Preliminary Hearing
In the District Court of Lincoln County, State of Oklahoma
State of Oklahoma, Plaintiff
v.
Michael Lee Porter, Defendant
Case No. CF-2005-219
Held on Wednesday, August 23, 2006
Before The Honorable Dawson R. Engle, Special District Judge
Appearances:
Richard Smothermon, District Attorney
Greg Pollard, Assistant District Attorney
Paul E. Sutton, Attorney at Law
Steven Huddleston, Attorney at Law
Michael Taber
John David Jenkins
Raye Dawn Smith
Dean A. Hawley, M.D.
The Court: Good morning. Welcome to the Lincoln County Courthouse. This is Case No. CF-2005-219, State of Oklahoma v. Michael Lee Porter. The state is present through district attorney Richard Smothermon. Mr. Porter is present in person and with counsel, Paul Sutton.
A few housekeeping matters before we get started. I’ve asked the media to allow people to freely come and go from the courthouse without hounding them for interview requests. And so I’ve designated an area on the northeast lawn as an interview area. If you wish to give an interview, I would ask that you contact the media over on the lawn. If you don’t want to give an interview, you should be allowed to leave the courthouse without being harassed. And I think that the media is definitely going to honor those requests.
On another matter, I understand that any case that comes before me is not a pleasant thing. People come to court for a number of different reasons, and it’s because there’s some sort of dispute. This case isn’t any different than any other case that I hear except that the emotions are maybe a little higher charged due to some of the circumstances around the case.
I understand that this is a difficult thing, and I just ask that as much as possible that you keep your emotions in check today. I think we’ll be able to get through this case today or tomorrow without any major problems. And I can certainly understand how someone might cry or might feel distraught over some of the evidence that might be presented today, and that’s fine. I just ask that you don’t have any outbursts in court and allow us to hear this case today and move on without any major distractions here in the courtroom.
State, are you ready to proceed with preliminary hearing?
Mr. Smothermon: Yes, your Honor.
The Court: Mr. Sutton, are you ready to proceed?
Mr. Sutton: Yes, sir.
The Court: Mr. Smothermon, your first witness.
Mr. Pollard: Your Honor, the states would call Michael Taber.
Mr. Sutton: If it pleases the Court, your Honor, I’d like to invoke the rule of sequestration.
The Court: The rule has been invoked. I understand that there are a number of witnesses endorsed. State, I’m going to ask that you make sure that any witness that you intend to call today be excluded from the courtroom. If there are witnesses that you allow to remain present, they will not be able to testify today. So that’s up to you who you have and don’t have in the courtroom at this time. Do you see any of your witnesses in the courtroom at this time?
Mr. Smothermon: None that will be called today, sir.
The Court: All right. Sir, will you please stand and raise your right hand for me?
(The witness was sworn.)
The Court: Thank you. Please have a seat.
Mr. Pollard: May I inquire, your Honor?
The Court: Certainly.
Michael Neal Taber – Called as a witness on behalf of the State of Oklahoma after having been first duly sworn, testified as follows:
By Mr. Pollard:
Q – State your full name.
A – Michael Neal Taber.
Q – Where are you employed?
A – Midwest Industries.
Q – How long have you been so employed?
A – Approximately 17 years.
Q – Were you working at Midwest Industries on October 11, 2005?
A – Yes, sir.
Q – What time did you get off work that day?
A – Three o’clock.
Q – And at that point, do you remember what you did?
A – I went to go pick up my youngest son at school.
Q – How old is your youngest son?
A – Let’s see. He was six then.
Q – And where is that school?
A – Meeker grade school.
Q – After picking up your son, what did you do?
A – I headed to Mike Porter’s house.
Q – Why were you going to Michael Porter’s house?
A – To look at a set of tires that I was thinking of buying from him.
Q – And this person, you said, Michael Porter, do you see him in the courtroom today?
A – Yes, I do.
Q – Will you point him out and say what he’s wearing?
A – He’s right over there in the blue shirt, blue tie.
Mr. Pollard: Your Honor, may the record reflect that the witness has identified the defendant, Michael Porter?
The Court: It will.
By Mr. Pollard:
Q – Had you had a conversation earlier in the day with Mr. Porter?
A – Yes, I had.
Q – What was the nature of that conversation?
A – It was about the tires.
Q – Do you remember about what time that conversation was?
A – Roughly 2:30.
Q – And what did Mr. Porter, the defendant, tell you to do?
A – He basically told me that if I wanted to look at the tires, to come out after work. And if I couldn’t come out directly after work, we’d have to make it another time.
Q – Did he indicate to you where he was calling you from?
A – No.
Q – Did you actually go to Mr. Porter’s residence?
A – Yes, I did.
Q – Would you explain to the Court from the point of the highway what it looks like for – at Mr. Porter’s residence? Can you explain that?
A – What I seen as I drove up?
Q – Well, just what the residence looked like on October 11th that you can remember. How long is this driveway? Let’s start off from that point.
A – Eight of a mile, maybe; quarter of a mile, something like that.
Q – It’s fair to say it’s a long driveway?
A – It’s a long driveway, yes.
Q – And can you see the house from the highway?
A – Yes.
Q – What is the driveway like as you’re driving up the driveway?
A – Rough.
Q – Is it cemented? Paved? Rocked?
A – Rock, dirt mainly.
Q – And is this residence that you’re going to of the defendant’s, is it in Lincoln County?
A – I believe so, yes.
Q – And as you’re driving up the driveway toward the residence of the defendant, did you notice anything?
A – I noticed Mike outside with the baby.
Q – And where were you in relation to the driveway when you first noticed the defendant outside of the home?
A – Probably a third of the way up the driveway, maybe half, I can’t recall.
Q – And did you still have your six-year-old with you?
A – Yes.
Q – And what were you driving that day?
A – My Dodge pickup.
Q – And how many seats does that Dodge pickup have?
A – Just one bench seat.
Q – And was your son sitting close to the door or maybe in the middle?
A – I believe he was right in the middle, right next to me.
Q – Could you tell what he defendant was doing as you saw him outside?
A – Just looked like he was outside holding the baby. I really couldn’t tell, you know. Like I said, I was about halfway up the driveway. It didn’t really, you know, register what was going on. It just looked like he was outside with the baby at the time.
Q – And the baby, do you know who the baby was?
A – Yes.
Q – And who was the baby?
A – Kelsey.
Q – And you said that Mr. Porter was holding Kelsey?
A – Uh-huh.
Q – How was he holding Kelsey?
A – Kind of like this, like maybe he was burping her or something like that.
Q – Did you get to make contact with the defendant? Did you get to talk to him?
A – Yes.
Q – And at what point after first seeing him did you get to talk to him? How long was that in the interim?
A – One more time?
Q – How long from the point of actually seeing Mr. Porter outside, to driving up the driveway—I’m assuming you parked; is that correct?
A – Yes.
Q - --and then actually talking to him? How long was that?
A – Maybe a couple of minutes, tops.
Q – At that point, did you believe anything was wrong?
A – The closer I got – as I parked the vehicle, yes, I knew something—I assumed something was wrong. It looked like something was wrong.
Q – And where did you park your vehicle?
A – I parked facing east, right in the driveway. I turned off the drive into a part of—another part of the driveway.
Q – When you got out of your vehicle, what did you do?
A – I approached Mike Porter.
Q – And did you make any observations about his behavior at that time?
A – Yeah.
Q – And what were those observations?
A – He was crying, very upset. Excuse me. Crying and very upset.
Q – Was the defendant saying anything at that point?
A – Yeah. “Oh, my God. She’s not breathing. What do I do?”
Q – Did you make any observations at that point about Kelsey?
A – It wasn’t until a few moments later that I actually—I hadn’t seen the baby’s face until, like I said, a few moments after that, and her head had kind of fallen back like this. And that’s when I seen her face and I then knew something serious was wrong.
Q – I recognize all of this is sensitive, but I need to go into that a little bit. Did Kelsey’s eyes—were they open, closed, at that point?
A – They were about halfway open.
Q – Did the defendant have anything else in his hands besides Kelsey?
A – A phone.
Q – And what was he doing with the phone?
A – He was trying to talk on it.
Q – You said “trying.” Can you explain that?
A – Well, like I said, he was holding the baby with one hand and the phone with the other, trying to talk to me, you know, “Oh, my God, Mike,” you know, “What do I do?” and at the same time trying to communicate with somebody on the phone.
Q – Were you able to find out who he was trying to communicate to at that point?
A – Yeah. To the best of my recollection, I took the phone from Mike, and I believe it was 911 dispatch.
Q – When you took the phone, did you tell the 911 operator anything?
A – Yes. I told her that there was an emergency. I think I gave a destination. I can’t remember the exact mileage, but it was two and a quarter, something like that, miles east of Meeker.
Q – And did you do anything else in response to what the 911 operator may have told you?
A – She basically told us to stimulate the baby, and I took that as, you know, talking to, rubbing, stuff like that. And that’s what we did.
Q – And how did you try to do that?
A – I basically just put my hand on her back and patted and said, “Kelsey, wake up,” you know.
Q – Was there any response at that point?
A – No.
Q – While you’re on the phone with 911, did the defendant at any point mention performing CPR?
A – No, sir.
Q – What was the behavior of the defendant during this entire interchange with 911, yourself, and Kelsey?
A – Basically the same as when I pulled up, just crying, very upset, you know, confused.
Q – Did anybody else arrive at the residence?
A – Yes.
Q – Who else arrived at the residence?
A – Yes.
Q – Who else arrived at the residence –
A – I believe –
Q - -- or who next arrived?
A – I believe Gayla Smith was next on the scene.
Q – And who is Gayla Smith?
A – Raye Dawn’s mom, I believe.
Q – When she arrives, what does she do?
A – Best I can recall, she runs up and takes the baby from Mike.
Q – Does the defendant say anything to Gayla Smith at that point?
A – Not that I can recall.
Q – After Gayla takes Kelsey, what happens?
A – I really couldn’t – I really can’t recall what she did with the baby. I believe she may have laid her on the ground. I really can’t recall exactly what she had done. Like I said, my six-year-old son was with me, so I had to stay focused on him as well.
Q – And where was your six-year-old son while all of this was going on?
A – I believe I told him to stay in the truck.
Q – Did Gayla try to talk to Kelsey?
A – I couldn’t tell you for sure.
Q – When Gayla takes Kelsey, where is she, for lack of a better word, dealing with Kelsey at that point?
A – I believe just maybe a few steps on the other side of Mike in the grass. I’m not real sure on that.
Q – Is that nearby the driveway?
A – Yeah, you could say that.
Q – Does anybody else arrive at the residence?
A – I believe Meeker Fire and Rescue was next on the scene.
Q – In response to Meeker Fire and Rescue arriving, what happens then?
A – I don’t know if they got out of the vehicle and went and got Kelsey or if Gayla took Kelsey towards them or if they met halfway. I really couldn’t tell you for sure on that.
Q – But the exchange –
A – But somehow –
Q –was between Gayla to –
A – I believe so.
Q – Meeker Fire and Rescue?
A – I believe so.
Q – Did you make any observations as to what Meeker Fire and Rescue did at that point?
A – I believe they put her in the back of the vehicle, the truck.
Q – How would you characterize the scene at that point?
A – Crazy. Like I said, I was trying to help Mike, you know, ask him questions, all the time making sure my boy, you know, stayed out of the way and not seeing too much, you know.
Q – Did anybody else arrive at the scene?
A – Yeah. There was – I don’t know if – there was a truck pull up. I’m not sure who it was. And then I believe the ambulance out of Prague, First Response, got there. I’m not sure what order. There was some truck pulled up. I’m not sure who that was. But I can’t remember if they pulled up before First Response or after. I believe they was there before, because the gentleman may have been the one to help flag down the First Response, because they went by the driveway.
Q – Was there an exchange between Meeker Fire and Rescue and the Prague ambulance?
A – I can’t recall if First Response done some work on the baby inside of Meeker Fire and Rescue truck or if they immediately took her back to the First Response. I believe they may have done some sort of work inside of Meeker Fire and Rescue truck and then took her back to the First Response truck.
Q – While all of this is going on, does anybody call the residence?
A – Yeah. I took one phone call, I believe. Maybe --- it might have been two phone calls.
Q – And do you remember who that was from?
A – I believe Raye Dawn’s sister, Rochelle, called once, and I believe there might have been a neighbor call. I’m not sure who that was.
Q – And you were the one who took those phone calls?
A – Yes.
Q – Where during the exchange between Michael and Gayla does Michael go?
A – He’s basically in the same area. He may have walked down in the grass just east of the driveway. At some point I know he walked down in the grass. I just couldn’t tell you exactly when.
Q – Did you hear him say anything?
A – Oh, yeah. Yeah, he was –
Q – What was he saying?
A – “Oh, my God,” you know, crying.
Q – While Gayla is working with Kelsey, what is the defendant doing at that point?
A – Basically the same thing, just upset.
Q – When Gayla turns Kelsey over to the First Responders from Meeker, what does the defendant do at that point?
A – He’s basically doing the same thing, I believe, just upset.
Q – Does the defendant go say anything to the Meeker First Responders?
A – I can’t recall.
Q – Whenever the Meeker First Responders hand Kelsey over to the Prague ambulance, where is the defendant at that point?
A – I believe he’s in the grassy area just east of the driveway.
Q – And is he saying anything at that point?
A – Basically the same thing, just very upset.
Q – Did you make any other observations concerning the defendant’s behavior during this time?
A – No.
Q – Does anybody else arrive at the residence after the Prague ambulance?
A – At some point Raye Dawn pulled up. I couldn’t tell you if there was anybody else in there. I do remember her pulling up.
Q – Raye Dawn is who?
A – Mike Porter’s wife at the time.
Q – And the mother of Kelsey?
A – Yes.
Q – And who is with Raye Dawn?
A – Whitney, which is Mike Porter’s daughter.
Q – Does that draw your attention to their vehicle?
A – Yes.
Q – And why is that?
A – I basically wanted to get Whitney and get her up there away from, you know, the scene basically.
Q – And do you do that?
A – Yes, I do.
Q – And where does Whitney go?
A – I told her to go up there by Ridge and play, which is my boy, Ridge.
Q – Does Raye Dawn talk to anybody that you observed?
A – The first people I believe she talked to – I don’t believe she talked to anybody directly, but she did say – I believe she said when she got out of the vehicle, you know, “What’s wrong with my baby?” or something to that line.
Q – Did you make any observations concerning Raye Dawn’s behavior when she arrived?
A – She was upset as well, yeah.
Q – Is she standing? Does she – is she kneeling? Do you know what she does?
A – She was – I believe she proceeded to the back of one of the vehicles. I can’t remember if it was Meeker Fire and Rescue or if it was the First Response. But I – to the best of my recollection, I think she had looked in the back of one of them – I’m not for sure and said, you know, “Oh, my God,” or something like that.
Q – And did you make any – not to what she said, but did you make any other observation as to her behavior after she looked?
A – I believe she may have collapsed after that. I believe she may have fell to the ground after that.
Q – Did you make any observations as to what vehicle transported Kelsey?
A – I believe it was First Response out of Prague.
Q – Would that have been in the ambulance?
A – Yes, yes.
Q – And how long after Raye Dawn collapses to the ground does the Prague ambulance take off with Kelsey?
A – Five minutes, maybe ten, something like that.
Q – While Kelsey is in the rescue unit and then in the ambulance, were you able to make any observations concerning Kelsey at that point?
A – No.
Q – How far were you from those – the ambulance and the First Rescue?
A – Twenty, thirty feet, probably. Because like I said, I was up there – I basically tried to stay with the two children.
Q – Did you observe anything else between Raye Dawn collapsing to the ground and the Prague ambulance? Did you observe anything else of significance that you can remember?
A – Not that I can recall, no.
Q – And what did you do when the Prague ambulance left?
A – I got in my truck and left. I can’t remember the order of people leaving, but I do believe First Response was the first one out of there.
Q – And did other family members follow that –
A – I believe so.
Q - --ambulance?
A – I believe so.
Q – When you left the residence – or the residence of the defendant, was there anybody that remained there at the residence?
A – I don’t believe so. There may have been, but I believe I was either the last one out or close to the last one out of there.
Q – In the days that followed October 11th, did you have any conversations with the defendant?
A – Yes, I did.
Q – And do you remember on what date you had that conversation?
A – No, I don’t.
Q – Would it have been a couple of days or more than that? Can you give us at least an estimate?
A – Probably a couple, couple of three days, something like that, you know.
Q – And what was the nature of that conversation?
A – There was – I had seen some things on the news, and I, you know, told Mike what I had heard and he responded.
Q – Do you remember what his responses were?
A – He said, “Don’t believe any of it.”
Q – Did he tell you how he found Kelsey?
A – I cannot recall that.
Q – And during this conversation, did he say anything to you about CPR?
A – No.
Q – Were there any other conversations that you had with Michael Porter after that?
A – Not that I can recall, no.
Q – And what is your relationship with the defendant, Michael Porter?
A – He is a close friend of mine and my boss.
Q – And that is at Midwest Industries; is that correct?
A – Correct.
Mr. Pollard: If I could have just a moment, your Honor.
The Court: Certainly.
Mr. Pollard: Pass the witness.
The Court: Mr. Sutton, cross.
Mr. Sutton: Thank you, your Honor.
By Mr. Sutton:
Q – Mr. Taber, how are you?
A – I’m doing fine this morning. How are you?
Q – How long have you known Michael Porter?
A – Seventeen years.
Q – And how long have you known Raye Dawn Smith?
A – Not that long. I’ve known of her, you know, in town, but I really don’t – haven’t known her.
Q – Will you, please, tell us how you know Michael besides work?
A – I basically watched Mike grow up. I worked for his dad, I worked for his mom, and I work for him.
Q – Are you familiar with Mike and his other children?
A – Yes.
Q – And have you and he visited in each other’s homes?
A – Oh, yes.
Q – And have you had your children around Mike?
A – Yes.
Q – During the time that he and Raye Dawn were dating and/or married, did you have occasions to have them in your home and socialize with them?
A – I believe once, yes.
Q – Have you had opportunities over time to observe Mike interact with Kelsey?
A – Yes. Somewhat, yeah.
Q – How does Mike interact with children?
A – Great.
Q – Have you ever seen him discipline a child?
A – Actually, no, I haven’t.
Q – Have you seen occasions when he might should have disciplined a child?
A – Probably.
Q – Are you familiar with Mike’s demeanor and temper?
A – Oh, yeah.
Q – Does he have a temper?
A – No.
Q – Have you ever seen him become physical with anybody?
A – No, I haven’t.
Q – Was there an occasion when Mike and Raye Dawn were at your home at a party?
A – Yes, there was.
Q – Was there some sort of event that occurred?
A – Yes, there was.
Q – Can you tell me, first of all, about when that happened?
A – As far as dates, no. As far as times, it was late evening, probably 11:00, 12:00, something like that.
Q – Can you even tell me what year or what time of year this was?
A – I can’t recall. It was – we had had a gathering to watch some boxing, I think, and drink a few beers.
Q – Did Raye Dawn and Mike get into an argument?
A – I believe so.
Q – And was there a physical altercation?
A – I didn’t see the physical altercation firsthand. I seen damages done by the altercation.
Q – Did you have a discussion with Mike or Raye Dawn about what happened?
A – Yes.
Q – And what were you told?
A – Mike told me that he had been pushed into my bathroom wall, and that’s how the sheetrock got broke.
Q – By Raye Dawn?
A – Yes.
Q – Did you ever have a conversation with her about that?
A – No.
Q – Have you ever seen Mike do anything that was inappropriate with his children?
A – No, sir.
Q – How many times over the years have you seen him around his children, other children, interacting with them?
A – Numerous times, numerous.
Q – Has Mike ever done anything that would ever give you any reason to believe that he would physically harm a child?
A – No, sir.
Q – Has he ever exhibited any kind of behavior, even up to this day, that would casue you to believe he would physically harm a child?
A – No, sir.
Q – Since Kelsey’s death and the conversations you’ve had with him, has he said anything or done anything that would indicate to you that he’s harmed her?
A – No, sir.
Q – I’m going to go back to October 11th when you were coming –
A – Uh-huh.
Q - -- to see the tires.
A – Okay.
Q – Mike had called you around 2:30?
A – Yeah.
Q – He called you on the telephone?
A – Roughly 2:30, yes.
Q – On your cell phone?
A – No. I believe it was the business phone.
Q – Do you know what phone he called you from?
A – No, I don’t.
Q – You don’t know whether it was a land line or his cell phone?
A – No.
Q – Do you know whether Mike was at work that day?
A – He was at work, briefly.
Q – Do you know what time he left work?
A – No. I couldn’t tell you that.
Q – When you drove up, you saw Mike outside on the telephone trying to get help. Is that a fair assessment?
A – Yeah. He was more involved with the baby than on the phone. I believe the phone stayed by his side somewhat. He was juggling.
Q – Is it fair to say that he was in a panic?
A – Oh, yeah.
Q – Is it fair to say that he was hysterical?
A – Yes.
Q – Is it fair to say that he was very concerned for Kelsey?
A – Yes, sir.
Q – Is it fair to say he was doing everything that he apparently could do to try to get help?
A – Yes.
Q – Did he ever ask you to help?
A – Yes.
Q – When you observed Kelsey and first saw her face –
A – Uh-huh.
Q - -- you’ve previously indicated that she didn’t appear to be breathing. Is that true?
A – Yes.
Q – And her eyes were only half open?
A – Yes.
Q – Did you get an opportunity to look at her eyes very closely?
A – Yes.
Q – Do you know what “fixed and dilated” means?
A – Yes.
Q – Were her eyes fixed and dilated?
A – I couldn’t tell you that. I know they were glazed. They had a whitish color to them.
Q – When you were told to stimulate her, you tried to talk to her and –
A – Yes, I did.
Q - -- rub on her?
A – Yes.
Q – At any time that you were doing that, was there any eye movement?
A – No.
Q – Did she appear to look at you ever?
A – No.
Q – Did she appear to look at Mike ever?
A – No.
Q – Did you ever see her breathing on her own?
A – No. I heard – I believe I may have heard one small gurgle sound from the baby.
Q – Okay. Other than that, any other signs of life?
A – No.
Q – Was she blue in appearance, pink in appearance, or –
A – She was – her color wasn’t right. It was more of a baby doll color. It just wasn’t right.
Q – When Gayla drove up, she came up to Mike and took Kelsey?
A – I believe so.
Q – Did you see that transfer?
A – I can’t really recall if he handed her the baby or if she took the baby or if they met halfway. I really can’t recall that.
Q – This was a very dramatic and serious circumstance you were involved in; is that correct?
A – Oh, yes.
Q – Based on your observations and actions of Mike, were you also considerably upset and distraught?
A – Oh, yes.
Q – And is that, in part, perhaps why you don’t remember all of these events –
A – Absolutely. Absolutely.
Q - -- exactly how they happened? Were you aware that Mike was the one that had called Gayla and asked her for help?
A – No.
Q – Do you remember seeing Gayla, after she took Kelsey, shake her or do anything like that to stimulate her?
A – I can’t really recall. I believe I was – I believe I may have been more focused on Mike and my son at the time.
Q – Do you remember Gayla speaking to Kelsey?
A – Not that I can recall. I’m sure, you know, she did, but I can’t recall.
Q – Is it your testimony today that you just don’t remember that exchange where Gayla took Kelsey –
A – Yes, it is.
Q - -- from Mike.
A – Yes.
Q – Do you remember Mike praying or asking for God’s help?
A – I believe so.
Q – When Raye Dawn’s sister, Rochelle, called, did she tell you why she was calling?
A – I really can’t remember the conversation. I did tell her that something was wrong with the baby. I didn’t want to get too elaborate on, you know, exactly what I had seen, but I did want her to know something was wrong with Kelsey.
Q – Do you recall that she had asked to speak to Mike when she called?
A – I believe she did.
Q – Do you recall when you told her that Kelsey was hurt and there was a problem that she didn’t seem to be very reactive to that?
A – I really can’t recall her reaction, you know, over the phone.
Q – After Kelsey was put in the first emergency vehicle, the Meeker vehicle –
A – Uh-huh.
Q - -- did she also cry and scream and fall to the ground?
A – Gayla?
Q – Yes.
A – I’m sure she was crying. I don’t know if she had fallen to the ground or not. At some point, yes, she did – I can’t remember if it was – what time span had passed there, but at some point, yes, Gayla did fall to the ground.
Q – And, of course, you testified a few moments ago that Raye Dawn did something similar.
A – Yes.
Q – Is it fair to say that all three of them acted similarly?
A – Oh, yes.
Q – Said similar things?
A – Yes.
Q – And were all very distraught and perhaps hysterical?
A – Absolutely.
Q – Do you know anything about what the normal routine is in picking up Whitney?
A – No.
Q – Have you ever let your children stay overnight with Mr. Porter?
A – Yes.
Q – You have a son that’s six or was six?
A – Yes.
Q – He’s now seven?
A – Yes.
Q – What other children do you have?
A – I have a 13-year-old daughter, Katelyn.
Q – Would you today let your children stay overnight with Mr. Porter?
A – Absolutely.
Q – Do you have any reservations about their safety at all?
A – No.
Q – Were you ever told that Kelsey had seizures?
A – No.
Q – Were you ever told that she bruised easily?
A – No.
Q – Mike knew that you were coming up to the house that day, didn’t he?
A – I don’t know for sure if he knew if I was going to be there or not, because the last thing he said, if I couldn’t’ be there directly after work, we would have to make it another time.
Q – But in that conversation you and he had, it was a pretty strong indication that he was going to be there to show you the tires and you were going to be there –
A – If I decided to go, he would be there for a short period of time.
Mr. Sutton: Okay. May I confer?
The Court: Certainly.
By Mr. Sutton:
Q – Mr. Taber, you never told Mike you weren’t coming over to look at the tires, did you?
A – No.
Q – And you didn’t call him to say, “Mike, I’m not going to be able to make it”?
A – No.
Q – So as far as he knew, you were coming?
A – Yes.
Mr. Sutton: Thank you, sir. That’s all I have.
The Court: Mr. Pollard, redirect.
Mr. Pollard: Yes. Just briefly, your Honor.
Redirect Examination:
By Mr. Pollard:
Q – Mr. Taber, you had indicated in response to Mr. Sutton’s questions that on October 11th the defendant had been at work briefly?
A – I believe so, yes.
Q – Do you remember at what time the defendant arrived at work?
A – No.
Q – Do you remember what time maybe he left?
A – No, I can’t.
Q – Do you remember how long – you used the term “briefly.” Can you define that by minutes or hours, however long?
A – I’m going to say maybe an hour, two hours tops, he might have been there at work. His office is not in the same building as I work, so it’s kind of hard for me to say.
Q – Do you remember if that time that he was there for an hour or two hours was in the morning or the afternoon?
A – No, I can’t recall.
Mr. Pollard: I have nothing further for this witness.
The Court: Thank you, sir. You may step down.
The Witness: Thank you.
The Court: I appreciate your time. State’s second?
Mr. Pollard: State’s second would be John David Jenkins.
(The witness was sworn.)
The Court: Thank you, sir. If you’ll please have a seat.
Mr. Pollard: May I inquire, your Honor?
The Court: Certainly.
John David Jenkins, called as a witness on behalf of the State of Oklahoma, after having been first duly sworn, testified as follows:
Direct Examination
By Mr. Pollard:
Q – State your full name.
A – John David Jenkins.
Q – Where are you employed?
A – I work at Wolverine Tube.
Q – How long have you worked there?
A – Twenty-nine years as of today.
Q – Today is your 29th year anniversary?
A – At Wolverine.
Q – Do you volunteer for anything besides – or do you volunteer for anything outside your work?
A – Yes. I am a volunteer for the Meeker Fire Department.
Q – How long have you been doing that?
A – Since 1999.
Q – Approximately seven years?
A – Six and a half, something like that.
Q – On October 11th, around 3 p.m., do you remember where you were?
A – Yes. We were paged out to – for a child not breathing.
Q – And where were you when you received that page?
A – I was at my house.
Q – How far is your house from the rescue unit that you need to go to?
A – Approximately four blocks.
Mr. Sutton: Excuse me, your Honor. Can you pull the mike to him? I’m having a little trouble hearing.
The Court: If you’ll adjust that microphone so you can speak into it. I’d appreciate it.
A – Approximately four blocks.
Q – How long does it take you to get from your house to the rescue unit in response to this call?
A – Two to three minutes.
Q – Were you the first to arrive at the rescue unit?
A – Yes, I was.
Q – And what is your policy or what is the procedure that Meeker Rescue has concerning going out to an emergency call?
A – Our procedure is that we have at least two – at least a first responder and a fireman have to respond. We have to have at least two before we can leave with the truck.
Q – When you arrived at Meeker Rescue Unit, was anybody else there?
A – When I got there, I started the rescue, and Greg Sebastian pulled in. And we left immediately afterwards.
Q – How long after you arrived did Mr. Sebastian arrive?
A – Approximately a minute, two minutes, something like that.
Q – Were you given a residence to go to and an approximate direction?
A – County dispatched us out, and the directions that they gave us was not correct. They gave us two miles out, and basically that’s all they gave us. So we went ahead and rolled. We first could not find the scene, but we did see a Meeker unit on the side of the road. And then we heard Prague dispatch their ambulance to the scene, and that’s where we got our directions to the house.
Q – And you said two miles out. Two miles out from?
A – Two miles – it would be two miles east on 62 from Highway 18.
Q – And specifically – I think you’ve already said this – what the call was specifically?
A – It was a child not breathing.
Q – And when you learned what the appropriate address is, did that pique your interest at that point? Did you know who it was?
A – I knew the residence, yes.
Q – And who did you believe that residence was?
A – I believe it was – well, at the time I knew it was the old Ray Smith’s house.
Q – And Ray Smith, who is that?
A – Ray Smith is Raye Dawn’s father.
Q – And were you aware that Raye Dawn was now living there at that point?
A – Yes. I knew she was out – I had heard that her and Mike had bought the house from Gayla or had assumed possession of it.
Q – At what point do you actually arrive at the residence that you were called to?
A – It took us – with the delay of the actual address, it probably took us six or seven minutes to get there, somewhere in there. I’m not for sure. I mean, I have it on my run report. But it took us about ten minutes to get up the driveway and to the scene.
Q – And can you at least approximate for us your arrival time?
A – No, I can’t. I can’t think of when it was.
Q – Would it have been shortly before 3:30 or after 3:30?
A – It would have been right at 3:30 or just a little bit after.
Q – And, specifically, is there anybody with you besides Mr. Sebastian?
A – Not at that time.
Q – This residence that you went to, is that located in Lincoln County?
A – Yes, it is.
Q – Whenever – strike that.
Would you explain to the Court what this driveway is like to the residence?
A – It’s a long driveway that kind of makes – and it’s rough. It kind of curves up to the left from the – from 62 Highway.
Q – And do you have at least an approximation of how long that driveway is?
A – It’s well over 100 yards.
Q – As you’re driving up the driveway, what do you observe?
A – I observed some vehicles there and some people out front, and I observed Gayla Smith coming down the driveway.
Q – Did you recognize her immediately?
A – Yes. I’ve known Gayla for a long time, yes.
Q – Did Gayla Smith have anybody with her?
A – She had Kelsey on her left shoulder, kind of bouncing her.
Q – Was there anybody else behind her or nearby?
A – Yeah. Michael was somewhere in the vicinity. I couldn’t tell you exactly how far he was.
Q – And you’ve indicated a “Michael.” Do you see this Michael you’re talking about in the courtroom?
A – Yes. That’s Mr. Porter sitting over there.
Q – Would you point him out and say what he’s wearing?
A – He’s wearing a blue shirt today and a tie.
Mr. Pollard: Your Honor, I’d ask the record reflect that the witness has identified the defendant.
The Court: It will.
By Mr. Pollard:
Q – Do you remember how far or how nearby the defendant was to Gayla?
A – Not when I first arrived. I couldn’t tell you how close he was. After I took the baby, he was real close.
Q – At what point in the driveway do you make contact with Gayla and take the baby?
A – It was probably about 50 to 75 foot from the house. I mean, she was coming down the driveway. We were driving up and we stopped well short of the house.
Q – So it was more than halfway up the driveway? Is that fair?
A – Right. It was probably two-thirds up – we were actually about two-thirds up the driveway, and she was probably one-third down.
Q – And at that point whenever you receive the baby – and do you know who that baby is?
A – Yes.
Q – Who was the baby?
A – Kelsey Briggs.
Q – At that point when you received Kelsey, where was the defendant at that point?
A – He was standing over Gayla’s left shoulder and to my right. He was probably, approximately, five foot.
Q – Did you hear the defendant say anything?
A – Not at that time.
Q – When you received Kelsey, what did you observe?
A – When I took Kelsey from Gayla, I turned her over to assess her. That’s when I heard Mr. Porter say, “Oh, my God.” Kelsey was blue. She was not breathing. And at that time we immediately went to the back of the squad and did our assessments and our trial resuscitation.
Q – Whenever you attempted to do these procedures on Kelsey, did you observe where the defendant went?
A – Yes. When I turned to go to the rescue, Michael went to the east into a field and was screaming and hollering, saying “Oh, my God. My God.” Stuff like that.
Q – At any point did he tell you or indicate to you that CPR had been done?
A – No.
Q – Now, back to the rescue unit. As you’re working on Kelsey, were there any other observations that you made concerning Kelsey and her body at that time?
A – Well, our primary assessment, I assessed her airway and her breathing. She was pulseless. She had no blockage in her airway, but she wasn’t breathing. She was pulseless. So we immediately started CPR. I noticed some blue splotches on her face, and she was extremely blue and that was just because her body hadn’t been perfused in some time.
Q – And how did you – you said she was pulseless, how did you check her pulse?
A – I went straight to the carotid artery.
Q – That would be on the throat area?
A – Right. And then I also assessed with a stethoscope.
Q – And you received no response to either?
A – No response at all.
Q – What were the conditions of Kelsey’s fingers or fingernails?
A – They were blue, which also shows a sign of no perfusion.
Q – Did you take Kelsey’s temperature at that time?
A – No. I just hand-felt her body to see her condition of her skin as part of the circulation type.
Q – What were your concerns about Kelsey at that moment?
A – At that moment she was clinically dead. I mean, she was not breathing. She had no pulse. So she was clinically dead.
Q – As you’re performing CPR on Kelsey, Mr. Sebastian is assisting you; is that correct?
A – That’s correct.
Q – What are you doing concerning the CPR?
A – While Greg was getting my equipment that I asked him to get, I was doing manual CPR on Kelsey. I was breathing for her mouth-to-mouth and doing chest compressions on her.
Q – And Mr. Sebastian, what was he doing?
A – He was getting the Ambu bag, which is a bag that we can breathe for her without doing manual CPR. And he was getting all the equipment for me that I was asking him to do. Mr. Sebastian is trained in CPR, but he’s just a fireman.
Q – Did Kelsey respond in any way to those procedures?
A – Yes, she did. As soon as we started CPR, she started – her color started coming back. She started to what we call “pink up.” Her skin tone started to come back. The blue was slowly fading. And that’s how we check our response to circulation that we’re doing. And she was – she was definitely – we was definitely moving blood and perfusing her cells back with oxygen.
Q – Did you ever receive a pulse while doing this?
A – No.
Q – While you’re working on Kelsey, I understand your focus is on her, but can you recall who was there at the point you were working on Kelsey in the rescue unit?
A – The only person I know was there with me was Greg. The reason we went to the back of the truck, we shut all the doors because we knew it was bad, and we didn’t want anybody in there with us.
Q – Outside the rescue unit, do you know who was out there?
A – No, sir, not at that time.
Q – But before you closed the rescue unit, you knew at least Gayla Smith and Michael Porter were out there?
A – This is correct.
Q – Did you observe anybody else being at the scene?
A – No, sir. As soon as I took the baby, I was focused on the baby totally.
Q – Who else arrives at the scene while you’re in the rescue unit?
A – We have another fireman who arrives at the scene but he doesn’t come in the back. But EMTROL out of Prague – I can’t recall the paramedic’s name. I’ve worked with him before. It’s Mike, I believe – he entered the back of our rescue unit.
Q – And what does he do?
A – Well, we intubate and – intubate the child, which is putting a tube down her trachea, and supply her 100 percent oxygen that way.
Q – Did Kelsey respond to the intubation?
A – No. We also put a LifePak 12 on her too. She was throwing a couple of electrical charges, but it was just like – and then she was just astolic, which is flatlined.
Q – Any pulse at that point?
A – No, none.
Q – Now, you had mentioned a pack. Would you explain what that –
A – It’s a Lifepak 12. It’s a monitor, a heart monitor. It actually monitors the electrical impulses in the heart. What we first got was what they call a PEA. It’s a pulseless electrical activity. And it showed a couple of spikes and then it just went astolic, which means it’s just flatlined. It wasn’t showing any electrical activity.
Q – And explain what spikes are.
A – Well, it’s a QRST. It’s how your heart beats, and it picks up the electrical impulse. I mean, we can get into real detail about it. You have an electrical impulse that actually charges the heart, and then you have a negative impulse that actually discharges the electrical field. And what it does is it just triggers different parts of the heart to beat.
Q – Is this pack also referred to as an ECG?
A – That’s correct.
Q – And what does ECG specifically stand for?
A – Electrocardiogram.
Q – After receiving some of the electrical activity from Kelsey, what happens at that point?
A – It flatlined and we intubated her and just basically did CPR on her just to keep the body alive. I’m not a paramedic, so we can’t administer any drugs. But Mike, as soon as they got there, the paramedic unit, they started administering drugs to try to trigger the heart to come back. As soon as we intubated, he used epinephrine and everything down the tube into the lungs, which is protocol for them, and never did get any response.
Q – At any point do you move Kelsey from your unit?
A – Right. As soon as we get a line started and get her stable, we move her straight – I’ll take that back. We didn’t start the line in our truck. We started it in their truck, but we did intubate in our truck. And as soon as we got her stable, we – or got her situated where we was supplying oxygen to her and CPR, we moved to the EMTROL truck.
Q – And even in this movement to the point of putting Kelsey in the Prague ambulance, is CPR continued?
A – Yes, it is.
Q – While in the ambulance, was there any response from Kelsey?
A – None.
Q – Where does the Prague ambulance go?
A – We go to Prague Hospital.
Q – And you said, “we.” Did you ride in the Prague ambulance?
A – Yes, I did. All three –
Q – Who –
A – Me and Greg Sebastian both rode in the rescue unit.
Q – Do you recall who else was in the unit?
A – Mike and his driver or his EMT was in the truck. His driver drove and the paramedic from Prague was in the back with us. He was trying drugs and trying to get her to come around.
Q – Can you see the driver from the back of the unit?
A – Yeah. You can see the back of his head.
Q – Just for housekeeping purposes, whenever you actually arrived at the Porter residence, you were actually driving the vehicle of the First Rescue unit.
A – Right.
Q – What kind of seat does that First Rescue unit have? Is it just one seat? Two seats?
A – We have two bucket-type seats with a console in the center.
Q – Okay. And Mr. Sebastian is the passenger in the other seat; correct?
A – Right.
Q – Whenever you arrive at Prague Hospital, what happens from that point?
A – Well, we immediately go into the ER. They’ve got a crew there ready to work her. And we go in there and we assist him for a little bit and then we let them take over. We did CPR for them for a little while.
Q – Is Kelsey transported into a room? Were you a part of that at all?
A – Yeah. We brought her in, yeah. You bet.
Q – After transporting her to her room, where do you go?
A – We went into the emergency – one of the emergency trauma rooms in the ER. I mean, that’s where we were at. And where did I go after that?
Q – Right.
A – After we got through assisting the medical staff there, we just kind of go out. There’s kind of a waiting area right outside the ER door or the trauma door inside the ER. We was just standing there talking.
Q – Let me take you back to the residence just briefly. When you leave in the Prague ambulance, did you notice any other vehicles following you?
A – No, sir, I wasn’t –
Q – Your focus wasn’t on that at that point, I recognize.
A – No.
Q – Back to the hospital, then. When you’re coming out of the trauma room that you just transported Kelsey into where do you go specifically after leaving that trauma unit?
A – Well, we went out and was talking about the run, me and the paramedic was, out there in that little room. There’s kind of an oval room outside the – each trauma room, they have several different rooms. And we’re still in the ER, and then we go out and start – I don’t think we ever leave the room at that time. We’re just sitting in there waiting to see what’s going on.
Q – Do you ever go outside?
A – We were actually called outside because Michael Porter had passed out in the parking lot.
Q – Did you assist?
A – Yes, we did.
Q – How did you assist?
A – We actually put him on a backboard, secured his C-spine, because we didn’t know how he had fell, and carried him in on the backboard.
Q – Was there any point hat Michael Porter was verbal in your presence after he had passed out?
A – He was just really, really upset, and I didn’t pay attention to what he was saying. We normally don’t, because – and we just took him into the – another trauma room and put him on oxygen. They checked him out.
Q – Were there any other observations of Mr. Porter that you made after he passed out? Anything?
A – He was talking to Raye Dawn in the room, but I could not tell you what they were talking about.
Q – Do you leave the hospital at some point after this situation?
A – Yes. One of our units from Meeker came and picked me and Greg up from the hospital.
Q – And do you remember how long that was that you were at the hospital?
A – We were there quite some time. I’m not for sure exactly. The other fireman that showed up on the scene out there had already took the squad back to Meeker. So we were picked up by an officer from the fire department.
Q – Do you think that it may have been a half hour or was it more or less?
A – It was more. It was more like 45 minutes to an hour we were there.
Mr. Pollard: If I could have just a moment your Honor.
The Court: Certainly.
By Mr. Pollard:
Q – Did you actually see or observe Mr. Porter pass out?
A – No, sire, I did not. We were called out there.
Q – Do you know or did you become aware later of who may have actually witnessed that at any point?
A – No, sir, I didn’t. I haven’t heard – that I can remember, no.
Mr. Pollard: Pass the witness.
The Court: Mr. Sutton, cross-examination.
Mr. Sutton: Thank you, Judge. May I approach the witness, Judge?
The Court: Certainly.
Mr. Sutton: Thank you.
Cross-Examination
By Mr. Sutton:
Q – Mr. Jenkins –
A – Yes, sir.
Q - -- I have marked a document, Defendant’s Exhibit 1, and placed that before you. Would you look at that and tell me if you recognize it?
A – Yes, sir. This is my run report.
Q – When did you fill out that run report?
A – The day of the incident.
Q – Is the information on there as accurate as it can be?
A – Yes. I believe I made sure it was, sir.
Q – And, sir, is it fair to say that your memory of the details was probably better the day you filled out the report than it might be here today?
A – Oh, yes.
Q – And so in referring to your report, can you tell me what time you received the first call about this?
A – According to my report here, which I made sure everything was correct on it was 1527, which is –
Q – Well, you see up there where it says “alarm time”?
A – Okay. Excuse me. That’s when we were paged from Lincoln County.
Q – And, of course, this is your report; right?
A – Right, this is. I was looking at the wrong one.
Q – I understand. Alarm time, that’s when you first got the first call; is that right?
A – That’s correct.
Q – A pager went off?
A – Yes, sir, we carry our pagers.
Q – And the page would have come from where, please?
A – Lincoln County Sheriff’s Office.
Q – So Lincoln County must have had a call before they paged you. Is that fair to say?
A – That’s correct.
Q – And “10-8 Time” – well, excuse me. Let me go back, because the alarm time shows 1516, and it’s been about 40 years since I’ve used those terms. Is that –
A – It’s 3:16.
Q - -- 3:16? Thank you. Then “10-8 Time.” 10-8 means when you go into service?
A – That’s when our rescue went into service.
Q – Okay. And that was 1520. That would be 3:20; is that correct?
A – That’s correct.
Q – “10-97,” that’s when you arrive on the scene?
A – That’s correct.
Q – And that says “1527,” which would be 3:27 p.m.; is that correct?
A – That would be correct. This is off my watch. I mean, there –
Q – I understand.
A – There are some variations with the Lincoln County and our watches.
Q – Of course. And your watch and my watch might be a little different than –
A – Correct.
Q – But these are the times that you reported based on your timepiece?
A – Right.
Q – And is that 5 p.m.?
A – That’s correct.
Q – And so does your report refresh your memory about the times more specifically?
A – Yes, it does. I mean, there was so much going on that I just know exactly – I mean, I just know this was right, because I made sure it was right.
Q – You bet. And I’m not saying it isn’t. I’m just trying to make sure that we know for sure –
A – The time frames.
Q - -- what times these events happened, because you were more general when you spoke to the district attorney. But we can all agree these times are more specific and these are probably the most accurate times?
A – These will be the most accurate times, yes.
Q – Okay.
A – I mean, what’s it been, over a year?
Q – Would you go down here to the assessment?
A – Yes, sir.
Q – “Chief Complaint,” what is that?
A – “Child not breathing.” That was our – that was what the call came in to us from Lincoln County Sheriff’s Department, “child not breathing.”
Q – And “Level of Responsiveness,” what did you put in that?
A – We have a code there “AVPU.” That means alert, verbal, pain, or unresponsive, and I’ve got unresponsive circled.
Q – Meaning that when you first saw Kelsey and, in fact, all throughout the time that you dealt with her she was unresponsive?
A – That’s correct.
Q – And then you put “Medical History: Seizures.” Do you see that?
A – Yes, sir. That was one – we always try to collect some kind of medical history on her, and she, I guess, at the hospital –
Q – Well –
A - -- somebody told us she had had seizures before.
Q – Somebody?
A – But I can’t tell you who.
Q – Was it Raye Dawn?
A – I can’t tell you for sure, sir.
Q – Was it Gayla?
A – I can’t tell you. I don’t remember. That’s been – let’s see. This call was on 10/11/05. That’s a long time ago to remember everything.
Q – Is it most likely that you received that –
A – It was probably somebody from the family.
Q – Family member?
A – Uh-huh.
Q – But you never spoke to Michael, did you?
A – No, sir.
Q – You and he never had any conversations about what happened, did you?
A – No. The only thing I conversed with Michael was I told him he needed to calm down.
Q – Did you ever ask him if he performed CPR?
A – No, sir, I did not.
Q – Did you ask anybody if they had performed CPR prior to your arrival?
A – The reason I –
Q – No, sir. Please answer the question that I ask. Okay?
A – No. I did not ask anybody.
Q – Okay. So you don’t know for sure whether CPR had been attempted by anybody?
A – No, sir, not for sure.
Q – Where you have a line for “History of Present Illness,” you have some indicators there. “PTOA-No CPR in progress.” Can you tell me what those mean?
A – Pulseless, no CPR in progress at the time that I –
Q – You didn’t observe any CPR when you arrived?
A – Right. When I arrived, she was on Gayla’s shoulders just like I said.
Q – And then under “Treatment,” it says “UPA,” etc. Can you please explain to me –
A – “Upon arrival, assisted patient. Patient was unresponsive. Airway clear.”
Q – Excuse me for interrupting. That’s that AVPU and you circled U, which means unresponsive?
A – That’s correct.
Q – Consistent with what you said upper level of responsiveness; is that correct?
A – Right.
Q – Please go on.
A – “Airway was clear. No respiration. No pulse. Started CPR. Turn patient care over to Prague EMS and assisted Prague EMS.”
Q – “No respiration,” that means she wasn’t breathing.
A – That is correct.
Q – And she had no pulse?
A – That’s correct.
Q – Would the fact that she was not breathing be the reason why she was so blue?
A – That’s correct.
Q – Tell me why she was blue. What causes that?
A – Okay. When you breathe in oxygen, your body perfuses the oxygen into the blood.
Q – Well, and I’m going to have lots of trouble all throughout this because I don’t know those terms, and I’ll have to interrupt you, if you’ll forgive me. Perfuse?
A – Perfuse. Your body perfuses oxygen into the cellar – into the molecules of the cell, which keeps your blood – your body has to have oxygen.
Q – Yes, sir.
A – Okay. You breathe in oxygen and it jumps onto your cells and it goes through and feeds your body. Okay. That’s what keeps it – when it’s depleted of all oxygen, it turns blue, especially in the membranes, the fingernail beds, and so on and so on.
Q – You’re breathing properly and your body is functioning properly, we look kind of pink?
A – Right.
Q – And if we’re not getting oxygen, we appear blue?
A – Right. Because all of it is – there’s no oxygen in there to perfuse the cells.
Q – And I’m going to ask you some difficult questions throughout my talking to you, and this will be one of them. But I need for you to remember when you first turned Kelsey over and looked at her face. Do you remember talking about that for the district attorney?
A – Right.
Q – And you said you noticed she was blue, had blue blotches on her face?
A – Right.
Q – Did you say her lips were blue?
A – Her lips were blue.
Q – Is there a level – is there some quantitative code, you know, A to F or 1 to 10, or anything that you can evaluate or assess the amount of deprivation by this blueness?
A – Not really. I mean, I couldn’t tell at that point how long she had been down. That’s the reason I went through and checked her body temperature with –
Q – Let’s talk about that. I remember and I thought it was important. I underlined it. You said you checked her body temperature. Why would that be important to you?
A – Because if she’s cold, she’s been down a long time.
Q – When you checked her, touched her, what was –
A – It was a fairly warm day, as I remember, and her body was pretty much ambient, which means she was at least the temperature of the outside air.
Q – Can you tell me about how warm it was at that time?
A – No sir, I can’t. I mean, it was warm enough to know that she was – I mean, if she had just quit breathing, she would have been close, I mean.
Q – In your opinion, sir, was her body temperature lower than normal?
A – Maybe a few degrees. I mean, you can’t tell for sure by just putting your hand on her. I mean, she was warm enough to resuscitate.
Q – I understand. And if we touch somebody and they feel to be ambient temperature, the temperature of the room, temperature of the outside, whatever that might be, is that normal or abnormal?
A – It’s – for somebody not breathing, that would be – cold would be something that – if I walked up to you and you had had a heart attack and I didn’t now how long you had been down and I touched your body and you were cold, I would have checked for rigor next. And if any of those two, I would never have started CPR.
Q – Well, this was October, wasn’t it?
A – Yes, I believe it was.
Q – And it was late in the afternoon?
A – Yes.
Q – Would the temperature have been 70, 80 degrees, do you think?
A – It was a nice day. I can’t remember – I couldn’t tell you what the outside –
Q – Do you remember what you were wearing?
A – I was wearing a T-shirt.
Q – Comfortable enough in the T-shirt?
A – Yeah, it was 80 –
Q – But was it hot out, sir?
A – It wasn’t extremely hot, no.
Q – And so it wasn’t like it’s been recently –
A – Oh, no, no.
Q - -- 100 degrees or anything like that?
A – No.
Q – Just a pretty nice day in Oklahoma?
A – Just a pretty nice day in Oklahoma.
Q – So probably in the 80s?
A – I would say somewhere in there.
Q – And you thought she felt about the temperature of the outside air?
A – Uh-huh.
Q – “Yes”?
A – Yes, sir, at least.
Q – She ahs to write down what we say.
A – Okay. I’m sorry.
Q – That’s okay. Mr. Jenkins, I would like to talk to you a little bit, if I may, about your training. I understand you’re a paramedic?
A – No, sir. I’m an EMT intermediate, which is one step underneath a paramedic.
Q – And how many levels of EMT are there?
A – There’s – the national registry, they start out with a first responder, EMT basic, EMT intermediate, and paramedic. And then they have – now they have a critical care paramedic.
Q – And you’re intermediate?
A – Yes, sir.
Q – Can you tell us all, please, how much training and education you have to do to get to that level?
A – Well, you have to do –first, you have to go through your basic, which is a – I can’t remember how many hours it is, but it’s about five months and then you have to pass your national registry test with it. You have to do so many hours of clinicals at the ER and so many hours of clinicals in the back of an ambulance.
And then when you go to your intermediate, the class is almost – is probably – it was six months, twice a week. And then you have to do hours in – clinical hours in the OR, the ICU unit, the ER, and the back of a truck, which is an ambulance. And then you have to do same-day surgery, which you do your IV skills.
Mr. Sutton: At this time, Judge, I’d offer Defendant’s Exhibit No. 1.
The Court: Any objection from the state?
Mr. Pollard: No, your Honor.
The Court: Defendant’s 1 will be received.
By Mr. Sutton:
Q – Mr. Jenkins, this schooling that you’re taking –
A – Yes, sir.
Q - --is it college? Vo-tech?
A – It’s vo-tech through the state.
Q – Okay. Are you licensed by the state?
A – Yes. I’m licensed nationally and by the state.
Q – As an intermediate EMT under Oklahoma law, are you competent or qualified or allowed, whatever the proper term might be, to pronounce a person dead?
A – No, sir. I do not pronounce anybody dead.
Q – How long have you been doing this?
A – I’ve been a medic for four years. I’ve been licensed for four years as a basic and then I worked up.
Q – Has it all – all of your experience basically been through Meeker?
A – No, sir. I also worked for Chandler ambulance.
Q – How long did you work for Chandler ambulance?
A – I’ve been with Chandler for almost a year now.
Q – Can you tell us about how many runs you’ve gone on, emergency runs?
A – No, sir. I’ve been on many, many runs, yeah.
Q – Quite a few?
A – Yes.
Q – And you’ve encountered other people, I assume, in your experience that weren’t breathing and were unresponsive. Is that fair to say?
A – That is correct. At the Meeker level, though, it’s a first – it’s a state first responder actions, which means that we can’t – I can’t use my entire skill level at that, at Meeker Fire.
Q – But, sir, you can take these emergency calls, you can go out there, you can do assessments, and you can have opinions based on your knowledge, training, skills, licensure, and so on about what’s wrong with the people, what to do with them, what action to take, that sort of thing?
A – That is correct.
Q – And, of course, you can have an opinion as to whether someone is not living, can’t you?
A – That is correct.
Q – When you first saw Kelsey and had the opportunity to do your assessment, in your opinion, was she alive or not?
A – When I took Kelsey from Gayla and turned her over, I had a feeling at that time that she was not alive. I didn’t know for a fact until I got her in the back of the ambulance and did a full assessment on her.
Q – Immediately upon picking up this baby, though, you already had the impression that she wasn’t able to sustain her life without help. Is that fair to say?
A – That is correct.
Q – Okay. Now I’m going to jump backwards, way back to when we were talking about this oxygen. Well, if you have a child like this, or any person like this, that has not been breathing on their own for some period of time and we do resuscitation – and for those of us that don’t know, please tell us what resuscitation is. What is CPR? What do you do?
A – It’s coronary pulmonary respirations. I mean, what we do is we go in there and we breathe and circulate the body systems for the individual.
Q – You compress their chest?
A – That’s correct.
Q – And the reason you do that is to mechanically pump the blood through the heart; is that right?
A – That is correct.
Q – And you breathe into their mouth or nose to get oxygen in their lungs so, as you’re compressing the heart and the lungs, the body has a chance to assimilate that oxygen and –
A – Basically what CPR is, we’re performing all the body function to maintain life support.
Q – To keep –
A – To keep the body system –
Q - -- the organs and all of its parts alive?
A – Keep the body system alive, yes.
Q – Well, one of the good things that happened and one of the reasons we do CPR is it oxygenates the body; right?
A – That is correct.
Q – And that’s why they pink up; isn’t it?
A – That’s correct.
Q – And that’s why Kelsey pinked up –
A – Yeah.
Q - -- because you were mechanically pumping her blood.
A – That is correct.
Q - -- and oxygen through her system?
A – That is one way we assess how well we are doing circulations is how the body performs or changes colors for us.
Q – And how well did the CPR improve Kelsey’s condition?
A – Basically, she’s still dead. All we’re doing is mechanically moving blood and oxygen into her body to keep her organs alive.
Q – You still have your run report before you?
A – Yes, sir.
Q – You say you got there at 1527?
A – Yes, sir.
Q – How long between the time you got there and when you looked at Kelsey and formed an opinion that she was deceased?
A – Formed an opinion that she was deceased?
Q – Sure. You told me just as soon as you turned her over –
A – I knew she was not breathing. I had the assumption that this baby is probably dead, but I didn’t know or a fact, because she could have had an airway blockage. But I didn’t assess her until I got in to the back of the truck for sure.
Q – Fair enough. And my question is when – how long did you first come to that conclusion?
A – It was within – it was, like, within a minute. I mean, as soon as we stopped, Gayla met us at the truck, I went around it, assumed possession of the baby, turned it over and assessed it, went straight to the back of the truck, did my primary assessment on her, and at that time I started CPR on her.
Q – So by 1528 you had already formed an opinion that the child was deceased?
A – Right at it, yeah.
Q – Thank you. You are familiar with Mr. Smith? You knew that that was his house?
A – Yes. I’ve known the family for years.
Q – So do you know Raye Dawn?
A – Yes, I do.
Q – And you’ve known her for a long time?
A – Since she was a child.
Q – Well, will you tell us what your relationship is with the family? Are you a family friend or –
A – Well, Raye Dawn and my daughter are the same age. They grew up together. Raye Dawn was at my house or my daughter was at her house. I mean, they grew up together until approximately in the high school years, and then they kind of went their own ways. But I’ve known Gayla and Ray since I’ve lived in Meeker, and I’ve been in Meeker for 29, 30 years.
Q – How about Mr. Porter? How long have you known him?
A – I haven’t know Mr. Porter very long at all. As far as that. I recognized him on the street and I knew he had a business right next to my wife’s. So that’s basically all I knew about Michael Porter.
Q – But you don’t know him personally?
A – No, sir.
Q – You testified, I think, that you heard Mike saying things like “Oh, my God” and acting distraught?
A – That is correct.
Q – In your opinion, was he hysterical?
A – Sir, all I heard was him – he seemed very upset when I turned the baby over and he actually seen the baby, because he was close. And then that’s when he got upset, but my focus turned straight to the baby.
Q – I think you said something to me about telling him to calm down?
A – That was in the ER after we brought him in from falling. He was on a boar, and we was trying to get him to calm down inside the ER.
Q – Was he upset then?
A – Yes.
Q – Distraught?
A – Yes. I would say so.
Q – Hysterical?
A – Probably. Pretty close to it, if not.
Q – You used the phrase “clinically dead.” What does that mean to you?
A – Well, I might have spoke too soon on that. She was more biologically dead than clinically dead. Clinically dead is when there’s nothing else can be done. Biologically is that her body function has stopped.
Q – There are – there were a lot of heroic efforts to save Kelsey; isn’t that true?
A – That is true. After we got her to the hospital, the MidiFlight pediatric group were coming in to pick her up, and they tried to resuscitate her, too, for quite some time.
Q – None of those efforts were successful, were they?
A – No, they were not.
Q – When you left the hospital at around – five o’clock?
A – Yeah, pretty close to that.
Q – Were you aware that Kelsey had passed away?
A – Yes, I had.
Q – Death isn’t really ordinarily instantaneous, is it?
A – What are you referring to?
Q – Well, let’s talk about this case in particular. If someone stops living because of a lack of oxygen, isn’t it true that for some period of time there are still electrical impulses throughout the body that can be determined?
A – Well, the ECG, the electrocardiogram, is the tool that we use in the field for electrical impulses.
Q – Well, that’s one example of electrical impulses that can be measured even after, in your opinion, a person is dead. We can still see some electrical activity, can’t we?
A – Well, the ECG, which I stated earlier that we put on her, showed some spikes when they first applied it. But then it went astolic, which means it’s flatline –
Q – Flatline which means –
A - --which means there is no electrical impulses.
Q – So those first few spikes, what caused them?
A – It’s pulseless electrical activity. There’s still some quivering in the heart probably. I’m not a doctor. I’m just an EMT that tries to save somebody’s life.
Q – Okay. And that’s fair enough. If you don’t know or if you’re not qualified to tell me, will you just say that?
A – You bet.
Q – Are you telling me now you’re not qualified to answer those questions?
A – I’m qualified to tell you what I seen on the scope.
Q – Okay. What caused those electrical impulses that you saw?
A – Well, everybody has electrical impulses in their heart. And that just might have been the very tail end of hers.
Q – Okay. If you had been told that CPR had previously been attempted on Kelsey prior to your arrival, would that have changed anything you did?
A – No, sir. We’re trained to make our own assessments.
Q – Did you do any painful stimulus on Michael Porter after he passed out at the hospital?
A – You mean, like a – I didn’t myself, no.
Q – Did you observe anybody doing that?
A – I can’t recall, no.
Mr. Sutton: May I check with my staff please?
The Court: Certainly.
Mr. Sutton: That’s all we have, Judge. Thank you.
The Court: Mr. Pollard, redirect.
Mr. Pollard: Yes, your Honor.
Redirect Examination
By Mr. Pollard:
Q – Mr. Jenkins, do you still have your medical run report in front of you?
A – Yes, I do.
Q – Did you record the full name of the patient?
A – Yes, I did.
Q – What did you record that as?
A – Kelsey Briggs-Smith.
Q – Did you record the age of that patient?
A – The age that I had was 2 years, 10 months.
Q – And what was the birth date that you had?
A – 12/28/02
Q – Earlier you had talked with – or you had responded to Mr. Sutton’s questions concerning rigor. And when you had talked with Mr. Sutton, you had indicated when you first saw the baby that – when you had first saw the baby, you did not see that rigor had set in; is that correct?
Mr. Sutton: Objection. I never asked about rigor. It’s not within the scope of cross-examination.
Mr. Pollard: Your Honor, his response was rigor.
The Court: Well, perhaps the question was framed wrongly. I do recall the witness talking about his assessment and –
Mr. Sutton: He said – I’m sorry, Judge.
The Court - -- and that one of the things he would check for, in addition to if someone was blue, if resuscitation. I do believe that was on cross.
Mr. Sutton: I never asked him about rigor. In response to my questioning him about other runs and if he checks somebody and he felt the body temperature was low or cool, he voluntarily said he would also check to see If there was rigor mortis and perhaps other things to determine whether or not to give CPR. But I never asked him that question, and so it’s not within the scope of cross-examination. And, additionally, he misstated that I had asked him about rigor, and I didn’t.
The Court: The objection will be sustained in part, that he did give an answer regarding rigor. And I thin the DA is free to question about that answer. So perhaps if you would rephrase your question to more accurately reflect what happened on cross-examination.
Mr. Pollard: I apologize, your Honor. I was not meaning to misstate that.
By Mr. Pollard:
Q – You had responded earlier concerning rigor; is that correct?
A – I talked about it, yes.
Q – And you had responded earlier that when you saw Kelsey from Gayla Smith in that exchange, that you had noticed rigor had not set in; is that correct?
A – When I took the baby from Gayla, rigor had not even yet set in.
Q – What does rigor tell you?
A – Rigor is usually a – it takes usually 30 minutes for rigor to set in, and it’s usually a stiffness in the jaw. Jawbone is where it normally set in first. And if you – if we go in and assess somebody that’s been down for a while and they’re blue, we usually check for stiffness in their jaw. And that’s how we know whether – because there’s not a doctor in the world that hates somebody to come in bringing a dead body in and doing CPR on them. So we do our best to make sure, but we want to make sure that they’re gone before we give up.
Q – Okay. And you said rigor sets in 30 minutes from what?
A – After death.
Q – We talked about the blue color of Kelsey’s body. Does the blue color tell you anything about how recent breathing has stopped?
A – No, it doesn’t. I mean, you breathe – a child that age breathes 15 to 30 times a minute, you know. So within three or four minutes you can start turning blue. I mean, you can actually hold your breath long enough to start changing the perfusion in your body, so I couldn’t tell you. I’m not medically sound enough to say she’s been down 20 minutes. That’s the reason we have other assessments to check.
Mr. Pollard: No further questions, your Honor.
The Court: Thank you, sir. You may step down.
Mr. Sutton: Judge, excuse me. I didn’t ask him about rigor, and this is a new matter. May I cross-examine about that?
The Court: No, sir. His answer was about rigor, and the DA cross-examined about that. There’s automatic recross, and it was a proper matter for redirect, so, no, sir.
Mr. Sutton: Well, Judge, since it’s a new matter, I’ve not had an opportunity to examine this witness about –
The Court: I don’t think it’s a new matter. It was brought up on your cross-examination. I’m not going to allow recross.
You may step down, sir. I appreciate your time.
Mr. Sutton: May my exception be noted, your Honor?
The Court: Certainly.
Mr. Sutton: Thank you.
Mr. Pollard: Your Honor, I’m sorry to interrupt. May this witness be released? He has other duties to attend.
The Court: He’s your witness. If you’re done with him, he’s free to go.
Mr. Pollard: I am.
Mr. Sutton: Judge, I’d ask that he be ordered to remain, because I want to call him in my case in chief to ask him about rigor.
The Court: Do you have him subpoenaed?
Mr. Sutton: I do not.
The Court: He’s the state’s witness. He’s here at their discretion. So if the state releases him, he’s free to go.
Mr. Sutton: For the record, Judge, I am requesting that he not be excused.
The Court: That will be noted for the record.
You’re free to go. Thank you, sir.
The Witness: Thank you.
Mr. Sutton: Judge, we did subpoena him.
The Court: Sir, did you receive a subpoena from the defense?
The Witness: Prior – on the case that was –
The Court: The time it was set before?
The Witness: Right.
The Court: Did you serve him with a subpoena for today?
Mr. Sutton: No, judge, but he was contacted and awe were advised that he was informed that he would honor the previous subpoenas, and so we didn’t feel it was necessary. We didn’t ask for the continuance. The State has. We’ve never asked for a continuance.
The Court: did you indicate to the defendant’s counsel –
The Witness: I just told them that I had two subpoenas. I told the district attorney and – they called me about five o’clock the day before, ad I told them I had two. I’ll do whatever you want me to do.
The Court: Well, since the defendant did subpoena him for the previous hearing, I’m going to say that that subpoena recognized him back for today.
So you’re not free to leave. I’ll need you to meet with the witness coordinator, and she’ll have you wait somewhere until the appropriate time.
Mr. Sutton: Your Honor, in the interest of judicial economy, if the state has no objection, it will take me less than five minutes to talk to him about rigor, and then I would have no objection to his being excused.
The Court: Mr. Pollard?
Mr. Pollard: Your Honor, we would just prefer to do that later in the course of the proper procedure. That’s fine. We’ll just wait, we prefer.
The Court: All right. You’re not free to leave the courthouse, but you’re welcome to go stretch your legs. I need you to stay outside the presence of this hearing while other testimony is ongoing.
Are you ready for your third?
Mr. Smothermon: Yes, sir.
The Court: All right. State’s third?
Mr. Smothermon: Judge, the next witness will be rather lengthy. Would the Court like to go ahead and get started and continue with that?
The Court: I think I would. I’m guessing probably at the conclusion of the next witness, then we’ll probably just break for lunch at that point in time.
Mr. Smothermon: The sate would call Raye Dawn Porter – Raye Dawn Smith. Sorry.
The Court: Ms. Smith, will your raise your right hand for me.
The witness was sworn.
The Court: Please have a seat.
Before we get into your testimony, I want the record to reflect that you’re present with your counsel Steve Huddleston. And I have a couple of questions for you first. You understand that you’re charged in a related matter to the incident that we’rel here on today.
The Witness: Yes, I do.
The Court: And you understand that in that matter and in this matter today that you have the right not to testify.
The Witness: Yes, I do.
The Court: Okay. And no one can force you or coerce you to testify today.
The Witness: Correct.
The Court: It’s not the DA’s decision; it’s not your attorney’s decision; it’s not Mr. Sutton’s decision; it’s your own decision. And have you discussed with your attorney whether or not you should testify here today?
The Witness: I have.
The Court: And are you satisfied with his advice?
The Witness: Yes, I am.
The Court: And are you here of your own free will?
The Witness: Yes, I am.
The Court: Is anybody forcing you, coercing you, threatening you with anything if you don’t testify?
The Witness: No, they are not.
The Court: Is anybody promising you anything? Favors? Money? Anything like that –
The Witness: No, sir.
The Court: -- to have you testify here today?
The Witness: No, sir.
The Court: If at any point in time you feel like there’s a question you don’t want to answer, you can ask to take a break and discuss it with your attorney. Okay?
The Witness: Okay.
The Court: And I’d rather err on the side of caution. I’d like to finish this today, but I also want you to know that we can take as much time as you need to discuss these matters with your attorney.
The Witness: Okay.
The Court: Do you have any questions before we start?
The Witness: No, sir.
The Court: Mr. Huddleston?
Mr. Huddleston: No, your Honor.
The Court: You may inquire.
Mr. Smothermon: I’m just going to move the exhibit, Judge.
The Court: If I could have a look at that, please.
Mr. Smothermon: Yes, sir.
The Court: Thank you.
Raye Dawn Smith, called as a witness on behalf of the State of Oklahoma after having been first duly sworn, testified as follows:
Direct Examination:
By Mr. Smothermon:
Q – Ms. Smith, could you state your full name for the record, please, ma’am?
...To be continued
{Note: Obtained from a site in support of Raye Dawn Smith. The Owner never posted Raye Dawn Smith's testimony or Dr.Hawley's (Second Pathologist) full testimony. It is not complete.}
