who did give his
16 name and address and was willing to testify that indicated
17 that Mr, Kough was the driver,
18 MR, LAUER: Objection, hearsay.
19 THE COURT: Same reason for refusing that
20 objection, sir, this is all part of the investigation.
21 MR. T.AUER: Yes, sir.
22 THE COURT: Do you want to give me more
23 details on that? Or do you have them with you?
24 THE WITNESS: I can give you more details on
25 the witness, yes, Your Honor.
3
4 Honor,
5
6
7
8
9
10
1 THE COURT: Name, address, Go ahead.
2 THE WITNESS: The witness was John L. snyder,
3 He is a white male, thirty, His address is 1234 Mulberry
4 street in the city of Harrisburg,
5 THE COURT: You had a third reason?
6 THE WITNESS: Yes, Your Honor, It was from a
7 statement that Mr, Kough gave to me both in the ambulance as
8 well as in the hospital. The statement in the ambulance was
9 that he was driving, but they didn't have to do this to him,
10 And the second statement was in the hospital, that it was
11 his fucking right to drive his truck whenever he wanted to,
12 BY MR. KABUSK:
13 Q
14 you requested?
15 A
16
17
18 BY MR, LAUER:
19 Q Sir, the name of this witness, what is the
20 name of the witness you said who observed my client driving
21 the vehicle?
22 A
23 Q
24 A
25 Q
Did the motorist submit to a chemical test as
No, sir,
MR, KABUSK: No further questions,
CROSS-EXAMINATION
Yes, sir.
What is the name of that person?
John L, Snyder,
Did that witness give you a written
11
1 statement?
2 A No, sir.
3 Q Had you ever .poken to that witne.. before?
4 A Before this incident?
5 Q Yes,
6 A No.
7 Q So you didn't know if this person was a
8 truthful person, or who this person was from anyone else,
9 agree?
10 A No, I had never met him before,
11 Q How much time did you spend with that person?
12 A Maybe three minutes,
13 Q Okay, For the record, was this person a
14 black male or a white male?
15 A White male,
16 Q Okay, Now, was this an individual who was
17 just driving by or standing on the corner or what?
18 A H~ was sitting on his front porch which would
19 have been right where the accident occurred,
20 Q Did this witness tell you that there were two
21 people in the vehicle?
22 A Yes.
23 Q And the vehicle that is alleged, that was
24 driven by my client, correct?
25 A That is correct, yes,
12
1 Q Okay, How did this witne.. identity Mr.
2 Kough as being the allegsd driver?
3 A He stated to me that the individual that was
4 driving was the one that the crowd beat the shit out ot,
5 Q Okay, The other individual that was with Mr,
6 Kough got beat up as ws11, Isn't that true?
7 A No,
8 Q That person was chased, isn't that true?
9 A Not to my knowledge, no.
10 Q Did you speak to the other individual that
11 was in the car with Mr. Kough?
12 A Yes, I did.
13 Q He didn't tell you that he was chased by
14 these black males?
15 A No,
16 Q Did you ask him if he was?
17 A Yes. I asked him it he was okay, He said he
18 was not injured, and he was not hurt, He was standing
19 beside -- or behind the rear of the pick up as I arrived,
20 He never moved anywhere, sir.
21 Q Now, what you observed though were a large
22 number of black males chasing Mr. Kough, correct?
23 A Correct.
24 Q How many black males did you observe Chasing
25 Mr, Kough?
13
1 Q You saw them winding up with their feet
2 kicking, agree?
3 A Yes.
4 Q Kicking towards his mouth, towards his eyes,
5 towards his ears, towards the back of his head, his whole
6 head area, agree?
7 A They pretty much had him circled. I didn't
8 see exactly where,
9 Q How many of these eight to ten people, almost
10 all of them, were basically doing a number on him, isn't
11 that true?
12 A Yes.
13 Q Now, Mr. Kough then, was ha piCked up or did
14 you go up to him and stop these people from beating him up?
15 A I chased the people off of him, away from
16 him,
17 Q Did you investigate wj,th any of these
18 witnesses to find out the names of any of these people who
19 assaulted Mr. Kough?
20 A No. After my conversation with Mr, Kough at
21 the hospital about the driving, I then asked him questions
22 about the assault, he told me to get the fuck away, that he
23 would handle it himself.
24 Q So my point being is you did nothing after
25 that point in time, even though he said he would take care
15
1 of it himself, you as a police officer did nothing to
2 investigate what you actually observed was a crime, agree?
3 THE COURT: Well, let's leave that case for
4 another day, Mr, Lauer,
5 MR, LAUER: Okay, Judge,
6 BY MR. LAUER:
7 Q Now, then when you went to the hospital,
8 about thirty minutes after, Mr, Kough was being treated by a
9 large number of doctors, agree?
10 A A large number of medical staff,
11 Q Medical staff, right, And you don't know how
12 those injuries that he sustained affected his judgment or
13 his mind or his physical abilities, agree?
14 A Agree, I am not a doctor.
15 Q Right, And despite when he first started
16 talking to you, Mr, Kough started talking to you, asking you
17 about these people assaulting him, you said, I don't want to
18 talk about that right now, all I want to talk about is the
19 accident?
20 THE COURT: Well, the officer didn't quite
21 say it that way,
22 BY HR. LAUER:
23 Q That was basically the gist of what happened,
24 isn't that true? You said I don't want to talk about the
25 assault right now, I want to talk about the accident, right?
16
1 A At that point the accident was my primary
2 investigation, yes.
3 Q From what you observed, I mean you
4 investigated assaults, from what you observed, he basically
5 sustained an aggravated assault, wouldn't you agree with me?
6 Eight to ten people kicking someone in the head?
7 A I can't agree or I can't disagree, I can
8 tell you what our department policy is on how we grade the
9 different assaults,
10 Q Okay.
11 MR, KABUSK: Your Honor, I object to that
12 question.
13 THE COURT: Well, I think that depends on the
14 severity of the injury, Mr. Lauer, and that would require
15 medical testimony,
16 BY HR, LAUER:
17 Q You never observed Mr, Kough drive a vehicle,
18 agree?
19 A That is corrsct.
20 Q And Mr, Kough never specifically said I was
21 driving the vehicle at that time, agree?
22
23
24 time?
25
A
Q
Disagree,
He said I was driving the vehicle at that
A
Yes, he said it in the ambulance,
17
1
2
3
4 Honor.
5
6
7
8
9
10
11 test.l.mony?
12
13 YOlJr Honor,
Q Who was pre.ent when he made that statsment?
A Two paramedics,
HR. LAUER: I have no further questions, Your
THE COURT: Anything else?
HR. KABUSK: Nothing further, Your Honor.
THE COURT: You may step down, sir.
THE WITNESS: Thank you, Your Honor,
MR. KABUSK: The Commonwealth rests,
THE COURT: They have rested, Mr. Lauer. Any
HR. LAUER: I would like to call my client,
Whereupon,
14
15
16
17
18 BY MR. LAUER:
19 Q Mr. Kough, would you state your name, and
20 spell your last name?
21 A Duane E. Kough, K-o-u-g-h,
22 Q Mr, Kough, where do you live?
23 A 235 Steelstown Road, Newville, Pa.
24 Q You heard the officer testify regarding the
25 accident on August 14 of '97, correct?
DUANE E, KOUGH
having been duly sworn, testified as follows:
DIRECT EXAMINATION
18
'-,
1 A Yss.
2 Q Tsll the Judge what happened after this
3 automobile accident occurred?
After it happened?
4 A
5 Q
6 A
7 Q
8 A
9 all I know. I
10 That is
Yes.
I have no idea.
Okay, Do you recall being in a hospital?
I recall waking up in the hospital, that is
know I had a lot of bruises, cuts and stuff,
11 Q Did you sustain any head injuries when you
12 were in the hospital?
13 A Yeah.
14 Q Do you know what -- can you tell the Judge
15 what injuries you sustained?
16 MR, KABUSK: Objection, Your Honor. He is
17 not a doctor.
18 THE COURT: He can tell us how he felt. But
19 what he sustained would require medical testimony, Mr.
20 Lauer.
21 BY HR. LAUER:
22 Q Did you receive any cuts underneath your
23 eyes?
24 A I had a black eye. My nose was all swelled
25 up. My lips were swelled up, A couple of my teeth were
19
-'"
,-
1 loose, I had lumps all over the back ot my head, My
2 cheekbone was all swelled up. My neck was real sore. I
3 mean I had like a stift neck, could barely turn my head or
4 anything. The lumps on my head, I had lumps on the back of
5 my head for about four, tive days after that, after I woke
6 up.
7 Q What hospital were you in?
8 A Harrisburg.
9 Q What section of the hospital were you in?
10 A leU,
11 Q Intensive care unit?
12 A Yeah,
13 Q How long were you in intensive care?
14 A Until -- that was I think Friday morning,
15 about 9:30.
16 Q How did you feel when you were in the
17 hospital, physically, after just being assaulted by eight to
18 ten men where you were kicked in the head? I am talking
19 right after, when this police officer is there, how did you
20 feel?
21 A I have no idea. I don't, I don't recall. I
22 don't know, I don't remember any of it.
23 Q You don't remember any of that?
24 A ThEt first time I saw thie gentleman wae down
25 at Dauphin County at the District Justice's.
20
1 Q Did you ever have any problem with your
2 memory prior to b~ing assaulted that night?
3 A No.
4 Q The officer testified that you were being
5 kicksd in the head area, Do you even remember being kicked
6 in the head?
7 A No,
8 Q Do you even remember refusing this officer'S
9 request to take any test?
10 A No.
11 Q If you would not have been kicked in the head
12 repeatedly by eight to ten men and the officer asked you to
13 take a blood test --
14 MR. KABUSK: Objection, Your Honor.
15 BY MR, LAUER:
16 Q -- would you have done that?
17 THE COURT: What?
18 MR. KABUSK: Objection, Your Honor, on the
19 hypothetical question. It is irrelevant.
20 THE COURT: Irrelevant, Mr, Lauer.
21 MR. LAUER: Okay.
22 BY MR, LAUER:
23 Q Did you do anything to these eight to ten
24 people which -- asoault them or anything like that, which
25 led to them assaulting you?
21
1 A I don't know.
2 Q No rscollection?
3 A No.
4 MR, LAUER: No further questions.
5 CROSS-EXAMINATION
6 BY MR, KABUSK:
7 Q Mr, Kough, prior to the accident on 8/14/97,
8 were you drinking?
9 MR, LAUER: Objection, It is beyond the
10 scope of direct.
11 THE COURT: Well, has he had his day in court
12 on this in Harrisburg yet?
13 h~. LAUER: No, sir.
14 THE COURT: All right, I am not going to
15 force him to answer any of this,
16 MR, KABUSK: No further questions,
17 THE COURT: step down, Anything else, Mr.
18 Lauer?
19 MR, LAUER: NO, sir.
20 THE COURT: Any rebuttal?
21 MR. KABUSK: No, Your Honor.
22 THE COURT: While we are still on the record,
23 Mr. Lauer, please concisely state your issues.
24 MR, LAUER: The issue in this case, Your
25 Honor, is a person must willfully --
22
.~,
1 THE COURT: Please, concisely state your --
2 MR, LAUER: Yes, the issue is did Mr, Kough
3 willfully refuse to submit to a request to submit to a blood
4 test when, in fact, he was questioned about giving the blood
5 test
6 THE COURT: That is not concise. Do you have
7 any other issues?
8 MR, LAUER: The issue is did he willfully
9 submit to a test,
10 THE COURT: You ~old me that one. Do you
11 have any other issues?
12 MR, LAUER: No,
13 THE COURT: One issue,
14 MR, LAUER: That is it.
15 THE COURT: Thank you, sir. Now we will go
16 off the record for the argument,.
17 (Argument off the record,)
18 THE COURT: We will go back on the record as
19 Mr, Lauer has a new issue or issues he wants to raise.
20 Concisely state it, sir.
21 MR, LAUER: The other issue is did the
22 officer have a reasonable basis to believe that my client
23 was under the influence of alcohol
24 THE COURT: Are you saying probable cause to
25 arrest?
23
1
2
3
4
5 arqument.
6
.,
8
.-'
MR. LAUER:
THE COURT:
MR. LAUER:
THE COURT:
Ves, sir.
Do you have anything else?
No, sir,
Back off the record for the
(Argument continued off the record.)
(Whereupon, the following Order was entered,)
AND NOW, December 5, 1997, 11:20 a,m., after
9 hearing and consideration of the testimony presented, the
10 defendant's appeal is dismissed,
11 We do find that t.he officer had probable
12 cause to arrest the defendant and request the test, We find
13 that the officer properly advised the defendant regardinq
14 the alcohol test warnings, and we find that the defendant
15 clearly and consciously refused to submit to any test,
16 By the Court,
17 Isl Georae E, Hoffer. J,
18 THE COURT: Anything else?
19 MR. KABUSK: Nothinq further, Vour Honor.
20 THE COURT: Anythinq else, Mr, Lauer?
21 MR. LAUER: No, sir,
22 THE COURT: Did I rule on all your issues?
23 MR. LAUER: Ves, sir,
24 (Whereupon, the proceeding was
25 concluded at 11:20 a.m,)
24
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