Opinion
Civil Action No. 1:07-cv-00851, Civil Action No. 1:07-cv-00852.
August 25, 2009
SERRATELLI, SCHIFFMAN, BROWN CALHOON, P.C., BY: SPERO T. LAPPAS, ESQ., For — Plaintiffs.
KILLIAN GEPHART, LLP, BY: MICHAEL J. O'CONNOR, ESQ., LINDA J. OLSEN, ESQ., For — Defendants.
MEMORANDUM
Before the Court is Plaintiff B.H.'s motion for new trial. (Doc. No. 146.) In her motion, Plaintiff argues that a new trial is required because the jury verdict finding in her favor on the state law battery claim but in Defendant's favor on the federal § 1983 claim is irreconcilable and inconsistent. For the reasons that follow, the Court finds that the jury verdict is not irreconcilable and a new trial is not warranted.
I. FACTUAL BACKGROUND
On February 10, 2009, a civil trial began in the case of B.H. versus the Estate of David Davies. At trial, B.H., a teenage student at Forbes Road Junior/Senior High School, testified that her teacher, David Davies, had inappropriately touched her on numerous occasions. Plaintiff alleged a violation of her federal civil rights, as well as the state law torts of assault and battery. She specifically alleged that the inappropriate conduct began in March 2006, when she was in eighth grade, with Mr. Davies touching her leg, tickling her, and making suggestive comments during class. (B.H. Trans. 6-7.) She testified that his behavior progressed such that one day, during lunch, he asked to kiss her. (B.H. Trans. 7.) Although she denied his request, reminding him that he was married to her art teacher and that she was his student, he persisted. (B.H. Trans. 7-8.) B.H. testified that Mr. Davies did eventually kiss her, stick his tongue in her mouth, remove her shirt and bra, put her hand on his penis, and touch her vagina. (B.H. Trans. 10-11, 15-18.) Although Mr. Davies was unavailable to testify due to his untimely death by suicide, counsel for his estate vigorously cross-examined B.H. The cross-examination focused on the out-of-classroom events alleged, challenging B.H. as to why she continued to meet Davies outside of their normal class period if he persisted to sexually assault her. (B.H. Trans. 28-43.)
Prior to trial, this case was consolidated with the case ofPatience Whitman v. Lisa Davies Black. (Doc. No. 115.) To prevent confusion and to minimize prejudice at trial, Defendant was referred to as the Estate of David Davies, rather than Lisa Davies Black in her capacity as Administratix of the Davies Estate.
At trial, both B.H. and Patience Whitman testified to inappropriate conduct by Mr. Davies. Because the motion for new trial is made only by B.H., the Court recounts only the testimony and facts pertinent to B.H.'s allegations. With regard to Plaintiff Patience Whitman, the jury returned a verdict in her favor on the § 1983 claim and battery claim, but awarded only nominal damages for the § 1983 claim and no damages for the battery claim. (Doc. No. 144 at 3-4, 7-8.)
On February 12, 2009, closing arguments were made and the jury was instructed as to the state law claims of assault and battery and the federal civil rights claim. (Doc. No. 140.) The jury returned a verdict in favor of Defendant as to the alleged civil rights violation, but in favor of B.H. as to the state law claims of assault and battery. (Doc. No. 144 at 1-2, 5-6.) Though the jury found David Davies' conduct toward her to be "outrageous," the jury did not award any compensatory or punitive damages. (Id.)
II. DISCUSSION
Plaintiff moves for a new trial on the basis that the jury verdict, which found Defendant liable for assault and battery but not liable for a § 1983 violation, is "irrationally inconsistent." She argues that because her testimony of unwanted touching, a necessary element of the battery claim, was entirely and exclusively sexual in nature, any jury verdict finding in favor of her battery claim must also have found that her constitutional right to bodily integrity was violated. Defendant reconciles the apparent inconsistency of the jury verdict by disputing that the jury necessarily found all of the alleged touching to be sexual in nature. Defendant argues that Plaintiff's testimony included an allegation that Davies first touched her legs and tickled her, which the jury could have found offensive but not sexual or intimate. Because this is a rational explanation of the different verdict findings and it is supported by Plaintiff's testimony, Plaintiff's motion for new trial will be denied.
Although there is little precedent on the issue of whether a retrial should be granted when a jury renders an inconsistent general verdict, in Mosley v. Wilson, the Third Circuit Court of Appeals set out a trial court's options in such situations. 102 F.3d 85, 90 (3d Cir. 1996) (finding that an inconsistent general verdict rendered by the jury is not covered by Federal Rules of Civil Procedure 49 and 50, and that courts should follow the approach laid out by Justice Stevens' dissent in Los Angeles v. Heller, 475 U.S. 796, 804-06 (1986)). The court first acknowledged that "in certain circumstances," such as when the jury verdict appears to be a result of compromise rather than confusion, "a court retains the authority, even in a civil case, to allow an apparently inconsistent verdict to stand." Id. (quoting Heller, 475 U.S. at 805); see also, Acumed LLC v. Advanced Surgical Servs. Inc., 561 F.3d 199, 218 n. 13 (3d Cir. 2009). Next, the court stated that a district court has a "duty to attempt to read the verdict in a manner that will resolve inconsistencies." Id. at 91 (quoting Los Angeles v. Heller, 475 U.S. at 804-06 (Stevens, J., dissenting)). In reviewing the verdict, a court should take care not to substitute its judgment for that of the jury. Lind v. Schenley Indus., 278 F.2d 79, 90 (3d Cir. 1960) (en banc). If the verdict cannot be reconciled, the trial court can either "resubmit the question to the jury" or "order an entirely new trial," but it should not retain only half of the verdict.Id. at 91.
To determine whether the verdict in this case is actually inconsistent, the Court must first review the elements of Plaintiff's § 1983 claim and battery claim. As the Court instructed the jury, a § 1983 claim requires the jury to find that the defendant violated the plaintiff's constitutional rights while acting under color of state law. In this case, the Court instructed the jury:
To show that David Davies violated plaintiff['s] Fourteenth Amendment rights, plaintiff[] must prove by a preponderance of the evidence that David Davies engaged in sexual or intimate contact with [her] on one or more occasions. Sexual contact includes touching of plaintiff['s] intimate body parts by the actor or having plaintiff touch the actor's intimate body parts. Sexual intercourse or penetration need not be established.
(Jury Instructions Trans. 9.) With regard to the state law claim of battery, the jury was instructed that, to find that Mr. Davies had committed battery, it needed to determine that Mr. Davies "intended to cause a harmful or offensive contact with the body [of B.H.]. . . . [A]nd second, that Davies' act directly resulted in a harmful or offensive contact with [B.H.]. . . . A body contact is offensive if it would offend a reasonable person's sense of dignity." (Jury Instructions Trans. 14.) The claims, then, are not entirely coterminous because the § 1983 claim requires the contact to be sexual in nature, while the state law battery claim only requires the contact to be offensive. Consequently, if the testimony supports a finding that Davies touched B.H. in a way that was offensive without being sexual, the jury verdict is reconcilable and a new trial is not warranted.
This outcome-that a § 1983 violation will not lie for every battery or state law tort claim-is bolstered by case law. The Third Circuit Court of Appeals has characterized the Supreme Court as having "repeatedly warned `that section 1983 must not be used to duplicate state tort law on the federal level.'" Kaucher v. County of Bucks, 455 F.3d 418, 436 (3d Cir. 2006) (quotingWashington v. District of Columbia, 802 F.2d 1478 (1986)). While courts have determined that sexual assault can rise to the level of a constitutional claim, Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720 (3d Cir. 1989); Haberthur v. City of Raymore, 119 F.3d 720, 723 (8th Cir. 1997), it is not true that all torts are constitutional claims.
Turning now to the question of whether the evidence could support such a finding, B.H. testified that Davies first touched her on the leg during class. Specifically, she said that "[h]e would come up to me while I was sitting in his class and, like, grab my leg or tickle me or just always, like, touched my leg and stuff." (B.H. Trans. 6-7.) B.H. then proceeded to testify to a number of other, more heinous acts perpetrated on her by her former teacher. She testified that Mr. Davies touched her breasts and her vagina, kissed her, and had her touch his penis at other times and locations around the school grounds. (B.H. Trans. 9-12, 15-18.) Opposing counsel vigorously cross-examined this testimony by inquiring as to how B.H. and Mr. Davies would have gotten from building to building, why B.H. would have followed Mr. Davies, the duration of these episodes, and how no one else in the school would have noticed them occurring at the frequency alleged. (B.H. Trans. 29-41.) The jury may have credited Plaintiff's first statement that Mr. Davies touched her on the legs during class but discredited all her other testimony.
The jury has the discretion, in judging a witness's credibility to accept part but not all of that person's testimony. The Third Circuit Model Jury Instructions state that the jury "may believe everything a witness says or only part of it or none of it." Third Circuit Model Civil Jury Instructions, R. 1.7 (2007).
Once the jury set aside the allegations of unequivocally sexual touching, the jury may then have concluded that being touched on the leg, during class and in view of other students, did not constitute sexual or intimate contact. Because a touch on the leg is not necessarily sexual or intimate touching, the Court cannot say that such a finding is unsupported by the evidence. Likewise, though the Court or another jury may have come to a radically different conclusion, the Court cannot say that the jury's finding is irrational. Accordingly, the Court finds that the jury verdict is reconcilable, and therefore a new trial is not warranted.
III. CONCLUSION
For the reasons stated in the above memorandum, Plaintiff's motion for new trial will be denied. An order consistent with this memorandum follows.
ORDER
AND NOW, this 25th day of August 2009, upon consideration of Plaintiff's motion for new trial (Doc. No. 146), IT IS HEREBY ORDERED that the motion is denied.THE COURT: Jurors, now I will instruct you on the law that applies to the case and on your role as jurors in deciding the matter.
As I've said to you before, the evidence in the case includes only what the witnesses said while they were testifying under oath, the exhibits that I allowed into evidence, the stipulations that the lawyers agreed to, and any facts that I have judicially noticed.
Nothing else is evidence. The lawyers' statements and arguments are not evidence, their questions and objections are not evidence, my legal rulings are not evidence, and my comments and questions are not evidence.
During the trial, I did not let you hear the answers to some of the questions that the lawyers asked. I also ruled that you could not see some of the exhibits that the lawyers offered, and sometimes I ordered you to disregard things that you saw or heard. You must comply with these instructions. Do not speculate about what a witness might have said or what an exhibit might have shown. These things are not evidence, and you're bound by your oath not to let them influence your decision in any way. Make your decision based only on the evidence as I have described it here and nothing else.
Jurors, in deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You are the sole judges of the credibility of all of the witnesses. Credibility means whether a witness is worthy of belief. You may believe everything a witness says or only part of it or none of it.
In deciding what to believe, you may consider a number of factors, including the following: The opportunity and ability to see or hear or know the things that the witness testifies to; the quality of the witness's understanding and memory; a witness's manner while testifying; whether the witness has an interest in the outcome of the case or any motive, bias, or prejudice; whether the witness is contradicted by anything the witness said or wrote before the trial or by other evidence; how reasonable the witness's testimony is when you consider it in light of other evidence that you believe; and also any other facts that bear on credibility.
The weight of the evidence to prove a fact does not necessarily depend on the number of witnesses who testify to that fact. What is important is how believable the witnesses were and how much weight you think their testimony deserves.
You should, of course, use your common sense in weighing the evidence here. Consider it in light of your everyday experience with people and events and give it whatever weight you think it deserves. If the evidence and your experience tells you that certain evidence reasonably leads to a conclusion, then you are free to reach that conclusion.
In consideration of the evidence, you are not limited to the bald statements of the witnesses or the exhibits. You're not limited solely to what you saw and heard as the witnesses testified, but you are permitted to draw from facts which you find have been proven such reasonable inferences as you feel are justified in light of your experience.
Inferences are simple deductions or conclusions that reason and common sense lead you to draw logically from facts that have been established by the evidence in the case. You are to give inferences, whether in favor of plaintiffs or defendants, such weight as you deem them to receive. Keep in mind, though, jurors, that a reasonable inference is to be thoroughly distinguished from guess or conjecture. The law does not permit speculation.
The parties here have agreed that the alleged actor in this case committed suicide, and you have heard some evidence concerning David Davies' suicide. As I have instructed you, it's your duty to find the facts in the case and draw reasonable inferences from those facts. The parties are permitted to urge you to reach certain inferences based on Mr. Davies' suicide. You may adopt these inferences if you find them reasonable, but you are not required to do so.
During the trial, the lawyers objected to some of the things that were said or done. Do not hold that against either side. The lawyers have a duty to object whenever they think that something is not permitted by the rules of evidence. These rules are designed to make sure that both sides receive a fair trial. Please do not interpret my rulings on their objections as any indication of how I think you ought to decide the case. My rulings are based on the rules of evidence and not on how I feel about this case. Remember that your decision must be based only on the evidence that you saw and heard here in the courtroom.
You observed during the trial that from time to time I called counsel to the bench for a conference and that on certain occasions the lawyers requested bench conferences. Please do not draw any unfavorable inferences from these conferences or a request for a conference. If I felt that the jury should hear anything that was discussed outside of your presence, then that was presented to you here in the open court.
Brianna Haines and Patience Whitman, represented by their parents, have asserted that David Davies, represented by the estate of David Davies, committed an assault and battery against them and violated their federal civil rights. I am now going to instruct you on these particular claims.
Brianna Haines and Patience Whitman are first suing under a federal statute, 42 United States Code, Section 1983. This statute is a civil rights law passed by Congress that provides a remedy to people who have been deprived of their federal civil rights under color of state law.
In a civil case in which plaintiff makes a claim under Section 1983, the plaintiff has the burden of proving her case by what we call a preponderance of the evidence. That means that a plaintiff must produce evidence that leads you to believe that what she claims is more likely true than not.
To put it differently, if you were to place the evidence favorable to plaintiff and the evidence favorable to defendant on opposite sides of a balance scale, a plaintiff would have to make the scales tip somewhat on her side. If a plaintiff fails to meet this burden, then the verdict must be for defendant.
If you find, after considering all the evidence, that a claim or fact is more likely so than not, then the claim or fact has been proven by a preponderance of the evidence.
In determining whether any fact has been proven by a preponderance of the evidence, you may, unless otherwise instructed, consider the testimony of all the witnesses regardless of who called them and all exhibits received into evidence regardless of which side may have produced them.
You must give separate consideration to each claim and to each party in this case. Although there are two plaintiffs, Brianna Haines and Patience Whitman, it does not follow that if one is successful, the other is, too. Although there are three claims, it does not follow that if a plaintiff is successful as to one claim, then the other claims are also proven. You must decide each plaintiff's case separately.
With regard to the 1983 claim, the civil rights claim, Brianna and Patience must each prove by a preponderance of the evidence that David Davies acted under color of state law and that while acting under color of state law, David Davies deprived Brianna or Patience or both of a federal right.
I will now give you more details on under color of state law, after which I will tell you the elements plaintiffs must prove to establish the violation of their federal constitutional rights.
Although David Davies was a private individual and not a state official, I instruct you that the relationship between Mr. Davies and the state was sufficiently close that he was acting under color of state law. In other words, this element of plaintiffs' claim is not in dispute, and you must find that this element has been satisfied.
I've already instructed you on the first element of plaintiffs' claim, under color of state law. The second element of plaintiffs' claim under this statute is that the defendant deprived them of their Fourteenth Amendment right to bodily integrity.
The instruction I'm about to give you is the standard you will use in deciding whether the defendant violated plaintiffs' rights under the Fourteenth Amendment. You will be asked to determine whether Brianna and Patience have established that their bodily integrity was violated by David Davies.
To show that David Davies violated plaintiffs' Fourteenth Amendment rights, plaintiffs must prove by a preponderance of the evidence that David Davies engaged in sexual or intimate contact with them on one or more occasions. Sexual contact includes touching of plaintiffs' intimate body parts by the actor or having plaintiff touch the actor's intimate body parts. Sexual intercourse or penetration need not be established.
Jurors, I'm now going to instruct you on damages. Just because I am instructing you on how to award damages does not mean that I have any opinion on whether or not David Davies should be held liable.
If you find David Davies liable, then you must consider the issue of compensatory damages. You must award Brianna or Patience or both an amount that will fairly compensate them for any injuries they actually sustained as a result of Davies' conduct.
Brianna and Patience must show that the injury would not have occurred without Davies' acts. They must also show that the act played a substantial part in bringing about the injury and that the injury was either a direct result or a reasonably probable consequence of Davies' actions.
Compensatory damages must not be based on speculation or sympathy, they must be based on the evidence presented at trial and only on that evidence.
Plaintiffs have the burden of proving compensatory damages by a preponderance of the evidence. Plaintiffs claim the following items of damages:
Physical harm to Brianna and/or Patience during and after the events at issue, including ill health, physical pain, disability, disfigurement, or discomfort or any such physical harm that Brianna and/or Patience are reasonably certain to experience in the future. In assessing such harm, you should consider the nature and extent of the injury and whether the injury is temporary or permanent. Emotional and mental harm during and after the events at issue, including fear, humiliation, and mental anguish and any such emotional and mental harm that plaintiffs are reasonably certain to experience in the future.
Jurors, if you return a verdict for Brianna or Patience or both but either has failed or both have failed to prove compensatory damages, then you must award nominal damages of one dollar to that plaintiff.
A person whose federal rights are violated is entitled to a recognition of that violation, even if he or she suffers no actual injury. Nominal damages of one dollar are designed to acknowledge the deprivation of a federal right even where no actual injury has occurred. However, if you find actual injury, you must award compensatory damages consistent with my instructions rather than nominal damages.
In addition to compensatory damages, you may consider awarding Brianna Haines and Patience Whitman punitive damages. A jury is permitted to award punitive damages to punish a defendant or to deter the defendant and others like the defendant from committing such acts in the future. You may only award punitive damages against the estate of David Davies if you find that David Davies acted maliciously or wantonly in violating Brianna or Patience's federally protected rights.
A violation is malicious if it was prompted by ill-will or spite towards the plaintiff. A defendant is malicious when he consciously desires to violate federal rights of which he is aware or when he consciously desires to injure the plaintiff in a manner he knows to be unlawful. A conscious desire to perform the acts that caused plaintiff's injury does not, by itself, establish that a defendant had a conscious desire to violate rights or to injure plaintiff unlawfully. A violation is wanton if the person committed the violation recklessly or callously disregarded the plaintiff's rights.
If you find that it is more likely than not that David Davies acted maliciously or wantonly in violating Brianna or Patience's federal rights, then you may award punitive damages. However, an award of punitive damages is discretionary. That is, if you find that the legal requirements for punitive damages are satisfied, then you may decide to award punitive damages or you may decide not to award them. I will discuss now some considerations that you should keep in mind in exercising this discretion. But remember that you cannot award punitive damages unless you have found that the defendant, David Davies, acted maliciously or wantonly in violating plaintiffs' federal rights.
If you have found that the defendant acted maliciously or wantonly in violating either plaintiff's federal rights, then you should consider the purposes of punitive damages. The purposes of punitive damages are to punish a defendant for a malicious or wanton violation of federal right or to deter the defendant and others like the defendant from doing similar things in the future or both. You should also consider whether actual damages standing alone are sufficient to deter or prevent future harm by others.
Finally, jurors, you should consider whether an award of punitive damages in this case is likely to deter others from performing wrongful acts similar to those the defendant may have committed.
If you decide to award punitive damages, then you should also consider the purposes of punitive damages in arriving at the amount of punitive damages which you will award. That is, in deciding the amount of punitive damages, you should consider the purpose of punitive damages, including the degree to which an award of one sum or another will deter a defendant or others like the defendant from committing similar wrongful acts in the future.
In considering the purposes of punishment and deterrence, you should consider the nature of the defendant's action. For example, you're entitled to consider whether a defendant's act was violent or nonviolent, whether the defendant's act posed a risk to health or safety, whether the defendant acted in a deliberately deceptive manner, and whether the defendant engaged in repeated misconduct or a single act. You should also consider the amount of harm actually caused by the defendant's actions and the harm that could result if such acts were not deterred in the future.
Jurors, I will now instruct you on the state law claims. An assault is an act done with the intent to put another in reasonable and immediate fear of a harmful or offensive contact with his or her body and that does, in fact, cause fear. To commit an assault, it is not necessary that the person actually intended to inflict harmful or offensive contact with the body of another, it's enough that the person intended to cause only a fear of such contact.
In order for David Davies to be held responsible for the commission of an assault against Patience or Brianna, you must find that first the defendant intended to put Patience or Brianna or both in reasonable and immediate fear of a harmful or offensive contact, and, second, that Patience or Brianna or both, as a result of Davies' act, was put in reasonable and immediate fear of such contact.
A battery is an act done with the intent to cause a harmful or offensive contact with the body of another or an act done with the intent to put another in reasonable and immediate apprehension of a harmful or offensive contact with her body and which directly or indirectly results in a harmful or offensive contact with the body of another.
In order for the estate of Davies to be held responsible for the commission of a battery against Patience or Brianna, you must find first that Davies intended to cause a harmful or offensive contact with the body of Patience or Brianna or both or that Davies intended to put Patience or Brianna or both in reasonable and immediate fear of a harmful or offensive contact with her body and, second, that Davies' act directly resulted in a harmful or offensive contact with Brianna or Patience's body. A body contact is offensive if it would offend a reasonable person's sense of dignity.
If you find that David Davies is liable to Brianna Haines or Patience Whitman or both, you must then find an amount of money damages you believe will fairly and adequately compensate them for all the physical and financial injury they sustained as a result of this occurrence. The amount you award today must compensate each plaintiff completely for damages sustained in the past, as well as any damage she will sustain in the future.
The damages recoverable by one plaintiff or both plaintiffs in this case are as follows:
Medical expenses. Brianna and Patience are entitled to be compensated in the amount of all medical expenses reasonably incurred for the diagnosis, treatment, and cure of their injuries in the past.
Future medical expenses. Plaintiffs are entitled to be compensated for all medical expenses that you find they will reasonably incur in the future for the treatment and care of their continuing injuries.
Past pain and suffering. Plaintiffs are entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress that you find they have endured from the time of injury until today.
Future pain and suffering. Plaintiffs are entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress that you find they will endure in the future as a result of their injuries.
In the event you find in favor of either plaintiff or both on the state assault and battery claims, you will add these sums of damages together and return your verdict in a single lump sum.
If you find that Defendant David Davies' conduct was a factual cause of the harm to either plaintiff and you find the conduct was outrageous, you may award punitive damages on this state law claim, as well as any compensatory damages that you find apply. The purpose of such damages is to punish the offending conduct and to deter others from committing similar acts. A person's conduct is outrageous when he or she acts with a bad motive or acts with reckless indifference to the interests of others.
If you decide that either plaintiff or both plaintiffs are entitled to an award of punitive damages on these state law claims, then it's your job to fix the amount of these damages. In doing so, you may consider any or all of the following factors: The character of the defendant's actions; the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause; and the wealth of the defendant insofar as it is relevant in fixing an amount that will punish and deter others from engaging in such conduct in the future.
The amount you assess as punitive damages need not bear any relationship to the amount you choose to award as compensatory damages, and it is not necessary that you award compensatory damages to the plaintiff in order to assess punitive damages against the defendant as long as you find in favor of a plaintiff and against the defendant on the question of liability.
The amount of punitive damages awarded must not be the result of passion or prejudice against the defendant on the part of your jury. The sole purpose of punitive damages is to punish a defendant's outrageous conduct and to deter the defendant and others like him from similar acts.
Jurors, in a few moments you will retire to consider all of the evidence we heard in the trial in light of the various factors I have presented to you, and you will apply the law as I have given it to you to the facts that you will find.
When you retire to the jury room, you may take with you these instructions, your notes, the exhibits that the Court has admitted into evidence. The first thing you will do is select one of your members to act as your foreperson. That person will preside over the deliberations, and he or she will speak for you here in court.
You have two main duties as jurors. The first one is to decide what the facts are from the evidence that you saw and heard here in the Court. Deciding what the facts are is your job, not mine, and nothing that I have said or done during the trial was meant to influence your decision about the facts in any way.
The second duty that you have is to take the law that I've explained to you, apply it to the facts, and decide whether, under the appropriate burden of proof, the parties have established their claims. It's my job to instruct you about the law. You're bound by the oath that you took at the beginning of the trial to follow these instructions, even if you personally disagree with them. This includes all of the instructions that I gave you, including the ones before the trial and during the trial and these instructions. All of the instructions are important and you should consider them together as a whole.
Perform these duties fairly. Do not let any bias, sympathy, or prejudice that you feel toward one side or the other influence your decision in any way. As jurors, you have a duty to consult with each other and to deliberate with the intention of returning a verdict. Each of you must decide the case for yourselves, but only after a full and impartial consideration of all the evidence and after discussion with your fellow jurors.
Listen to each other carefully. In the course of your deliberations, you should feel free to reexamine your own views and to change your opinion based on the evidence, but you should not ever give up your honest convictions about the evidence just because of the opinions of your fellow jurors, nor should you change your mind just for the purpose of obtaining enough votes for a verdict.
When you start deliberating, do not talk to the clerk, to me, or to anybody else about the case. If you have any questions or messages for me, you must write them down on a piece of paper, have the foreperson sign them, and give them to the clerk, Ms. Cihak. She will give them to me, and I will respond to you as soon as I'm able to do so. I may have to talk to the lawyers about what you've written or asked, so it may take some time for me to get back with you.
One more thing about messages, never write down or tell anybody how you stand on your votes. For example, do not write down or tell anybody that a certain number is voting one way or the other. Your votes should stay secret.
Your verdict must represent the considered judgment of each juror. In order for you to return a verdict, each juror must agree to the verdict. Your verdict must be unanimous. A form of verdict has been prepared for you. It has a series of questions that you will answer. You will take this form to the jury room, and when you have reached unanimous verdict as to your verdict, you will fill it in, have your foreperson date and sign the form. Then you will return to the courtroom, and your foreperson will deliver the verdict. Unless I direct you otherwise, do not reveal your answers until you are discharged from jury service.
After you have reached a verdict, you are not required to talk with anybody about the case unless I order you to do so. Absent special permission, the local rules of our district prohibit the attorneys from contacting you after the verdict.
Once again, jurors, I want to remind you that nothing about my instructions and nothing about the form of verdict is intended to suggest or convey in any way or manner what I think your verdict should be. It is your sole and exclusive duty and responsibility to determine the verdict in this case.
Keep in mind that the dispute between the parties is for them a most serious matter. The parties and the Court rely upon you to give your full and conscientious deliberation and consideration to the issues and evidence now before you. Consider all the surrounding circumstances, the probabilities and improbabilities of the testimony, what counsel and the Court have said. You should try to reach what is a just, true, and correct solution of the controversy now being submitted to you.
In reaching your decision, you should be guided by the evidence that was presented here in court, the inferences you draw from the evidence, and my instructions on the law. You should not be influenced by fear, favor, prejudice, or sympathy. All parties stand equally before the Court, and each is entitled to the same fair and impartial treatment at your hands. And, finally, I want to remind you that nothing about my instructions and nothing about the verdict form is intended to suggest or convey in any manner what I believe your verdict should be. It's your sole and exclusive duty and responsibility to determine a true verdict in this matter.
Counsel, has there been a failure to instruct on any substantial matter of law?
MR. LAPPAS: No, no, Your Honor.
MR. O'CONNOR: No, Your Honor. (Whereupon, the jury instructions were concluded.)
CERTIFICATION
I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the within proceedings and that this copy is a correct transcript of the same. INDEX WITNESS For — Plaintiffs: Direct Cross Redirect Recross Brianna Haines 4 24 44MR. LAPPAS: Our next witness is Brianna Haines.
BRIANNA HAINES, called as a witness, having been duly sworn or affirmed, testified as follows:
COURTROOM DEPUTY: Please be seated. State your name and spell your last name for the record.
THE WITNESS: Brianna Haines, H-a-i-n-e-s.
DIRECT EXAMINATION
BY MR. LAPPAS:
Q. Are you okay, Brianna?
A. (Nods head).
Q. All right. How old are you?
A. 17.
Q. Maybe if you pull the microphone a little closer to you. That's it. How old are you?
A. 17.
Q. What's your birthday?
A. 8/17/91.
Q. Are you a student at the Forbes Road School?
A. Yes.
Q. And what year are you in?
A. Eleventh.
Q. Do you participate in any kind of activities at the school, extracurricular activities?
A. Yes.
Q. Which ones?
A. Band, basketball, and tennis.
Q. Band, basketball, and tennis? I know you're nervous. Just slow down a little bit so everybody can understand what you're saying. Okay? How long have you lived in Fulton County and attended Forbes Road School?
A. I lived in Fulton County since 1999, and I've attended Forbes Road since I was in fourth grade.
Q. Since fourth grade?
A. I don't know what year it was.
Q. That's fine. When did you first meet Mr. Davies?
A. When I was in eighth grade.
Q. How did you meet him? Was he one of your teachers?
A. Yes.
Q. What did he teach?
A. History and earth-space science.
Q. What kind of science?
A. Earth-space science.
Q. Earth-space. What class did you have him for?
A. Both of them.
Q. Now, back in — when all this started, what grade were you in?
A. Eighth.
Q. You were 14 years old?
A. Yes.
Q. Up until the first time Mr. Davies did anything improper, which, unfortunately, we're going to have to get to in a minute, did you like him?
A. Yeah.
Q. Did he seem like a nice teacher to you?
A. Yeah.
Q. Was he popular at the school?
A. Yeah.
Q. All right. When is the first time — and I know you don't know the dates, but just tell us — maybe it's better to ask, what's the first thing, first occasion, that Mr. Davies did anything that you thought was improper?
A. Say something inappropriate.
Q. What kind of things was he saying to you?
A. I don't remember. Just, like, stuff he shouldn't be saying to, like, his female students, like saying, you look nice or something like that. I don't remember everything.
Q. Would that have been while you were 14?
A. Yes.
Q. In eighth grade?
A. Yes.
Q. As time passed, did he start doing other things?
A. Yes.
Q. What did he start doing after saying these inappropriate things to you?
A. He would come up to me while I was sitting in his class and, like, grab my leg or tickle me or just always, like, touched my leg and stuff.
Q. Right in the classroom?
A. Yes.
Q. Brianna, you were with me about a week or two ago and we took photographs at the school. Right?
A. Yes.
Q. And is this — do you have a screen there?
A. Yes.
Q. Is this the classroom that we photographed that was Mr. Davies' classroom?
A. Yes.
Q. And is that where these things started?
A. Yes.
Q. Did it ever come to a point where he did even worse things?
A. Yes.
Q. How did that start?
A. One time during lunch I was down in his classroom and I was standing there, and he told me that I looked nice today and he said that he wanted to kiss me.
Q. He wanted to kiss you. Was there anybody else in the classroom that time?
A. No.
Q. And what did you say?
A. I said, no, you're my teacher. I said, you're married. And he was like, oh, yeah, that's right.
Q. Now, Mrs. Davies, did you know Mrs. — now Mrs. Black, but with your permission, I'll just refer to her as Mrs. Davies for this testimony.
MS. OLSEN: That's fine.
BY MR. LAPPAS:
Q. Did you know Mrs. Davies?
A. Yes.
Q. How did you know her?
A. She was my art teacher.
Q. So she was your art teacher even at the time that he was trying to kiss you?
A. Yes.
Q. Now, this item — may I, Your Honor?
THE COURT: Yes.
BY MR. LAPPAS:
Q. This thing that Trooper Gordon just identified, tell the jury what that is.
A. My passbook.
Q. And what is — what is that used for at the Forbes Road School?
A. It has a handbook in it, and you can write down your homework assignments and passes to go places.
Q. So if a teacher wants — for example, let's say you were in art class with Mrs. Davies and a teacher wanted to get you out of class for some other purpose, how would that happen?
A. You would write a pass to wherever you're going, and they would sign it.
Q. So who would sign it?
A. The teacher.
Q. The classroom teacher or the teacher that wanted to get you out of class?
A. It depends. Like, if you want to sign a pass ahead of time to get out, like, during study hall, the teachers are going to sign it, or, like, if you were in that class where you were going, the teacher would sign it that was conducting that class.
Q. Did Mr. Davies ever sign you out of class?
A. Yes.
Q. Did he ever sign you out of class for any legitimate purpose, to do schoolwork, or was it always for some kind of sexual purpose?
A. Always some kind of sexual purpose.
Q. And where would he take you?
A. Different places in the school or his classroom.
Q. Sometimes his classroom?
A. Um-hum.
Q. Now, when we were at the school the other day, you showed me this room, Room 221, the lighting control room. Do you remember that?
A. Yes.
Q. Where is that located at the school?
A. Right next to Ms. Smith's room.
Q. Speak up, please.
A. Right next to Ms. Smith's room.
Q. Is it on the second floor?
A. Yes.
Q. And I'm going to click through some of these photographs, and then I'm going to ask you if this is what this room really looks like in real life. Now we're in the mechanical room, which is inside. Correct?
A. Yes.
Q. Perhaps next to it. Do those pictures show what these rooms look like in real life?
A. Yes.
Q. Would Mr. Davies ever take you to those rooms?
A. Yes.
Q. And what happened when you were there?
A. He would do stuff to me.
Q. I know this isn't easy, Brianna, but we have to talk about what stuff he did. What did he do to you in those rooms?
A. Touch me.
Q. You can do this. Where would he touch you?
A. In my private areas.
Q. Would he touch your breasts?
A. Yes.
Q. Would he touch you between the legs?
A. Yes.
MS. OLSEN: Objection, Your Honor, leading.
THE COURT: Sustained.
BY MR. LAPPAS:
Q. Okay. Well, since there's an objection that the Court has sustained, you need to tell us where on your body he would touch you.
A. My breasts and my front private area and my butt.
Q. Would he touch you outside of your clothing or inside of your clothing?
A. Both.
Q. Did he ever have you remove any articles of clothing?
A. Yes.
Q. What articles of clothing would you have to remove?
A. My shirt and my bra.
Q. Your shirt and your bra. When you would be unclothed from the waist up in this fashion, would he touch you or what would he do?
A. Yes.
Q. He would touch you?
A. Yes.
Q. Now look at the screen. You also showed us this room, 222. It's called telecommunications. We're going to do the same thing. I'm going to click through these photographs, and I'm going to ask you to tell me if this is what it looks like in real life. Do you see those photographs?
A. Yes.
Q. Is that what it looks like in real life?
A. Yes.
Q. Did Mr. Davies ever take you to that room?
A. Yes.
Q. And what happened when he took you there?
A. The same thing.
Q. Same thing as you already told us about?
A. Yeah.
Q. When he would take you to one of these rooms, either the mechanical room or the telecommunications room, I know you — well, do you have any idea how long you were there for?
A. No.
Q. And what would happen after he was done with you? What would happen then?
A. I'd just go back to class.
Q. Just go back to class. Now, do you recognize what this picture is on the screen now?
A. Yes.
Q. What is that?
A. The back of the old high school.
Q. Now, I think it's undisputed, and the photographs which have been admitted also show this, the old high school was right next to the new high school. Correct?
A. Yes.
Q. And was the school — had the school moved from one to the other?
A. Yes.
Q. So when you were in eighth grade, were you in the old high school or in the new high school?
A. The new high school.
Q. Was there anything going on in the old high school?
A. Not that I was aware of. I think there was like a shop class out there for vo-tech or something.
Q. Now, this door that we see, the door to the old high school, why did you show us that door?
A. Because whenever we went to the old high school, he'd make me stand there. And then he — I think he went in through the shop, and then he'd come back through and let me in.
Q. Now, you didn't see where he went, so you don't know if it was the shop or not. Correct?
A. No. But I think I remember him saying he was going to go through the shop and let me in.
Q. That's what he said?
A. I think. I think I remember that's what he said.
Q. So sometimes he would actually take you out of the school and over into the old school. Is that your testimony?
A. Yes.
Q. Can you tell us, do you have any idea, any way of estimating how many times he did that?
A. Maybe two.
Q. Now, this is the old school and the new school. Right?
A. Yes.
Q. And to get from one to the other, to get from the new school to the old school, how long would it take you to walk over there?
A. Just a couple minutes.
Q. Do you know what this is?
A. Yeah.
Q. What is that?
A. It's a hallway in the old high school.
Q. Do you know what that is?
A. Yes.
Q. What's that?
A. The shop room.
Q. In the old high school?
A. Yes.
Q. All right. Now, do you know what that is?
A. Yes.
Q. What's that?
A. Mr. Davies' old room in the old high school.
Q. All right. So, in other words, he had a room in the old high school where he had — that was his room before the school switched. Right?
A. Yes.
Q. Would he ever take you to this room?
A. Yes.
Q. Now, is this another photograph of that same room?
A. Yes.
Q. Do you see that doorway there?
A. Yes.
Q. Where does that doorway go?
A. It's a closet in his room.
Q. Did he ever take you into that closet?
A. Yes.
Q. Now, you said a little while ago about two times. Are you positive it was only two times? Could it have been one or two or three or some other number?
A. I think it was only two times in the old high school. But there were other times in the new one.
Q. And what happened when you went in that room with him?
A. Same thing.
Q. In that room, did he ever touch you?
A. Yes.
Q. In that room, did he ever have you remove any of your clothes?
A. Yes.
Q. Did he ever, other than touching you from the waist up, did he ever touch you from the waist down?
A. Yes.
Q. Did he ever touch you in your pubic area?
A. Yes.
Q. Did he ever put any part of his body inside your vagina?
A. No.
Q. Did he ever put his fingers on your vagina?
A. Yeah.
Q. Did he ever make you touch him?
A. Yes.
Q. When you were in that room with him, that closet, would he leave the door open or not?
A. He would close it.
Q. Would he leave the lights on or turn them off?
A. Turn them off.
Q. So when he turned off the lights, would it be completely dark?
A. Yeah.
Q. Were there ever any occasions where Mr. Davies removed any pieces of his own clothing?
A. Yes.
Q. Did that — where did that happen, here or in one of the other places we saw?
A. Here.
Q. What part of his own clothing did he remove?
A. His shirt.
Q. Did he ever have you touch any part of his body?
A. Yes.
Q. What parts?
A. His private area.
Q. His penis?
A. Yes.
Q. Did he tell you to do it or did he put his hand there or did he make you do it in some other way?
A. He took my hand and put it there.
Q. Did anything happen while his hand was there — your hand was there?
A. No.
Q. Do you know how long you were in this room like that with him?
A. I think it was the first two periods of the day, while I had art class.
Q. Art class?
A. Yeah.
Q. The class that Mrs. Davies taught?
A. Yes.
Q. How long is a period?
A. 45 minutes, maybe.
Q. So between the time that he got you out of his wife's class, took you here, did the things you described, and then let you go back to class would have been sometimes an hour and a half?
A. Yeah.
Q. Now, you told us that the first time — or one of the first times, one of the first things he did was try to kiss you, and you said, oh, no, you have a wife and you're my teacher and things like that. Right?
A. Yes.
Q. After that, when he was doing these other things to you, would he ever kiss you?
A. Yes.
Q. When he kissed you, would his mouth be open or closed?
A. Open.
Q. Would he put his tongue in your mouth?
A. Yes.
Q. Would you kiss him back?
A. No.
Q. Were there times that he would take you out of his wife's class and there would not be any notation in the passbook?
A. Yes.
Q. And how would that happen?
A. He'd just call down and ask me if I would come down to his room or go with him to the old high school.
Q. Would he call — when you say "call down," who would he call down to?
A. Her room on the phone.
Q. "Her" being Mrs. Davies?
A. Yes.
Q. Would he call — would you be in the class, in Mrs. Davies' art class when he called?
A. Yes.
Q. And did he call on a — was there a telephone or a public address system or what?
A. A telephone.
Q. And then what would Mrs. Davies say to you?
A. She told me Mr. Davies wanted to see me down in his room.
Q. Now, Brianna, on all of the occasions that he took you out of class, either by writing a name in the passbook or signing it or calling his wife or no matter how he did it, would it always be to do the things you've described to us?
A. Yes.
Q. During any of these occasions, did he ever remove your pants or have you remove your pants?
A. No.
Q. How did these things make you feel?
A. Scared.
Q. What were you scared of?
A. I don't know. I was just scared that he would try to do more.
Q. Yeah. Did you feel you had anybody you could turn to?
A. No.
Q. Now, are you and Patience Whitman, are you close friends?
A. Yeah. Her sister's my best friend.
Q. Your sisters are best friends? I'm sorry, I didn't hear what you —
A. Her sister is my best friend.
Q. What's her sister's name?
A. Raven.
Q. Were you and Patience — Patience is older than you. Right?
A. Yes.
Q. Were you and Patience close friends back when you were in eighth grade and these things were going on?
A. I don't want to say close friends. We'd talk to each other.
Q. Did you ever tell her that this was happening to you?
A. No.
Q. When Mr. Davies would take you to these rooms in the old school, did it look like this with junk and garbage and stuff all over the place?
A. Yes.
Q. And in this one photograph, is that you with your back turned to the room?
A. Yes.
Q. Now, in April of 2006 — I'm sorry, that date is wrong. In March of 2006, did you learn that he had done something to Patience Whitman?
A. Yes.
Q. And how did you find out about that?
A. It was during lunch, and I saw her come running out of his room. And she came up to me and told me what happened.
Q. What did she tell you happened?
A. She told me that her and Mr. Davies were in his room, and he touched her breasts and put his hand up her skirt or something like that.
Q. How did that make you feel?
A. I don't know. I felt bad for her.
Q. Then did you find out that Patience had talked to somebody at the school?
A. Yes.
Q. And did you find out that Patience had talked to the state police?
A. Yes.
Q. Now, the gentleman that testified right before you, Mr. — Trooper Gordon, did you ever meet him?
A. No.
Q. Did you report to somebody at the school what Mr. Davies had been doing to you?
A. Yes.
Q. And who did you tell?
A. Kristie Hohman.
Q. Who is Kristie Hohman?
A. My van driver.
Q. Van driver. And when did you tell her? I don't mean what day, I mean, like, riding in the van or —
A. Yeah.
Q. What did you tell her?
A. I just told her all the stuff he did to me.
Q. Did she tell you what you should do about it?
A. Yeah.
Q. What did she say?
A. She told me that I need to report it.
Q. And is that when you talked to Stacy Gelvin?
A. Yes.
Q. And you told her what happened?
A. Yes.
Q. Did you tell her the truth?
A. Yes.
Q. Now, before these things happened, what Mr. Davies was doing to you, had you ever been to any kind of a psychologist or a counselor or a doctor for any kind of emotional needs that you might have had?
A. No.
Q. Did you ever go to one after this?
A. Yes.
Q. Would that have been a counselor?
A. Yes.
Q. Psychologist. Did your mother take you to the psychologist?
A. Yes.
Q. And when you had your appointments, would she drive you there?
A. Yes.
Q. About how often were you going at first?
A. I think it was every other week.
Q. I'm sorry?
A. I think it was every other week.
Q. Did any doctor ever prescribe any medicine for you for what Mr. Davies had done?
A. Yes.
Q. And what were you taking?
A. Zoloft.
Q. Do you know why that was prescribed?
A. Depression.
Q. Are you still seeing a counselor?
A. No.
Q. How are you doing in school now?
A. Good.
Q. You told us that when Mr. Davies was doing these things, you were scared. As you look back on it, how do you feel about it?
A. I don't know.
MR. LAPPAS: May I have a moment, Your Honor?
THE COURT: Yes.
BY MR. LAPPAS:
Q. Since these things happened, have you been able to talk to your mother about them at all?
A. No, not really.
Q. Have you ever spoke with your father about it?
A. No.
MR. LAPPAS: I think those are my only questions, Your Honor.
THE COURT: Thank you.
CROSS-EXAMINATION
BY MS. OLSEN:
Q. Miss Haines, I'm Linda Olsen, and I represent the estate of Dave Davies. I believe we've met before at your depositions and that we were also together when Mr. Lappas took the pictures at the school. Is that correct?
A. Yes.
Q. I'd like to start my questions with respect to your counseling. You just indicated, I believe, that you are no longer in counseling. Is that correct?
A. Yes.
Q. And when did you stop seeing the counselor?
A. I don't remember.
Q. I'm sorry?
A. I don't remember.
Q. Is it correct that you started seeing the counselor approximately four or five months after all of these events started?
A. I guess so. I don't remember.
Q. Do you recall that your first session with the counselor was in around July, 2006? Does that sound right?
A. Yeah.
Q. Yes?
A. Yeah.
Q. And from July, 2006, until approximately September, 2006, do you remember how many sessions you attended?
A. No.
Q. Was your mother having trouble with her car during the time that these sessions were supposed to be being conducted?
A. Yes.
Q. So did you miss a lot of sessions?
A. Yes.
Q. Did you ever attempt to make up those sessions?
A. I don't think so.
Q. I'm sorry?
A. I don't think so.
Q. No? Okay. Would it be correct to say that from approximately November, 2006, until September, 2007, you didn't attend counseling at all?
A. I guess so. I don't remember.
Q. Okay. Did you want to end the counseling sessions?
A. I kind of did, but I —
Q. I'm sorry, I can't hear you.
A. I kind of did, but I kind of didn't.
Q. Did your parents want you to continue with the counseling sessions?
A. Yeah.
Q. Have they agreed now that you no longer need counseling?
A. Yes.
Q. You indicated that you had been prescribed Zoloft?
A. Yes.
Q. Who prescribed that medicine for you?
A. My doctor, I guess. I don't know.
Q. Your own physician?
A. I guess. I don't remember.
Q. You don't remember?
A. No.
Q. Would it be correct to say that your counselor did not prescribe the medication?
A. I don't know who did.
Q. Thank you. I believe you had indicated in your deposition that you didn't take it for very long. Is that true?
A. I took it until the prescription ran out.
Q. Do you have any idea how long that was?
A. No.
Q. Would you guess 30 days, 60 days?
A. I don't know. I don't remember.
Q. You have no idea?
A. I don't remember.
Q. But you did not get the prescription refilled after it expired?
A. No.
Q. You indicated to Mr. Lappas just a moment ago that you have not discussed these incidents with either your mother or your father. Is that true?
A. Yes.
Q. Was there a time when you and a friend were at your home and you were discussing Mr. Davies and your father asked you directly whether Mr. Davies had ever done anything to you?
A. Yes.
Q. And what did you say?
A. I said no.
Q. You said no?
A. Yes.
Q. Why did you say no?
A. Because I didn't know how to tell my dad that.
Q. You didn't know how to tell him?
A. Yeah. I felt uncomfortable.
Q. Is your dad hard to talk to?
A. I don't know. It's just I just don't feel comfortable talking about that to my dad.
Q. Let's talk a little bit about these incidents where you went from the old school — or from the new school to the old school. Mr. Lappas — am I on, Shawna? I had no signal. Okay.
Let's just — let's talk about the door that you left the building. Mr. Lappas showed us a picture of the old building. Where was the door where you left the new school to go to the old school?
A. On the side of the new school. There's a side door.
Q. On the side of the building?
A. Um-hum.
Q. And was that close to Mr. Davies' classroom?
A. Yes.
Q. Was it in the same hallway on the first floor where the office is?
A. Yes.
Q. And you said that it was a very short distance from the old — the new school to the old school?
A. Yes.
Q. During what months of the year did these two occasions where Mr. Davies took you from the new school to the old school, what months of the year did that occur?
A. I don't remember exactly.
Q. Do you have any recollection of the weather, was it warm, was it cold?
A. It was kind of chilly.
Q. It was —
A. Kind of chilly.
Q. I'm sorry, I still can't hear you.
A. It was kind of chilly.
Q. Kind of chilly. Did you take a coat with you?
A. No.
Q. I believe you testified that you waited outside the doors to the old school for — and Mr. Davies then came and got you. Is that correct?
A. Yes.
Q. Why was that?
A. I don't think he had a key to the back door or he couldn't get in. It was locked or something.
Q. And the door that you — the door that you waited at was locked?
A. I think so.
Q. You think so. Did you ever try the door?
A. I think there was, like, bolts on the inside you had to, like, unhinge, and then you can't do it from the outside.
Q. Okay.
A. So you'd have to go in and do it from the inside.
Q. So there was a bolt on the inside of the door which Mr. Davies would have had to unbolt in order for you to come into the old school?
A. Yes.
Q. Okay. And once you were in the old school, approximately how far is it from that doorway to the classroom where you say Mr. Davies took you?
A. It's in the same hallway. It's not very far.
Q. Twenty lockers, ten lockers?
A. Twenty, maybe.
Q. Twenty lockers. I think everybody can visualize the width of a locker. That's why I'm using that analogy. So about, between, 15, 20 lockers from the door to Mr. Davies' room?
A. Yeah.
Q. Did you pass any other classroom on your way to that room?
A. The shop room.
Q. And would the shop have been on the opposite side of the hall from the classroom where Mr. Davies took you?
A. Yes.
Q. Are there doors into the shop from the hallway?
A. Yes.
Q. And those doors into the shop from the hallway, do they have windows in them?
A. Yes.
Q. Could you see people in the shop?
A. I think I did.
Q. Do you know whether anyone ever saw you in the hallway?
A. I don't know.
Q. You don't know?
A. No.
Q. Okay. When you went into the closet in Mr. Davies' room the first time, for what reason did you think you were entering that closet?
A. I don't know. I didn't know.
Q. Did Mr. Davies ask you to get anything out of the closet?
A. No.
Q. Was there a phone in there?
A. No.
Q. No. What was in there?
A. Books and stuff.
Q. Books and stuff. What reason did Mr. Davies give you for taking you to the old building?
A. He said that I was going to help him carry stuff over from the old building into the new building for his room.
Q. Help him to carry stuff over from the old school to the new school?
A. Yes.
Q. What kind of stuff did you think you were going to be carrying over?
A. I didn't know.
Q. You didn't know?
A. No.
Q. I understand Mr. Davies was a computer technology individual, responsible for computers and technology at the school?
A. Yes.
Q. So did it ever occur to you that he might want you to carry over cables or computers or anything like that?
A. I guess so.
Q. Okay. How long was it between the first incident at the old school and the second?
A. I don't remember.
Q. Let's try to — I understand this is very difficult, and I know the timing is very hard, but let's try to get some kind of a time span. A week, more than a week?
A. I don't remember.
Q. You don't remember at all?
A. No.
Q. Let me ask you this, Miss Haines, what did you think was going to happen the second time he asked you to go to the old school?
A. I guess the same thing.
Q. Nevertheless, you went with Mr. Davies?
A. Yes.
Q. Why?
A. I was scared.
Q. Scared of what?
A. I didn't know what else to do.
Q. You didn't —
A. I didn't know what else to do.
Q. You didn't know what else to. Could you have stayed in Mrs. Davies' classroom and not left?
A. I guess, but she told me to go down — he wanted me down — to go down to his room.
Q. Could you have gone to the office and said, Mr. Davies wants me to go to the old school, and I don't want to go with him, but I'm scared not to?
A. Yeah, but I didn't think to do that.
Q. But you didn't do that. Could you have told another teacher, I don't want to go to the old school and I'm being asked to go there?
A. Yeah, but I didn't feel comfortable talking to any other teacher.
Q. Okay. So there are a lot of things you could have done, but you chose not to do any of them. Is that correct?
A. Yes.
Q. Okay. A couple of the other incidents you allege — a couple. Up to 20-some other incidents occurred in Mr. Davies' classroom. Is that correct?
A. Yes.
Q. Were those always at lunchtime?
A. No. It could be when I had him for — in class or lunchtime or when I had a study hall or anytime.
Q. So you had Mr. Davies for two classes. Correct?
A. Yes.
Q. Which periods of the day did you have Mr. Davies?
A. Third and sixth.
Q. Third and sixth. Did you have another class fourth period?
A. Yes.
Q. Did you have another class seventh period?
A. Yes.
Q. And so you stayed after class in Mr. Davies' class third and sixth period making you late to both your fourth and seventh period classes?
A. Yes.
Q. Yes. And who signed your passport to allow you to go late to these other classes?
A. Mr. Davies.
Q. Mr. Davies. Were you the only one who stayed after at the end of class?
A. Yes.
Q. When the bell rang, Miss Haines, why didn't you pick up your books and just leave?
A. He told me to stay after.
Q. He told you to stay after. What did you expect was going to happen when he told you to stay after?
A. I didn't know.
Q. You didn't know. Did you anticipate that his behavior would be the same on the fifth time, the tenth time, the twentieth time?
A. Yeah.
Q. But still you stayed?
A. Yeah.
Q. When Mr. Davies asked you to go to the lighting room, were you involved in the stage crew at all?
A. No.
Q. No? When he asked you to go to the lighting room, what did you think was going to happen?
A. Same things.
Q. Same thing. But you went anyway?
A. Yes.
Q. In order to go to the lighting room, did you have to be excused from another teacher's class?
A. Well, sometimes. But sometimes I'd be walking to my locker to get something for band, and he'd tell me to come with him.
Q. If you had to be excused from another teacher's class, whose class would that have been?
A. Mr. Debski.
Q. I'm sorry?
A. Mr. Debski.
Q. Is that band?
A. Yes.
Q. And which period is that?
A. Eighth.
Q. What did you have seventh period?
A. Math.
Q. Math. Who did you have for math?
A. Mrs. Vollbrecht.
Q. Did Mrs. Vollbrecht ever let you out of her class?
A. Yes.
Q. And what reason did you give Mrs. Vollbrecht for asking to be excused from her class?
A. I don't remember.
Q. Did Mr. Davies ever threaten you in any way?
A. No.
Q. Did you ever hear any other students at the school make any comments, innuendos, rumors about you and Mr. Davies being boyfriend and girlfriend?
A. Yes.
Q. Yes?
A. Yes.
Q. And how did you react to that?
A. I just ignored them.
Q. I'm sorry?
A. I just ignored them.
Q. You just ignored it. Okay. Did that happen frequently?
A. Yes.
Q. It didn't bother you enough that you thought you should tell somebody about it?
A. It bothered me, but I never told no one about it.
Q. Okay. You indicated in your testimony that Mr. Davies made you touch him.
A. Yes.
Q. Can you describe for me exactly what Mr. Davies made you do?
A. He took my hand and put it on him.
Q. Put it on him, on his penis?
A. Yes.
Q. And when he put — when he made you put your hand on his penis, did you say anything?
A. No.
Q. You just stood there and kept your hand on him for how long?
A. I don't know.
Q. Five minutes, twenty minutes?
A. I don't know. I don't remember.
Q. You indicated that you were at the old building in that room and probably in the closet for anywhere from 45 minutes to an hour and a half?
A. Yes.
Q. Were these activities going on that entire time?
A. Yes.
Q. So is it possible that you had your hand on his penis and did nothing but just stand there for an hour and a half?
A. Yes.
Q. And you didn't say to him, stop, I don't want to do this?
A. No.
Q. When you left the old building to go to the new building, how did you leave the building?
A. I'm sorry, from what building to what building?
Q. When you left the old building to go back to return to the new building, what door did you use?
A. The same one I came in at.
Q. The same door. Did Mr. Davies accompany you when you left the building?
A. Yes.
Q. So he went out the same door as you?
A. Yes.
Q. And left it unlocked at that point?
A. I guess so. I don't know. I don't remember.
Q. Okay. How did you get back into the new building?
A. Through the side door.
Q. Through the side door. Is that door locked?
A. Yes.
Q. How do you get access to it?
A. He has a key.
Q. He has a key?
A. Yeah.
Q. So you could not have gotten into the new building on your own, Mr. Davies had to be with you in order to get into that building?
A. Yes.
Q. But you could have walked around to the front doors to be allowed in. Is that correct?
A. Yes.
Q. Is there any door in the new building that a student can access without having a key or a swipe card?
A. No.
Q. No. Okay. Does the school have a policy that you must sign in and out when you leave the building?
A. Yes.
Q. Did you ever do that?
A. No.
Q. To your knowledge, did Mr. Davies ever sign you out of the building?
A. No.
Q. You indicated when you were in the closet at the old school, that Mr. Davies pulled your shirt up.
A. Yes.
Q. Did he take it off completely? Did he just raise it to your chin?
A. I don't remember.
Q. What kind of a shirt were you wearing?
A. Just a T-shirt.
Q. A T-shirt?
A. Yes.
Q. Were you wearing a bra?
A. Yes.
Q. Did he ask you to take that off?
A. No.
Q. Did he put his hands inside it?
A. Yes.
Q. Did he kiss you?
A. Yes.
Q. Where?
A. On my mouth and my breasts.
Q. Okay. And you indicated that you never kissed him back?
A. Yes.
Q. In the police report, I believe one of the police officers indicates that at one point you put your arms around Mr. Davies. Do you remember that?
A. I don't remember.
Q. I realize this may seem like a difficult question for you. "I don't remember" is obviously a perfectly acceptable answer. But is it true that you — have you tried to block this out?
A. Yes.
Q. Yes?
A. Yes.
Q. Your testimony was that you spoke to Kristie Hohman about these incidents?
A. Yes.
Q. And Ms. Hohman was your van driver?
A. Yes.
Q. When did you tell her about these incidents?
A. It was a couple days after I told Patience.
Q. A couple days after?
A. Or after Patience told.
Q. Okay. And her suggestion to you was that you needed to tell the police?
A. Yes.
Q. Do you know whether Ms. Hohman called your parents?
A. I don't think she did.
Q. Do you know whether the police called your parents?
A. Yes.
Q. Do you know which trooper called your parents?
A. No.
Q. You indicated a couple minutes ago that you never spoke to Trooper Gordon. Is that correct?
A. Yes.
Q. You spoke only to Trooper Gelvin?
A. Yes.
Q. And where did that conversation take place?
A. At the school.
Q. And how old were you at that time?
A. 14.
Q. Were your parents present?
A. No.
Q. Did you ask for your parents to be present?
A. No.
Q. Did you want your parents to know what was going on?
A. Yeah, eventually.
Q. Were you ever absent from school and required to make up tests when you came back?
A. For what class?
Q. Well, for any class.
A. Yes.
Q. Were you ever absent and had to make up tests for Mr. Davies?
A. I missed tests, but I never had to make them up.
Q. You missed tests but never made them up?
A. Yes.
Q. Okay. And so it's inconceivable then that Mr. Davies could have taken you out of art class to make up an exam or make up a test?
A. Yes, but he never did.
Q. The only reason he ever took you out of any class was to commit these acts of sexual molestation?
A. Yes.
Q. Before this all happened, I think you said that you liked Mr. Davies as a teacher. Is that correct?
A. Yes.
Q. You don't have any — let me rephrase that. Do you have any firsthand knowledge that Mr. Davies did any actions like this to any student other than you and Patience Whitman?
A. No, but I've heard stories about it.
Q. I'm sorry?
A. No, but I've heard stories about it.
Q. That would be hearsay. We can't hear those stories.
MS. OLSEN: I think that's all I have. Thank you, Miss Haines.
(Music playing in courtroom.)
MR. O'CONNOR: Do you know where that music is coming from, Your Honor?
THE COURT: Ms. Cihak, somebody's laptop is coming through the system. I don't know how that is.
MR. O'CONNOR: I don't think this is hooked up to the sound system.
THE COURT: Let's take our afternoon recess here, and we'll see if we can figure it out. Jurors, Ms. Cihak is going to escort you to the jury room for the afternoon recess. We'll come back at 3:30. That should give us time to work this out.
(Jury leaves courtroom.)
THE COURT: We'll be back at 3:30.
(Recess taken.)
THE COURT: Mr. Lappas.
REDIRECT EXAMINATION
BY MR. LAPPAS:
Q. Brianna, Ms. Olsen asked you a lot of questions about why you didn't do this and why you didn't do that. Throughout this whole period of time, you were how old again?
A. 14.
Q. Mr. Davies was a popular teacher at that school whose wife worked there?
A. Yes.
Q. How many times do you think he got you out of his own wife's classroom?
A. I think it was just twice.
Q. And she also asked you a question about whether there were people, you know, laughing about the fact — or rumors, I forget the name of the word she used, that you and — Mr. Davies was your boyfriend. Do you remember she asked you that question?
A. Yes.
Q. And you said you did hear people say that?
A. Yes.
Q. Did anybody ever say that — did you ever hear anybody say that in front of any other teachers?
A. Yes.
Q. And what teachers were they?
A. Mrs. Davies, Mrs. Vollbrecht, and I think that was it.
Q. When somebody said that about you and her husband in front of Mrs. Davies, did she ask you about it?
A. No.
Q. Did she ever tell you, you know, if there's anything to this, you should go see the principal?
A. No.
Q. You should go see the guidance counselor?
A. No.
Q. How about Mrs. Vollbrecht, the other teacher, did she ever tell you what to do about that?
A. No.
Q. Did she ever question you about it?
A. No.
Q. And this — you being his girlfriend, he being your boyfriend, this kind of statement, was that made during the same period of months where he would take you out of the classrooms and do these indecent things to you?
A. Yes.
Q. You told Ms. Olsen you're trying to block this out, this part of your life. Why are you trying to block it out?
A. Because I want to forget about it. I don't want to remember it the rest of my life.
Q. Do you remember it?
A. Yes.
MR. LAPPAS: That's all.
MS. OLSEN: No redirect, Your Honor — or recross.
THE COURT: All right. You may step down.
(Whereupon, the testimony of Brianna Haines was concluded.)