2.Len Harvey — Direct/Cross (Recall)
172 linesMS. CAPPLEMAN: Judge, the State calls Len Harvey.
JUDGE HANKINSON: This is a re-call, is it not?
MS. CAPPLEMAN: Yes, Your Honor.
JUDGE HANKINSON: Okay. Come on up here please, sir. And you remain under oath, Mr. Harvey.
THOMAS BALBONI: Yes, sir.
whereupon, LEN HARVEY - RECALLED was recalled as a witness, having been previously duly sworn, was examined and testified as follows:
JUDGE HANKINSON: And just so the record is clear, would you state your name again, please, sir?
LEN HARVEY: Yes, sir. Len H. Harvey.
DIRECT EXAMINATION BY MS. CAPPLEMAN:
MS. CAPPLEMAN: And, Mr. Harvey, can you remind us how you are employed?
LEN HARVEY: I'm the director at Premier Health and Fitness Center.
MS. CAPPLEMAN: All right. And last week when you testified, we introduced State's Exhibit 124, which contains some clips from the original surveillance footage collected there from Premier Gym where you are employed. Do you remember that?
LEN HARVEY: Yes, ma'am.
MS. CAPPLEMAN: Okay. And there was some questions about the clip that were taken. Have you had an opportunity to review a thumb drive which I have marked as State's Exhibit 177?
LEN HARVEY: Yes, ma'am.
MS. CAPPLEMAN: And does that thumb drive contain fair and accurate original surveillance footage from which the clips in State's 124 were taken?
LEN HARVEY: Yes, ma'am.
MS. CAPPLEMAN: And no clipping or circling has been done on the footage in State's Exhibit 177?
LEN HARVEY: No, ma‘am.
MS. CAPPLEMAN: All right. Judge, at this time, I would ask to move into evidence State's 177.
JUDGE HANKINSON: And so I'm clear, this is what was 124? Is it a smaller subset of this document?
MS. CAPPLEMAN: Correct.
JUDGE HANKINSON: Okay. Any objection?
MR. ZANGENEH: Your Honor, I just want clarification. Is this a new piece of evidence, or this is something that has been -- that you've had that you've edited for today's presentation? I don't understand exactly what it is.
JUDGE HANKINSON: Let's go sidebar.
(A Bench Conference was held as follows:)
JUDGE HANKINSON: Okay. So, I take it what we're trying to do is deal with the objection that was made the other day in reference to Brian Case (phonetic). So this is the original document --
MS. CAPPLEMAN: Yes, sir.
JUDGE HANKINSON: -- that the clips were taken from?
MS. CAPPLEMAN: Yes.
JUDGE HANKINSON: All right. Do you have an objection?
MR. ZANGENEH: Absolutely not.
JUDGE HANKINSON: Do you have an objection?
MR. DECOSTE: No, Your Honor.
JUDGE HANKINSON: All right. Thank you.
(The Bench Conference was concluded.)
MR. ZANGENEH: Your Honor, I withdraw my objection.
JUDGE HANKINSON: State's Exhibit 177 will be admitted.
(State's Exhibit No. 177 received in evidence.)
BY MS. CAPPLEMAN:
MS. CAPPLEMAN: And, Mr. Harvey, just to clarify, this exhibit -- it's a thumb drive -- it contains all of the original footage relating to the events that we are here about today?
LEN HARVEY: Yes, ma'am.
MS. CAPPLEMAN: So, no editing? You can watch all of the cameras all the way through the entire time Mr. Markel is in the gym, if you want to?
LEN HARVEY: Yes, ma'am.
MS. CAPPLEMAN: All right. And, Judge, at this time, I would ask to publish just a small portion so the jury can compare what they saw yesterday -- last week in State's 124 to State's Exhibit 177.
JUDGE HANKINSON: You may.
while she's doing that, Mr. Harvey, how long would the whole thing be? Do you have an idea?
LEN HARVEY: Several hours.
(State's Exhibit No. 177 published in open court without sound.)
BY MS. CAPPLEMAN:
MS. CAPPLEMAN: All right. So, Mr. Harvey, that was just an example. But all the different camera angles which were previously shown in State's Exhibit 124 are also present on 177?
LEN HARVEY: Yes, ma'am.
MS. CAPPLEMAN: All right. No further questions.
JUDGE HANKINSON: Cross?
CROSS EXAMINATION BY MR. ZANGENEH:
MR. ZANGENEH: Good morning, again.
LEN HARVEY: Good morning.
MR. ZANGENEH: You've reviewed every single clip and every single piece of footage on the surveillance; is that correct?
LEN HARVEY: I've looked at the majority of that.
MR. ZANGENEH: Okay. And when you say “majority,” a majority of it, does that mean that you looked at half of it? 75 percent of it?
LEN HARVEY: I would say probably 75 percent of that.
MR. ZANGENEH: And would it be -- would it be a fair statement that the reason you haven't looked at all of it is because some portions of it are not relevant with regards to where we knew the locations of the suspect vehicle and Mr. Markel's vehicle?
LEN HARVEY: Yeah. There were some that just showed -- some of the cameras that just showed trees, for example --
MR. ZANGENEH: Yes, sir.
LEN HARVEY: -- and was not good footage; so I didn't review all of that.
MR. ZANGENEH: Do you recall -- there's a portion of the video at the inception where the Prius -- if this is where Mr. Markel is parked, the Prius drives up and out of camera range. Do you recall that?
LEN HARVEY: I don't.
MR. ZANGENEH: You don't. Do you recall there's a portion of it where the Prius drives back down and parks somewhat close to mr. Markel's car? Do you recall that?
LEN HARVEY: I don't.
MR. ZANGENEH: You don't. In the footage that you saw, if the Prius was to take a left and drive up in the parking lot, would -- and will you agree with me that there's a portion of the parking lot that surveillance cameras do not see?
LEN HARVEY: I would agree with that.
MR. ZANGENEH: Okay. Could you describe to the members of the jury what's around that area?
LEN HARVEY: That you -- the area that you cannot see?
MR. ZANGENEH: Yes, sir.
LEN HARVEY: There are certain portions of the middle of where you'd come -- our building faces west.
MR. ZANGENEH: Yes, sir.
LEN HARVEY: So there's certain portions of the middle there that you cannot see due to trees. And on the north side of the building, there are some trees there that you cannot see portions of the parking lot.
MR. ZANGENEH: would it be correct or incorrect to say that the areas that are out of view of the surveillance cameras don't have -- well, let me ask you this way.
Are there other businesses or public roadways or private roadways that are in the area of what's not captured by the surveillance videos?
LEN HARVEY: Yes.
MR. ZANGENEH: Okay. It's not like a secluded, private area that no one can see; correct?
LEN HARVEY: No. It's -- it has trees around the perimeter of our property; so you can -- you can see fairly well.
MR. ZANGENEH: It appears, based on the surveillance that we have, that in the morning time there seems to be a substantial amount of customer traffic at your gym. would that be a fair statement, sir?
LEN HARVEY: That is, yes.
MR. ZANGENEH: And would it also be a fair statement to say that it appeared that a good portion of the parking spaces were taken?
LEN HARVEY: Yes.
MR. ZANGENEH: And would it also be a fair statement to say that given the fact that there's -- this is a fluid business. People are constantly coming in and going out. would that be fair statement, sir?
LEN HARVEY: Yes.
MR. ZANGENEH: In your review of the surveillance videos, at any point did you see a person exit the Prius to urinate?
LEN HARVEY: Not that I recall.
MR. ZANGENEH: would that be something that would -- is that something that would have drawn your attention?
LEN HARVEY: Possibly.
MR. ZANGENEH: well -- so the reason why I'm asking is because the Prius is the target vehicle of a criminal investigation; correct?
LEN HARVEY: That's correct.
MR. ZANGENEH: And that investigation, it's not a trespass ora DUI. It's a homicide investigation; correct?
LEN HARVEY: Yes.
MR. ZANGENEH: Okay. And you'll agree with me that being able to locate the appropriate suspects is obviously the goal of law enforcement of any good, law-abiding citizen; correct?
LEN HARVEY: I would think so. That's not really where my expertise is, but --
MR. ZANGENEH: Correct.
LEN HARVEY: -- I would think so.
MR. ZANGENEH: And so you will also agree with me that if there is any kind of evidence showing one of the suspects exiting the Prius and urinating in your parking lot, that is something that would have been -- that's something that you would have noticed; correct?
LEN HARVEY: Yes.
MR. ZANGENEH: And just to clarify, did you see this in any of the footage that you've observed?
LEN HARVEY: Not that I recall.
MR. ZANGENEH: And you'll agree with me that if that is something that you saw, that is something that you would have recalled; correct?
LEN HARVEY: Yes.
MR. ZANGENEH: And you would have obviously pointed that out to law enforcement as well; correct?
LEN HARVEY: Yes. But at that time, I wasn't sure what we were looking for --
MR. ZANGENEH: I understand that.
LEN HARVEY: -- when we reviewed that, so --
MR. ZANGENEH: But just to clarify, no video evidence whatsoever of anybody -- well, let's not just say anybody -- my client, Sigfredo Garcia, exiting the silver Prius and urinating in your parking lot; correct?
LEN HARVEY: Not that I recall.
MR. ZANGENEH: If I may just have a minute, Your Honor?
JUDGE HANKINSON: You may.
MR. ZANGENEH: Thank you for your answers.
I have no further questions of this witness, Your Honor.
JUDGE HANKINSON: Magbanua?
MR. DECOSTE: No questions for Mr. Harvey, Your Honor. Thank you.
JUDGE HANKINSON: Redirect?
MS. CAPPLEMAN: No, Your Honor.
JUDGE HANKINSON: Any juror have a question of this witness?
All right. write your question down, please. we will go sidebar.
(A Bench Conference was held as follows:)
JUDGE HANKINSON: It says: "What is the physical layout of the business?" And it says something about map up on the top right-hand corner. I'm not sure exactly how that fits into the question. I guess they're asking if we have a map of it.
And then: How are the camera views labeled? whatever that markup is.
How are the camera views labeled? And it has in there, South Parking to which parts of business.
So the question: How are the camera views labeled? To which parts of business? But then there's written in "South Parking,” which doesn't really make any sense.
But -- so I guess he wants me to basically explain the layout of the business, and on the video, how are the different views labeled. So, that's the best I can interpret it.
MS. CAPPLEMAN: No objection.
JUDGE HANKINSON: Anybody have an objection?
MR. ZANGENEH: NO, objection.
MR. DECOSTE: I'm just obligated -- my thought is the easiest way is if the State could bring up, or counsel for Mr. Garcia, a Google Map satellite view of it to show the layout of the parking lot and answer the question.
JUDGE HANKINSON: That's certainly a way to do it, but I am not going to require anybody to put evidence in. Does anybody want to do that?
MS. CAPPLEMAN: Do you want to do it? Are you able to do it?
MS. NORRIS: I don't know if my computer --
MS. CAPPLEMAN: Would it take a few minutes to get going?
JUDGE HANKINSON: well, you don't have to do it at this point. We are not going to stop to do it at this point. Okay. All right.
(The Bench Conference was concluded.)
JUDGE HANKINSON: I think you've done it to some extent, Mr. Harvey, but would you kind of just describe the layout of your business and what's around it? And talk to them. I know I'm the one asking the question.
LEN HARVEY: Okay. Our building is 3521 Maclay Boulevard. It's a 55,000-square-foot facility that sits on nine-and-a-half acres. Our building faces the west, and we have what we would consider to be a south parking lot, which would be as you walk out of the building to the left, and the north parking -- I'm sorry -- the west parking lot and then a north parking lot. And behind our facility, we have employee parking.
what else can I --
JUDGE HANKINSON: And on the video that you've put in -- that was put in evidence, No. 177, are the camera -- different cameras labeled in the video?
LEN HARVEY: Yes, sir.
JUDGE HANKINSON: And how would they be labeled so they could know what you are talking about?
LEN HARVEY: I believe on the footage, it's Camera 1, 2, 3. We have 16 cameras. And I believe on the bottom of the video, it's labeled South Parking Lot, west Parking Lot -- maybe Northwest Parking Lot, it seems like, but then North Parking Lot.
JUDGE HANKINSON: Okay. Okay. Thank you, sir.
Any follow-up, Ms. Cappleman?
MS. CAPPLEMAN: No, Your Honor.
JUDGE HANKINSON: Any follow-up from Garcia?
MR. ZANGENEH: Briefly, Judge.
FURTHER EXAMINATION
BY MR. ZANGENEH:
MR. ZANGENEH: Sir, so you have 16 cameras?
LEN HARVEY: Yes.
MR. ZANGENEH: And are they being monitored realtime?
LEN HARVEY: Yes. They are actually in my office, is where they are at, and there's a screen with all 16 up right there.
MR. ZANGENEH: So if you see some sort of illegal activity or an accident or a disturbance, do you have a security team?
LEN HARVEY: No, not really.
MR. ZANGENEH: Do you have somebody that will potentially drive around the parking lot?
LEN HARVEY: No. we have a facilities manager who actually oversees our outdoor and indoor equipment, property, for the most part.
MR. ZANGENEH: Do you they have, like, a -- do they wear any special uniform or anything?
LEN HARVEY: Yeah. we have -- we do, but they are not security type uniforms.
MR. ZANGENEH: They are employee uniforms?
LEN HARVEY: Yes.
MR. ZANGENEH: And does this person drive around outside in, like, a special vehicle or a shopping cart or anything like that?
LEN HARVEY: They walk.
MR. ZANGENEH: They walk around?
LEN HARVEY: Yeah.
MR. ZANGENEH: And so if you see a disturbance on one of the cameras, you could say, Go to area where Camera 6 is, or something of that nature, sir?
LEN HARVEY: Exactly.
MR. ZANGENEH: Thank you.
JUDGE HANKINSON: Magbanua?
MR. DECOSTE: No questions, Your Honor.
JUDGE HANKINSON: All right. Ms. Cappleman, anything further?
MS. CAPPLEMAN: No, sir.
JUDGE HANKINSON: All right. You can step down, Mr. Harvey.
LEN HARVEY: Yes, sir.
JUDGE HANKINSON: We will try excusing you again.
Do we think we are through with Mr. Harvey?
MS. CAPPLEMAN: Yes, Sir.
JUDGE HANKINSON: Anybody need him?
MR. ZANGENEH: No, Your Honor.
MR. DECOSTE: No, Your Honor.
JUDGE HANKINSON: We will excuse you again. All right.
Call your next witness, please.