Free Appendix - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE __________________________________________________ HARRY SMITH, JR., and ROSLYN WOODARD SMITH, individually and as Administrators of the ESTATE OF HARRY SMITH, III, Plaintiffs, VS. C.A. NO. 04-1254-GMS

CITY OF WILMINGTON, JOHN CIRITELLA, THOMAS DEMPSEY and MATTHEW KURTEN, Defendants. __________________________________________________ VIDEOTAPE DEPOSITION OF ELBERT WATERS

September 14, 2006

ALPHA REPORTING CORPORATION 236 Adams Avenue Memphis, Tennessee 38103 (901) 523-8974 www.alphareporting.com Please note: The page numbers might differ from the printed version of the original transcript. This is an electronic version, sent via E-mail.

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21

ELBERT WATERS,

22 having been first duly sworn, was examined and 23 testified as follows: 6 19 Q. When were you first contacted to serve as an

20 expert in this case? 21 A. 22 Q. 23 A. Approximately three months ago. What were you asked to do? I was asked to render an opinion on a police

24 event that involved what appeared to be excessive 25 force and a death. 19 1 Q. 2 A. 3 Q. Did you write a report? Yes, I did. Was -- did you write a report -- only one

4 report or did you write more than one? 5 A. 6 I just wrote one. MR. PARKINS: I'm going to ask

7 the court reporter to mark this as Waters Exhibit 8 1, and then I'll ask you to take a look at it. 9 (WHEREUPON, THE

10 ABOVE-MENTIONED DOCUMENT WAS MARKED AS EXHIBIT NO. 11 1 TO THE TESTIMONY OF THE WITNESS, AND IS ATTACHED 12 HERETO.) 13 BY MR. PARKINS: 14 Q. Would you -- now that you have Waters

15 Exhibit 1 in front of you, would you, first of 16 all, satisfy yourself that this is the report that

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17 you wrote and then also tell me if there is 18 anything that you feel should be changed in this 19 report or anything which should be added to this 20 report since you've written it? 21 A. 22 Q. May I have a minute, please? Certainly. 20 6 BY MR. PARKINS: 7 Q. Mr. Waters, do you feel you've had enough

8 time to review the report? 9 A. 10 Q. Yes. The first question I had for you, in fact,

11 is this your report? 12 A. 13 Q. Yes, this is. And the second question I had for you is, is

14 there anything that you want to change or add to 15 the report? 16 A. No, there is not. 54 13 Q. Yeah. Now, at some point in time if they

14 viewed Mr. Smith as stopping the car, what should 15 the officers have done? 16 A. Proceeded to walk to him with the weapons in

17 their holsters. Nobody said he had a gun; nobody 18 said he had any kind of weapon that could hurt 19 them other than a scalpel, which was not put on 20 the air, so at this point they had nothing but a 21 stolen car.

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22 Q. 23 A.

How do you know it was not put on the air? Well, it's based on testimony because in the

24 depositions each one was asked what were you 25 responding to, and each one said a police officer 55 1 had been taken, officer needed help. 2 Q. Well, now, the officers on the scene,

3 Ciritella and? 4 A. 5 Q. Uh-huh (affirmative response). -- knew that shots had been fired; is that

6 correct? 7 A. 8 Q. 9 A. 10 Q. Yes. And they did not know who fired the shots? That's correct. Wouldn't it be reasonable for a police

11 officer under those circumstances to have his 12 weapon unholstered? 13 A. As a matter of fact, quite to the contrary

14 because as a police -- professional police 15 officer, if you're involved with the decision of 16 taking somebody's life, which is the ultimate 17 decision a person can make, you have to have and 18 work on knowledge of facts, not assumptions.

14 A.

Well, here's the problem: We're -- there's

15 a critical event that we're overlooking, and that 16 is as he approached the blockade, he all of a 17 sudden received a barrage of gunfire.

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18 Q. 19 A. 20 Q. 21 A.

Who's he? Smith. Okay. As he was driving. It would seem reasonable

22 to expect that his actions weren't so much to get 23 away, but probably trying to get away from being 24 shot again as opposed to running the blockade at 25 that point; they didn't even give him a chance to 57 1 stop.

20 Q.

Okay. Is it your understanding that the car

21 came to stop also on Fifth Street? 22 A. 23 Q. It slowed down. When the car began to slow down, what should

24 the officers have done? 25 A. They should have then tried to stop the car 59 1 with the same technique of just halt at the car. 2 See, the timing of the event is such that the car 3 is slowing down. All of a sudden there's a 4 barrage of fire, and the car picks up. He may 5 have wanted to give up at that point, but they 6 didn't give him an opportunity. 7 Q. Okay. What was, in fact, Detective 8 Ciritella doing? 9 A. In fact, what he was doing was standing on

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10 the curb waiting for the car to come by so he 11 could shoot him to make him stop. At no point in 12 his testimony did he say -- except when the car 13 was about a half block away, he ordered the car to 14 stop. How could the driver possibly hear with the 15 commotion going on? So this is what I'm saying, 16 the unreasonableness of the actions right there. 17 Q. Okay. Now, do you agree that when the car

18 began to accelerate -- let's assume for the moment 19 that Detective Ciritella said he thought the car 20 was driving at him. 21 A. 22 Q. Yes. Do you agree at that moment that Detective

23 Ciritella had the right to use deadly force? 24 A. 25 Q. Yes. So if the jury were to believe that the 61 1 first shot that was fired at Fifth and Harrison 2 Street was fired as the car was apparently 3 approaching Detective Ciritella, you would not 4 fault the police officers for that? 5 A. No, but what happened is he also shot after

6 the car passed. 7 Q. So what you are telling me then is you are

8 not faulting the police officers for initially 9 shooting but only are faulting the police officers 10 for shooting at him after the car passed? 11 A. What I'm saying is this: Ciritella was in

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12 the right in the initial shot to protect himself 13 even though he put himself in danger, but once the 14 car passed, he still had nothing but an 15 unauthorized use of a vehicle. 16 Q. Okay. And so you believe that there was an

17 unauthorized use of a vehicle and that they had no 18 right to shoot after the car passed? 19 A. 20 Q. Yes. All right. Now, what is the basis for your

21 testimony that the only crime that had been 22 committed was the unauthorized use of the vehicle? 23 A. The testimonies that they had starting with

24 Whitehead's testimony from the hospital. At no 25 point did they ever say there was a carjacking, a 62 1 person shot. 2 Q. 3 A. 4 Q. All right. What else? Basically that's it. Well, let's assume for the moment that the

5 jury were to conclude that Mr. Smith was driving 6 in an attempt to hit Detective Ciritella. 7 A. 8 Q. 9 A. 10 Q. Yes. Assuming that to be the case. Yes. Would you believe that there was more than

11 the unauthorized use of the vehicle? 12 A. Well, Ciritella put himself in danger. He

13 didn't have to stand in front of the car. That

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14 was his choice. Just as Mr. Smith had the choice 15 of not stopping at the barricade, he had the 16 choice of not putting himself in the line of 17 danger. It's one thing to be in a situation where 18 you have an offender, they jump in the car and run 19 you over. 20 It's another thing to see a car coming

21 a block away. You put yourself in the middle of 22 the street. You shout to stop knowing they can't 23 hear it, and then you step to the side so that you 24 can shoot into the car.

23 Q.

Would you take a look at item No. 3,

24 potential escape routes are limited by the 25 configuration of the city streets? 68 1 A. 2 Q. 3 A. Yes. What is the basis for that opinion? The basis for that opinion was looking at

4 the map of the area that was involved, and as I 5 looked at the map from where it began and where it 6 ended, I see that Wilmington is an old city, 7 narrow streets, and I can tell because there are 8 so many one-ways. In most urban districts when 9 you get in the city they're pretty much two-way 10 streets unless it's too narrow or like downtown in 11 the flat out downtown area. 12 As I look the map, I see from the

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13 hospital to the conclusion of the event there is 14 nothing but one-way streets, and the problem is 15 that one way is blocked off because you have the 16 expressway so there wasn't too much he could do 17 because of the blockage of the expressway the 18 distance of the expressway.

11 Q.

Looking again at Waters Exhibit No. 1 -- and

12 again we're still on page 2 -- item 4, you recite 13 that an adequate number of police officers 14 responded for control and containment and all were 15 in close proximity to the stolen vehicle at all 16 times, either directly behind it, in front of it, 17 or paralleling in movements on adjacent streets. 18 Responding officers were aware of this. 19 20 A. How many police officers responded? As I remember, it was somewhere in the

21 vicinity of 22 to 24 police officers.

8 Q.

Now, if the police officer assumed for the 9 moment that the suspect fired the shots, wouldn't

10 it be fair to assume that the suspect was violent? 11 A. The problem is we're basing this on an

12 assumption. Police officers cannot -- when you're 13 involving deadly force -- assume anything. You 14 have to work on facts, known facts. 20 Q. Okay.

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21 A.

What I'm trying to explain here is when it

22 comes to the use of deadly force, you can't act on 23 just the assumption that a shot has been fired. A 24 police officer could be pulling his gun out of his 25 holster to threaten to stop somebody and the gun 81 1 could go off. Somebody a block away responding 2 can say, wow, I heard a gun shot, shots fired. 1 Q. Did you read any testimony about there was a 2 button on a console that will release the shotgun? 3 A. 4 Q. No, but I did read this. Can you just identify the document? You

5 don't have to read it again unless you want to. 6 A. I didn't see it in here, but every police

7 department that I know secures weapons that are 8 not on a police officer. It's just standard 9 practice. 87 10 Q. Okay. But you told us earlier do not fault

11 Ciritella for the firing of the first shot or 12 shots? 13 A. No, what I said was in the position that he

14 was in, he had the right to shoot, but he shot 15 after the car had passed him because the evidence 16 shows that the bullets came in from the side and 17 not the front of the vehicle. 18 Q. Oh, okay. So you believe that he did not

19 shoot when he had a right to do so?

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20 A.

That's exactly what I'm saying.

18 Q.

And what does the Attorney General's report

19 say about that? 20 A. Let's see. It says the stolen police car

21 stopped accelerating and came to a complete stop 22 on Harrison Street approximately 116 feet north of 23 the intersection of Fifth Street. 24 Q. Does it say earlier in that report it was

25 accelerating up Fifth Street -- up Harrison 98 1 Street? 2 A. Okay. It says, he continued on and

3 accelerated north on Harrison Street. 4 Q. So you disagree with the Attorney General's

5 report? 6 A. I thought we were talking at the point of

7 the roadblock. 8 Q. No, we're talking about what happened when

9 he hit the parked car. 10 A. All right. The stolen police vehicle slowed

11 down as if to stop near the corner of Fifth and 12 North Harrison, so he's slowing down, 13 deaccelerating (sic) at Harrison and Fifth. 14 The officers approached the vehicle

15 with their service weapons drawn and ordered the 16 victim out of the vehicle. It is at this moment 17 where they started shooting.

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18

The victim then accelerated the stolen

19 police vehicle toward Detective Ciritella, who was 20 standing on the side of the street near the curb. 21 Detective Ciritella fired his weapon at the victim 22 and leaped onto the sidewalk. 23 Now, they say that he was slowing down

24 as he was approaching the officers. 25 Q. My question is was he accelerating after he 99 1 hit the parked car? 2 A. Okay. When he -- this is what it says: The

3 victim continued to drive onto the sidewalk, and 4 in an effort to drive to the police roadblock, he 5 rammed a parked Jeep on the corner of Fifth and 6 Harrison Streets. He continued on and accelerated 7 north on Harrison Street. 8 Q. So after he hit the car, according to that

9 report, he accelerated; is that correct? 10 A. He accelerated. 118 4 Q. What does the Supreme Court say about that? 5 A. Well, here's some things that they've said.

6 The Court -- the Supreme Court concluded that the 7 government's interest in effective law enforcement 8 was insufficient to justify killing fleeing felons 9 who did not pose a significant threat of death or 10 serious injury to anyone. 11 Q. Now, do you have an opinion as to whether

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12 Mr. Smith posed a threat of significant injury or 13 death to others? 14 A. 15 Q. 16 A. 17 Q. I do not; I do not. One way or another? He did not pose a threat to anyone.

Oh, I'm sorry. All right. Now, would you

18 take a look -- what leads you to the conclusion 19 that he did not pose a threat to anyone? 20 A. Because in the -- during the entire chase,

21 which as I looked back, took not 30 minutes, but 22 more like five minutes. 23 Q. 24 A. Are you changing your testimony? I am because as I went back and looked at

25 his testimony, it didn't last but about five 119 1 minutes. In that time -- in that five-minute 2 span, he ran over no one. He didn't have any 3 crashes. 4 Now, that doesn't say he wasn't

5 reckless, but nevertheless no one got hurt. The 6 one time somebody almost got hurt was when 7 Detective Ciritella stepped in front of the car. 8 That was the only time anyone ever said someone 9 was in danger. And by the fact -- and you 10 previously asked me about does the length of a 11 chase make a difference, and it doesn't, but in a 12 case where a chase only lasts five minutes, that's 13 significant in the sense that it didn't last long

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14 enough to pose threats to too much of anybody.

24 Q.

Now, you indicate on page -- looks like page

25 9 of your report that the explanations offered by 125 1 these officers for their actions is questionable. 2 What explanations are questionable? 3 A. The explanations as to why they fired so

4 many shots. The unlikelihood of some of the 5 circumstances as they evolved. Detective 6 Ciritella states that he was in front of the car, 7 and he was telling the man the stop. But yet he 8 also said he was beside the building taking 9 cover. 10 Now, if the car was going to run into

11 him, surely he would have hit the building. You 12 know, if I'm standing beside a building as a 13 police officer, and then somebody coming at me, 14 they have a choice to hit the building or go some 15 -- a different direction. That's one part. 16 The fact that when the officers were

17 shooting from behind, they couldn't even see in 18 the car because there's a partition that keeps 19 offenders in the back and the police in the front, 20 but when you're behind the car outside, you can't 21 see. You can barely see through a police car. 22 You can hardly see the driver because that's where 23 usually there's a metal or some type of

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24 reinforcement. 25 Q. So if that's the case and if Mr. Smith were 126 1 slumped over and unconscious, they wouldn't be 2 able to see that, would they? 3 A. If they were close, which they stated they

4 were within feet. 5 Q. 6 A. 7 Q. Oh, then they could see in the car? Yes. Oh, well, then why were you telling me about

8 this -- something about the partition? 9 A. Because -- it's important because we have --

10 you asked me about the plausibility of what they 11 said. You're asking me -- here I said that the 12 explanations offered by these officers for their 13 actions is questionable. 14 Now, I did not see anything from any of

15 them that justified shooting the number of times 16 they did. They didn't see a target, obviously, 17 but they said they did. This is where I'm talking 18 about their actions are questionable, and as a 19 police officer who was involved in and witnessed 20 many controversial situations, it tells me that, 21 you know, it was possibly an attempt to legitimize 22 an illegitimate action. 23 Q. Do you find fault with the fact that they

24 did not write a report on their actions? 25 A. I do.

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127 1 Q. 2 A. Why is that? Because every police shooting that I've ever

3 been involved in or witnessed, the police officers 4 had to give an account of their story. That's the 5 fundamental basis of the investigation.

12 Q.

Keep going. What other deficiencies are

13 there beside the two you've mentioned so far? 14 A. Middle -- middle ways to -- well, really --

15 let's see, what line? It says here -- where we're 16 talking about Ciritella, it said that the stolen 17 police vehicle slowed down as if to stop near the 18 corner of Fifth and North Harrison Streets. The 19 officers approached the vehicle with their service 20 weapons drawn and ordered the victim out of the 21 vehicle. 22 Then here's the deficient part: The

23 victim then accelerated the stolen police vehicle 24 toward Detective Ciritella, who was standing on 25 the side of the street near the curb. 141 1 Now, what I see deficient in that is

2 this: How can a man be standing on the curb and 3 have his life in danger by being in the street? 4 This report says that he was on the curb. 5 Q. All right. So there's a discrepancy because

6 in the report says he's on the curb and Ciritella

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7 said he's in the street? 8 A. 9 Q. Right. Now, you have told me repeatedly that

10 Ciritella was in the middle of the street. 11 A. That's what he said he was in -- I -- I said

12 middle. You keep saying I said middle. If I said 13 middle, I said in the street -14 Q. 15 A. 16 Q. 17 A. Okay. -- he didn't say middle. You don't know where in the street he was? I don't know, but he did say he was in the

18 street. This says he was on the curb. 19 Q. All right. So if he were one foot from the

20 curb, would that be a material difference between 21 what he said and what the report says? 22 A. Absolutely because if he was one foot off

23 the curb -- well, no, it wouldn't make a 24 difference because if he was one foot off the 25 curb, he'd still be in front of a parked car. 142 1 Q. 2 A. 3 Q. Okay. All right. So he wouldn't be in danger. What other discrepancies or deficiencies are

4 there in this report? 5 A. 9 Q. Now, having reviewed the report at some That's pretty much the ones that I see.

10 additional length, are there other items that

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11 you'd like to point to which you believe to be 12 deficient? 13 A. Well, in Ciritella's statement he says

14 that -- let's see. Yes, here on Ciritella's 15 statement in the State's -- the Attorney General's 16 statement it says that the victim then accelerated 17 the stolen police vehicle toward Detective 18 Ciritella, who was standing on the side of the 19 street near the curb, but in Ciritella's statement 20 it says as the vehicle stopped, I gave verbal 21 commands for him to turn the car off, step out of 22 the vehicle, I know at which point again as I'm 23 fearing he doesn't see me. 24 And the conflict I see is here he's

25 saying that he was in a situation where he didn't 144 1 think the offender even saw him, and here it says 2 that he was on the curb in danger of getting hit. 3 Q. Would you tell me what page of the

4 deposition of Ciritella you're reading from? 5 A. 6 Q. That is on page 55, 13 to 24. Okay. And what page of the Attorney

7 General's report are you . . . 8 A. Page 2, a little bit more than halfway down

9 the page. 159 8 materials whether Marilyn Garcia was hit directly 9 or by ricochet.

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10 A.

I'm not an expert on ballistics, but one

11 thing we did learn in the Academy and in my 12 training with weapons is that the hollow-point 13 bullets don't ricochet. 14 Q. 15 A. Never? I can't say never, but we were told that the

16 difference between the regular bullet and the 17 hollow point is that the hollow point explodes on 18 impact, the bullet continues its path.

19 Q.

Is it fair to say that the event lasted a

20 mile or that the length in terms of distance and 21 the length in terms of time was determined by the 22 defendant police officers' decision rather than 23 anything that was independently done by Harry 24 Smith? 25 A. It was their decision. 169 1 Q. Is it fair to say that the defendant

2 officers could have selected a different place and 3 a different time to establish a roadblock? 4 A. This is what I referred to when I was

5 responding to his question was there something 6 else that they could do. They -- if that one 7 didn't work, they could have tried it again. 8 Q. Is it your opinion that a second roadblock

9 may have been more effective because Harry Smith 10 was shot multiple times at the first roadblock?

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11 A. 12 Q.

That's certainly a valid consideration. Is it fair to say in your opinion that these

13 defendant officers were not forced to make a 14 split-second decision? 15 A. I agree to that. They did not have to make

16 a split sec -- a split-second decision to use 17 deadly force.

13 Q.

Would the -- in your experience and in your

14 opinion, would the responding officers, based upon 15 the information provided about shots fired -16 would they seek additional information before 17 making the decision that they're going to use 18 deadly force? 19 A. 20 Q. Yes. And how is that -- can you explain your

21 response? 22 A. Yes, a responding unit would normally ask

23 what do we have here, squad? What are we chasing 24 this guy for? Does he have a weapon? Who has 25 been shot? 174 1 These are the normal, natural questions

2 that come over the radio to guide the police to 3 keep them from making a mistake. 4 Q. Do you know of any situation where a call

5 for shots fired or officer needs assistance is 6 made and there not being additional information

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7 before officers get out and use deadly force, not 8 be additional information about the condition of 9 the officer or officers making the call like 10 officer injured or office officer down or 11 something of that nature? 12 A. 13 Q. No. In the absence of hearing officer down,

14 officer injured, what would a reasonable police 15 officer assume had occurred? 16 A. That it wasn't the offender that had the

17 shot, that did the shooting because if they had, 18 you would have heard officer down, shots fired at 19 an officer, those things, and, see, what I'm 20 trying to explain is this is like a marriage day. 21 You don't forget what happened on your marriage 22 day. 23 When you're involved with a shooting,

24 you make sure that you know everything that's 25 going on and everything that's happened. You're 175 1 going to make sure that you know that a police 2 officer has been hurt or not been hurt because 3 that's going to determine your personal response 4 as you enter the conflict.

20 Q.

Are there any of the shots fired -- there

21 were 31 shots fired at the intersection and on the 22 street of Fifth and Harrison. Are there any of

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23 those shots fired of the 31 that you think were 24 appropriate for police officers to fire? 25 A. From what I read in the documents and my 176 1 pictures of the dowel rods in the squad car, I see 2 no justifiable shots. 9 MR. PARKINS: It would be 10 Exhibit 6. 11 MS. SULTON: No, we have a

12 couple of other pictures here that have not yet 13 been marked, and you mentioned pictures in plural, 14 so take a look at this one photo that hasn't been 15 marked -- oops -- and see if -- you're also basing 16 your opinion on that, so we'll mark that. 17 A. Well, what this tells me is that by the fact

18 that these bullet markings show that they were 19 shooting at a car that was going away from them, 20 not necessarily coming at them. 21 Q. So none of the 341 shots in your opinion

22 were -- well, let me put it this way: Were all of 23 the 31 shots fired an excessive use of force? 24 A. Yes. 179 10 Q. And are you referring to policy 6.3? Yes, I am. So as you sit here today, it's your

11 A. 12 Q.

13 understanding that the shotgun was supposed to be

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14 placed in the trunk? 15 A. Yes.

23

And let me take your back to paragraph 24 27 of your report on page 4. Is there anything 25 that you have reviewed that leads to believe that 180 1 Mr. Smith was attempting to evade arrest by flight 2 once Detective Ciritella began firing his gun? 3 A. No, I believe at that point he was trying to

4 escape pain. 182 1 CERTIFICATE

2 STATE OF TENNESSEE: COUNTY OF SHELBY: 3 I, DANA MAY WEBB, Court Reporter and 4 Notary Public, Shelby County, Tennessee, CERTIFY: 5 The foregoing proceedings were taken 6 before me at the time and place stated in the foregoing styled cause with the appearances as 7 noted. 8 Being a Court Reporter, I then reported 9 the proceedings in Stenotype, and the foregoing pages contain a true and correct transcript of my 10 said Stenotype notes then and there taken.

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11 I am not in the employ of and am not 12 related to any of the parties or their counsel, and I have no interest in the matter involved. 13

14

I further certify that in order for this document to be considered a true and correct copy,

15 it must bear my signature seal, and that any reproduction in whole or in part of this document 16 is not authorized and not to be considered authentic. 17

18

Witness my signature this, the 29th day of September, 2006.

19

20

______________________________ DANA MAY WEBB, Court Reporter

21

22 Notary Public at Large For the State of Tennessee 23 My Commission Expires: 24 May 28, 2008