Friday, September 27, 2019, Novi, Michigan
THE COURT: Cross-examination? Court Transcript Pg 110-132 Detective Balog Cross-Examination Click Here
MR. ROCKIND: Can I have a second, Judge?
THE COURT: Yes, please take your time.
CROSS-EXAMINATION BY MR. ROCKIND:
MR. ROCKIND: I just have a couple of questions about – we’ll get back to this in a second, but very briefly, if I understand correctly you testified that you participate in an interview with Connor – is his last name pronounced Gibaratz?
DETECTIVE BALOG: It’s Gibaratz.
MR. ROCKIND: And how many times – you said you interviewed him or met with him more than one time, is that right?
DETECTIVE BALOG: That’s correct.
MR. ROCKIND: And all of those interviews at a – at the police station?
DETECTIVE BALOG: Some were at the police station and one was at the Wayne County Jail.
MR. ROCKIND: Okay. And your interview with Mr. Gibaratz at the police station was - was video recorded, was it not?
DETECTIVE BALOG: Correct.
MR. ROCKIND: And I presume your interview with him or – or discussion with him at the Wayne County Jail was not video recorded, is that correct?
DETECTIVE BALOG: That’s correct.
MR. ROCKIND: And so you indicated that you interviewed – I think it’s Paul Wiedmaier, correct?
DETECTIVE BALOG: Correct.
MR. ROCKIND: And you met with him at the police station, is that right?
DETECTIVE BALOG: Yes.
MR. ROCKIND: And you met with him more than one time?
DETECTIVE BALOG: Yes.
MR. ROCKIND: And how many times did you meet with Mr. Wiedmaier?
DETECTIVE BALOG: I believe it was once at his home and then once again at the police department and then another time later on.
MR. ROCKIND: Okay, let’s be precise. Besides the one time at his home are you talking about a time other than the date of the –
DETECTIVE BALOG: Yes.
MR. ROCKIND: Now let me just finish so we have – I’m not – I want to make it easier for the court recorder to ultimately transcribe our interaction, okay? The – the – the first time that you described at his home, was that the date of the actual – of – of your response to the home and response to the emergency?
DETECTIVE BALOG: Yes.
MR. ROCKIND: And the second time occurred at the police station?
DETECTIVE BALOG: Correct.
MR. ROCKIND: And then another time occurred at the police station?
DETECTIVE BALOG: Correct.
MR. ROCKIND: And was the second time – approximately when was that? Do you know the date?
DETECTIVE BALOG: The second time that I interviewed him at the police station?
MR. ROCKIND: Yes, the first time at the police station. The second interview of him –
DETECTIVE BALOG: The next day.
MR. ROCKIND: The next day. Was that video recorded?
DETECTIVE BALOG: Yes.
MR. ROCKIND: Subsequent to that you interviewed him again at the police station, is that right?
DETECTIVE BALOG: Correct.
MR. ROCKIND: And when was that?
DETECTIVE BALOG: Several months later.
MR. ROCKIND: Was that in July?
DETECTIVE BALOG: I believe so.
MR. ROCKIND: Was that approximately July first?
DETECTIVE BALOG: I – I don’t recall.
MR. ROCKIND: Who – who was a witness to that interaction with Mr. Wiedmaier other than you?
DETECTIVE BALOG: The prosecutor.
MR. ROCKIND: And did you ask the witness questions?
DETECTIVE BALOG: Yes.
MR. ROCKIND: Did Ms. Hand – Ms. Hand also asked Mr. Wiedmaier questions as well, correct?
DETECTIVE BALOG: Yes.
MR. ROCKIND: And how long did that interview or interaction between you, Ms. Hand and Mr. Wiedmaier take place?
DETECTIVE BALOG: Twenty minutes, maybe.
MR. ROCKIND: Twenty minutes. And was that video recorded?
DETECTIVE BALOG: That was not.
MR. ROCKIND: Did you make – did you take –
MR. ROCKIND: Strike that.
BY MR. ROCKIND:
MR. ROCKIND: I presume in an effort to keep track of what Mr. Wiedmaier was saying you took some form of notes, field notes during that interview?
DETECTIVE BALOG: There was no notes, no.
MR. ROCKIND: You didn’t take any notes?
DETECTIVE BALOG: I don’t believe so, no.
MR. ROCKIND: Well, did you assign Ms. Hand to take notes?
DETECTIVE BALOG: I didn’t assign – I can't assign the prosecutor –
MR. ROCKIND: So there was no note taking at all?
DETECTIVE BALOG: No.
MR. ROCKIND: How was the – how was the content of the conversation memorialized other than yours – other than your memory or Ms. Hand’s memory?
DETECTIVE BALOG: I – I don’t recall.
MR. ROCKIND: How would one attempt to reconcile what Mr. Wiedmaier said during that interview if there is no video recording, there are no notes and – and – by either you or Ms. Hand?
DETECTIVE BALOG: It was –
MS. HAND: Reconcile it – Judge, objection to the form of the question.
MR. ROCKIND: Sure, I’ll – I’ll – I’ll –
MS. HAND: He’s not testified, so.
MR. ROCKIND: I’ll withdraw it. I’ll rephrase it.
BY MR. ROCKIND:
MR. ROCKIND: How would – you understand what memorialization means, of an interview, right?
DETECTIVE BALOG: Of course.
MR. ROCKIND: And video would allow us to actually see the interview, we’d know exactly what questions were put to him and what his answers were, right?
DETECTIVE BALOG: Correct.
MR. ROCKIND: And note taking, of course, as you would agree is not as – as accurate or as precise as is a video recording, yes?
DETECTIVE BALOG: Correct.
MR. ROCKIND: But it still allows some method of – of memorializing what was said and the ability to refresh recollection, et cetera, right?
DETECTIVE BALOG: Yes.
MR. ROCKIND: Neither of those were undertaken, is that right?
DETECTIVE BALOG: I did not. I don’t recall if the prosecutor did.
MR. ROCKIND: Well, let’s – another way it to attempt to rely on your memory and prepare some kind of formal police report,
right?
DETECTIVE BALOG: Yes.
MR. ROCKIND: So where’s your police report from the interview with Ms. Hand and Mr. Wiedmaier?
DETECTIVE BALOG: That was not documented in a police report.
MR. ROCKIND: It was not?
DETECTIVE BALOG: No.
MR. ROCKIND: Why not?
DETECTIVE BALOG: I – I just didn’t do it.
MR. ROCKIND: Did you deliberately choose –
DETECTIVE BALOG: No, it wasn’t –
MR. ROCKIND: Let me just ask you the question and you can answer it any way you want. Did you deliberately choose not to video record this interview between you, Ms. Hand and Mr. Wiedmaier?
DETECTIVE BALOG: It wasn’t – I guess you could say it was a choice, we went into a larger room to have more room.
MR. ROCKIND: Okay. Did you – do you have a cell phone?
DETECTIVE BALOG: Yes.
MR. ROCKIND: Does your cell phone have the means of recording some kind of voice memo or voice recording?
DETECTIVE BALOG: It does.
MR. ROCKIND: Did you use that to – to record the interview?
DETECTIVE BALOG: No.
MR. ROCKIND: Did you just decide not to do that?
DETECTIVE BALOG: I did. It was an informal interview.
MR. ROCKIND: What does that mean?
DETECTIVE BALOG: It was informal –
MR. ROCKIND: Well, it’s part of the case, right?
DETECTIVE BALOG: Correct.
MR. ROCKIND: And it involved – you're the detective assigned to it?
DETECTIVE BALOG: Yes.
MR. ROCKIND: The prosecutor is the one prosecuting the case?
DETECTIVE BALOG: Correct.
MR. ROCKIND: You have an obligation to preserve exculpatory evidence, don’t you?
DETECTIVE BALOG: Correct.
MR. ROCKIND: So how would we know if there was anything exculpatory produced during that interview if you call it quote informal and it wasn’t recorded and there’s no note taking?
DETECTIVE BALOG: If there was anything different it would have been documented.
MR. ROCKIND: What do you mean different?
DETECTIVE BALOG: Different from a statement or –
MR. ROCKIND: You mean – you're telling us – did you keep track of whether or not there were any inconsistencies or contradictions in your interviews – in your prior interviews with Mr. Wiedmaier?
DETECTIVE BALOG: I don’t do that by note taking, I do that just by memory.
MR. ROCKIND: So without getting into the content, were there contradictions or inconsistencies? Yes, right? There were.
DETECTIVE BALOG: Not necessarily.
MR. ROCKIND: Well then why –
DETECTIVE BALOG: Slight –
MR. ROCKIND: Did anybody during that interview actually – you said not necessarily. What does that mean?
DETECTIVE BALOG: Slight differences to what he said.
MR. ROCKIND: Did he change the story at all?
DETECTIVE BALOG: He – he – not necessarily, he used – if you want me to tell you what he said –
MR. ROCKIND: No, not that. I’m not – I want to know whether or not he changed –
MS. HAND: I guess what’s the relevance of him – I – I understand him asking whether or not he took notes during an interview, but to ask him to comment on whether or not the interviews were different, this – this person is not a witness at this point, so how is this relevant to the determination of probable cause? This might be very relevant at trial, but how is this relevant to the determination of probable cause that this Court has to make with whether or not the People meet their burden to show that the defendant – this is not relevant for the – for this proceeding.
THE COURT: Overruled.
MR. ROCKIND: Well, I think I have the right to cross-examine the – the detective.
THE COURT: You won.
MR. ROCKIND: On his investigation.
THE COURT: You won one, Mr. Rockind.
MR. ROCKIND: One, all right.
BY MR. ROCKIND:
MR. ROCKIND: So I don’t want to get into the content, because that would be hearsay okay? I just want to know whether or not did – at any point did you – just you, did you accuse Mr. Wiedmaier of telling different stories?
DETECTIVE BALOG: I did not, no.
MR. ROCKIND: Did Ms. Hand in your presence accuse him of telling different stories?
MS. HAND: Objection, that would be hearsay, Judge. Objection.
MR. ROCKIND: I’m not –
THE COURT: Sustained.
BY MR. ROCKIND:
MR. ROCKIND: So you said that there were minor inconsistencies. Again, I don’t want to get into the content, but you noted – you noted those in your mind, yes?
DETECTIVE BALOG: Correct.
MR. ROCKIND: And you – you would agree that – you know, what – when a potential witness changes his or her story or contradicts him or herself that could be deemed exculpatory evidence?
DETECTIVE BALOG: Correct.
MR. ROCKIND: But that wasn’t preserved?
DETECTIVE BALOG: His statement wasn’t necessarily content other than –
MR. ROCKIND: I just want to know – you said minor inconsistencies, yes?
DETECTIVE BALOG: Yes.
MR. ROCKIND: And that can be exculpatory and – and I asked that that wasn’t preserved?
DETECTIVE BALOG: No.
MR. ROCKIND: Okay. Let me ask – let me go on, if I could, to another – to another subject. I want to talk a little bit about at some point you did retrieve Mr. Preka’s cell phone, is that right?
DETECTIVE BALOG: Correct.
MR. ROCKIND: And you retrieve that from his – from his clothing or from the vehicle?
DETECTIVE BALOG: It was in the home on top of the kitchen – I guess it would be an island area.
MR. ROCKIND: And it was off when you retrieved it?
DETECTIVE BALOG: When – I believe it was off, yes.
MR. ROCKIND: And was that phone submitted by you for some type of cell phone or expert data extraction?
DETECTIVE BALOG: Yes.
MR. ROCKIND: And where – where was that – what officer did you submit that phone to to do a cell phone extraction?
DETECTIVE BALOG: Detective Stempien.
MR. ROCKIND: And did he complete a cell phone extraction?
DETECTIVE BALOG: Yes, he did.
MR. ROCKIND: And you provided the – the contents of the extraction to the prosecutor?
DETECTIVE BALOG: Yes.
MR. ROCKIND: I’m talking about of Mr. Preka’s phone.
DETECTIVE BALOG: Correct.
MR. ROCKIND: So they have in their possession a – a Cellebrite extraction showing messages and texts and things of that sort?
DETECTIVE BALOG: I do believe so, yes.
MR. ROCKIND: When you say you believe so, I just want to – I – because you believe that that’s been tendered or you know if that’s been tendered in discovery at all?
DETECTIVE BALOG: I don’t know that, no.
MR. ROCKIND: Your Honor, we don’t have a cell phone extraction from the – Mr. Preka’s phone.
THE COURT: Okay.
MR. ROCKIND: That has not been tendered to us.
MS. HAND: That’s correct. It has not, Judge.
THE COURT: Okay.
MR. ROCKIND: So, I – I – we would seek an order from the Court to provide that to us as part of the evidence in the case, your Honor. So –
THE COURT: Okay.
MR. ROCKIND: As part of discovery.
MS. HAND: Well, and Judge I – I would object to that. This is the – the victim’s phone and so he is not a witness to this case. So, anything in the – I mean, if the Court orders it I have to give the text messages maybe the day of his death or any text messages between him and the defendant, which I don’t believe there are any.
MR. ROCKIND: Judge, I – I don’t accept that limitation at all.
THE COURT: Well, let her finish please, Mr. Rockind.
MR. ROCKIND: Sure.
MS. HAND: How – how is the victim – the court rules say that I have to provide a statement of any witness that – but this is not a witness, Judge. He’s not a witness. He’s not here. He’s not alive, so I don’t how he – how he can be a witness or anything that he said considered to be a statement of a witness.
MR. ROCKIND: This is evidence. This was seized. This was located – to lay a foundation I believe this was identified and discovered at the scene. It was located, it was taken into evidence is what I understand and then – and that it was turned over to a – to a police expert who is expert in cell phone data extraction. The – the materials were extracted and they exist in the police file. That’s part – that is part of the case. That’s part of the evidence in the case. I mean
MS. HAND: And I –
MR. ROCKIND: And of the issues in the case, of course, is the – the – the source of – of the consumption of drugs. I’m stunned that we haven’t gotten that. I think if the Court were in our shoes you’d be equally stunned that it wasn’t provided. It is evidence in the case. We have the right to analyze it and – and make our own analysis of the import of it.
MS. HAND: I – I disagree, Judge, and like I said I don’t think that the – the defense is entitled to the contents of the decedent’s cell phone in its entirety unless, of course, there’s exculpatory information in there.
THE COURT: Is there?
MS. HAND: No, Judge.
MR. ROCKIND: Well, Judge –
MS. HAND: There’s no – there’s no conversation at all between the defendant and the – and the decedent.
MR. ROCKIND: But that’s not the – are we really having a conversation about a piece of evidence found at the scene that was taken into evidence –
MS. HAND: It wasn’t taken into evidence at that time, I don’t believe, Judge.
THE COURT: So I think there – I think that we may be arguing about –
MR. ROCKIND: I’m arguing that we’re entitled to all of the evidence that was taken from the scene.
THE COURT: Let – let’s make sure that we’re –
MR. ROCKIND: Sure.
THE COURT: As I’m hearing it from what Ms. Hand –
MR. ROCKIND: I thought he would just say – I thought he would say turn it over. I didn’t even think we’d have a debate about it, to be frank with you. I’m just –
THE COURT: Are you –
MR. ROCKIND: I can voir dire some more.
THE COURT: Are you entitled, Mr. Rockind, to something that the decedent – a picture that he took two years ago and is stored on his phone?
MR. ROCKIND: I’m entitled –
THE COURT: Are you entitled to that, yes or no?
MR. ROCKIND: Yes. Yes. I am. I’m entitled –
THE COURT: How is that relevant to this case?
MR. ROCKIND: Well – well, wait a minute. But that’s not the standard for disclosure of evidence, whether it’s relevant or not. Relevance is a standard for admissibility, not for whether or not we are entitled to receive evidence in the case. This is a cell phone that was found at the scene. There is an issue of – of – of the consumption of a drug that caused the death of the – of the decedent.
THE COURT: But –
MR. ROCKIND: The cell phone was there and it was submitted. There was a police report; I’m sure there’s a cell phone extraction report, I presume.
THE COURT: But doesn’t 6.201 talk about relevance to the case? Pg 125 (8-9) Court transcript
MR. ROCKIND: It’s a – it’s statement pertaining to the case. But what –
THE COURT: Because –
MR. ROCKIND: Can I ask this other question? Was there – was there a cell phone extraction report that was actually prepared?
DETECTIVE BALOG: Yes.
MR. ROCKIND: That’s a police report prepared by police officers, right?
DETECTIVE BALOG: It is a report of the phone’s contents.
MR. ROCKIND: Prepared by a police officer?
DETECTIVE BALOG: Correct.
MR. ROCKIND: As part of this – it’s a police report.
MS. HAND: I have no problem giving him the cell phone police report.
MR. ROCKIND: But no, Judge –
MS. HAND: They took the information –
MR. ROCKIND: No, no, no, no, no. There’s an extraction. There’s data.
THE COURT: Is the – is the data – how is the data organized?
MS. HAND: It’s organized by – there’s –
THE COURT: By date?
MS. HAND: Well, there’s some areas that – yeah, you could look at it by date. There’s pictures, there’s videos, there is – I – I haven’t gone through it with a fine-tooth comb. There’s emails. But, I mean, that – my – my point is, Judge, I don’t think that it is discoverable. Why – so they
THE COURT: It was obtained by the officer. It was – it was requested and manufactured by the officer at his request.
MS. HAND: Correct.
THE COURT: I would think that at least, let’s say, the month leading up to the alleged incident would – that time period would be something that defense should be able to at least examine on their own.
MS. HAND: If the Court wants to –
THE COURT: I agree with you, the things that happened years ago, I mean I have pictures on my phone of my children from when they were little. My son is a junior at Michigan State. That couldn’t possibly be relevant to this case.
MS. HAND: If the Court orders me to give him a month’s worth of material or a month-worth of text message. I mean, if the Court wants to say communication –
THE COURT: I think you should give him a month of everything that was extracted a month before.
MS. HAND: Even pictures?
THE COURT: I mean, I’ll do a protective order. It’s not to be disseminated.
MR. ROCKIND: I’m – we’re not disseminating anything in the case. Of course we’re not going to disseminate. We want to look at it to see whether or not it fits with our theory of the case or whether – we just – we have a right to it. So I – I’ll sign a protective order. I’ll – I’ll be limited by that. I’m not going to disseminate it to – the only – it can literally be for my staff, for attorney’s eyes and staff or Mr. Lewis’ eyes and staff or –
THE COURT: Only attorney of record –
MR. ROCKIND: We’d want to be able to show our client, but that’s it.
THE COURT: I won’t –
MR. ROCKIND: We won’t – we won’t copy, other than to have – for us to look at it. We won’t disseminate it outside of our offices or to show the client. We might – if we want to –
THE COURT: I’ll enter that order
MS. HAND: Okay.
THE COURT: Let’s prepare that and get it done.
MS. HAND: It the entirety or just for 30 days, Judge.
THE COURT: Just the 30 days up to –
MS. HAND: Up to, okay.
THE COURT: Up to the decedent’s passing.
MS. HAND: Okay.
BY MR. ROCKIND:
MR. ROCKIND: All right, so the last thing I wanted to –
MR. ROCKIND: Could I just – could you pull up the – the chat on the –
BY MR. ROCKIND:
MR. ROCKIND: Is it – is it fair to say – while – while the prosecutor is doing that, Detective Balog, that you saw this – the – the string of videos and filters that were pieced together and played in open court, right?
DETECTIVE BALOG: Yes.
MR. ROCKIND: You saw those, right?
DETECTIVE BALOG: Yes.
MR. ROCKIND: Can we concede that each of those videos was made at a different point in time?
DETECTIVE BALOG: Yes.
MR. ROCKIND: And that it – unlike – this is not a video of an event that just ran for three or four hours, right?
DETECTIVE BALOG: Correct.
MR. ROCKIND: These were momentary, five/10 second – I mean I’m – I’m estimating, but five/10 second clips that ultimately were put together, right?
DETECTIVE BALOG: Yes.
MR. ROCKIND: Is it fair to say that you – you don’t – you don’t have personal knowledge of what transpired between Mr. Preka and anybody in that house prior to any of those individual clips being taken?
DETECTIVE BALOG: Correct.
MR. ROCKIND: Nor after?
DETECTIVE BALOG: Correct.
MR. ROCKIND: Is it fair to say that you don’t know what communications occurred between Mr. Preka and – and any individual in that house before any of those clips were made?
DETECTIVE BALOG: Correct.
MR. ROCKIND: Nor after?
DETECTIVE BALOG: Correct.
MR. ROCKIND: In fact, as you sit here and testify – let me – let me say it differently. And you have not seen any continuously- running clip of video from the beginning of – to the end when Mr. Preka was on the ground, it’s just those segments, right?
DETECTIVE BALOG: No, every – what video are you –
MR. ROCKIND: Let me ask it differently.
DETECTIVE BALOG: Sorry.
MR. ROCKIND: Yeah, I – I think I've already asked it, but there’s no long, continuous, like a three or four-hour surveillance video where you would be able to look at and take those individual clips and compare it to when those occurred in the timeline, right?
DETECTIVE BALOG: That’s correct, no.
MR. ROCKIND: Okay. So let –
MR. ROCKIND: Thank you for that.
BY MR. ROCKIND:
MR. ROCKIND: Just – just so – there – there’s a chat message – I guess this is the Excel spreadsheet?
DETECTIVE BALOG: Correct.
MR. ROCKIND: Contained on the disk, right?
DETECTIVE BALOG: That’s correct.
MR. ROCKIND: And this is – what was the – the dates were April fifth, do you remember that? Can you see that?
DETECTIVE BALOG: I – I can see April fifth, yes
MR. ROCKIND: And so this -- MR. ROCKIND: So just for the record, your Honor, the last – would you agree, Detective, that the last – well, the last one that we saw was April fifth some time, like 12:38 or something like that and we can’t see it anymore, but there was – but that was April fifth was the last entry, right?
DETECTIVE BALOG: On – last entry on the screen that you have there?
BY MR. ROCKIND:
MR. ROCKIND: Yes.
DETECTIVE BALOG: If you’re saying so, yes. I can't see it from here.
MR. ROCKIND: And then the first one down here is March 18, it’s a – looks like 12:13:54. Do you see that?
DETECTIVE BALOG: Yes.
MR. ROCKIND: Okay.
MS. HAND: Not 12:13:54, 00.
MR. ROCKIND: That would be 12:13.
MS. HAND: What’s UTC?
MR. ROCKIND: 00:13:54.
BY MR. ROCKIND:
MR. ROCKIND: Are there any messages on that and – that you’re aware of from April sixth and seventh?
DETECTIVE BALOG: I don’t – I don’t see any on there. I’d have to look at it. I don’t have it before me.
MR. ROCKIND: Okay.
MR. ROCKIND: Can I have one second, your Honor?
THE COURT: Take your time.
MR. ROCKIND: Your Honor, I have nothing else to ask of Detective Balog at this point.
THE COURT: Redirect?
MR. ROCKIND: Thank you.
MS. HAND: Nothing else, Judge.
THE COURT: Thank you, Detective. You can resume your seat.
DETECTIVE BALOG: Thank you.
(At 3:41 p.m., witness excused)
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