MR. BOSTWICK: Cappie Harden.
THE COURT: Come up here,
please, Mr. Harden. If you would
come all of the way up here.
Please remain standing, raise
your right hand, face this
lady, she will give you an oath
before you testify.
CAPPIE CLIFFORD HARDEN -
DIRECT EXAMINATION
called as a witness on
behalf of the plaintiff, first being
duly sworn to tell the
truth, the whole truth and nothing
but the truth, testified as
follows:
THE COURT: Be seated,
please.
THE CLERK: Would you state
your full name, and spell your
last name?
THE WITNESS: Cappie Clifford
Harden, H-A-R-D-E-N.
BY MR. BOSTWICK: How old are
you, Mr. Harden?
A Thirty-four.
Q Are you also known as
Shorty Harden?
A Yes, I am on the streets.
Q And in what city are you
residing at this time, sir?
A I'm living in the
Q Are you employed at this
time?
A Yes, I am.
Q How are you employed?
A I work for a construction
outfit up there running heavy
equipment.
Q Okay. Did you used to live
in the
A Yes, I did.
Q How long have you lived in
and around the
Harden?
A About half my life.
Q Okay. Where did you grow
up?
A
Q Did you graduate from high
school?
A No. I dropped out.
Q Did you join the military
service at that time?
A Yes, I did. The Marine Corps.
Q Did you receive a general
discharge from the Marine
Corps?
A Yes, I did.
Q What kind of jobs have you
held since high school?
A Construction.
Q Construction jobs?
A Yes.
Q Have you been back and
forth between
A Yes, I have.
Q And when was that
discharge?
A I'm not sure exactly the
year. It was the late seventies.
Q Okay. Did you come back to
the
1988?
A Yes, I did.
Q Did you start work at that
time?
A No. Not at that time.
Q How did you support
yourself?
A I was buying and selling
cars.
Q Doing anything else?
A I was selling drugs.
Q What kind of drugs were
you selling?
A Methamphetamine.
Q Where were you living in
the fall of 1988 and the winter
of 1989?
A On
Q Okay. Who were you living
with at that time?
A I was staying in the
basement of an apartment complex my
mother was managing.
Q Okay. I would like the
witness shown what has been marked
as state's exhibit numbers
336, 337 and 338.
I would like to you take a
look at those photographs, Mr.
Harden, and ask you if you
recognize what is depicted in
those photographs?
A Yes. That is the house I
lived in, the apartment
building.
Q Okay. Were you living in
there in January, 1989?
A Yes, I was.
Q And I would like those
photographs shown to the defense
and I would move that they
be admitted into evidence at
this time.
MR. ABEL: No objection.
THE COURT: Be admitted.
MR. BOSTWICK: Mr. Harden, do
you know the defendant, Frank
Gable?
THE WITNESS: I have met him.
MR. BOSTWICK: Do you recall
about when you met Mr. Gable in
relationship to when you
moved back to the
the fall of 1988?
A It was I think in
December, I think it was. I met him
over at a house over on
to a friend of mine's house
that night.
Q Okay. He gave you a ride
to a friend of yours?
A Yes, he did.
Q Okay. Do you recall what
kind of vehicle he was--
A It was a-- a hatch back
Q Was he an associate of
yours at that time?
A No, he was not.
Q Did you ever-- how many
times did you see
Mr. Gable at this house on
A I only seen him there a
couple of times.
Q And where was that located
on
A On Hyacinth and by
Q Okay. Do you know who
lived there in the fall of 1988,
early 1989?
A Johnny Bender, his old
lady, Frank /-RBGS.
Q Frank Gable?
A No. Frank Harman, also
known as Sam.
Q Okay. Okay.
A Janet, her boyfriend.
Q Okay. I would like the
witness shown what has been marked
as state's exhibit numbers
319, 320, 323 and 324.
Take a look at those
photographs, Mr. Harden, and I'll ask
you are they-- do you
recognize the area?
A Yes. These two are of the
house and this is an area
across the street from the
house.
Q Are they a true and accurate
visual representation of the
house and the area right
across the street?
A Yes, they are.
Q Okay. I would like those
shown to the defense and move
that they be admitted into
evidence.
MR. ABEL: No objection.
THE COURT: Be admitted.
MR. BOSTWICK: Do you recall
the time in the middle of
January, 1989, when you saw
the defendant at the Hyacinth
Street house in his vehicle?
THE WITNESS: Yeah, I do
recall an incident. He wasn't at
the house, he was across the
street from the house in his
car.
MR. BOSTWICK: Okay. I would
like the witness shown what has
now been admitted as state's
exhibits number 323 and 324.
They are the ones I just
gave you, I believe. I'm sorry.
THE CLERK: That's okay.
MR. BOSTWICK: Would you tell
us, Mr. Harden, which
photographs gives the
location as to where Mr. Gable--
THE WITNESS: This photograph
right here.
MR. BOSTWICK: Look on the
back.
A Number 324.
Q Okay. I would like that
photograph shown to the jury at
this time. I guess-- I think
I want all photographs, excuse
me, 319, 320, 323 and 324,
please.
Mr. Harden, you indicated
that 324 is the area where he was
parked when you saw him?
A Yes.
Q Is that area immediately
across the street?
A Yes. It's right across the
street from the driveway of
the Hyacinth house.
Q Okay.
Q Mr. Harden, do you recall
about what time of day it was?
A Late afternoon.
Q Was-- do you recall what
kind of car Mr. Gable was
driving?
A It was the same car that
he gave me a ride in earlier in
the year, earlier in
December.
Q And why were you there?
A I was dropping off Jodie.
Q Dropping off Jodie?
A Yes.
Q Who is Jodie?
A This girl I know.
Q Why were you dropping her
off there?
A Because I was tired of her
being at my house.
Q Pardon me?
A Because I was tired of her
being at my house.
Q Okay. How long did you
stay?
A I was only there about ten
or fifteen minutes. I didn't
get out of my car. I stayed
in my car.
Q What kind of car were you
driving, sir?
A My'70 Mustang.
Q I would like the witness
shown what has been marked as
state's exhibit 301, 304 and
305.
Take a look at those
photographs and I'll ask you if you
recognize what those
photographs depict or show?
A Yeah. That's what is left
of my car.
Q Is that the car that you
were driving in January, 1988?
A Yes, it is.
Q Shows the outside and
shows also the inside?
A Yes.
Q Did you have a problem
with your ignition at that time,
sir?
A Yeah. You can see the
wires hanging in this picture
number 305, I guess. It's
where my solenoid on the outside
didn't work by the ignition
switch. I had to twist wires
and touch wires in order to
get it started.
Q You had to hot wire your
car to get it started?
A Yes.
Q Is that the condition that
it was in, in January, 1989?
A That was the condition it
was in up until the time I got
rid of it.
Q That's the car you were
driving in January of 1989?
A Yes.
Q Okay. Do you recall when
you got rid of the car?
A When?
Q Yeah?
A I think it was in February
or March I traded it for a
Harley.
Q Okay. I would like those
photographs shown to the defense
and move that they be
admitted into evidence /-FPLT at this
time.
MR. ABEL: No objection.
THE COURT: Be admitted.
MR. BOSTWICK: When you
observed Mr. Gable, was he alone or
with someone else?
THE WITNESS: He was alone.
MR. BOSTWICK: Did you see
him inside or outside the
vehicle?
A I seen him get out, walk
to the back of the car, get to--
get around to the back of it
and get back in the car.
Q Do you recall how he was
dressed?
A Dark sweats.
Q Did you see anything,
notice anything else about him?
A He had a knife in his
waistband of his sweats.
Q Okay. How long did you
stay there.
A Like, I'd say fifteen
minutes, tops.
Q Did you have any
conversation with Mr. Gable at that
time?
A No, I did not. I didn't
talk to him any time.
Q Okay. Was Mr. Gable there
when you left?
A Yes. His car was still
there.
Q Where did you go?
A Went on about my business.
Q And what was your
business?
A Selling drugs.
Q Did you see Mr. Gable
later that same night?
A Yes, I did.
Q Where?
A At the
Q How did you happen to be
at the
A I got called from Jodie
Swearingen to pick her up at the
hospital grounds. And she
called me twice to pick her up. I
didn't show up the first
time, and I went down there to
pick her up.
Q Do you recall about what
time that was?
A Six-thirty,
Q Where were you when you
received the phone call?
A I was at home.
Q The place on
A Yes.
Q Do you recall how you got
to the
A I drove my Mustang. My'70
Mustang.
Q Do you recall how you got
there from the
residence?
A I just went-- the route I
took?
Q Right?
A I just drove straight up
from where I lived then.
Q How would you know where
to go?
A I didn't. I just happened
to pull in and park. Figured if
Jodie seen my car she would
get a ride, and if she didn't,
I would leave.
Q Do you recall where you
parked?
A In the parking lot by the
now. I didn't know what it
was called at the time.
Q Okay. Maybe if we could--
could the witness step down
from the witness chair. I'm
going to ask him to refer to
what has been marked,
previously admitted, state's exhibit
number three. Do you have
the pointer? Mr. Harden, if you
would step over here so the
jury can hear, see you, excuse
me, and use the pointer to
point out how you entered the
A I came up
right in here and I parked
right about where that car is.
MR. ABEL: Would you point,
again, where your car is?
THE WITNESS: Right here.
MR. ABEL: Thank you.
MR. BOSTWICK: Okay. You can
retake the witness chair.
What did you do after you
pulled in and parked?
THE WITNESS: I just parked
and waited. I wasn't there but a
couple minutes until she
approached.
MR. BOSTWICK: How did Jodie
approach?
A She came up from behind me,
kind of startled me and got
in the car.
Q Did you have a
conversation with Jodie at that time?
A I kind of bitched her out
for bugging me to come and pick
her up at that time of night
when I was busy doing things.
Q Why did you go get her?
A I've helped Jodie out
quite a bit through the years, you
know, the last year or so
when we knew each other. If she
needed money, I would give
her money, help her out.
Whenever I could. She is a
young kid.
Q Did you give her dope,
too?
A No. I wouldn't give her
dope. Mostly when she wanted
money it was for groceries.
I gave her food stamps that I
acquired through my dope
deals, but I didn't give her dope
or money so she could go out
and buy dope.
Q So what happened after
Jodie got in the car?
A That's when I seen the dome
light of the car come on.
Q Okay. What car?
A The car that was across
from me.
Q Okay. Could you reapproach
the diagram? Could you use the
pointer and point out this
other car, where it was in
relationship to your car,
sir?
A Right about here.
Q Okay. You can retake the
witness chair. I would like the
witness shown what has been
marked as state's exhibit
number 477. Do you
recognize--
A That's the car.
Q Is that the car you saw on
the night?
A Yes, it is.
Q I would like that shown to
the defense and move that it
be admitted into evidence.
MR. STORKEL: Your Honor, I
would like to ask a question in
aid of objection.
THE COURT: Please do.
MR. STORKEL: Mr. Harden,
have you previously been shown
this photo?
THE WITNESS: I have seen it
once.
MR. STORKEL: Okay. And at
the time you saw the photograph,
prior to seeing it, had you
described what the vehicle
looked like?
A Yes.
Q Okay. And you're saying
that you had only seen this car
one time, is that correct?
A Yes.
Q And then when you looked
at this photograph you're saying
that you recognized it as
soon as you saw the photo, is
that correct?
A Yeah. Like I say, I buy
and sell cars. I know what cars
look like.
Q Is this the location that
you're saying that the car was
in on the night of January
17th?
A I'm not saying that at
all.
Q Your Honor, we have no
objection to it being admitted
just simply for the purpose
of showing what Michael
Francke's car looked like.
THE COURT: It will be
admitted. He has testified that--
that is what he has
testified to. It will be admitted.
MR. BOSTWICK: I would like
that shown to the jury, Your
Honor.
Mr. Harden, is that the car
you saw on the night at the
THE WITNESS: Yes, it is.
MR. BOSTWICK: You saw it
parked in the location that you
have already testified to?
A Yes, sir.
Q Okay. Mr. Harden, what did
you notice? What did you see?
A I seen the dome light of
the car come on /-FPLT so I
didn't leave right away, and
I seen Frank get into the car.
Q Why didn't you leave right
away?
A Stick around and see what
Frank was up to.
Q You saw the defendant get
in that car?
A Yes, I did.
Q How did you know it was
the defendant?
A Because I recognized his
face.
Q How many times had you
seen him prior to this particular
night?
A Only a couple.
Q Why did you recognize his
face?
A Because I made it a habit
to remember the face of people
that I thought were rats or
informants.
Q Did you see how he got
into the car?
A No, I did not.
Q Okay. Was anybody with
him?
A No. I did not see anybody
else with him.
Q Did you see him doing
anything inside the car?
A No. I couldn't see him
once he got into the car. He
closed the door and the dome
light went off.
Q Okay. What happened after
that?
A That's when I seen the
other gentleman /OE/OE approaching
the car /-RBGS.
Q What did this other
gentleman look like?
A Looked like a businessman.
Q Where did this other
gentleman come from?
A One of the buildings right
there by the parking lot.
Q Okay. Where was he in
relationship to the car when you
first saw him, sir?
A He was approaching it on
the driveway.
Q Okay. What did this person
do?
A He walked up to the car
then and that's when I heard him
yell, you know,"Get
out.""hey, what are you doing in my
car." And he started
running towards the car.
Q And then what did he do?
A That's when I seen Frank
come out of the car /-RBGS and
stab the man one time in the
chest. And that's all I seen.
Q That's all you saw?
A That's all I seen. I was
busy starting my car and getting
out of there.
Q Busy starting your car and
getting out of there. What do
you mean by that?
A I had to twist the wires
together and jump it.
Q Okay. Did you have to bend
over?
A You had to squat down to
the right. It was on the console
in between the seats, I had
to find the wires and then
twist them.
Q What did Mr. Gable do
after he stabbed this man?
A I didn't see anything
after that. I was busy, worried
about myself.
Q Did you see where Mr.
Gable went?
A No, I did not.
Q Did you see where this
businessman went?
A No, I did not.
Q Where did you go?
A I went home.
Q What happened to Jodie?
Was she with you at that time?
A Yes, she was.
Q Did you take Jodie home
with you?
A Yeah, at that time I did
take her to the house. Told her
to shut up and forget what
she ever seen.
Q Why did you tell her that?
A I didn't want to be
involved.
Q Did you hear any car alarm
go off?
A No, I did not.
Q How come you didn't call
the police?
A I don't call the police.
Q Why not?
A I'm not a rat.
Q Okay. When do you recall
hearing about the homicide of
Mr. Francke?
A A few days later.
Q Why didn't you report it
to the police after you heard
about it, what you saw?
A Like I said, I'm not a
rat.
Q Do you recall being
contacted by the police in November
of 1989?
A Yes, I do.
Q And asked if you knew
anything about it?
A Yes, I do.
Q The homicide of Mr.
Francke?
A Yes.
Q What did you tell them?
A I told them I didn't know
what they was talking about.
Q Why didn't you tell them
anything in November of 1989?
A I'm not a rat.
Q You were contacted again
in January of 1990. Did you tell
them what you knew in
January?
A Not the first couple times
they talked to me.
Q Why were you reluctant to
talk to them?
A As I said, I'm not a rat.
Q Did you eventually tell
them what you saw?
A Yes, I did.
Q Why did you eventually
tell them what you saw when you
originally told them you
didn't know anything about it?
A Because they proved to me
with evidence that they knew I
was lying.
Q Did they threaten you in
any way?
A No. They did not.
Q Did they promise you
anything?
A No, they did not.
Q District Attorney's office
threaten you in any way?
A No, he has not.
Q District Attorney's office
promised you anything?
A No.
Q You have been convicted on
more than one occasion of
possessing drugs, is that
correct, Mr. Harden?
A Yes.
Q How many times have you
been convicted of possessing
drugs?
A Three.
Q June of'89?
A Yes.
Q March of'90?
A Yes.
Q February,'91?
A Yes.
Q Also convicted of Failure
to Appear which means you
failed to show up for court?
A Yes. End of February, the
later one of February,'91.
Q Also been convicted of
Assault back in-- back in the
seventies, 1976?
A Yes.
Q Placed on probation by
Judge Norblad on the recent
convictions?
A Yes, I did.
Q Okay. A couple charges
were dismissed, is that correct?
A They-- they dismissed an Ex-convict
in Possession of a
Firearm and a Delivery
charge because they were weak, if I
pled guilty to the Failure
to Appear and the Possession.
Q Okay. Judge Norblad allow
you to go into a drug treatment
program prior to sentencing?
A Yes, he did. I
successfully entered and completed a six
month inpatient drug treatment
program up in
Q Okay. And when was that?
A July of'90 until just
recently here.
Q February?
A February or March.
Q Okay. Did you complete
that program and show proof of
that to Judge Norblad before
he sentenced you?
A Yes, I did.
Q Are you on probation to
Judge Norblad right now?
A Yes, I am. I'm on what
they call ISP, which is intense
supervised probation, where
I go in and give two urinalysis
a month.
Q What happens if you get
caught with a bad urinalysis?
A I'm in what they call the
Drop program where your first
dirty UA gives you five days
in the
your second dirty UA you do
fifteen days in jail, the third
dirty UA you do thirty days
in jail, and the fourth one you
go back in front of the
Judge.
Q What is a dirty UA?
A Proof of using
methamphetamine, any other kind of drugs,
pot, anything.
Q They caught you once,
didn't they?
A Yes.
Q What happened?
A Five days
Q What happens next time?
A Fifteen days in jail.
Q State Police give you any
money?
A For what?
Q Did they give you any
money?
A No.
Q District Attorney's office
give you any money?
A No.
Q Give you any deals here to
testify?
A No, they have not.
Q Have you been represented
by an attorney?
A Yes. I have my own private
counsel.
Q What is his name?
A John W. Jensen.
Q Did you offer to tell the
press what you seen, what you
saw at the
A They offered to bail me
out one time if I told them.
Q How did they go about
doing that?
A I was in county jail. I
was in the hole. I got a kite to
call this number.
Q What is a kite, Mr.
Harden?
A It's a flyer sent in by
somebody from the outside.
Q Okay. And what did he--
did they tell you?
A To call this number.
Q Did you call the number?
A Yeah.
Q Who did you talk to?
A Some guy named Steve
Jackass-- Jackson or something like
that.
Q What did he want?
A Wanted to know what I
seen.
Q Was he going to bail you
out?
A He offered to. He said he
would talk to his, quote
unquote,"his
boss."
Q Okay. Did they bail you
out?
A No.
Q Okay. Thank you, Mr.
Harden.
That is all I have.
MR. STORKEL: Your Honor,
this might be an appropriate time
for a break. I think there
will be extensive cross
examination of Mr. Harden.
THE COURT: What is
extensive?
MR. STORKEL: More than
thirty minutes.
MS. MOORE: Let's get
started.
THE COURT: We didn't start
until like-- go ahead.
MR. STORKEL: Okay.
CROSS EXAMINATION
BY MR. STORKEL: Good
afternoon, Mr. Harden.
A Good afternoon.
Q The first time you talked
to the police was on November
20th, 1989, is that correct?
A If that's what it says.
Q That's what the report
says. And you actually made some
statements to the police on
that date, isn't that correct?
A If that's what it says.
Q Okay. And I'll be
referring to that report which puts
down what you said.
First off, before you were
able to identify Frank Gable the
police showed you a
photograph of him, isn't that correct?
A No.
Q The report states that you
needed to see a photograph of
Frank Gable before you could
be sure that you knew Frank
Gable or not?
A No. I don't recall that.
Q Okay. So you're saying
that the police officer that wrote
the report is wrong about
that, is that correct?
A I don't recall even seeing
a picture of Frank while I was
there.
Q And then if the police
officer is saying that he showed
you a picture then he is
incorrect, is that correct?
A That's right.
Q Now, also at that time,
the report states that you stated
that Frank had given you a
ride home from the Bender's at
one time in a maroon colored
A I guess, yeah. If that's
what it says.
Q That's what it says. What
color do you consider to be
maroon?
A A reddish color.
Q Okay. Now, this report
also states that what you
remembered when you were
talking to the police on November
20th, 1989, that the first
time that you met Frank Gable
was after
house by the Salem PD. Do
you recall making that statement?
A If it's in the report.
Q It's in the report. So, at
that time, then, you had been
telling the police that that
would be the first time you
met Frank Gable, is that
correct?
A If that's what it says.
Q That's exactly what it
says. And at that time you were
trying to be accurate and
truthful, at least about when you
met Frank Gable, is that
correct?
A No, it's not.
Q Okay. Were you deliberately lying to the police?