Ferguson Cross Examination PDF

THE CLERK: Do you solemnly swear to tell the
truth, the whole truth and nothing but the truth?
MR. FERGUSON: I do.
MARK FERGUSON
(At 2:52 p.m., witness is sworn before the Court
and testified as follows)
MR. ROCKIND: Need a pen?
MR. KEAST: No. May I proceed?
DIRECT EXAMINATION
BY MR. KEAST:
Q Sir, please state and spell your full name for the record?
A Mark Ferguson. F-e-r-g-u-s-o-n.
Q And how are you employed?
A I'm now employed with Oakland County Sheriff's Department,
prior to that I was employed with the Pontiac Police
Department. I'm a police officer, going on 25-1/2 years.
Q Okay. And are you currently assigned to the Narcotics
Enforcement Team?
A I am.
Q Directing your attention to June the sixth, 2011, were you
involved in a search warrant execution at
A I was.
Q And that's Township?
A Yes.
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Q And what's at that location?
A It's a, uh, a large commercial building, like a pole barn-
type building.
Q Okay. Now who was with you as far as other members of the
Narcotics Enforcement Team?
A Uh, Detective Panke(ph), Sargent Miles(ph), Detective
Flatmeyer(ph), um, I believe Detective Bear(ph), Detective
Rushton(ph).
Q All right, did you encounter any occupants in that
building?
A Yes.
Q And who did you encounter?
A I encountered two subjects inside the, uh, dwelling. Uh,
one was ID'd as defendant's father and another subject.
Q Now at some point did you have contact with ?
A Yes.
Q And please describe to the Court how that contact
happened.
A Um, we went into the dwelling, I talked to his father.
His father, uh, answered the door, we knocked on the door.
His father answered the door, uh, we advised him why we
were there. We had a search warrant for the dwelling. He
let us in.
Um, we talked with the father for a bit there,
uh, asked him whose building it was, who--who was renting
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the building;; he stated his son was, . We
told him to call him on his phone and which he did.
Q Okay, and some point did actually come to
?
A Yes.
Q Approximately how much time elapsed from the time you
entered that dwelling and the time came?
A At least 45 minutes.
Q Okay. Now during those 45 minutes had you, um, conducted
your search of the premises?
A Yes.
Q All right. Well, first of all, if you saw Mr. would
you recognize him?
MR. ROCKIND: Stipulate the he's going to
identify Mr. as Mr. .
THE COURT: Okay.
MR. KEAST: Thank you.
BY MR. KEAST:
Q Now at some point during your investigation did you have
occasion to interview the defendant?
A Yes.
Q And where did that interview take place?
A Inside the, uh, building. Uh, it'd be the northwest
corner of the building.
Q Okay. Now describe the circumstances surrounding that

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interview;; what was going on?
A Um, the other officers were going through--there were some
rooms sectioned off--the open part was probably--probably
as big as this courtroom and then there was rooms to the
left of that, and then there was a front office room. Uh,
the other officers were collecting evidence. Um, that's
about it.
Q Okay. And, uh, when you interview the defendants--well,
first of all, were you in uniform?
A No. I was in plain clothes like I am now.
Q Okay. And is it fair to say as in that office you work
under cover?
A Yes.
Q Okay, did you have a firearm?
A Yes.
Q Was it holstered when you interview the defendant?
A Yes.
Q Who else spoke with the defendant?
A Uh, Sargent Miles might have talked to him when he came
in. Uh, Detective Mitt Panke might have talked to him
when he came in.
Q As far as the--I guess the main portion of the interview,
would that be just you?
A That was just me.
Q Okay, and who else was in the room when you spoke with
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defendant?
A Uh, all of the officers were in the main room.
Q At that point when they were searching that premises do
they have their guns drawn?
A No.
Q Okay. Now prior to interviewing--interviewing the
defendant did you read him his Miranda rights?
A I did.
Q And did you use a Oakland County Sheriff form?
A I did.
Q Did you read it to him?
A I did.
Q Did you have him read it as well?
A I don't know if I did. I read it to him, um, like I
always do, standard.
MR. KEAST: May I approach the witness?
THE COURT: (Inaudible).
MR. KEAST: Your Honor, does the Court have
exhibit stickers?
BY MR. KEAST:
Q Detective, this is People's proposed exhibit number one.
Can you please describe what--to the Court what this is
that I just handed you?
A This is my, uh, Miranda form that, uh, I read Mr. .
I had Mr. sign it and print it. Um, in the top
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left-hand corner I wrote Mr. name, his address,
his social security number, his phone number and his
birthdate. Uh, I got my case number on it, um, date and
time that I talked to him.
Q Did the defendant sign that form?
A He signed it and printed it.
Q Okay.
MR. KEAST: The People move to admit number one,
Your Honor?
THE COURT: Any objection?
MR. ROCKIND: No.
THE COURT: (Indiscernible) admitted.
(At 2:58 p.m., People's exhibit one is admitted
by the Court)
BY MR. KEAST:
Q When you interview the defendant was your voice elevated
or was it calm?
A Very calm.
Q Okay, as if we're speaking right now?
A Yes. He--he was cooperatin¶.
Q Okay.
A His father cooperated, he cooperated.
Q Was the defendant in handcuffs?
A No.
Q Was the defendant threatened with physical harm?

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A No.
Q Were any of the occ--any other occupants in the building
threatened with physical harm?
A No.
Q Did defendant complain of being deprived of food or sleep?
A Did not.
Q Now how many years have you been a narcotics officer?
A Over ten.
Q In those ten years have you encountered people who are
either drunk or high?
A Yes.
Q Did defendant appear to be either drunk or high on June 6,
2011?
A No.
Q How long did the interview take with defendant?
A It--probably at the most a half-an-hour, if that.
Q Did defendant ever complain of being in pain?
A No.
Q Did he seem like he was in pain?
A No. He--he was sitting down, I was sitting down, um,
casual conversations or questions like we're talking now.
Q Prior to interviewing the defendant and having him sign
the Miranda waiver did you establish if he understood and,
um, understood the English language?
A Yes.
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Q Okay, and did you establish that he could, uh, read and
write the English language?
A Yes.
Q Were there any threats made to arrest anybody else if the
defendant wouldn't speak with you?
A No.
MR. KEAST: Your Honor, nothing further.
THE COURT: Cross?
MR. ROCKIND: Thank you.
CROSS-EXAMINATION
BY MR. ROCKIND:
Q All right. Detective Ferguson, let me, um, let's try to
keep your voice up, okay?
A Sure.
Q And try to listen to the question I ask. I don't know if
we're going to have to transcribe this at some point, but
if I ask a question and you decide to answer the question
just wait 'til I've finished answering(sic) the question,
okay?
A Yes.
Q All right. So you make contact with , correct?
A Yes.
Q Um, you had a gun on you, isn't that true?
A Yes.
Q You actually had your gun unholstered, isn't that true?

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A Unholstered?
Q Yes?
A What do you mean unholstered?
Q You didn't have your gun in its holster, isn't that true,
when you made contact with Mr. ?
A Yes, it was in my holster.
Q It was not in your holster, am I correct?
A No.
Q You also had another gun besides the--you have a side-arm
don't you?
A Yes.
Q And you also had--you were there as a--part of a tactical
unit that day, correct?
A Yes.
Q You had tactical gear, correct?
A Yes.
Q And you had a tactical assault rifle, didn't you?
A I don't think I did, no.
Q And your tactical assault rifle was actually in your
hands;; you have a strap and it was actually in your hands
as you first made contact with Mr. , am I correct?
A I don't think I had it with me at that point, no.
Q You told Mr. prior to, um, the discussion about
Miranda and the form, you told him that he needed to talk
to you or you were going to arrest him, isn't that true?
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A No.
Q In other words, you said specifically you're get--you're
getting arrested or you're going to talk to me, those are
the questions--those are the choices;; isn't that what you
said to him?
A No.
Q And only after you said that to him did he agree, uh, or
at least go to wherever you wanted to speak to him;; isn't
that how it went down?
A No.
Q All right. So I assume that you have some--when you're--
go out to a scene you're--you have a cell phone, right?
A Yes.
Q You didn't--did you record the--your interaction with Mr.
?
A No.
Q To give us some recording, be it video or audio, to be
able to come to court and show the judge that what you're
saying now is actually what happened;; do you have anything
like that?
A Sir, I did not record it.
Q Okay. So we're taking you at your word that that's how
this went down, right?
A You are correct.
Q All right. So let me--let's talk about your word in this
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case, okay? Now you did testify at a preliminary
examination, correct?
A Yes.
Q And it was a preliminary examination about this case,
right?
A Correct.
Q Um, and you were speaking to a judge, right?
A Yes.
Q Um, it was Judge in the District
Court, yes?
A Yes.
Q And you were under oath, yes?
A Yes.
Q And you were specifically asked, uh, a question about a
Consumer's Energy bill that was recovered on the table,
um, during the search, correct?
MR. KEAST: Your Honor, I'm going to object to
this line of questioning. Walker hearings regarding the
defendant's confession, if the circumstances suggest his
statement was voluntary and not coerced by the police;; now
we've already litigated the issue that Mr. Rockind's
presenting today;; we did a motion to quash, we also did a
motion for Franks hearing. And today the questioning
should be limited just to what happened inside that
building on June the sixth, 2011.

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MR. ROCKIND: (Indiscernible)--
THE COURT: Since I assume it's going to be one
word against the other I think you're going to
credibility?
MR. ROCKIND: Correct.
THE COURT: Go ahead.
MR. ROCKIND: Thank you.
BY MR. ROCKIND:
Q You were--you were asked questions about something that
was referred to generally as proofs of residency during
the preliminary examination, correct?
A Yes.
Q And you were asked this question--excuse me--and it's on
page 64 of the preliminary examination transcript. You
were asked this question by Mr. Keast: Did you have--did
you find any proofs of residency for
in ? And you answered that question under oath,
didn't you?
A I did.
Q And your answer under oath was, yes, there was a
Consumer's bill recovered on the table from Mr. ;;
that was your answer, correct?
A I would imagine since you're reading it.
Q I--you're welcome to see it. You don't take my word for
it. I'm just a lowly defense lawyer, so, if you want to
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take a look at it, feel free.
A If you want to refer to yourself like that, yes.
Q Well, I'm just--I'm offering it to you if you want to look
at it, I got nothing to hide. Do you want to take a look
at it?
A Of course.
Q Here you go. I've highlighted the part for you. You can
read any parts you want but feel free to--
MR. KEAST: Sixty--
MR. ROCKIND: Sixty-four. It starts at 64.
That's your question on 64.
BY MR. ROCKIND:
Q You had a chance to look at it?
A Yes.
Q Your answer under oath was, on page 65: "Yes, there was a
Consumer's bill recovered on the table from Mr. ,"
correct?
A Yes.
Q Uh, that was a--a false statement of fact, wasn't it?
A A Con--that I recovered a Consumer's bill?
Q That you recovered a Consumer's bill on the table for Mr.
. That was a false statement of fact on your part,
wasn't that true?
A Uh, kind of a two-fold. I did recover a Consumer's bill
but it wasn't in the name--name of Mr. .

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Q Okay, let me ask--let me ask the question differently.
When you're in court you're testifying to facts, right?
A Yes.
Q Okay. Is it a true statement that you recovered a
Consumer's bill?
A Yes.
Q Is it a true statement that you recovered a Consumer's
bill on the table with Mr. name on it?
A It is not.
Q That's a false statement of fact, isn't it?
A It is, yes.
Q And that was your false statement of fact under oath,
wasn't it?
A Yes.
Q Later during the same preliminary examination you were
asked more specific questions on page 67, and you said
that you found some--was it a Consumer's Energy bill, you
said, and your answer was, yes. Do you remember that?
A I don't recall it, but.
Q And it said: and it had my client's name on it;; and you
said yes, do you remember that?
A Yes.
Q And you can produce that;; and you answered that question
yes, do you remember that?
A I do.
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Q And it's to that address;; and you answered that question
yes, remember that?
A Yes.
Q And you(sic) said, and you have it in your discovery
materials somewhere;; and you said yes, do you remember
that?
A Correct.
Q Then later, and I said to you that was important to you,
that document;; and then you answer: was it important to
me? I said yes;; and then your response was yes, do you
remember that?
A Yes.
Q And your final answer was: I said because it showed what;;
and your answer was: the address there and your defendant-
-your client's name on it. That was your answer under
oath, right?
A Yes.
Q Each of those statements that I just read through other
than the statement that you found a Consumer's Energy bill
was a false statement of fact by you under oath, is that
true?
A Yes.
Q Now you would agree that since your preliminary
examination testimony where you offered that--those false
statements of fact we were able to find the--the

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Consumer's Energy bill, correct?
A We were.
Q And examine it, correct?
A Yes.
Q So we were able to compare an actual exhibit, in other
words, the actual bill against your testimony, correct?
A (Inaudible).
Q The discovery of the bill was able to prove that your
testimony under oath was false, correct?
A I think I'm stating it now again, yes.
Q Okay. Um, pointing out that we don't have any video or
audio recording for which the Judge can compare how you
say today under oath you conducted your interrogation of
Mr. with what actually took place;; we don't have
that, do we?
A No, we do not.
Q Okay. You also made a statement under oath in this case
in the form of an affidavit, right?
A Yes.
Q Okay. An affidavit means another form of a sworn
statement, right?
A Yes.
Q To a judge, correct?
A Yes.
Q All right. And you signed the affidavit, didn't you?

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A Yes.
Q Now in the affidavit you actually, uh, which is a form of
testimony, correct, the affidavit?
A A form of testimony?
Q Sure, it's under oath. It's an attestation by you.
A It's under oath, yes.
Q Okay. So your under oath statement in the affidavit, you
actually said that there was a--the north exterior wall of
the building, there was a two-inch round hole was observed
on the north exterior wall of the building;; do you
remember saying that in the affidavit?
A Yes.
Q And you said it was five feet from the ground;; do you
remember that?
A Yes.
Q That was another untrue statement of fact, isn't that
true?
A Uh, it was a typo.
Q Okay, let me ask the question differently. Under oath you
said that the hole--a two-inch round hole was observed on
the north exterior wall of the building five feet from the
ground, true?
A It is in there, yes.
Q The hole is not five feet off the ground, isn't that true?
A It is not.
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Q It is higher than that, isn't that true?
A Yes.
Q Your statement under oath to the judge who actually read
the affidavit was a false statement of fact, correct?
A It was a typo, sir.
Q Okay, let me ask the question again.
A You don't have to ask it again.
Q Okay, it--
A I've already answered it twice.
Q --it was a false statement of fact, right?
MR. KEAST: I'm object--again, asked and answers
both the form of the question;; counsel keeps trying to--to
suggest an answer to the officer. He has answered the
questioned as a typographical error.
THE COURT: It's been asked and answered. Move
on. I got it.
BY MR. ROCKIND:
Q Okay. Well the hole is actually about seven feet off the
ground, isn't it?
A It's roughly seven feet, yes.
Q All right. Now you wrote in the affidavit: upon affiant
looking inside the hole, several rooms and a large amount
of harvested Marijuana was observed. Do you remember
writing that?
A Yes.
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Q Okay. You actually needed assistance to see into the
hole, isn't that true?
A Yes.
Q Um, you looked for something on the ground that could give
you height assistance, right?
A Yes.
Q You found something, isn't that true?
A Yes.
Q You found a bucket, right?
A Yes.
Q That was on a truck, right?
A Correct.
Q That was on the property, correct?
A Yes.
Q You took the bucket off of the truck that was on the
property, right?
A Yes.
Q You didn't have permission to do that?
A I did not.
Q You took it out of the truck and put it on the ground,
right?
A I did.
Q And you stood on top of it, right?
A Correct.
Q And then you looked in, right?

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A Yes.
Q In other words, you needed the--the bucket to allow you to
see into the hole, correct?
A Yes.
Q Okay. In the affidavit, which was your sworn statement
under oath, when you said it was--the hole was five feet;;
you understand that you created the impression that that
hole was at eye-level, correct?
MR. KEAST: Object on the form of the question.
MR. ROCKIND: I'll--
MR. KEAST: It calls for speculation--
MR. ROCKIND: --I'll rephrase it.
MR. KEAST: --as well as a conclusion.
MR. ROCKIND: I'll rephrase the question.
BY MR. ROCKIND:
Q You omitted in your affidavit that you needed--that you
couldn't see into the hole without assistance, correct;;
you omitted that?
A I omitted it?
Q Yeah, you left that out?
A I did not put it in, no.
Q Okay. Well let's talk. Who decides what goes into--who
decides what your testimony's going to be in the
affidavit, you or somebody else?
A I do.
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Q You make the decision about what words you're going to
use, right?
A I do.
Q These--these words in this affidavit are your words,
correct?
A Correct.
Q So choose--you chose the words that went into the
affidavit, yes? Yes?
A Yes.
Q And you chose not to put into the affidavit that you could
not see into the hole at eye-level, right?
A Yes.
Q You chose to put in the affidavit--you chose to omit from
the affidavit that you had to--you needed assistance to
see into it, correct?
A What are you--you're referring to admit(sic). Omit means
to--
Q Omit. Omit.
A --that means take something out.
Q That means leave it out.
A Or take something out.
Q You chose--well, take something out would mean redact;;
omit means you--you chose not to say it, you left it out.
A I did not put it in, sir.
Q Okay. Let--try to use my words and see if you disagree.
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Do you agree that you put it in?
A I did not.
Q Okay, so you o--you omitted it;; you could have put it in
but you chose not to?
A I didn't--
MR. KEAST: Your Honor, again, asked and
answered.
MR. ROCKIND: It hasn't been answered.
THE COURT: Well go--go ahead.
BY MR. ROCKIND:
Q You--you chose not to put it in?
A I did not put it in, sir.
Q Okay. Try to say--let me--let me say it one more time.
You--
A You can say it ten more times, sir. I did not put it in.
Q I understand, but you choose what you put in and you chose
not to put it in?
A I did not put it in.
Q Okay. Did you choose to put it in?
MR. KEAST: Your Honor, again, asked and
answered. I think we get the idea.
THE COURT: You're going to ask it five times
and he's going to answer it the same way.
MR. ROCKIND: Well, I--
THE COURT: What you really want to ask is did
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you intentionally--
MR. ROCKIND: No, because I--I--
THE COURT: (indiscernible) then what did you
want to ask?
MR. ROCKIND: I don't, but I think in the end
whether it's intentional or--or reckless is irrelevant,
but my point is simply let me go through as--well these
are the things that we talked about, that you needed a
bucket and you omitted that, correct?
THE WITNESS: I did not put it in.
BY MR. ROCKIND:
Q Let--let me ask--let me--let me try to say it differently.
Was the affidavit prepared by you by accident?
A By accident?
Q By accident. Did--
A What do you mean?
Q --you accidentally prepare?
A What do you mean by accident? Did--
Q Did you intentionally prepare the affidavit?
A How could you do it by accident, sir?
Q Did you--so you intended to prepare the affidavit?
A I did.
Q You intended to put certain words down on paper to present
to a judge, right?
A I did.
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Q You chose the words, correct?
A I did.
Q You intended the words that you put in, correct?
A I did.
Q And you had to make decisions about what words you weren't
going to put in, right?
A What words I was not (indiscernible)--
Q What you weren't going to say, you have to make choices.
Let me give you an example. Right now as I'm talking to
you I've asked you several times whether you chose to omit
that you needed a bucket and you got a bucket from a
truck, and that you stood on the bucket to look into the
hole. And you have avoided saying, yes, I chose to omit
that, instead you keep saying I didn't put it in, right?
Is that a fair summary of our dialogue so far, yes or no?
A Did I intentionally leave it out, no.
Q You knew what the facts were, right?
A I did.
Q You knew what you did?
A As far as what?
Q You knew what you did. You knew what it took to actually
look into this hole, right?
A Yes.
Q The judge wouldn't have known unless you told the judge
what you did. Did you tell the judge everything you did?
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A I don't recall. I'm--
Q Yes or no, did you tell the judge that signed that search
warrant to whom you presented the affidavit everything
that you did in order to see into that hole;; yes or no?
A I don't recall, sir.
Q Okay, let me actually show you the affidavit, and I'm
going to show you just the part that--I'll show you the--I
have one that's redacted and I'll show you this other one.
May I approach, Your Honor?
Here, this is a redacted portion. You can take
that and you can hold that one as long as you want, but if
you want to see more of the affidavit feel free to look
through it, and I've highlighted the section I'm talking
about, so. You can look through it as much as you want
and then let me know when you're done so I can ask you the
question.
A Go ahead.
Q You did not tell that judge in that affidavit everything
you did to be able to see into that hole, true?
A I did not.
Q Okay. And you made the choices about what you were going
to tell that judge. You chose those words, correct?
A Yes, I did.
Q Okay. You chose what to put in, right?
A I did.
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Q And you chose what to leave out?
A I--you keep going back to what I chose to leave out;; I
didn't intentionally leave anything out.
Q Well I understand that. You're saying that now after the
Judge kind of said something about intentionally. I
appreciate that;; but I want to focus on--I guess somehow I
get the sense, Detective Ferguson, and don't--don't take
this rather the wrong way--but I get the sense that you
think that that's somehow an out, and I'm going to keep at
it because--
MR. KEAST: Objection to the form of the
question, Your Honor.
MR. ROCKIND: All right, I'll withdraw--
MR. KEAST: It's turning to dialogue.
MR. ROCKIND: --it now--I'll withdraw it now and
phrase it.
BY MR. ROCKIND:
Q You didn't acc--did you have your--did you have like a
blindfold on when you were preparing the affidavit? Did
you have a blindfold on?
A Are you trying to insult me, sir?
Q No.
A Okay.
Q No, because I--I--it's quite the opposite because I--I--I
want to get right to it, and so I don't like to play games
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so I want to ask this question: did you have a blindfold
on?
A I don't believe I did, sir.
Q Were you looking at the keyboard?
A Yes.
Q Were you looking at the--were you looking at the actual--
the--the screen as you were typing?
A I would think so, yes.
Q Okay. Were you using a word processor?
A A word processor?
Q Yeah, so that if you make a typo you can actually delete
and go backwards if you--
A I was using a computer. I wasn't using a word processor.
Q Okay. A computer. Means that--you can actually as you're
typing it you can see whether the sentence that you have
typed is the sentence that you want?
A Yes. But there's a difference between a word processor
and a computer.
Q Okay. And as you're typing your sentences are you doing
it as we all do where you--you type something, uh, that
doesn't sound right and you delete and clarify and make
sure it's what you want to convey?
A Sure, I was using a computer.
Q Okay. So all the words that you put in there you intended
to put in there?

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A Yes.
Q You thought about 'em(sic), as I said a second ago, about
how we put words in and we leave words out, you thought
about what was going to go into that affidavit?
A I did.
Q Okay. That means you also made decisions about how much
information you were going to share with the judge, right?
A Yes.
Q Okay. So you chose to omit--I'm going to keep using that
word. You choose--you chose to omit or exclude from your
affidavit what you really needed to do to see into that
hole, correct?
A I did not.
Q Did somebody else change what you were typing?
A No.
Q Had you actually typed the words out on your word--on your
computer: the hole was seven feet, about seven feet, I
couldn't see into it, I needed to get a bucket. I went
and got a bucket, I took it out of a truck, I put it on
the ground and I stood on it, and saw into it. Did--did
you type that and someone tell you take that out?
A I did not.
Q Did somebody else take that out without your knowledge?
A No.
Q Had you ever typed that into the computer as you were
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preparing your affidavit?
A No.
Q Okay. Who made the choice to omit or exclude that
information from the affidavit, you or somebody else?
A I--
MR. KEAST: Objection, asked and answered,
probably a dozen times.
THE COURT: No, overruled. Go ahead.
BY MR. ROCKIND:
Q Who made the choice?
A I didn't leave anything out.
Q Who made the choice?
A Who made the choice to omit it?
Q It's a--the--it's either you or me and I wasn't there;; so
who made the choice, you or me?
A Too, I didn't leave--I didn't omit anything, sir.
Q Who made the choice to exclude that information from that
affidavit?
A Sir, if I don't agree with you or I--I can't agree with
you to say I omitted something.
Q There's only--but the problem is, detective, that there
are only two possible answers. You've already said that
you made the decisions about what information went into
the affidavit, you made the choices about what words are
put in there, so we're just prolonging the obvious. It's
32

a simple answer, I know it's tuff to say.
A I think you're prolonging an answer that you want that I'm
not going to give you.
Q Well I haven't asked the Judge for help yet, but I--I bet
you I could.
MR. KEAST: Your Honor, objection to the form of
the question. This is questioning--
MR. ROCKIND: Okay, I'll rephrase it.
MR. KEAST: --and not testimony.
MR. ROCKIND: Here's--I'll--
THE COURT: He's going to rephrase it.
BY MR. ROCKIND:
Q Let me ask you the--again. A supervisor didn't delete
those words from the word processor, right?
A Delete what words?
Q Didn't take out the words seven-foot hole, bucket, truck,
needed a bucket to stand on to see into the hole. No one
else took those words out of your affidavit, correct?
A No.
Q You never typed those words into the affidavit, did you?
A I did not.
Q That was your choice wasn't it?
A It was.
Q That means you chose to exclude that information from your
affidavit, true?
33

A I didn't exclude 'em.
Q Are they in there?
A They are not.
Q Are they excluded?
A No, because they were never in there.
Q I understand that's what exclude means;; keep out.
A Yes.
Q You kept those words out.
A I did not.
Q Well they didn't get in there--they're not in there, are
they?
A They're not in there.
Q Nobody else took them out, right?
A They weren't in there to take out.
Q I understand. Nobody--that's the whole point is you chose
what words to go in and you chose not to put those words
in the affidavit, correct?
A I did not put 'em in, sir.
Q Right. And when I say omit that means that you could
include, that's--I use to words, admit and omit. You
chose what words to admit into your affidavit, correct?
A I chose what words to put in, yes.
Q Right, and you chose what words to leave out, right?
A Sure, yes.
Q Okay. Would you agree with me that there was no way from
34

your perspective for the--the judge who reviewed your
affidavit to know what really happened at the scene in
order for you to be able to look into the hole?
A No, I wouldn't agree with you.
Q Was the judge at the scene with you?
A No.
Q There was no way for the judge to know whether the picture
that you had painted in your affidavit was accurate or
not, correct?
A Correct.
Q The judge had to take you at your word that it was five
feet, correct?
A Correct.
Q And in that case the--there was--no.
MR. ROCKIND: Can I take these back for a
second, Judge?
THE COURT: (Indiscernible).
BY MR. ROCKIND:
Q The judge wasn't there at the scene, right? Correct?
A Correct.
Q So the judge couldn't have known what you would have--from
your perspective what it really took to see into that
hole, correct?
A Correct. Asked and answered.
Q Okay.
35

THE COURT: You don't get to make the
objections.
MR. ROCKIND: I don't--I--I--
THE WITNESS: Sorry, Judge.
MR. ROCKIND: I don't mind. Judge, I don't
mind. I don't mind.
MR. KEAST: I don't mind either.
MR. ROCKIND: I have nothing else, Judge.
THE COURT: Mr. Keast?
MR. KEAST: Thank you.
REDIRECT EXAMINATION
BY MR. KEAST:
Q Detective, I'm going to refer you to page 59 and 60 of the
preliminary exam transcript, the parts that Mr. Rockind
did not ask you about. Now do you recall being asked by
Mr. Rockind: "...and you stood up and just looked through
the hole to see inside." Answer: "I think I maybe stepped
on a bucket so it was probably it was--it was farther, it
was probably another foot up, so probably seven-foot
high." Do you recall that answer?
A Yes.
Q Okay, and at any point when you testify in the preliminary
exam transcript regarding the height of the hole or using
a bucket, did you mislead anybody?
A No.
36

Q Okay, and when you authored your affidavit for the
magistrate and you omitted the word bucket from that
affidavit, did you intentionally attempt to mislead the
examining magistrate?
A I did not.
Q Now on page 68 of the preliminary exam transcript you were
asked again by Mr. Rockind: "That was important to you for
some reason--that was important to you?" And your answer:
"If you're asking me to get a copy of it I would be glad
to." Do you recall giving that answer?
A Yes.
Q Do you recall volunteering to get that document for the
defense counsel?
A Yes.
Q Okay. Thank you. Nothing further.
MR. ROCKIND: No.
THE COURT: The witness is excused.
THE WITNESS: Thank you, Your Honor.
THE COURT: Thank you.
(At 3:24 p.m., witness is excused)
MR. KEAST: Judge, would the Court like to see
exhibit one or--
THE COURT: (Indiscernible).
MR. KEAST: I have no further witnesses.
THE COURT: (Indiscernible) witnesses?

37

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THE CLERK: Do you solemnly swear to tell the

truth, the whole truth and nothing but the truth?

MR. FERGUSON: I do.

(At 2:52 p.m., witness is sworn before the Court

and testified as follows)

MR. ROCKIND: Need a pen?

MR. KEAST: No. May I proceed?

A Mark Ferguson. F-­e-­r-­g-­u-­s-­o-­n.

Q And how are you employed?

A I'm now employed with Oakland County Sheriff's Department,

prior to that I was employed with the Pontiac Police

Department. I'm a police officer, going on 25-­1/2 years.

Q Okay. And are you currently assigned to the Narcotics

involved in a search warrant execution at

Q And that's Township?

A It's a, uh, a large commercial building, like a pole barn-­

Narcotics Enforcement Team?

A Uh, Detective Panke(ph), Sargent Miles(ph), Detective

Flatmeyer(ph), um, I believe Detective Bear(ph), Detective

Q All right, did you encounter any occupants in that

Q And who did you encounter?

A I encountered two subjects inside the, uh, dwelling. Uh,

one was ID'd as defendant's father and another subject.

Q Now at some point did you have contact with ?

Q And please describe to the Court how that contact

let us in.

Um, we talked with the father for a bit there,

Q Okay, and some point did actually come to

Q Approximately how much time elapsed from the time you

entered that dwelling and the time came?

A At least 45 minutes.

your search of the premises?

you recognize him?

MR. ROCKIND: Stipulate the he's going to

identify Mr. as Mr. .

THE COURT: Okay.

MR. KEAST: Thank you.

occasion to interview the defendant?

Q And where did that interview take place?

A Inside the, uh, building. Uh, it'd be the northwest

corner of the building.

Q Okay. Now describe the circumstances surrounding that

A Um, the other officers were going through-­-­there were some

rooms sectioned off-­-­the open part was probably-­-­probably

the other officers were collecting evidence. Um, that's

Q Okay. And, uh, when you interview the defendants-­-­well,

first of all, were you in uniform?

A No. I was in plain clothes like I am now.

Q Okay, did you have a firearm?

Q Was it holstered when you interview the defendant?

Q Who else spoke with the defendant?

when he came in.

would that be just you?

A That was just me.

Q At that point when they were searching that premises do

they have their guns drawn?

Q Okay. Now prior to interviewing-­-­interviewing the

defendant did you read him his Miranda rights?

Q And did you use a Oakland County Sheriff form?

Q Did you read it to him?

Q Did you have him read it as well?

always do, standard.

MR. KEAST: May I approach the witness?

A Mark Ferguson. F-e-r-g-u-s-o-n.

Department. I'm a police officer, going on 25-1/2 years.

A It's a, uh, a large commercial building, like a pole barn-

A Um, the other officers were going through--there were some

rooms sectioned off--the open part was probably--probably

Q Okay. And, uh, when you interview the defendants--well,

Q Okay. Now prior to interviewing--interviewing the

A Yes. He--he was cooperatin¶.

A It--probably at the most a half-an-hour, if that.

A No. He--he was sitting down, I was sitting down, um,

Q You also had another gun besides the--you have a side-arm

Q In other words, you said specifically you're get--you're

the questions--those are the choices;; isn't that what you

Q All right. So I assume that you have some--when you're--

go out to a scene you're--you have a cell phone, right?

Q You didn't--did you record the--your interaction with Mr.