Newman testimony, gamesmanship mark second day of trial

December 1, 2010

Law & Courts

BEAUMONT — The second full day of Beaumont police officer James Cody Guedry’s official oppression trial began with sharp questioning of a detective by prosecutors, moved into compelling testimony by the complaining witness, and ended with a flurry of legal gamesmanship.

Guedry, 28, is the second officer tried for the misdemeanor offense stemming from events following a routine traffic stop on Aug. 24, 2007. Guedry is specifically accused of wrongfully using a Taser twice against a passenger, Derrick Newman, as well as wrongfully detaining and arresting him.

 since-retired officer, David Todd Burke, was convicted by a Bexar County jury in September, for wrongfully using his police baton to repeatedly strike Newman during a struggle while being patted down by Guedry. [For more background on the case and a link to a video of the incident, click here.]

Wednesday’s first witness was Det. Charles Duchamp III, continuing his cross-examination by Jefferson County Assistant District Attorney Pat Knauth from Tuesday. Knauth led Duchamp, who at the time of the incident was Guedry’s field training officer, through the playing of a video taken by a dashboard camera in Burke’s patrol car.

Knauth repeatedly pressed Duchamp about whether several statements on the tape made by officers in the immediate aftermath of the Newman incident were professional or appropriate. Duchamp said many of the statements directed at Newman were meant to “maintain a level of compliance” to keep him from becoming aggressive.

Knauth also asked Duchamp whether it was proper for Guedry, then a rookie who’d been on the streets for only a few weeks, to place his foot on the back of Newman, who after being struck and shocked with the Taser was laying on the street with his hands cuffed behind him and his pants, which fell down during the struggle, still around his ankles.

Duchamp, speaking in a monotone, said he believed Guedry had been attempting to keep Newman, who still had Taser barbs lodged in his back, from rolling over and further injuring himself.

Knauth also grilled Duchamp over whether Guedry had ever given Newman, in the midst of the struggle with the officers, any verbal commands that he could obey before using the Taser. Duchamp insisted that while he hadn’t  heard any such commands, Guedry acted properly to gain Newman’s compliance.

In his own observation report of Guedry on that night, Duchamp wrote that the younger officer “used the appropriate level of force” against Newman, whom Guedry has maintained grabbed the officer’s hand and pulled it toward his crotch just before the scuffle began.

During cross-examination by Mitch Adams, Newman’s defense attorney, Duchamp said he and Guedry responded to what they first heard as a struggle with officers over their radio and then a call for backup. When they arrived on the scene, they saw officers Jason Torres and John Brown struggling with a second passenger, Mario Cole, while Newman and the car’s driver, Willie Cole, were standing at the car’s open doors.

“I perceived them as a possible threat, because they were unsecured,” Duchamp said.

Adams also asked Duchamp about the BPD Taser policy, noting that it calls for officers to give verbal commands “if feasible.” Duchamp said that during the struggle between Newman and the officers, it may not have been feasible for Guedry to issue such commands.

The last prosecution witness called was Newman himself, who testified that he and his friends were bringing take-out food to his son when they were pulled over by Torres, although they did not initially know the reason. (Willie Cole was cited for failing to yield to another car while making a left turn.)

Newman said all three knew that Mario Cole had an outstanding warrant for an unpaid traffic ticket. But when Cole became combative while the officers tried to put him in Torres’s patrol car, he said, he and Willie Cole got out of their car to urge him to go quietly. He admitted that they didn’t obey the officers’ orders to get back in the car.

When Duchamp and Guedry arrived and the younger officer approached him with his Taser pointed at him, Newman said, he told him ‘After all that I know you want to search me,” and moved to put his hands on top of the car’s trunk. Newman testified that as Guedry began to frisk him, he believed the officer “lingered” too long at his waistband area, prompting him to make a course remark to Guedry.

That’s when he felt Guedry begin pushing him down toward the car, followed by the repeated blows from Burke’s baton, Newman testified. He said he couldn’t understand why it was happening, making him “scared for my life.”

He called the pain he felt from the two shocks he felt from Guedry’s Taser “unexplainable.”

Under cross-examination by Adams, Newman denied ever grabbing Guedry’s hand. “That’s a negative,” he said. “I didn’t have any reason to grab his hand.”

Later, after prosecutors rested their case, Adams called as his second witness Gary Duncan, director of the Regional Police Academy at the Lamar Insitute for Technology. Before Duncan could begin testifying, however, state District Judge John B. Stevens stopped the proceedings to question a new face at the defense table — Craig Schexnaider, a lawyer who had originally been one of Guedry’s criminal defense attorneys but later filed a motion to withdraw because of “potential conflicts of interest” after he began representing Guedry and four other officers named as defendants in a civil lawsuit filed by Newman.

Although Stevens had initially told jurors that Schexnaider was joining the defense team midtrial, he expressed his “concerns” about Schexnaider’s earlier conflict of interest and whether Guedry was being properly served.

“I believe it would be in Officer Guedry’s best interest if he were acquitted,” Schexnaider said. “Well, that goes without saying,” Stevens replied to the laughter of the courtroom.

He asked Guedry if he was satisfied with the arrangement, and the defendant asked to be allowed to confer with Adams and Schexnaider privately. The three went to the jury room, emerging about 20 minutes later to take their places at the defense table.  [Read how Schexnaider’s presence in the trial factored in a later ruling by Judge Stevens here.]

Adams again called Duncan. But there was a new delay:  Assistant Criminal District Attorney Ed Shettle — whom he had previously cross-examined Duncan as a defense expert witness in both of Burke’s trials — demanded that Duncan provide him all the documentation he used to come to his conclusions, which Duncan said was in his office at the academy. Stevens ordered that Shettle was entitled to the information, sending Duncan hurriedly to his office as the trial extended into the late afternoon.

Adams told Stevens that he next planned to call to the stand his client, Guedry. But, he told the judge, he had planned to base his questioning of the defendant, who was waiving his right not to testify, on the testimony provided by Duncan. Not being allowed to do so would affect his trial strategy, which he told the judge was the “purview of the defense, solely.”

But Stevens was insistent that the case proceed. Adams said he would continue only with a “running objection,” but suddenly decided to recall his first witness, Beaumont police officer Nick Thompson, of the police force’s training department and custodian of its Taser deployment records. Thompson’s testimony had been put on hold so he could retrieve records relating to the Taser used by Guedry against Newman.

After some legal wrangling between the attorneys over the chain of custody which showed the Taser was the actual one used by Guedry, Thompson testified that the electronic records showed the device had been activated twice in rapid succession around the time of the Newman incident.

After a brief delay, Duncan returned to the courthouse and to the witness stand. Under questioning by Adams, he said that according to his professional opinion as a teacher of police cadets, Guedry’s actions as seen on the videotape were appropriate under the  training he received and the law.

But in cross-examination, Shettle (who has known Duncan for three decades) sparred with Duncan over whether he had ever reviewed the Beaumont Police Department’s use-of-force policy, particularly the portion related to Taser use. When Duncan said he had not, Shettle provided him a copy to read.

Pressed by Shettle, Duncan admitted that he did not hear on the video any commands Guedry gave Newman before using the Taser. But he also noted that the policy states that such commands should be given “if feasible.”

Stevens ended the testimony there. Shettle’s cross-examination of Duncan will continue at 9 a.m. Thursday. If convicted of the Class A misdemeanor, Guedry faces up to a year in jail and up to a $4,000 fine. He could also lose his peace officer’s certification.

Find links to full coverage of the Guedry and Burke trials here.

Copyright © 2010 Ken Fountain. All rights reserved.

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About Ken Fountain

I'm a journalist and writer in Houston, Texas. My areas of specialty include law and courts, local government and energy and environmental issues. You can follow me on Twitter at and email me at kenfountain1 (at) gmail (dot) com.

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