Randall Murphy Voir Dire

1

1 NORTH CAROLINA GENERAL COURT OF JUSTICE

2 SUPERIOR COURT DIVISION

3 _____________________________
)
4 STATE OF NORTH CAROLINA, )
)
5 vs. ) WILSON COUNTY
) 15-CRS-53904
6 STEPHEN LOUIS MADDOX, JR., )
)
7 Defendant. )
_____________________________)
8
9
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10 TRANSCRIPT (Trial Proceedings excerpt)
July 25, 2017
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12
13 July 17, 2017 Criminal Trial Session
14 Honorable Milton F. Fitch, Jr., Judge Presiding
15
16 A P P E A R A N C E S
17 Norlan Graves, Esquire

Office of the District Attorney
18 on behalf of the State
19 Kurt Schmidt, Esquire &

Tartt Thomas, Esquire
20 on behalf of the Defendant
21 --------------------------------------------------------------
22 Reported by: Loretta Pichey, R.P.R.

Official Court Reporter
23 [email protected]
24
25
2
1 INDEX
2 DEFENDANT'S WITNESSES PAGE
3 RANDALL L. MURPHY
4 Voir Dire by Mr. Schmidt 16, 61, 67
5 Voir Dire by Mr. Graves 52, 65
8 ARGUMENTS
9 By Mr. Schmidt 69
10 By Mr. Graves 74
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12 COURT'S RULING 75
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14
15
16
17
18
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20
21
22
23
24
25
3
1 EXHIBITS
2 DEFENDANT'S MARKED RECEIVED
3 DE 55 I/ITSEC research paper 38 68
4 DE 56 Paper writeen by Mr. Murphy and 39 68

Dr. Ross
5
DE 57 Chapter 4 of book by Mr. Murphy 40 68
6 and Dr. Ross called Stress
Perceptional Distortion and
7 Human Performance
8 DE 58 Randall Murphy's C.V. 68 68
10
11 STATE'S
12 SE 32 Photograph of Kelly Wilkerson 52
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25
4
1 (The following excerpt of proceedings took place on Tuesday,
2 July 25, 2017 with Assistant District Attorney, Defense
3 Counsel and Defendant present out of the presence of the
4 jury.)
5 * * * * *
6 MR. SCHMIDT: Judge, our first witness is going to
7 be Mr. Randall Murphy who we're tendering as an expert to this
8 Court and, as you know, the State has an objection to that
9 witness. And I'm asking the Court's pleasure whether you want
10 the voir dire done at this point with the jury out to address
11 that issue, just asking the Court's clarification.
12 THE COURT: What is he purported to be an expert in?
13 MR. SCHMIDT: Judge, in combat stress deactivation
14 of the sympathetic and parasympathetic nervous system and the
15 impact on a person's --
16 THE COURT: What are his qualifications for such an
17 opinion?
18 MR. SCHMIDT: Judge, he did the seminal research
19 study beginning in 2008 at the University of South Florida,
20 1.3 million dollar funding for that and he developed a
21 simulator. He ran 150 law enforcement officers in the State
22 of Florida through the simulator and when they went through it
23 they took biochemical markers on these officers to verify
24 that, in fact, there's been an activation of the sympathetic
25 and parasympathetic nervous system. After they went through

5
1 the simulator there were two requirements afterwards. They
2 had to answer a questionnaire immediately after the
3 stimulation and then they had to answer it again three days
4 later.
5 The biomarkers were analyzed to determine where, in
6 fact, they were in that state and the questionnaires
7 themselves showed that after the first questionnaire that the
8 officers had very poor recall 30 minutes after the incident of
9 the incident they had just gone through that involved a lethal
10 force situation. They filled out a subsequent questionnaire,
11 had to be returned within three days and the accuracy of those
12 statements went up expedientially three days later.
13 Judge, the State's hanging their entire case on the
14 fact that his statement is incomplete or fragmented or in
15 their terms --
16 THE COURT: Or inaccurate.
17 MR. SCHMIDT: That's where I was going, Judge, or
18 lying.
19 And this, this man has done these studies for over,
20 it's his tenth year of continuing the study, went to Operation
21 Bowl Quest with NATO United States Armed Forces at the request
22 or Professional Department of Defense, took a stimulator there
23 for a NATO exercise, ran soldiers through the stimulator and
24 tested them when they came out, did the identical
25 questionnaires and developed more data. He has run over a

6
1 thousand soldiers in law enforcement and law enforcement
2 personnel and tested afterwards and made these findings. This
3 has been published. There's been two peer reviewed articles
4 that have come out.
5 THE COURT: When did he test this Defendant?
6 MR. SCHMIDT: Judge, he did not. But, Judge, my
7 point or my supposition to the Court is Rule 702 can be used
8 to educate the jury about subject matter that is beyond the
9 scope of what their common sensical or common education --
10 THE COURT: I know the purpose of an expert, to be
11 able to allow the jury to understand some point that they
12 don't have the ability to understand. I understand that.
13 MR. SCHMIDT: And so, Judge, this gives them the
14 opportunity. But this gentleman has published two peer
15 reviewed articles. He's also written a chapter in a book
16 coming out this month. It talks about stress, perception
17 distortion and human performance.
18 And so, Judge, this is testimony that's vital to the
19 Defense. It's important for the jury to get a full
20 understanding of what Mr. Maddox was going through that
21 particular night. This is a man who's never been in trouble a
22 day of his life until he runs into this particular situation
23 and, Judge, it further goes ultimately to the -- with the
24 State's position that he's lying and that because he's lying
25 this couldn't have happened the way he says it happened, this

7
1 explains the gaps in his statement that they're relying on so
2 heavily. It allows us an opportunity to present through the
3 expert testimony the opportunity to explain the stress factors
4 of combat situations of what it does to the person.
5 And, Judge, may I go a step further? Judge, I have
6 some additional information.
7 THE COURT: I'm not stopping you.
8 MR. SCHMIDT: I apologize. I was just being
9 respectful of the Court's contemplation.
10 He also has reviewed the case file. He's watched
11 the three-hour interview. He's interviewed my client and
12 listened to the 911 tape and the in-car video where Mr. Maddox
13 was transported from the scene to the police department.
14 THE COURT: State wish to be heard?
15 MR. GRAVES: Judge, would the Court like me to give
16 my full argument for the exclusion or a brief argument?
17 THE COURT: Give whatever you want. What's asked
18 for right now is voir dire.
19 MR. GRAVES: Judge, I have some questions for him.
20 I mean just logistically.
21 THE COURT: Questions for who?
22 MR. GRAVES: Their expert or I can lay out my
23 argument.
24 THE COURT: Can you do that in voir dire?
25 MR. GRAVES: Yes, Judge.

8
1 THE COURT: So you have no objection to having voir
2 dire then at this time.
3 MR. GRAVES: Well, Judge, I do have an argument as
4 to why he should not be allowed to testify.
5 THE COURT: Now is the time.
6 MR. GRAVES: Okay. Judge, the evidence that is
7 sought to be elicited by Defense should be excluded because,
8 well, on three grounds, Judge; one, it lacks relevance; two,
9 it invades the province of the jury; and, three, this expert
10 or expert in quotation marks does not possess the necessary
11 qualifications to arrive at these conclusions.
12 As the Court is well aware, the standard of review
13 for these type situations would be that of an abuse of
14 discretion. So the trial judge, in fact, is the gatekeeper
15 regarding expert testimony.
16 Present case, I have case law to support this,
17 Judge, case of State versus McGrady decided -- I have copies
18 for Counsel and for the Court -- decided last year, I
19 Shepardized it as early as this morning, it's still good law.
20 But in that case, Judge, pretty similar to the case at hand.
21 Defendant admitted to shooting a victim and at trial sought to
22 introduce an expert in the sympathetic and parasympathetic
23 nervous system in an attempt to explain discrepancies or
24 memory gaps regarding the Defendant's statement that he made
25 to law enforcement after the shooting. That expert in

9
1 McGrady, in a similar fashion, was retired law enforcement,
2 very decorated. As a matter of fact, he was a former director
3 of North Carolina Justice Academy.
4 And the court in that case, or this North Carolina
5 Supreme Court in that case, affirmed the lower court's
6 decision to exclude that testimony on the grounds that, well,
7 they pointed out two very salient points and the biggest was
8 that the expert was not a doctor, and also that he may have
9 had strong practical experience in police training and tactics
10 but not much medical expertise in human physiology and that's
11 what we have in this case, Judge.
12 And also the court pointed out that his expert
13 knowledge, and I'll say that in quotation marks, regarding the
14 biological processes that this expert intended to speak about
15 placed him in no better position than a member of the jury and
16 that would be the State's position in this particular case.
17 Mr. Murphy is no better situated than Joe The Shoe
18 Shine Man across the street to tell us what was happening in
19 Stephen Maddox's body at the time that he was talking to law
20 enforcement. The testimony would not be reliable. It's not
21 helpful to the jury. It's arguably misleading. It's no more
22 than an attempt to bolster Mr. Maddox's credibility by
23 bringing in an expert to say, well, he may have said X, Y and
24 Z but this is what he really meant. And as the Court is well
25 aware, an expert may not offer opinion testimony on the

10
1 credibility of a witness. And that's -- this is an availed
2 attempt to do that, Judge.
3 It's the province of the jury and they're the sole
4 judges of the believability of witnesses, and for those
5 reasons, Judge, the State asks that he not be allowed to
6 testify.
7 Mr. Maddox, within hours of taking Mr. Kelly's life,
8 gave an account of the events that unfolded on that night and
9 this testimony is no more than common knowledge and opinions
10 that he's just not qualified to express.
11 And I do have copies of that case if the Court
12 would --
13 THE COURT: I'd like to see it please.
14 MR. SCHMIDT: Judge, may I be heard?
15 THE COURT: One minute.
16 MR. GRAVES: May I approach, Judge.
17 THE COURT: Yes.
18 (Mr. Graves tendered documents to Defense Counsel and the
19 Court.)
20 MR. SCHMIDT: Judge, I'd like to refer you to
21 headnote 24, I think that's really kind of the crux of the
22 case. In this particular case when he talks about Cloutier
23 had no medical nor scientific background, it can be an
24 either/or predicate for qualification under what the Supreme
25 Court looked at the situation. Cloutier in the testimony was

11
1 not familiar with the study. He conducted no research. He
2 had done no hands-on work in the field. He relied on strictly
3 his law enforcement experience.
4 Judge, this Mr. Murphy has been accepted 15 times as
5 an expert in giving testimony in four different states.
6 THE COURT: What states?
7 MR. SCHMIDT: Sir?
8 THE COURT: What states?
9 MR. SCHMIDT: Judge, it was Missouri, Kansas,
10 Alaska -- there was a fourth, Judge, if you'll bear with me
11 one second. Kansas, Alaska, Nebraska and Missouri, Judge.
12 THE COURT: Kansas, Alaska, Missouri and where?
13 MR. SCHMIDT: Nebraska.
14 Judge, may I --
15 THE COURT: Nothing in the Fourth Circuit.
16 MR. SCHMIDT: No, sir, nothing in the Fourth
17 Circuit.
18 Judge, I will also say he was requested by the
19 Department of Public Safety to come here recently and train
20 all, there was an offering for training of all certified
21 firearms instructors from law enforcement agencies to go to
22 Apex, North Carolina and he, in fact, taught a continuing
23 education class to them on this research. Also giving
24 continuing education to emergency room doctors and tactical
25 EMT's as well. Also been asked to utilize that research with

12
1 the Department of Defense, specifically the Marine Corps, in
2 determining some protocol for post-combat situations as well.
3 But as to McGrady, Judge, this is a completely
4 different situation.
5 THE COURT: Is that it?
6 MR. GRAVES: Just briefly.
7 Judge, it's very salient that these, these
8 simulations that he's been, that have been designed for law
9 enforcement, if this was a police officer on trial might be
10 relevant. I would still submit that the science is a little
11 bit shaky but it might be a little bit more relevant. And
12 also it's very --
13 THE COURT: How would it be more relevant just
14 because the individual is a police officer?
15 MR. GRAVES: Well, the simulations were designed for
16 police officers. That's why I'm saying simulation might be a
17 little bit more relevant then. But they're not relevant now
18 because Mr. Maddox is not law enforcement. The simulations
19 are designed for law enforcement and military and Mr. Maddox
20 never went through one of these simulations according to what
21 Attorney Schmidt stated. Yes, Mr. Murphy reviewed some
22 evidence of the case, some evidence that would be, might be
23 favorable to the Defense but he did not have Mr. Maddox run
24 through one of these simulations and will measure his results
25 of the stimulation. Even if he did so, Judge, State would

13
1 still submit it's not relevant and it would be misleading and
2 it's no more of an attempt to bolster Mr. Maddox's credibility
3 as a witness.
4 MR. SCHMIDT: Judge, if I may have one short -- the
5 firearms examiner in this case testified based on he reviewed
6 modules, he never walked in the courtroom and put his hand on
7 a Bible before this week when he stepped in this courtroom.
8 Judge, everything that Mr. Graves has said goes to weight, not
9 admissibility. This is a circumstance where an opportunity to
10 provide a full and complete defense is integral to our Sixth
11 Amendment Right to defend our client in a jury trial.
12 THE COURT: Is that it, gentlemen, arguments are now
13 in?
14 MR. GRAVES: One point, Judge, and I will be brief.
15 Rule 403, Judge, states that the probative value of this
16 testimony, according to Rule 403, probative value be
17 substantially outweighed by the danger of unfair prejudice,
18 confusion of issues and misleading of the jury. That's all
19 this would do is mislead the jury and I'll sit down and be
20 quiet.
21 THE COURT: I'm going to read the McGrady. I'll
22 announce my decision on the matter.
23 Let me see the lawyers at the bench.
24 (Mr. Schmidt, Mr. Thomas and Mr. Graves approached the bench
25 and a discussion was held off the record.)

14
1 THE COURT: Court stands down until 25 after the
2 hour.
3 (A recess was taken from 11:16 a.m. until 11:25 a.m.)
4 THE COURT: Are you ready to proceed?
5 MR. SCHMIDT: Yes, sir, I can get my, I'll retrieve
6 my witness from outside.
7 THE COURT: Not yet. I mean I got to take care of
8 the jury first.
9 Bring the jury back.
10 (Jury entered the courtroom at 11:26 a.m.)
11 THE COURT: Court's back in session.
12 Ladies and gentlemen, I thought that we would be
13 able to handle the matter of law out of your presence in the
14 short time that I gave you for your break. That was not the
15 case. Seems that this matter of law is going to take a
16 considerable amount of time. For that purpose I'm going to
17 ask that you -- you've had your morning break, now that you
18 take your lunch break and that you not return until quarter to
19 the hour of 3:00. Quarter to the hour of 3:00. Please again
20 remember the six things that I've said as you leave not only
21 my presence but as you leave this courthouse.
22 By way of reminder, do not read, watch, listen to
23 any accounts. Do not visit the alleged scene. Do not attempt
24 to make any investigation. Do not communicate with anyone
25 concerning this particular case. Do not yet form any opinions

15
1 about the guilt or innocence of the accused for you have not
2 found or heard all of the testimony of this particular matter.
3 Just keep an open mind. Enjoy your break and I'll see you
4 back here at quarter to the hour of 3:00. You may now leave.
5 Everyone else remain, seated.
6 (Jury exited the courtroom at 11:28 a.m.)
7 MR. GRAVES: Judge, may me and Counsel approach?
8 (Mr. Schmidt, Mr. Thomas and Mr. Graves approached the bench
9 and a discussion was held off the record.)
10 THE COURT: Let the record reflect that the jury has
11 been excused until quarter to the hour of 3:00.
12 As a part of the Defendant's motion concerning an
13 expert and concerning voir dire, the Court in its discretion
14 will allow the Defendant at this time to make a proffer of his
15 expert, his alleged expert. We'll see where we go from there.
16 He is present, he or she present?
17 MR. SCHMIDT: He is outside in the hallway.
18 THE COURT: You need to bring him in and call him.
19 MR. SCHMIDT: Mr. Randall Murphy. He should be in
20 that room right to the right.
21 THE COURT: Madam Court Reporter, this is a proffer
22 of a potential witness for the Court to determine, as the
23 gatekeeper, to be an expert in the field that he's about to be
24 tendered.
25
Voir Dire by Mr. Schmidt
16
1 WHEREUPON,
2 RANDALL LEE MURPHY,
3 having been called as a witness on behalf of the Defendant,
4 being first duly sworn by the Court to testify the whole
5 truth, as hereinafter certified, responded as follows:
6 THE WITNESS: I do.
7 THE COURT: Be seated, sir.
8 You may proceed.
9 MR. SCHMIDT: Thank you, Judge.
10 VOIR DIRE
11 BY MR. SCHMIDT:
12 Q Sir, please state your full name.
13 A Randall Lee Murphy.
14 Q What is your address, sir?
15 A 1900 Macon Road, Griffin, Georgia.
16 Q Can you share your educational background with the
17 Court beginning after high school.
18 A I have an Associate's of Arts degree in Criminal
19 Justice from Kansas City, Kansas Community College. I have a
20 Bachelor of Arts degree in the Administration of Justice from
21 Avila University in Kansas City, Missouri. I have a Master's
22 Degree in the management of, Science of Management from
23 Friends University from Wichita, Kansas.
24 Q Sir, did you first begin your career as a sworn law
25 enforcement officer?
17
1 A Yes, sir.
2 Q How many years did you serve total as a sworn law
3 enforcement officer?
4 A 30.
5 Q With what agency?
6 A The City of Kansas City, Kansas.
7 Q Were you employed your entire 30 years with that
8 particular agency, sir?
9 A Yes, sir.
10 Q Could you take us through the positions that you've
11 held throughout your career with that particular agency.
12 A I came on at the age of 18 as a cadet. We had a
13 cadet program and it was designed to have young people that
14 were interested in law enforcement be able to serve within the
15 department to get educations throughout every section of the
16 department within the police department. They also paid for
17 your college. And I completed that and was sworn in in 1974
18 at the age of 21. I then went to patrol division. I rode the
19 northeast area of town, also known as the lower socioeconomic
20 area. I rode that for four years and then walked foot patrol
21 in that district. I then transferred in to the CSI unit so I
22 could finish my college.
23 Q What does CSI stand for, sir?
24 A The Criminal Investigation Unit. Crime Scene
25 Investigation unit.
18
1 Q How long did you serve in that role?
2 A I served there, was a patrol officer for about four
3 years and then was promoted to the rank of detective.
4 Q How long did you serve as a detective?
5 A 18 years.
6 Q What type of crimes did you investigate as a
7 detective in Kansas City, Kansas?
8 A Property crimes and I was on the metro squad which
9 was a special squad of detectives throughout the metropolitan
10 area that would work murder cases throughout the city that
11 required a lot of manpower and so departments would contribute
12 detectives to help work those cases.
13 Q After you served as a detective for those years, did
14 you move on to another position, sir?
15 A I was promoted to the rank of lieutenant and became
16 the director of the academy.
17 Q And for what area did that academy serve?
18 A It was just for our department. We were a big
19 enough department that we had our own police academy.
20 Q What were your responsibilities there, sir?
21 A I oversaw the training of 400 police officers and
22 average put in a class of recruits through twice a year.
23 Q And is that training in all aspects of law
24 enforcement?
25 A All the aspects that are prescribed by the State of

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1 Kansas Law Enforcement Training Center as well as the
2 additional training that the City of Kansas City, Kansas
3 deemed necessary.
4 Q Did you ascend to a position above that at some
5 point?
6 A I was promoted to the rank of captain while as
7 director of the academy and then was subsequently promoted to
8 major and ran the Bureau of Investigation.
9 Q When you say the Bureau of Investigation, how did
10 that responsibility change from being with the detective
11 division?
12 A Well, I oversaw the performance and duties of
13 approximately 100 detectives.
14 Q Did you move beyond the rank of captain?
15 A I was promoted to major.
16 Q How did your responsibilities change then, sir?
17 A Just as I just described.
18 Q Have you done research in issues that arose in law
19 enforcement and other related issues specific to
20 officer-related shootings beginning in 1972?
21 A Yes, sir. In 1974 I was the first to conduct
22 research on ballistic body armour. It was just coming out,
23 the Second Chance Vest and as a cadet I conducted the research
24 on the feasibility of the body armour and the performance of
25 such flexible personal worn body armour.

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1 Q During your course of your 30-year career, did you
2 study any other aspects of issues arising in law enforcement?
3 A I conducted the kind of the definitive study on
4 impact weapons. It was immediately following the Rodney King
5 and saw the sometimes improper and impotent effects of impact
6 weapons. So it's referred to as Kansas City Study if you want
7 to look it up, and I did impact weapon study. I struck
8 cadavers to see the ability to break bones and measured the
9 kinetic energy and published that study.
10 Q When that was published was that subject to peer
11 review?
12 A Yes.
13 Q Did there come a time when you retired from law
14 enforcement, sir?
15 A Yes, sir.
16 Q When was that?
17 A I retired from law enforcement in September, well,
18 actually October of 2001 right after 9/11.
19 Q Did you have any certifications as an instructor
20 that you accumulated during your law enforcement career?
21 A Yes, sir.
22 Q Could you describe those please.
23 A Certified fingerprint expert. Certified toolmark
24 expert. Certified footprint expert. Certified defensive
25 tactics expert. Certified tactical firearms expert.

21
1 Certified in teaching techniques of interviews and
2 interrogation. Certified as a blood spatter expert.
3 Certified as a crime scene reconstruction expert.
4 Q Have you had experience teaching?
5 A Yes.
6 Q Can you -- first, have you taught at institutions of
7 higher learning?
8 A Yes.
9 Q Can you describe your institutions you're affiliated
10 with and what you taught.
11 A I had taught for the Kansas City, Kansas Community
12 College for 18 years. The last three years I served as the
13 president of the Kansas Criminal Justice Professors
14 Association where I would go around to colleges and
15 universities and help them recruit students within their
16 criminal justice program. I taught at John Jay College. I
17 taught at the University of Kansas Law School. I've taught at
18 Washburn University in Topeka, Kansas and Valdosta State.
19 Q At Valdosta State what, if any, role did you have
20 there in the development of a new particular firearms center?
21 A I -- through research project I realized the
22 difficulties of a private company, a government entity, that
23 being FLETC, the Federal Law Enforcement Training Center, and
24 universities in communicating in mutually joining forces and
25 forming synergy to do good, adequate research. The problem

22
1 with that is there's conflicts of interest on everyone's part.
2 So I funded a research center at the Valdosta State University
3 in Atlanta, Georgia to be able to bring all of these entities
4 in to one center so that we could all conduct good, valid
5 research and have clean hands. The company I was working for
6 wouldn't have a conflict of interest. The federal government
7 wouldn't have a conflict of interest and the university itself
8 would benefit as well.
9 Q And when did this begin?
10 A That began in, I want to say 2011, 2012.
11 Q What particular emphasis or what was the point of
12 the emphasis of this particular center?
13 A We wanted to be able to provide a platform and
14 funding for research in social issues pertaining to law
15 enforcement criminal justice.
16 Q What type of issues, sir?
17 A We researched the phenomenon of prone, it's called
18 positional hypoxia.
19 Q What is that?
20 A Where you lay a subject down to arrest him or to
21 search him or put cuffs on and he dies and we did research on
22 how often that does, in fact, happen which led to publishing a
23 book that had part of that research mentioned in it. We've
24 done research on body worn cameras, research on more the risk
25 management approach to law enforcement in pursuit driving and

23
1 that type.
2 Q Did there come a time after 9/11 that you were, you
3 were hired by the government to work on a Homeland Security
4 issues?
5 A About three months following 9/11 I was approached
6 by not a government entity because Homeland Security didn't
7 exist yet. But what the government does is find large, large,
8 large corporations that could fund these initiatives for two
9 or three years until the federal government gets Homeland
10 Security formed and funded and directors appointed so it was
11 referred to as Homeland Security, Inc. and my job was to
12 design, stand up an academy to train many thousands of federal
13 air marshals.
14 Q Describe the program that you set up.
15 A It contained, my particular emphasis was on the
16 defensive tactics and survival techniques, what type of
17 weapons used in an airplane, what type of impact weapons to
18 use in an aircraft, how to deploy them in a 22 inch aisle with
19 an 18 degree reclined seat, and there's other things that are
20 classified.
21 Q Understood.
22 Did there come a time after that position you worked
23 with the State Department?
24 A I left that venue and was asked to move over to the
25 State Department in their INL.

24
1 Q What does that stand for?
2 A International Law Enforcement initiative where the
3 State Department would deploy law enforcement officers,
4 correction officers, attorneys, and engineers to failed states
5 such as Afghanistan, Lebanon, was in Iraq, it was in East
6 Timor, Haiti, and Liberia.
7 Q Now, how long did you serve in that role?
8 A Five years.
9 Q Does that bring us up to your move to Meggitt?
10 A I was contacted by Meggitt while conducting that.
11 Meggitt is a private defense contractor in the Fortune 100
12 European stock market and asked to come in and interview for
13 them on developing the law enforcement product line.
14 Q And did you, in fact, take a position with them?
15 A Yes, sir. They were the original shoot/don't shoot
16 or FATS manufacturer and they had been losing market shares
17 and confidence within that type of training was waning and
18 they brought me in to see what could be done with that.
19 Q And you said FATS. What does that stand for?
20 A FATS is Firearms Simulation Training.
21 Q Now, how did it come that you took that particular
22 product line and did research?
23 A My first day there I was given a laptop, given a
24 cubicle, told them -- I was told my business cards would be
25 here in three days and, oh, yeah, in three weeks you have to
25
1 give a speech to all the stockholders and the board of
2 directors outlining what your plans are to move this product
3 ahead.
4 Q Now, what area were you focusing on when you were
5 looking at this particular product?
6 A Well, I was rather cynical. As academy director I
7 bought one of their systems and as academy director I was
8 concerned about negligent training lawsuits and I wanted to
9 make sure that we were providing the cutting edge of training
10 for our law enforcement officers. And I asked the sales rep
11 to produce the documentation that would allow me to go into
12 court and defend our study.
13 His response was that there's no such documents that
14 exist. And though there's anecdotal evidence, yeah, the
15 officers go through it and they come out, they're saying that
16 was all similar, oh, my god, I was scared to death and I'm
17 shaken and cotton mouth, body tremors, but nothing that I felt
18 comfortable in going into court. That was in 1997. Now in
19 2007 it's still hasn't been done. So I told the board of
20 directors, I said, if you really want to validate this piece
21 of equipment or the entire simulation industry from aircraft
22 to locomotive to car simulators, we need to do some scientific
23 research.
24 Q Describe the process that you developed and
25 undertook at that point please.

26
1 A Well, to my surprise that day I was given
2 three-quarters of a million dollars to do the research. They
3 literally believed everything that I had to say.
4 Q What type of research?
5 A Whether or not you can create a level of stress
6 referred to as the activation of the sympathetic nervous
7 system which is what activates within you in a
8 life-threatening situation in a virtual environment. And I
9 then set out on a year-long literature review of now
10 understanding why it had never been validated before. It was
11 an elusive target.
12 Q When you say you went through the literature, is
13 that all the literature accumulated by folks who have done
14 research in the area of this activation sympathetic and
15 parasympathetic nervous system?
16 A Well, there really wasn't any research as far as in
17 the simulation field. Again, it's referred to as anecdotal
18 evidence. The research I concentrated on was how the
19 sympathetic nervous system is activated and how as director of
20 research I could manufacture an external stimulus that would
21 activate their sympathetic nervous system during proper times
22 of the video to give them positive learning experience.
23 So I then set out and developed what all of us in
24 this room have. We have primal fears. We're all born with
25 them. You have the fears of loss of physical support, which

27
1 if you have ever had children you'll notice the nurse over in
2 the corner cleaning the child up, bracing their head in the
3 palm and wiping them down, but actually they're watching the
4 babies arms flail out. That's referred to as the Apgar Reflex
5 and it indicates the development of the central nervous
6 system. So you're born with the fear of loss of physical
7 support and that's why the arms flail out. They do it for
8 about 30 minutes and if they don't flail then we need to take
9 a closer look at the child.
10 We're born with the fears of noxicities (phonetic)
11 of nature, which are the fears of things that crawl or swoop;
12 speeders, birds, bats, things like that. We're naturally born
13 with those fears.
14 We're born with the fear of sudden impact or touch.
15 All of us as a child when we turn the light switch off in the
16 bedroom, we jump from the light switch to the bed because we
17 didn't want the Boogy Man to grab us from underneath the bed.
18 We have those primal fears.
19 And so if I know that everyone has those primal
20 fears, then I can develop an external stimuli that when
21 activated appropriately within the scenario we would be able
22 to spike them and get their activation of the sympathetic
23 nervous system going and then accurately watch how they
24 respond, whether or not they responded as they were trained or
25 whether they responded inappropriately and that we'd have to

28
1 go back and kind of tweak that officer and do a number of
2 other types of scenarios with him.
3 Q Was this affiliated with a university?
4 A This funding was through the University of South
5 Florida. I went down there and recruited them. I had a house
6 in Florida as well. They're a top ten research university in
7 the country and I went to their psychology department. I
8 asked, explained to them what I wanted to do, explained to
9 them that I had three-quarters of a million dollars and that I
10 wanted to hire professors and have them, along with me, design
11 a research project that would be able to capture the
12 activation of the sympathetic nervous system.
13 Q And you said, just so I'm clear, did you assemble
14 and collaborate with a team of professionals?
15 A Oh, yes. I had neuropsycho-cardiologist, a
16 neuropsycho-immunologist, a neuropsycho-endocrinologist. I
17 had Dr. Ross from Western Illinois University at that time who
18 was my partner in other research projects and I had a
19 statistician.
20 Q Now, can you describe the protocol of the study that
21 you set up.
22 A Well, we would -- I had several parameters that I
23 wanted to accomplish and the first of which is that I wanted
24 to be able to determine the activation of the sympathetic
25 nervous system within the human body absent of drawing blood.

29
1 Heretofore all the other research projects they would draw
2 blood prior to and draw blood after. My argument was is that
3 the mere fact of drawing blood causes stress, so the skew of
4 the hormones in the activations are already there.
5 So Dr. Maureen Groer, a renowned author and
6 researcher at the University of South Florida, hypothesized
7 that she thought we could get those stress hormones out of
8 saliva, which makes it very nonevasive and that we could draw
9 them at different intervals during the process that the
10 officer was going through and be able to determine if, in
11 fact, the SNS was activated, how much it was activated and how
12 long it lasts after the event.
13 So with her we also, I used, not that I was
14 brilliant, but it was 2008 by then and we had the equipment
15 within the private sector that had telemetry systems. What
16 also made this difficult to do is that prior to this the
17 officer or this test subject would have to be tethered and
18 they couldn't run around in the lab and actually shoot or
19 kneel down or move like they normally would during the event.
20 Well, now comes along 2008 and it's telemetry, it's
21 all wireless. I can capture their heart rate, their heart
22 rate variability, the respiratory, their core temperature, the
23 golbony (phonetic) skin temperature, all in a telemetry
24 fashion. I fixed a mobile eye to them so I could actually see
25 what his eyes were seeing, which is very important because of,
30
1 for example, the officer in Tulsa, Oklahoma, the female
2 officer who shot and the three other officers didn't shoot. I
3 collaborated with them about what the reticular activation
4 system is, why one person sees something so much different
5 than the other people and was able to explain why that officer
6 did what she did. So -- and that was, again, taken from the
7 research that we'd done in Tampa.
8 So we progress along. We had the state-of-the-art
9 testing equipment. We had the state-of-the-art virtual
10 equipment. We had my, the equipment that I designed for
11 external stimulation that I later went on and patented
12 activated and we put 150 officers through the scenarios.
13 Q When you say 150 officers, what type of officers are
14 you referring to?
15 A These are officers from five different jurisdictions
16 in the Hillsborough, Pasco County area, from Tampa P.D.,
17 Hillsborough Sheriff, Pasco, Tarpon Springs, and a number of
18 other small jurisdictions, a couple state officers
19 participated as well. Of course involving live human test
20 subjects you have to compensate them, so we were able to pay
21 them for their participation. It wasn't hard to do. In our
22 city, in Kansas City, our off-duty officers make 50 bucks an
23 hour. So I told Meggitt that I'm going to have to pay them
24 $50 an hour. Well, how long is it going to take? Maybe an
25 hour, maybe two. Okay. A hundred. And then they said, well,
31
1 you know, they have to pay for their gas and so they upped it
2 another $50 and then somehow it wound up 175. They were all
3 compensated for that so --
4 Q Mr. Murphy --
5 A That's important just because it's part of the IRB,
6 the Internal Review Board.
7 Q What is the IRB?
8 A It's a review board that monitors all human test
9 subject research.
10 Q Where is that?
11 A That's within the university.
12 Q Okay. So did they validate the --
13 A Absolutely.
14 Q Now after each officer -- did each officer go
15 through the simulator?
16 A Yes.
17 Q What did you do before and after they went through
18 the simulator?
19 A Well, we wired them up and we took the samples. We
20 got a base line heart rate and we put them within the lab.
21 Some of them went through a regular off-the-shelf scenario.
22 Other ones went through a scenario that I designed with all
23 the human factor activations.
24 Q Now when you say they went through a scenario with
25 all the human factor activations, what did these officers see
32
1 and interact, what did they interact with?
2 A They interacted with the video that was playing and
3 as it was an active shooter situation, as they would progress
4 through the building, the first thing they would encounter is
5 a woman in the office, she's startled, she throws a People
6 magazine at the officer. At the time then canons fire, vortex
7 canons, that actually simulate the magazine whooshing by his
8 head to see if they would duck down, see if they would have a
9 flinch response and accidently pull the trigger.
10 And then the next scene they would go down is they'd
11 encounter a guy in the office that wouldn't open the door for
12 them and they'd turn the corner and there's a security guard
13 yelling and screaming, he's in here, he's in here.
14 So out of all these times there were potential times
15 for startle response in the officer to unfortunately shoot the
16 guy. He goes into the building and he sees the bad guy
17 beating, pistol whipping, a victim on the ground. The bad guy
18 takes off running and serpentines through a large warehouse
19 building, all the while giving him opportunities to shoot if
20 he thought it was necessary.
21 Then progresses outside where prior to that there
22 are flashing lights and loud clanging bell which was taken
23 from the Columbine shooting incident where Cly Bowen
24 (phonetics) and his buddy pulled all the fire alarms,
25 activated the strobe lights to cause the officers' balance

33
1 displacement as they were going through the hallways and
2 making them unable to talk on the radio because of the loud
3 clanging sound thus over-modulating the radios.
4 Once they go out there he gets hit with a 32,000
5 carbine power light simulating a burst of sunlight and then he
6 sees the guy in a wide open field running with the gun and if
7 there's a time to shoot, it would be now. But, unfortunately,
8 I sent a car by at that time that the bad guy tries to carjack
9 and to see whether or not the officer could back off of that
10 trigger pull and wait for the citizen to go by.
11 Then he opens up and able to run across the field,
12 looks like a good time to shoot but, unfortunately, I send two
13 back-up officers in at that time. One back-up officer is
14 directly behind the bad guy. You know, two of the last three
15 FBI agents were killed by other agents. And this is what
16 happens is that you lose near vision, far vision and
17 peripheral vision.
18 Q And when you say you lose this, Mr. Murphy, is that
19 because of the activation --
20 A Yes.
21 Q -- of the parasympathetic nervous system?
22 A Yes.
23 Q Now when you were putting these officers through
24 this simulation, how did you know it was activated?
25 A How did I -- at that time I didn't know that that

34
1 would have been activated other than watching, we had realtime
2 speedometers on what their heart rate was, what their body
3 temperatures were and we could tell the way the heart rate is
4 spiking and the respiration that the sympathetic nervous
5 system was activated.
6 Q When they completed this simulation, what did you
7 have them do then?
8 A They gave another drool immediately after and then
9 30 minutes later they gave a saliva sample and they also took
10 a survey asking them questions about the event.
11 Q And then what, if any, requirements were asked of
12 those test subjects after the first questionnaire was done?
13 A They were given another instrument to take home and
14 to fill it out after two complete sleep cycles.
15 Q Did they, in fact, do that?
16 A They did.
17 Q Is that what you were referring to that they had, in
18 order to receive their pay they had to complete that part?
19 A I withheld the last paycheck until I got the test
20 back.
21 Q What conclusions did you all derive from this
22 particular study?
23 A Well, it validated what we all know in the
24 profession that happens to us during a critical incident, that
25 you have memory loss, that immediately after the event knowing
35
1 your name is an accomplishment, and asking an officer at that
2 time detailed questions is not the right time. He just, his
3 brain just flushed. The activation of the sympathetic nervous
4 system, one of the chemicals released is cortisol. Cortisol
5 goes to the brain. The meglius (phonetic) says, hey, this is
6 not a warm, fuzzy puppy, this is something that's going to
7 kill me, I need you up here to coat the synapsis so we can
8 process this information in nanoseconds. You don't have one
9 second or two seconds to think about it. We need split second
10 information. So the cortisol goes up there and coats the
11 synapsis. You're allowed to think about 300 times faster than
12 you normally would. That's why in critical events that the
13 normal person has, like a car blows through the intersection
14 in front of you and you had to slam on the brakes and you sit
15 there and you all of a sudden play that event in slow motion,
16 because of the secretion of cortisol in your brain allows you
17 to process it and now it's slowing it down for you so things
18 happen in slow motion during that time of your memory.
19 So we are able to deduce that realtime and then when
20 we -- we didn't know going in that we would get the cortisol
21 levels that we got or, nor that we got the other chemicals
22 that we were testing for, Interleukin 6, the immunoglobulin A
23 and Alpha-Amylase. These are all stress hormones that are
24 secreted when you're under stress and a
25 neuropsycho-endocrinologist studies it because it destroys

36
1 your immune system. Well, that's what happens to an officer
2 over a 30-year period of being exposed to these events and
3 your immune system. You're not the picture of health that you
4 were when you first came on. And Maureen Groer and myself
5 have presented a number of articles and papers to professional
6 seminars on the effects of cortisol and the effects of these
7 other hormones that are secreted.
8 Q Remind the Court who Dr. Maureen Groer is please.
9 A Maureen Groer is a professor at the University of
10 South Florida. She's published the basic book on
11 neuropathology. The book is that thick and she is an expert
12 in her field internationally.
13 Q Did you collaborate with her in making these
14 professional presentations?
15 A I do and I still do.
16 Q What are some of the audiences that heard these
17 presentations?
18 A Well, we presented to the International Association
19 of Neuropsycho-Immunologists in Saddlebrook, Florida. We
20 presented a paper, nominated for best paper, in San Diego for
21 the Neuropsychco-Immunologists International. She has three
22 papers in process now being published in reference to the
23 research.
24 Q Are you co-authors?
25 A Yes.
37
1 Q How many papers have you co-authored with her on up
2 to this point?
3 A Well, three that have been published and three more
4 that are waiting to be published in different journals.
5 Q When we talk about publishing these papers, they're
6 subject to peer review; is that correct?
7 A That's what they're for.
8 Q If someone files an objection or a contradiction
9 saying that the research is not valid or compliant, that's how
10 scientists and other researchers in the field evaluate; is
11 that correct?
12 A Absolutely.
13 Q Have any of those ever been filed to any of your
14 papers?
15 A Yes.
16 Q Have any objections been filed to your --
17 A Yes.
18 Q When you did the work on it, did it end up being
19 validated by additional research that you did?
20 A Well, Japan came out with a test that said
21 immunoglobulin 1 was not the most accurate hormone that you
22 could get so they said immunoglobulin what they titled since
23 they discovered it A1 is a more accurate reading on that
24 level.
25 So this was three years later and I asked Maureen to

38
1 go back, how many essays do we still have from the research.
2 It turned out out of 150 we had 139. And I said, could you
3 retest them using the guidelines and the test kits for the
4 immunoglobulin A1. And it came back and it revalidated our
5 same findings. It was the same numbers across the board on.
6 Q So that was republished at a later date; correct?
7 A Yes.
8 Q And there was no objection at that point.
9 A No. It actually helped Japan validate their claim.
10 Q Now have you published other papers as well with Dr.
11 Ross regarding this research?
12 A Yes, sir.
13 MR. SCHMIDT: Your Honor, may I approach?
14 THE COURT: You may.
15 BY MR. SCHMIDT:
16 Q Mr. Murphy, I'm handing you what's been marked as
17 Defense 55 for identification. If you'll take a minute and
18 thumb through that and tell me what it is when you're ready.
19 A This is a paper that I had written for the, it's
20 called I/ITSEC which is the Interservice Industry Training
21 Simulation Education Conference. It's the international
22 conference for simulation. So all the simulation companies in
23 the world come to this conference and present papers. This
24 paper was presented in reference to our research. Again, it
25 was nominated for best paper. I presented this in a seminar

39
1 format during the conference and this is all the military in
2 the world, well, NATO Forces and others attend this and the
3 United States is particularly in attendance.
4 Q In particular. what I want to point out to you on
5 the second and third -- excuse me -- on the third or second,
6 start bottom of the second and through the fourth page, does
7 that, in fact, summarize the seminal research prior to your
8 study; is that correct?
9 A Yes, sir.
10 Q And that is, in fact, the research that you
11 evaluated prior to setting up the protocol in this particular
12 study; is that correct, Mr. Murphy?
13 A Yes, it was the background, yes.
14 Q Okay. And then that was published as well and was
15 subject to peer review; correct?
16 A Yes, sir.
17 Q And I'm handing you what's marked 56. What is that
18 please?
19 A There is a paper that Dr. Ross and I had written
20 following the research on analyzing perceptions and
21 misperceptions of police officers and lethal force virtual
22 stimulators scenarios and this illustrates how you really
23 don't see what you think you see and we point out what
24 officers, the details that they miss. And it created a
25 glaring hole in our training of police officers at that time.

40
1 Q Handing you what's been marked Defense Exhibit 55
2 (sic) for identification. Mr. Murphy, can you tell us what
3 that is please.
4 A This is a chapter 4 of a book that was just released
5 that Dr. Ross and I, along with 14 other doctors, medical
6 doctors and PhD's, had written on the guidelines of
7 investigating officer-involved shootings and in-custody
8 deaths. And this is Chapter 4, the chapter that I wrote,
9 titled Stress Perceptional Distortion And Human Performance.
10 Q When is that coming -- is that available now for
11 purchase?
12 A Well, I ordered one. I think you're going to get
13 mine before I do. But it's available on Amazon now. It's a
14 college textbook.
15 Q Did there come a time when you became involved with
16 a NATO operation?
17 A Yes, sir.
18 Through the exposure at the I/ITSEC conference, a
19 number of nations contacted me to validate their training. So
20 I was contacted by Two Star General Stephen Layfield
21 (phonetic) who was in charge of the modeling and simulation
22 joint force command to come and replicate the research that
23 I'd done with police officers. I put him off for two years
24 saying, look, it doesn't matter what uniform you're wearing;
25 when you're getting shot at you're getting shot at. Yeah, but
41
1 those were police officers; we'd really like to see how
2 military guys do it.
3 So they wore me down and we conducted the research
4 out at Camp Atterbury in Illinois in Muscatatuck, a training
5 center in Illinois. 19 different NATO forces were present,
6 and the squad of Marines and the squad of Army were also there
7 that went through the scenario.
8 I designed a scenario much like the one I did for
9 the police officers, however, we added actual simulated RPG's
10 where there was shrapnel flying within the lab and the smell
11 of cordite from the ignition. We added bullet strikes where
12 they're getting shot at. I have holographic earbuds on them
13 so they can actually hear -- you know, a ricochet is not like
14 in the movie where it goes ping. It goes, it buzzes over. So
15 if you've ever been down range, you know what that sound is
16 and you know what to do. Added all of those effects to them
17 and I had a number of generals sitting in my control center
18 watching us, watching the speedometer dials.
19 At this time Under Armour helped underwrite the
20 research by giving us little Spiderman shirts so it was just a
21 little shirt with a button on it that had all of the medical
22 information available. We didn't have to wire them up
23 anymore. They just put the T-shirt on and we went with it so
24 the soldiers could move freely. They exceeded, exceeded, the
25 parameters of our test kits that we used for the police

42
1 officers. In other words, their stress and their immersion
2 was so much greater, whereas they hypothesized that they would
3 be the best trained, that they would be able to react right,
4 and it was just totally the opposite.
5 So that was a very interesting research project.
6 Did a couple of other extra things dealing with PTSD, now
7 referred to as PTS, to help the soldiers out in later dates.
8 Q Mr. Murphy, how many total subjects have gone
9 through the simulation of testing?
10 A Well, the testing in the capture of all of that
11 data, probably a thousand absent of the biomarkers. It's easy
12 now to put a stress vest on them, hook them up and be able to
13 watch what they're doing, so that's easily a thousand officers
14 and soldiers.
15 Q Can you describe to the Court the impact that an
16 activation of the sympathetic and parasympathetic nervous
17 system has on the individual.
18 A Well, the sympathetic nervous system is deadly. It
19 destroys your immune system and it occurs over time, as in a
20 police career, it will kill you. The activation of the
21 sympathetic nervous system, when you're going through it, you
22 will experience several physiological and psychological
23 events.
24 As I've explained earlier, the secretion of cortisol
25 we already know destroys your short-term memory. And there's

43
1 short term sensory storage. There's short-term memory and
2 long-term memory. And it also helps destroy the long-term
3 memory if left unabated over time. We now have as a standard
4 in the industry guidelines that I've written for the
5 International Association of Chiefs of Police and I have it
6 codified in our general orders for my old department when to
7 interview an officer after a critical incident like this.
8 Q What changes or what changes in the protocol were
9 made based on your research?
10 A We don't talk to them.
11 Q What do you mean by that?
12 A Right after the event, like I said, they're lucky to
13 know their own name. We give them some fast burning
14 carbohydrates and some protein to help the parasympathetic
15 nervous system return them to what's called the homogenous
16 state and we talk to them after two complete sleep cycles. We
17 assign a critical incident officer with them so they're not
18 contaminated by all their buddies wanting to go out and get
19 drunk afterwards and all that other type of stuff you see on
20 the movies. And we take it very serious in dealing with the
21 officer and what he had experienced.
22 Q And what did you develop as far as, or would you
23 recommend that's been adopted by the 2HC you just described as
24 far as the timing of the statement being given by the officers
25 involved in a lethal-force scenario?

44
1 A Well, at first you take kind of what's commonly
2 referred to as a public safety declaration, hey, you know,
3 what happened, did you know this guy, did you have, you know,
4 were you two at it. And obviously during a regular police
5 confrontation that answer is no. And then we say, okay.
6 We're not telling you to lawyer up, because we have a process.
7 We provide that. We provide a union rep and we provide a
8 critical incident officer with them to be with them for the
9 next three days. And then on the third day generally is when
10 we talk and by that time the district attorney gets an idea
11 whether or not they're going to go criminal or not and so we
12 know which way to go with the officer.
13 Q When you did your research in the project, did
14 you -- what changes did you see between the first
15 questionnaire and then the questionnaire 72 hours later?
16 A Drastically different.
17 Q How was it different?
18 A Well, they had a little bit more recall. They would
19 make a declaration and then on the third day they would have
20 what they would consider recall because they were asked that
21 question, have you answered everything. And actually they're
22 still giving false information as to what happened on the
23 video.
24 Q How does this damage that's caused by the cortisol,
25 if it does at all, improve over the course of the next two

45
1 days?
2 A Well, again, the parasympathetic nervous system
3 kicks in and chemically and physically it's trying to return
4 you back to normal or what is now the new normal for you after
5 experiencing something like that. So it flushes all the
6 toxicities out of your body. When you get to an officer and
7 he's still shaking, he's crying, he's thirsty, you know, his
8 eyes can't focus, he's having body cramps and everything else,
9 you know that he is flooded with all of those hormones from
10 the activation of the sympathetic nervous system and your job
11 is to put him in the back seat of a patrol car, stay with him,
12 don't leave him, again, because they have an overwhelming
13 sense of abandonment and watch him and then, again, put the
14 fast burning carbohydrates and protein in him.
15 Q Have you ever been involved in a live-fire situation
16 in the course of your law enforcement career?
17 A I've been shot at four times.
18 Q Have you ever been attacked by an assailant that
19 resulted in an injury?
20 A I was stabbed once.
21 Q Have you made presentations to individuals in the
22 medical field regarding this research?
23 A Oh, yes.
24 Q To whom?
25 A Well, as I spoke to, the presentations that Dr.

46
1 Groer and I have given and the papers that we presented most
2 recently to the International Association of Chiefs of Police,
3 Forensic Psychologists and the International Association of
4 Chiefs of Police of Tactical Medical Doctors and Forensic
5 Doctors.
6 Q Did you make the presentation to emergency room
7 doctors as well?
8 A Yes, they were mixed in with the tactical.
9 Q Have you made presentations of research to Army Reed
10 Army Hospital?
11 A Yes.
12 Q Have you testified as an expert witness?
13 A Yes.
14 Q How many times?
15 A In this type of testimony?
16 Q Well, in court, yes, sir.
17 THE COURT: Yes, in this type of testimony.
18 THE WITNESS: In court testifying for police
19 officers, 15 times.
20 BY MR. SCHMIDT:
21 Q And have you been accepted as an expert in this area
22 of research, the activation of the sympathetic and
23 parasympathetic nervous system?
24 A Absolutely.
25 Q Have you testified in deposition testimony as well

47
1 in civil cases as an expert in this area as well?
2 A Yes, sir.
3 Q How many times have you done that?
4 A I believe seven.
5 Q Mr. Murphy, have you had the opportunity to review
6 the case file that we forwarded to you in this case?
7 A I did.
8 Q And when I contacted you, did you readily agree to
9 be involved?
10 A No.
11 Q What was your requirement or your stipulation?
12 A I wanted to drive from Griffin, Georgia up here and
13 sit in front of you and sit in front of Mr. Maddox.
14 Q Did you interview Stephen?
15 A I did.
16 Q After that interview what, if anything, did you
17 agree to do at that point?
18 A Well, I watched him as he reviewed the videos and
19 told me his story and how he was physically reliving it even a
20 year later and had the same symptoms that you would see in the
21 activation of the SNS and I realized then that he was
22 obviously not the predator, obviously not the aggressor in
23 this, and that I would agree to step in and know.
24 Q Did you after that review the three-hour interview
25 by the police department in this case?

48
1 A I did.
2 Q Have you reviewed the 911 call?
3 A Yes.
4 Q Have you reviewed the in-car video of him, portions
5 of it, being transported from the scene to the police
6 department?
7 A Yes, sir.
8 Q When you reviewed those videos of how Stephen
9 presented what, if anything, did you glean from that?
10 A Well, it was obvious even to a layman that he had
11 been through a traumatic event, that his body was still trying
12 to detoxify, that the PNS was -- it comes and goes, it ebbs
13 and flows, whether the PNS finally takes over the body and
14 gets you calmed down or whether the SNS and the toxicity
15 levels of the hormones are still in you.
16 Q When you say PNS we're talking about the
17 parasympathetic --
18 A Parasympathetic nervous system.
19 Q And sympathetic nervous system is SNS; correct?
20 A Correct.
21 Q So what did you see on the video of the presentation
22 that indicated to you that Mr. Maddox was in the throws of the
23 activation of parasympathetic nervous system?
24 A In the car or which video?
25 Q First in the car.

49
1 A That he responded cognitively to the questions but
2 was unaware of even his personal injuries. And he was
3 shaking, the cotton mouth, unable to stay focused, and it was
4 obvious that his body was aching for some nourishment.
5 Q Was that consistent with what you saw in the test
6 subjects that you've run through this simulator?
7 A Just as soon as I walked out the door, right.
8 Q What, if anything, did you glean from the videos at
9 the police department that would lead you to believe that
10 Stephen was in the activation of the parasympathetic and
11 sympathetic nervous system?
12 A In the interrogation room?
13 Q Yes, sir.
14 A There were, at the beginning often times he appeared
15 catatonic.
16 Q When you say catatonic what do you mean by that?
17 A He was spaced-out, not that he was lost. It was
18 just he was not with you. And, you know, when he's -- when
19 someone is constantly asking for water, that tells you that
20 the body is trying to flush something.
21 Q And what leads to the cotton mouth result in the
22 need for the body to ingest water?
23 A Well, it's the activation of those stress hormones
24 that gets you the cotton mouth like when you're up here
25 testifying and you're getting cotton mouth and that type of

50
1 stuff. When you're at a sports event and you have the jitters
2 and everything else, it's a stressful moment and in some ways
3 they're good for you, they keep you at your peak but in most
4 ways and in a survival situation it's very bad.
5 Q Now when a person is in the throws of an activation
6 of the sympathetic and parasympathetic nervous system, what
7 impact does it have on their brain and perceptive abilities?
8 A Well, during the SNS you have inaccurate
9 perceptions. You're in that startled response. You are the
10 prey. And you have to respond and defend yourself. When the
11 PNS kicks in, it's then when you have an overwhelming sense of
12 abandonment, body tremors, again, the cotton mouth. You lose
13 distortion in time, and distortions of you'll repeat yourself.
14 Q Based on your research is it unusual for officers to
15 accurately recall the number of shots that they've fired in
16 lethal force events?
17 A I took that question out of our firearm discharge
18 report. There's no way for them to know how many shots they
19 fired.
20 Q What is the basis for that statement?
21 A Well, based on the questions that we asked them in
22 the research, none of them knew the number of shots that they
23 actually fired. Most of them thought they fired more.
24 Oftentimes they fired much less. One of them thought he fired
25 and never did fire. So it's this distortion in time that

51
1 happens to you when those, when the SNS kicks in.
2 MR. SCHMIDT: Moment please, Your Honor.
3 Judge, if I may.
4 BY MR. SCHMIDT:
5 Q Mr. Murphy, if a person was in the throws of this
6 PNS, SNS activation, would it affect their ability to recall
7 details of the events surrounding them?
8 A Absolutely.
9 Q How so?
10 A Because what appears important to you as an
11 investigator at the time that they were trying to survive that
12 incident are not important. Time, distance were not
13 important. Colors are not important. And all the perceptions
14 that you think you want to know for the detailed investigative
15 report are absolutely not captured.
16 MR. SCHMIDT: Your Honor, that's our presentation.
17 THE COURT: Time. Court reporter said she needs a
18 break.
19 Court stands down for 15 minutes.
20 (A recess was taken from 12:35 p.m. until 12:50 p.m.)
21 THE COURT: All right. Court's back in.
22 Sir, please reconvene the stand.
23 (Witness resumed the witness stand.)
24 THE COURT: You may proceed.
25 MR. GRAVES: Thank you, Judge.

Voir Dire by Mr. Graves
52
1 VOIR DIRE
2 BY MR. GRAVES:
3 Q Good afternoon, Mr. Murphy.
4 A Good afternoon, sir.
5 Q How you doing?
6 On direct you testified that Mr. Maddox was
7 obviously not the aggressor; is that correct?
8 A Yes, sir.
9 Q All right.
10 MR. GRAVES: May I approach the witness?
11 THE WITNESS: Yes, sir.
13 BY MR. GRAVES:
14 Q Handing you what has been marked as State's Exhibit
15 32 and previously admitted as State's Exhibit 32, were you
16 aware that Mr. Maddox, before shooting Mr. Kelly Wilkerson,
17 sliced his face open as you see in that picture?
18 A Yes, sir.
19 Q And you still stick to your position that Mr. Maddox
20 was obviously not the aggressor?
21 A I consider this more of a defensive wound like he
22 would try to scratch or claw his eyes out or something. He
23 was able to get to a utensil or utility tool that he carried
24 at work and used it to -- I would think if he's an aggressor
25 it would be more than one cut.

53
1 Q Okay. And you said a utility tool. Would it
2 surprise you that the utility tool was a Hawkbill knife?
3 A I understand that he works in shipping and using
4 that during his course of employment.
5 Q Mr. Maddox works in shipping?
6 A Well, logistics.
7 Q Okay.
8 A Warehouse.
9 Q Okay. And where did you attend medical school,
10 Mr. Murphy?
11 A I have not.
12 Q Okay. Are you a neuropsychco-immunologist?
13 A No.
14 Q Are you a psychiatrist?
15 A No.
16 Q Psychoanalyst?
17 A No.
18 Q A biologist?
19 A I have a biology background, but not bio-degree.
20 Q What is that background?
21 A I have an extensive forensic background from my CSI
22 days and as a commander of CSI. I taught crime scene
23 investigation for 18 years.
24 Q So that makes you a biologist?
25 A You asked me where I got the biology background.

54
1 Q Okay. Are you a biochemist?
2 A No.
3 Q So what is your medical background?
4 A As far as I think the path you're taking me down, I
5 don't have a medical background. I am a licensed myofascial
6 therapist. I am a licensed life coach and peer coach so I've
7 had that experience.
8 Q Okay. And what's your psycho, your background as
9 far as psychiatry or psychology?
10 A To a lesser extent the life coaching and the
11 mentoring programs.
12 Q Okay. And so you conducted a lot of simulations
13 for, was it for law enforcement, the simulations that you
14 conduct?
15 A Both military and law enforcement.
16 Q To the best of your knowledge, is Mr. Maddox
17 military or law enforcement?
18 A Not that I know of.
19 Q Okay. Is there some type of association of
20 sympathetic and parasympathetic nervous system experts?
21 A Well, it doesn't fall under one science so I
22 wouldn't think so.
23 Q And you stated that thousands of officers have went
24 through your simulation; is that correct?
25 A Yes, sir.
55
1 Q Did Mr. Maddox go through the simulation?
2 A No, sir, not that I know of.
3 Q Okay. So you were there on October 17, 2015 at
4 Bill's Barbecue?
5 A No.
6 Q So when Mr. Maddox was there on scene, was that a
7 virtual environment that he was in?
8 A I wouldn't think so.
9 Q Now isn't it true that all people react to stress a
10 little bit different or wouldn't you agree to that statement?
11 A To a degree, but they can all be lumped into
12 different categories, yes.
13 Q And did you bring your report with you today?
14 A My findings?
15 Q Yes, sir.
16 A I don't have that.
17 Q Did you bring a case file of some sort?
18 A I brought, you know, information of the brain and
19 things like that for the Court.
20 Q So pertaining to this case, did you bring anything
21 other than your suit?
22 A I brought a copy of --
23 MR. THOMAS: Objection, Your Honor.
24 THE COURT: Overruled.
25 THE WITNESS: -- copy of our general order, a copy

56
1 of Chapter 4 of the book I just published. I got -- may I
2 look?
3 BY MR. GRAVES:
4 Q Yes, sir.
5 A My C.V. outlining everywhere I've presented
6 research. And that's basically it.
7 Q Now the substance of your report pertaining to
8 Stephen Maddox is two pages long; correct?
9 A Yes, sir.
10 Q And the only portion of it that really speaks of
11 Mr. Maddox is the last paragraph; correct?
12 A Yes, sir.
13 Q And in terms of the source material that you relied
14 upon, you have a listing; correct?
15 A Yes, sir.
16 Q And you list the interview that was conducted by law
17 enforcement with Mr. Maddox; correct?
18 A Right.
19 Q Now did you review the surveillance footage of
20 Mr. Maddox on that night?
21 A Which one would that be?
22 Q The video of him going to his bike to retrieve his
23 firearm.
24 A I don't recall that.
25 Q Who supplied you with the information from which you

57
1 created your report?
2 A His attorney's office.
3 MR. GRAVES: Judge, at this time the State would
4 move to play the condensed clip of Mr. Maddox going to the
5 bike and retrieving his firearm.
7 BY MR. GRAVES:
8 Q Mr. Murphy, if you'll direct your attention to the
9 screen, I'm going to play a clip for you.
10 A All right.
11 MR. SCHMIDT: May we move?
12 THE COURT: Turn it to him.
13 Can you see it, sir?
15 THE COURT: All right.
16 (Mr. Graves played video at 12:58 p.m.)
17 THE WITNESS: Can you tell me what I'm looking at?
18 BY MR. GRAVES:
19 Q This is surveillance footage of the drive-thru under
20 which Mr. Maddox parked his bike and this is right prior to
21 the shooting.
22 A Looking down on top of it.
23 Q Yes, sir.
24 A All right.
25 Q And that's all the relevant footage. The rest takes

58
1 place off camera.
2 (Mr. Graves shut the video off at 12:59 p.m.)
3 THE COURT: Leave it there if you need it. Just
4 move it to the side so that you can have a clear view of your
5 witness.
6 MR. SCHMIDT: Yes, sir.
7 BY MR. GRAVES:
8 Q Now, Mr. Murphy, you just reviewed the surveillance
9 footage. Is that your first time seeing that footage?
10 A Yes, sir.
11 Q Would it have influenced your findings in any way,
12 shape or form if you had seen that previously?
13 A No.
14 Q So after viewing that you still would state that
15 Mr. Maddox clearly was not the aggressor, if that took place
16 right before the shooting?
17 A Yes, sir.
18 Q And as far as your report, where is the analysis
19 that supplied you with the conclusions that applied to
20 Mr. Maddox?
21 MR. SCHMIDT: Objection, Your Honor. That's not
22 what the statute requires. It doesn't require the statistical
23 basis or calculations or other exhaustive analysis as to the
24 conclusions reached. The statute requires the conclusions and
25 the basis for those conclusions.

59
1 MR. GRAVES: Judge, I just simply asked where are
2 they and I intend to go a little further in asking if he did
3 any analysis.
4 THE COURT: Well, at this point if that's where
5 you're headed, overruled.
6 BY MR. GRAVES:
7 Q Now, Mr. Murphy, did you do any analysis to arrive
8 at your conclusions?
9 A Well, initially I came up and interviewed him and
10 listened to him, asked him questions, watched how he was
11 reacting, testing his memory, his recall, repeat himself
12 accurately as to what he had told me at that time. And then I
13 reviewed the data that was given to me.
14 Q All right. And you stated that Mr. Maddox, in the
15 in-car camera footage that Defense Counsel supplied you with
16 selectively, you stated that he was unaware of his personal
17 injuries; is that correct?
18 A (Nods head up and down.)
19 Q What were his personal injuries?
20 A He had blood on the side of his head, mouse over his
21 eye.
22 Q Would it surprise you that Mr. Maddox himself was
23 not complaining of any personal injuries?
24 A I didn't know I was stabbed either so it wouldn't
25 surprise me.
60
1 MR. SCHMIDT: Objection, Your Honor. That isn't
2 necessarily the testimony that was presented. I think it's a
3 mischaracterization.
4 THE COURT: Overruled.
5 BY MR. GRAVES:
6 Q Now you've stated that Mr. Maddox suffered from
7 cotton mouth. What would that be consistent with?
8 A Well, the activation of the sympathetic nervous
9 system and the hormones that burn all of that up.
10 Q Is that the only thing that will result in a person
11 having cotton mouth?
12 A Could be various medications.
13 Q Or salty foods?
14 A Could be, but that's more immediate than after the
15 fact.
16 Q And you watched Mr. Maddox's entire statement after
17 the shooting; correct?
18 A The interview with the detective, yes.
19 Q Yes, sir.
20 Now isn't it possible that the shooting occurred
21 exactly as Stephen Maddox described it to the detectives on
22 that night?
23 A No, I wouldn't think so. I'd have problems
24 believing that, that close after the event.
25 Q So you would say that what he said was not possible

61
1 to have happened because he was asked too close after the
2 event?
3 A What I'm saying is that the recall of events
4 immediately following, that what he is experiencing, to get a
5 detailed statement, would be suspicious.
6 Q But could the things he stated, could they have
7 happened exactly as he stated?
8 A I'm not sure what you're asking. Obviously he
9 stated those.
10 Q Right.
11 A I wasn't there so I couldn't answer if they could
12 have happened.
13 Q Right. Okay.
14 And since you weren't there, what makes you more
15 qualified than a jury of his peers to assess the truth of what
16 he said?
17 A I understand what he experienced, what his body went
18 through, both physiologically and psychologically. Had he
19 been a police officer, we wouldn't have been talking to him
20 right then.
21 MR. GRAVES: No further questions, Judge.
22 VOIR DIRE (Continued):
23 BY MR. SCHMIDT:
24 Q Mr. Murphy, what impact does cortisol have as far
25 as -- strike that.
62
1 You measure body temperature in your simulation; is
2 that correct?
3 A Yes.
4 Q What was the significance of that?
5 A Well, body temperature and perspiration is a
6 physical sign of the presence of cortisol on your body.
7 Q What did you note, if anything, that Mr. Maddox did
8 regarding his clothing in that surveillance video?
9 A In this one?
10 Q Yes, sir.
11 A He was peeling down.
12 Q Would that be consistent with someone who --
13 A It looked like he was raining sweat.
14 Q Now, doctor, excuse me. Mr. Murphy.
15 Based on your experience as a law enforcement
16 officer for 30 years, is the medical examiner present at a
17 crime scene typically?
18 A After the fact, yes, sir.
19 MR. GRAVES: Objection, Judge.
20 THE COURT: What's the purpose of that?
21 MR. SCHMIDT: I'm sorry, Judge.
22 Well, Judge, I'm exploring some of the -- withdrawn,
23 Judge.
24 BY MR. SCHMIDT:
25 Q Let me ask it this way.

63
1 Other than eyewitnesses and the participants, is it
2 unusual for anybody else to be at the scene of a crime?
3 MR. GRAVES: Objection.
4 THE COURT: I'll allow it.
5 THE WITNESS: After the fact, yeah, medical
6 examiner's there, investigators are there, probably a property
7 officer to take care of evidence and processing of that,
8 traffic units to take photographs.
9 BY MR. SCHMIDT:
10 Q The reason I'm asking is Mr. Graves is leading to
11 the fact that you weren't there; correct?
12 A Right.
13 Q But neither was the medical examiner at the time of
14 the alleged incident occurred; correct?
15 A I didn't see any indication of that.
16 Q Now did you notice in the interview Stephen
17 complained of cramps?
18 A His legs, yes.
19 Q What is that indicative of?
20 A It's the lactic acid trying to get flushed out of
21 your legs. You'll oftentimes see, watch police officers doing
22 this during the preliminary interview because their whole body
23 is aching.
24 Q And did you also see in the interview that the, any
25 sign of catatonic-type behavior?

64
1 A Well, catatonic means that you are lost in time, in
2 space and you're just kind of sitting there staring. You're
3 not worrying. You're not fidgeting around. You are just
4 totally out of it. You distance yourself from everything
5 that's going on and that was present in, when the detective
6 was talking with him.
7 Q Just so I'm clear, Mr. Murphy, the research that you
8 performed beginning in 2007 up until today, is that the
9 seminal study on sympathetic and parasympathetic nervous
10 system activation and the sequela of it?
11 A Yes.
12 Q And have you testified regarding police officers in
13 their activation of the sympathetic and parasympathetic
14 nervous system after a shooting in the line of duty?
15 A Yes.
16 Q And were you there during any of those shootings?
17 A No.
18 Q Was that testimony allowed in courts as an expert
19 witness regarding applying your stress -- excuse me -- your,
20 the activation of the sympathetic and parasympathetic nervous
21 system after the fact based on your observations and
22 interaction with the officers; is that right?
23 A Yes, sir.
24 Q You, in fact, were allowed to testify as an expert
25 regarding those conclusions in a courtroom as an expert; is

65
1 that right?
2 A Yes, sir.
3 Q And, again, were you present at any of those
4 shootings when they occurred?
5 A No, sir.
6 Q And did you have any of those officers wired up in
7 your simulation system at the time?
8 A No, sir.
9 Q Did you have an opportunity to evaluate their saliva
10 at that time of the shooting?
11 A No, sir.
12 MR. SCHMIDT: Judge, those are all my questions.
13 MR. GRAVES: Briefly, Judge.
15 BY MR. GRAVES:
16 Q Now, Mr. Murphy, on your Curriculum Vitae or your
17 resume there's a section that says court certified expert;
18 correct, and does it outline all the times you've been
19 certified as a court certified expert?
20 A Can I compare yours with what I have?
21 Q Yes, sir.
22 MR. GRAVES: May I approach the witness, Judge?
24 BY MR. GRAVES:
25 Q All right. Now under the section for court

66
1 certified expert, you stated that this outlines all the time
2 you've been certified as an expert. Where does it state that
3 you were certified as an expert in the parasympathetic and
4 sympathetic nervous system?
5 A That all came under testimony in use of force cases.
6 Q And were those cases pertaining to police officers
7 and their use of force?
8 A Yes, reality based training and effects of combat
9 stress.
10 Q Okay. And is Mr. Maddox a police officer?
11 A No, sir.
12 Q And you stated from the video we just watched that
13 you could see Mr. Maddox raining sweat?
14 A Looked like, judging by the now reflection on the
15 top of his head and the sides of his face as he was coming
16 back there.
17 Q Now you stated that he was peeling down which would
18 be consistent with that. Couldn't him taking off his bike
19 colors be consistent with something else?
20 A I have no idea.
21 Q Could it be consistent with concealing the insignia
22 of his bike club?
23 A I wouldn't think so. He's standing by his bike so
24 he's already there.
25 Q And you stated that Mr. Maddox appeared to be --

67
1 what was the term you used -- just out of it?
2 A Catatonic.
3 Q Catatonic.
4 In a catatonic state would it be difficult to
5 remember the code for your iPhone?
6 A The code?
7 Q Yeah, to get into your iPhone.
8 A That's a weird thing about memory. You remember the
9 darnedest things and you don't remember the simplest things so
10 there's no rhyme or reason what you will or will not remember.
11 Q Right.
12 And so some parts of what he said could have been
13 exactly as he stated them; correct?
14 A About the iPhone?
15 Q Well, just in general, because you remember the
16 darnedest things, so some of what he said could have just been
17 correct; correct?
18 A The idiosyncrasies, the insignificant things.
19 MR. GRAVES: No further questions, Judge.
20 MR. SCHMIDT: Judge, I'd just like to mark, get him
21 to authenticate and mark his C.V.
22 THE COURT: That's fine.
24 BY MR. SCHMIDT:
25 Q Mr. Murphy, I'm handing you what's marked Exhibit

68
1 58.
2 A Yes, sir.
3 Q Is that a copy of your Curriculum Vitae?
4 A Yes, sir.
5 MR. SCHMIDT: Your Honor, we'd offer that.
6 THE COURT: Admit it for the purposes of voir
7 dire.
8 MR. SCHMIDT: Also offer 55, 56.
9 THE COURT: 55 is admitted. 56 is admitted.
10 MR. SCHMIDT: 57.
11 THE COURT: 57 for the purposes of voir dire.
12 MR. SCHMIDT: Thank you, Judge. That's all the
13 questions, Judge.
14 THE COURT: Does this end your presentation on
15 qualifications as well as your proffer as to his purported
16 testimony --
18 THE COURT: -- out of presence of the jury?
20 THE COURT: You have concluded both.
22 THE COURT: This was all that you intended to elicit
23 from him, all that you've elicited in the record.
24 MR. SCHMIDT: Yes, sir, Judge. There may be points
25 of clarification, if he's allowed to testify in front of the

Argument by Mr. Schmidt
69
1 jury, but that's the crux of it.
2 THE COURT: Anything further for you?
3 MR. GRAVES: Judge, the State renews its objection.
4 I can go back through my reasons again or if the Court would
5 take notice of the argument I supplied previously. It has not
6 changed and just rely on the testimony that the Court has
7 heard.
8 MR. SCHMIDT: May I be heard?
9 Judge, McGrady is clearly distinguishable from this
10 case. Cloutier testified in three different areas of
11 expertise. He was talking about reaction times, use of force
12 issues, he could not quote studies, he had not done the
13 research himself. Judge, I would again point to headnote 24
14 where he talks about medical or scientific training. This is
15 a situation where this gentleman has, in fact, done the
16 research in the field that has been published subject to peer
17 review. He noted one objection and went back and validated
18 the data, republished it without objection. It's clear that
19 he's written two articles that were subject to peer review.
20 He's written collaborative articles with other medical
21 professionals subject to peer review. He has worked on this
22 for ten years. Cloutier had no experience doing any type of
23 research in the field. Cloutier was a director at the Justice
24 Academy of North Carolina and a former police officer. He did
25 no hands-on research. He did no data accumulation. He did no

70
1 conclusions, nor any publication in that area. Clearly this
2 is a circumstance where Mr. Murphy has done all of that and
3 it's been published and subject to peer review. And, Judge,
4 well, Rule 702 talks about scientific, technical or
5 specialized knowledge that will assist the trier of fact to
6 understand the evidence and determine a fact at issue and it
7 can be, they can be qualified by knowledge, skill, experience,
8 training or education. Clearly Cloutier had no hands-on
9 involvement in this area.
10 Now Mr. Murphy does not have medical training,
11 Judge, but Mr. Murphy does have the benefit of all the
12 research that he's done, and he also had the benefit of
13 working on this particular area for the last ten years, that's
14 been his life work. He's actually written the book on the
15 subject. Cloutier, there's no evidence that he was published.
16 Additionally, this is scientifically based. They
17 use data from biomarkers from the participants of the study to
18 determine that they, in fact, had an activation of the
19 sympathetic and parasympathetic nervous system and reached
20 conclusions based on that data and based on questionnaires
21 that were completed by the test subjects so it's clear he
22 developed a pool of data that was a thousand candidates deep
23 and pulled conclusions from it and he published it, Judge.
24 Other than going to medical school that is, he's done
25 everything else that this court in McGrady is looking for.

71
1 I also think it's not unusual for experts to testify
2 based on their observations of facts that occur after the
3 fact, and what I mean by that, Judge, it's not uncommon for
4 experts to come into court and base their information based on
5 review of data and give opinions on that. It has commonly
6 been allowed in the court system in North Carolina that even
7 in a civil case you can have independent medical exam or you
8 can have a medical review of medical records in a case if
9 there's disputes among experts.
10 So this is a situation where clearly he's basing it
11 on facts that he's reviewed. He's talked to the Defendant.
12 He's reviewed the statements. He has, in fact, reviewed the
13 interviews.
14 Judge, based on his experience in the field, his
15 research in the field, this is completely different than
16 Cloutier and completely different than McGrady. This
17 gentleman has information that would be of assistance to the
18 jury, especially when the State is putting all their stock in
19 this case on this statement. That's what this whole thing's
20 about. So it's a situation where they got to blow the
21 statement up and they spent the last five days doing nothing
22 but blowing the statement up. This guarantees or allows us to
23 present a case that will advance our client's situation and
24 we're asking the Court to allow Mr. Murphy to testify to
25 guarantee his right to present a defense under the North

72
1 Carolina and United States Constitution, specifically the
2 Sixth Amendment, Judge. Thank you.
3 MR. GRAVES: Judge, I'll be brief.
4 THE COURT: Let me ask you one question. How do
5 you, in this hypothetical, how do you steer away from the
6 issue of credibility and that seems to be where this witness
7 is going?
8 MR. SCHMIDT: Well, Judge --
9 THE COURT: It seems to me that the testimony that
10 you're eliciting is to bolster this man's, the Defendant's
11 testimony, as to credibility as to the things that have or had
12 not occurred.
13 MR. SCHMIDT: Judge, I'll point on one specific
14 instance in the statement. When Detective Godwin was
15 questioning our client and he said that he went out the front
16 door and he thought that Wilkerson came out behind him, that
17 could be viewed as a gotcha moment. Godwin comes back and
18 asks the same question later and he goes, no, no, no, wait;
19 that's not what happened; he came out the side door or he had
20 to come out another door. Judge --
21 THE COURT: How does this, put this so-called expert
22 in a field and in a position to better understand the
23 testimony elicited in this courtroom and the jury who heard
24 it? And that's the issue concerning an expert, whether or not
25 the expert himself has such knowledge that would make him a
73
1 better or in a better position than the trier of facts as to
2 the facts of the case, not as to the tests run thereafterwards
3 but as to the facts of the case.
4 MR. SCHMIDT: Judge --
5 THE COURT: Whether or not it was premeditated,
6 whether or not it was deliberate. In your elicitation from
7 him, he voiced an opinion as to who were, who was or who was
8 not the aggressor.
9 MR. SCHMIDT: Judge, I agree that -- I can say that
10 we can limit our testimony to the situation where that
11 testimony would not be elicited. I was trying to get a full
12 and complete --
13 THE COURT: I understand you were building your
14 record but I've heard that now and I've heard what he's
15 saying.
16 MR. SCHMIDT: Judge, if I may. I can use this
17 research to educate the jury as to what impact the activation
18 of a sympathetic and parasympathetic nervous system can have
19 on a person and their ability to recall events due to the
20 hormone dump that occurs. It would be a situation where I
21 would not ask any questions, if that's the Court's concern,
22 regarding Stephen Maddox but I can talk about the research and
23 avoid, if that's the Court's concern, I can tailor my direct
24 to ensure that I avoid that area and deal only with the
25 results of the research and the impact of the restrictions it

Argument by Mr. Graves
74
1 has on a person's ability to recall immediately after an
2 incident occurs. That, again, would meet the spirit of Rule
3 702 where he talks about information assists the trier of
4 fact. It would avoid any comment on the issue of credibility
5 but would offer, Judge, the opportunity for the Defense to
6 provide a reason why Stephen, why the statement is what it is
7 other than that he's lying. It's a circumstance where we can
8 explain there's a physiological effect going on and we can
9 explain what that physiological effect means but we don't have
10 to connect the Defendant, if that avoids any concern that Your
11 Honor may have to evade the province of the jury.
12 THE COURT: Yes, sir. Hear what you have to say.
13 MR. GRAVES: Briefly, Judge.
14 THE COURT: One minute. Sir, we're through with
15 you. You can step down.
16 (Witness stepped down from the witness stand.)
17 MR. GRAVES: Thank you, Judge.
18 THE COURT: I'll hear you.
19 MR. GRAVES: Judge, briefly, again, if I may, this
20 is no more than an availed attempt to bolster the credibility
21 of Mr. Maddox. Even in the alternative --
22 THE COURT: Are you through with this thing?
23 MR. GRAVES: Yes, sir.
24 THE COURT: Then get it out of my face please.
25 MR. GRAVES: Judge, even in the alternative scenario

Court's Ruling
75
1 that Attorney Schmidt presented by which the reference is to
2 Mr. Maddox would be excluded, it still serves the same effect.
3 It's for the same purpose, to bolster his credibility, to
4 state he said this, this and this, and this is why he said it,
5 or this is why it wouldn't make sense.
6 THE COURT: In that particular case then the
7 testimony of whether it is or is not relevant to the fact that
8 it occurred on that October date.
9 MR. GRAVES: Correct.
10 THE COURT: Court stands down until 2:15.
11 (A recess was taken from 1:25 p.m. until 2:15 p.m.)
12 THE COURT: It's 2:15.
13 All right, gentlemen, as we took our break, the
14 Defendant had proffered Mr. Murphy to be an expert purported
15 to testify in the field of PNS versus SNS. Is that correct?
17 THE COURT: The Court upon having heard testimony
18 from Mr. Murphy on voir dire as to his qualifications,
19 et cetera, and education, requires, the law requires the court
20 to be the gatekeeper in determining the fact of an expert to
21 not only to determine the qualification and relevance and
22 reliability of evidence offered that would place the alleged
23 expert in a better position than the jury as a fact finder to
24 decide the issue in the case.
25 After hearing the testimony, the Court concludes

Court's Ruling
76
1 that the testimony proffered is not relevant and is an attempt
2 to bolster the credibility of the Defendant in its case and,
3 therefore, the Court denies him to testify as an expert.
4 I will note the Defendant's exception and preserve
5 it for the record.
6 [END OF TRANSCRIPT]
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77
1 CERTIFICATE
2 STATE OF NORTH CAROLINA
3 COUNTY OF WILSON
4
I, LORETTA PICHEY, Registered Professional Reporter, the
5
officer before whom the foregoing excerpt of proceedings was
6
taken, do hereby certify that said hearing, pages 1 through
7
77 inclusive, is a true, correct and verbatim transcript of
8
said excerpt of proceedings.
9
I further certify that I am neither counsel for, related
10
to, nor employed by any of the parties to the action in which
11
this proceeding was heard; and further, that I am not a
12
relative or employee of any attorney or counsel employed by
13
the parties thereto, and am not financially or otherwise
14
interested in the outcome of the action.
15
16
17
18 ________________________________
LORETTA PICHEY, R.P.R.
19 Official Court Reporter
20 .
21
22
23
24
25

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What was the case about?

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What was the ruling regarding the expert witness?

What was the ruling regarding the expert witness?

1

1 NORTH CAROLINA GENERAL COURT OF JUSTICE

2 SUPERIOR COURT DIVISION

13 July 17, 2017 Criminal Trial Session

14 Honorable Milton F. Fitch, Jr., Judge Presiding

17 Norlan Graves, Esquire

19 Kurt Schmidt, Esquire &

22 Reported by: Loretta Pichey, R.P.R.

2 DEFENDANT'S WITNESSES PAGE

4 Voir Dire by Mr. Schmidt 16, 61, 67

5 Voir Dire by Mr. Graves 52, 65

2 DEFENDANT'S MARKED RECEIVED

3 DE 55 I/ITSEC research paper 38 68

4 DE 56 Paper writeen by Mr. Murphy and 39 68

8 DE 58 Randall Murphy's C.V. 68 68

12 SE 32 Photograph of Kelly Wilkerson 52

2 July 25, 2017 with Assistant District Attorney, Defense

3 Counsel and Defendant present out of the presence of the

6 MR. SCHMIDT: Judge, our first witness is going to

7 be Mr. Randall Murphy who we're tendering as an expert to this

8 Court and, as you know, the State has an objection to that

11 that issue, just asking the Court's clarification.

12 THE COURT: What is he purported to be an expert in?

13 MR. SCHMIDT: Judge, in combat stress deactivation

14 of the sympathetic and parasympathetic nervous system and the

16 THE COURT: What are his qualifications for such an

18 MR. SCHMIDT: Judge, he did the seminal research

19 study beginning in 2008 at the University of South Florida,

20 1.3 million dollar funding for that and he developed a

21 simulator. He ran 150 law enforcement officers in the State

22 of Florida through the simulator and when they went through it

23 they took biochemical markers on these officers to verify

24 that, in fact, there's been an activation of the sympathetic

25 and parasympathetic nervous system. After they went through

2 had to answer a questionnaire immediately after the

3 stimulation and then they had to answer it again three days

5 The biomarkers were analyzed to determine where, in

6 fact, they were in that state and the questionnaires

7 themselves showed that after the first questionnaire that the

8 officers had very poor recall 30 minutes after the incident of

10 force situation. They filled out a subsequent questionnaire,

11 had to be returned within three days and the accuracy of those

12 statements went up expedientially three days later.

13 Judge, the State's hanging their entire case on the

14 fact that his statement is incomplete or fragmented or in

16 THE COURT: Or inaccurate.

17 MR. SCHMIDT: That's where I was going, Judge, or

20 it's his tenth year of continuing the study, went to Operation

22 or Professional Department of Defense, took a stimulator there

23 for a NATO exercise, ran soldiers through the stimulator and

24 tested them when they came out, did the identical

25 questionnaires and developed more data. He has run over a

2 personnel and tested afterwards and made these findings. This

3 has been published. There's been two peer reviewed articles

4 that have come out.