United States District Court, M.D. Alabama, Eastern Division
H. THOMPSON UNITED STATES DISTRICT JUDGE
excessive-force case, plaintiff Merrill Todd sues defendants
Jerome Bailey, Larry Clark, Terry Wood, and Steve Smith, all
of whom are law enforcement officers. Todd alleges that defendants
beat and tased him and had a police dog attack him. Pursuant
to 42 U.S.C. § 1983, Todd asserts that Bailey, Clark,
and Wood violated his constitutional rights by using
excessive force against him. They are sued in their
individual capacities. Pursuant to Alabama law, Todd also
contends that Bailey, Clark, Wood, and Smith committed a
battery against him. Jurisdiction for the federal claim is
proper under 28 U.S.C. §§ 1331 (federal question)
and 1343 (civil rights), and the court has supplemental
jurisdiction over the state claim pursuant to 28 U.S.C.
case is currently before the court on defendants' motions
for summary judgment. For the reasons discussed below, the
motions will be denied in part and granted in part. Summary
judgment will be denied as to the federal claim against Wood
and the state claim against Smith, with these two claims
against these two defendants going to trial. Summary judgment
will be granted as to the federal claim against Bailey and
Clark and the state claim against Bailey, Clark, and Wood,
with these claims against these defendants not going to
trial. Because no claims will remain against Bailey and
Clark, they will be dismissed as parties.
August 7, 2010, Todd's family members organized a party
at an event space called Club Blaze in LaFayette, Alabama.
Todd arrived at the building early to help set up for the
party. One of his cousins advertised the event on her
from the enforcement wing of the Alabama Alcoholic Beverage
Control (ABC) Board learned of the party and staged an
undercover operation to determine if alcohol was being sold
there without a liquor license, a misdemeanor. That night an
undercover agent reportedly entered the club and was able to
purchase alcohol. Law enforcement then decided to sweep the
party in an enforcement action. A large group of law
enforcement officers from the ABC Board, the City of
LaFayette, and the Chambers County Sheriff's Department
participated in the sweep. The defendants were among this
was in the parking lot in front of the building when he saw a
line of law enforcement vehicles arriving. As he had two days
left on parole, he decided to leave rather than risk being
arrested. He and his cousin Brandon Story headed towards the
area behind the building, with Todd ahead of Story. As Todd
went around the back corner, he saw the headlights of a truck
driving towards him from the opposite side of the building.
He started running in the direction of the woods.
next thing Todd can remember is waking up in the hospital
saying defendant Clark's name and seeking a gun. His
family members told him that he had been beaten by the
police. Todd surmised that he had been beaten, tased, and
bitten by a police dog, based on what his family told him
and, later, based on his own examination of his injuries and
the clothing he was wearing that night.
who treated Todd found a one-inch cut above his eye, a bruise
on his forehead, bruising and swelling around both eyes, and
a 3/4 inch laceration to the side of his left thigh. His
treating physician in the emergency room that night found two
facial fractures--one to the bone surrounding his left eye
and the other on the side of his face by his ear. The doctor
described the fracture to the bone around his eye as a
“comminuted fracture, ” Shiver Decl. (doc. no.
53-26) at ¶ 6, which means “splintered or crushed
into numerous pieces.” Webster's Third New
International Dictionary of the English Language 457 (2002).
The doctor first assumed that the injury was caused by a
beating. Five days later another physician noted the bruising
on his face resembled “raccoon eyes.” Med.
Records (doc. no. 53-31) at 3. Another doctor later concluded
he had a concussion.
months after the incident, Todd underwent surgery to relieve
pressure resulting from an intracranial hemorrhage in the
area where he had been injured that night; burr holes were
drilled in his skull. He experiences severe headaches and
facial numbness. He also suffers from blurred vision in his
left eye, feels sharp pains in the eye, and fears he may go
the incident, Todd has had a marked drop in memory. During
his deposition he had difficulty remembering what month
during the past year he was married in. He stated that he can
remember many things before the incident, but he has to try
very hard to remember things that happened after it, and it
hurts when he tries to do so.
parties offer two different versions of how Todd sustained
his injuries. Defendants contend that Todd's injuries
resulted from defendant Smith's accidentally hitting Todd
with his truck. Todd argues that his injuries were caused not
by the truck, but by defendants' beating him.
Defendants' Version of Events
night in question, defendant Smith, a member of the LaFayette
Police Department, drove to the club with another officer,
Jason Fuller, riding as his passenger. Their assignment was
to catch anyone running from the back of the club when the
sweep began. They had come around the back of club when they
saw Todd in front of the truck. Todd slipped and fell, and
then started to get back up. Smith swerved to miss him and
applied his brakes, but the truck slid because the field was
strewn with hay. Smith contended the truck's bumper hit
Todd in the head. See Smith Report (doc. no. 63-3)
who was getting ready to jump out of the truck when the
accident happened, saw Todd slip and fall but did not see the
truck hit Todd. (He also did not report hearing or feeling it
hit Todd.) When the truck stopped, Fuller got out of the
truck and saw that Todd was lying on the ground, bleeding
from a cut above his eye, and making a “snoring”
sound. Fuller Statement (doc. no. 53-19). He told Smith to
call an ambulance. While Fuller was checking him for
injuries, Todd woke up and became “combative, ”
trying to stand up and telling Fuller to let him go because
he had not done anything. Id. Another officer came
over, and they decided to handcuff Todd. They searched him
for weapons. Then the ambulance arrived.
Wood, a sheriff's deputy, was one of the first officers
to pull into the parking lot. Although he is a canine
handler, he says he did not bring his dog that night because
the officers were not expecting to find drugs at the
club. From inside his patrol car, Wood noticed a
man run behind the club and make a motion with his hand as if
he were throwing something to the ground. Wood denies
pursuing the man. Instead he parked his car and got out, told
some people outside the club to lie on the ground, and went
inside the club to check on what was happening there. After
observing the party-goers lying on the ground inside, he
walked back outside to his vehicle to turn off his lights,
then walked towards Smith's truck. He saw Fuller kneeling
on the ground near a man. Wood recognized the man on the
ground as the same person he had seen make the throwing
motion. Smith told Wood that he had hit the man with his
truck. The ambulance arrived at this point. Wood returned to
the general area where he had earlier seen the man make a
throwing motion and found a bag of suspected marijuana. He
handed the bag to defendant Clark and entered the building
through the back door. See Wood Decl. (doc. 56-4).
Clark was inside the club when Todd was injured. Clark was
near the back door of the club, about ten minutes after the
sweep began, when Wood approached him, gave him the bag of
suspected marijuana, and told him about the truck accident.
Clark then went outside, saw the ambulance personnel working
on Todd, and re-entered the club.
Bailey reports that he was inside the club when Todd was
hurt. He was assigned to get control of the people in
attendance and to search and interview them. He went outside
after the back door to the club was opened and he saw an
went outside, Bailey was told that Todd had fallen and hit
his head on a rock. His statements conflict as to whether a
paramedic or Smith told him this: in his initial report on
the incident, he wrote that Smith had said it, but he later
said that a paramedic did. Compare Bailey Decl.
(doc. no. 53-10) with Bailey Statement (doc. no. 63-2) at 7.
Bailey looked on the ground, saw that it “was covered
in hay and [that] blood was on the ground, ” and
checked for a rock but could not find one in the area. Bailey
Statement (doc. no. 63-2) at 7. After making this
observation, Bailey (perhaps for a second time) asked Smith
what happened, and Smith said that Todd “ran in the
path of his truck” and he accidentally hit Todd with
his truck. Id. Bailey then called the City of
LaFayette's police chief to inform him of what had
happened and to advise him that the department would need to
begin an investigation. After the call, he went back inside
the club to assist with processing the people who had been
the paramedics examined Todd, he was unable to explain how he
had been injured, and kept asking what had happened to him.
(When the paramedics asked the officers how Todd was injured,
the officers said they were unsure.) Todd also could not
remember what happened to him when questioned by the
emergency room physician later that night. The physician
initially surmised that Todd's injuries had come from an
assault, but in a declaration later opined that the injuries
were equally consistent with being hit by a vehicle.
Todd's Version of Events
does not dispute that Smith hit him with his truck, but
denies that the contact with the truck is responsible for his
most serious injuries. He contends that, after the truck hit
him and knocked him to the ground, the defendants beat him
severely. He also argues that, during that beating, they
tased him in the leg and had a police dog attack him.
Todd has no eyewitnesses to the alleged assault, his version
of events is based entirely on circumstantial evidence. His
key evidence is the testimony of Brandon Story, a cousin who
saw the truck hit him and contests defendants' version of
how and where the truck hit Todd. Story denies that Todd
slipped and fell before being hit by the truck or that he was
hit in the head. Instead, according to Story, Todd was
running and upright when the truck hit him in the hip area
and knocked him to the ground. The truck then stopped, but
did not hit Todd in the head.
to Todd, after he was on the ground, the defendants attacked
him. To avoid repetition, the court will discuss the evidence
supporting this factual contention in detail below.
party may move for summary judgment, identifying each claim
or defense--or the part of each claim or defense--on which
summary judgment is sought. The court shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“Genuine disputes are those in which the evidence is
such that a reasonable jury could return a verdict for the
non-movant. For factual issues to be considered genuine, they
must have a real basis in the record.” Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.
1996). The court must view the admissible evidence in the
light most favorable to the non-moving party and draw all
reasonable inferences in favor of that party. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
the evidence is circumstantial, a court may grant summary
judgment when it concludes that no reasonable jury may infer
from the assumed facts the conclusion upon which the
non-movant's claim rests.” Mize, 93 F.3d
at 743. If the non-movant's evidence “is merely
colorable, or is not significantly probative, summary
judgment may be granted.” Id. at 745 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
brings a § 1983 claim against defendants Bailey, Clark,
and Wood for using excessive force against him in violation
of the Fourth Amendment; he brings a state claim of battery
against those defendants and Smith.While defendants argue that
they are entitled to immunity on the federal and state
claims, the motions for summary judgment largely turn on the
adequacy of the evidence. The central issue the court must
resolve as to both claims is whether there is adequate
evidence for a reasonable jury to conclude that Todd was
injured due to defendants' intentional acts, rather
than--as defendants assert--being accidentally struck by the
truck. Thus, the court will first address the adequacy of the
evidence, then turn to the immunity issues.
Todd's § 1983 Claim
establish that a defendant is liable in his or her individual
capacity under § 1983, “it is enough to show that
the official, acting under color of state law, caused the
deprivation of a federal right.” Kentucky v.
Graham, 473 U.S. 159, 166 (1985). The § 1983
defendants do not dispute that they were acting under color
of state law at all relevant times, and it is clear that they
were so acting when they participated in the sweep.
claims that law enforcement officers have used excessive
force--deadly or not--in the course of an arrest,
investigatory stop, or other ‘seizure' of a free
citizen [are] analyzed under the Fourth Amendment[‘s]
‘reasonableness' standard.” Graham v.
Connor, 490 U.S. 386, 395 (1989) (emphasis in
original). “[T]he right to make an arrest or
investigatory stop necessarily carries with it the right to
use some degree of physical coercion or threat thereof to
effect it.” Id. at 396. The question is how
much force was reasonable under the circumstances the officer
confronted. Id. at 397. This is an objective inquiry
that must be answered “without regard to [the
officer's] underlying intent or motivation.”
Id. Answering it “requires a careful balancing
of the nature and quality of the intrusion on the
individual's Fourth Amendment interest against the
countervailing governmental interests at stake.”
Jackson v. Sauls, 206 F.3d 1156, 1169-70 (11th Cir.
motion for summary judgment, the movant has the initial
burden of demonstrating that, based on the pleadings,
depositions, answers to interrogatories, and admissions,
there exists no genuine issue of material fact. Section 1983
defendants Bailey, Clark, and Wood have done so here by
presenting Smith's declaration attesting that he
accidentally hit Todd with his truck; Fuller's statement
describing Todd's injured condition when he found him on
the ground and describing what happened between that moment
and when the ambulance arrived; and their and other
witnesses' declarations denying that Todd was beaten,
tased, or bitten. Therefore, the burden shifts to Todd to
demonstrate that there are genuine issues of material fact.
survive summary judgment, Todd must show that a jury could
reasonably infer that Bailey, Clark, and Wood used
unreasonable force against him. These defendants argue that
Todd has not presented sufficient evidence to show that he
was even subjected to a use of force beyond the accidental
contact with the truck. The use of force is “an element
essential to [Todd's] case, on which [Todd] will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). Therefore, in
analyzing the motions for summary judgment, the court will
first answer the threshold issue of whether Todd has
presented sufficient evidence for a reasonable jury to
conclude that he was subjected to a use of force.
uses several approaches in his effort to prove that the
§ 1983 defendants used force against him. Primarily, he
attempts to do so by demonstrating that the truck could not
have caused his head injuries. This argument primarily rests
on the testimony of his cousin Story, who saw Todd hit by the
truck, and disputes defendants' version of the accident.
Todd also offers evidence of additional injuries, which he
attributes to being bitten by a dog and shot with a Taser,
not to the truck. In addition, Todd seeks to introduce
statements of bystanders who said that he was being beaten,
and his own statements as to ‘flashbacks' of being
beaten. Finally, he seeks to show that the sweep was handled
in an aggressive manner and that certain defendants are
corrupt or have a history of aggressive or violent behavior.
Defendants have responded in part with arguments challenging
the admissibility of, or asking the court to disregard, much
of this evidence. The court will address these arguments as
Challenges to Todd's Affidavits
further discussing the evidence, the court pauses to address
the § 1983 defendants' arguments that Todd's
affidavits should be disregarded in their
entirety. In response to the motions for summary
judgment, Todd introduced affidavits from a number of
witnesses. In general, the affidavits add little to
Todd's case. The affidavits are generally less detailed
than the deposition testimony already in the record from the
same witnesses. Nevertheless, as the affidavits do adduce
some important facts, the court will address defendants'
blanket challenge to their consideration.
argue that the court should disregard all of Todd's
affidavits because they were sworn on the basis of
“knowledge and belief.” Each affidavit starts
with the statement, “I have personal knowledge
of the facts stated in this statement, ” but concludes
with the following: “I swear or affirm that the
statements contained herein are true and accurate to the best
of my knowledge and belief.” See
Pl.'s Evidentiary Submissions (doc. no. 63-1) (italics
Rule of Civil Procedure 56(c)(4) provides: “An
affidavit or declaration used to support or oppose a motion
[for summary judgment] must be made on personal knowledge,
set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the
matters stated.” Defendants argue that, because the
affidavits are not sworn on the basis of knowledge alone,
they cannot be considered under Rule 56.
cite a number of cases in support of their argument, but none
is on all fours with this case. In all but one these cases,
the courts addressed whether a particular statement within an
affidavit or declaration could be relied upon when the
declarant explicitly stated that he ‘believed'
certain facts to be true. For example, in Pace v.
Capobianco, 283 F.3d 1275 (11th Cir. 2002), the court
found that a statement in a sworn affidavit that the affiant
“believe[d]” that he had seen a particular action
was insufficient to create a dispute of material fact
sufficient to withstand summary judgment as to that issue.
The court carefully analyzed each statement in the affidavit,
breaking down which parts of each statement were based on
knowledge and therefore could be relied upon, and which parts
were based on belief and therefore could not be considered.
Pace counsels that courts should take a
statement-by-statement approach to analyzing whether
statements in an affidavit are based on personal knowledge,
and should disregard only those that lack such a basis.
See also Stewart v. Booker T. Washington Ins., 232
F.3d 844, 851 (11th Cir. 2000) (plaintiff's statement
that, “on information and belief, ” defendants
“knew” before transferring her to a new position
that the position would be eliminated could not create a
genuine dispute of material fact because plaintiff lacked
personal knowledge). In sum, Pace and the similar
cases cited by defendants dealt with whether courts should
rely on particular statements in declarations, rather than
declarations as a whole.
closest case cited by the defendants is Fowler v. S. Bell
Tel. & Tel. Co., 343 F.2d 150 (5th Cir.
1965).There, after plaintiff sued defendants in
state court for illegally wiretapping her, defendants removed
the case to federal court and stated in their verified
removal petitions that they were federal officers acting
within their duties and thus were immune from suit. The
district court treated the defendants' removal petitions
as motions for summary judgment and dismissed the case on the
basis of immunity. The appeals court “h[e]ld that
defendants failed to establish that there was no genuine
issue of fact ... [because] the bare, conclusory allegations
of the removal petitions, stating generally that [defendants]
were acting within the scope of their employment and under
color of office, were inadequate for this purpose. These
allegations were legal conclusions unsupported by
facts.” Id. at 153-54. The court further
observed that the verified petition was insufficient because
“verification must be on personal knowledge alone,
whereas these petitions were verified only on
‘knowledge, information and belief.'”
Id. at 154. However, this general and conclusory
observation was not necessary to the holding, and accordingly
Ondo v. City of Cleveland, 795 F.3d 597, 605 (6th
Cir. 2015), the Sixth Circuit Court of Appeals explained its
preferred approach for district courts to take when faced
with affidavits sworn based on ‘knowledge and
belief.' “When affidavits based on knowledge and
belief are submitted to support or oppose a motion for
summary judgment, the district court has discretion to
determine whether it can differentiate between knowledge and
belief for each averment in the affidavit. If the court can
distinguish between the two, then ... the court should excuse
the affiant's stylistic error, and must admit the parts
based solely upon personal knowledge, while striking the
parts based upon belief. If the court cannot differentiate
between the two, then ... the court must strike the affidavit
in its entirety ....” Id. See also 10B Charles
Alan Wright, Fed. Prac. & Proc. Civ. § 2738 (4th ed.
2017) (“Where the affidavit includes both competent and
incompetent evidence, the Court should disregard the
incompetent evidence but give full consideration to that
which is competent. ... This is nothing more than the
procedure which would be followed at trial. The Court would
not strike the entire testimony of a witness merely because a
portion of his testimony is incompetent. The same rule is to
be applied to supporting affidavits.”).
court finds the Sixth Circuit's approach persuasive and
consistent with the Eleventh Circuit's approach in
Pace, and is not inclined to disregard Todd's
affidavits as a whole for several reasons. First, because
each affidavit contains a sworn statement that the facts are
based on personal knowledge, it is possible that the
reference to ‘knowledge and belief' was a careless
stylistic error by Todd's original counsel. Second,
because the affidavits frequently make quite clear which
statements are or are not based in personal knowledge, the
court can easily disregard the improper statements without
discarding the entire affidavits. For example, in his
affidavit, Todd explicitly summarizes information others
witnesses told him about the relevant events; the court can
easily ignore such statements in deciding the instant motion.
Third, each of the relied-upon affiants was deposed; the
availability of deposition testimony offers the court an
additional basis for judging whether the affiant's
statements were based on personal knowledge or belief.
these reasons, defendants' objection to the consideration
of Todd's affidavits as a whole is overruled. However,
the court will disregard all statements that are not based on
a personal knowledge. As for defendants' other objections
to various statements in the affidavits, the court will take
those up as relevant below.
Evidence of Use of Force
evidence that he was subjected to a use of force, Todd relies
on the testimony of Story to show that Smith's
explanation of how he sustained his injuries is not accurate.
He also argues that he suffered injuries that could not have
been caused by the contact with the truck described by Smith.
The court will discuss that evidence before turning to the
other evidence in the record potentially supporting his
base, Todd's contention that his injuries came from an
intentional use of force rather than the truck relies on the
testimony of Story, for Story is Todd's only witness who
can testify to what happened when Todd was hit by the truck.
deposition, Story testified that he saw the truck hit Todd
“from his hip side” and that it “knocked
him on the ground.” Brandon Story Dep. (doc. no. 56-8)
at 10. He denied that Todd slipped and fell before the truck
hit him. He also testified that the truck did not hit Todd in
the head and that the truck stopped shortly after hitting
testimony alone creates a genuine dispute of material fact as
to whether Todd's injuries stemmed from a use of force by
law enforcement. As discussed above, defendants attribute
Todd's serious head injuries to his being hit in the head
by the bumper of Smith's truck as he started to stand up
after slipping and falling. If, as Story testified, Todd did
not slip and fall, and the truck hit Todd in the hip and not
in the head, then something else must have happened to
Todd's head. It is undisputed that from the time Todd was
hit by the truck until the ambulance took him away, the only
other people behind the club with him were law enforcement
officers. If a jury were to credit Story's testimony, it
could conclude that Todd probably was injured by a use of
force by those officers, because there is no other
explanation for Todd's broken skull.
aspects of Smith's explanation could lend support to this
conclusion. Evidence suggests that Smith offered a number of
differing explanations for how Todd was injured. First, he
stated that Todd fell and hit his head on a rock.
See Bailey Statement (doc. no. 63-2) at 7 (“I
then asked Sgt. Steve Smith what had happen[ed] and he told
me that Merrill was running and felled on the ground and hit
a rock.”). When confronted with the lack of evidence
supporting that explanation, he changed his story to say that
he accidentally hit Todd with his truck after Todd ran in the
truck's path. Id. And when the paramedics
arrived to treat Todd, the officers did not tell them about a
truck accident at all, instead saying they did not know how
Todd was injured. A reasonable jury could infer that if Todd
truly were injured accidentally by the truck, the officers
would have told the paramedics about it, as that information
could affect the medical care he received, and that they did
not mention the contact with the truck because they were
covering up something worse--like a beating. A jury could
rely on Smith's changing story and the officers' lack
of forthrightness to conclude that Smith's contention of
hitting Todd in the head with his truck is not worthy of
Evidence of Other Injuries
relies on evidence of other injuries to his body as proof
that he was subjected to a use of force. Smith's
declaration purports to explain only Todd's head injury.
However, Todd has presented evidence that he suffered
injuries to other parts of his body as well, and that his
clothes were damaged during the incident. In his response to
summary judgment, Todd argues that these injuries are
attributable to defendants' using a Taser on him and
having a police dog bite him. As discussed below, Todd has
not submitted sufficient competent evidence at this time for
a jury to conclude that he was tased and bitten; but,
regardless of whether the injuries were caused by a Taser or
a dog or a beating, these injuries are still relevant
evidence. Because defendants' evidence does not explain
Todd's other injuries, a jury could still rely upon the
description of the injuries as additional support for a
finding that, more likely than not, Todd was beaten by law
enforcement. Todd presented evidence that he suffered an
unexplained wound on his upper thigh during the incident. The
paramedics noted the laceration in their examination of him
and that Todd complained of pain there. There is also
evidence that defendant Clark had a Taser with him on the
night in question and threatened to use it on another
individual. Clark Statement (doc. no. 63-2) at
However, this evidence is clearly insufficient to prove that
Todd was tased.
also offers his own opinion that he was tased and his
description of his injury. In an affidavit, Todd stated,
“I know I was tased because I have the mark that the
taser left on my body and the taser burned my boxers.”
Todd Aff. (doc. no. 63-1) at 1. In the cited parts of his
deposition, Todd offered his opinion that he had been tased,
and testified that he had a “taser mark” on his
leg, got stitches there, and that his boxers were
“burnt up.” Todd Dep. (doc. no. 56-1) at
185:6-13. Todd's opinion that a Taser caused both the
mark on his leg and the apparent burn on his boxer shorts is
not admissible on the current record. Todd did not testify to
any specific aspects of his wound or the details of the
apparent burn on his shorts that allowed him to identify the
source as a Taser; nor does the evidence suggest that he has
the type of experience with Taser wounds that might allow him
to offer an admissible lay opinion. Instead, it appears that
his opinion is based on speculation and belief. Accordingly,
the court will not consider his opinion. That said, his
testimony that he had a wound on his leg, that he received
stitches, and that his boxer shorts appeared to be burned is
also points to his cousin Naya Robinson's testimony about
a wound she saw on Todd's body that she believed was
caused by a Taser. In her deposition, she described the wound
“A. It's like a little straight -- kind of like a
-- like a bruise, like a burn mark, like a burnt mark, kind
of like -- like going like this (indicating).
“Q. Okay. And you're -- you're holding your
fingers about an inch apart; is that right? Was it that big
or was that -- what did you mean by that?
“A. Yeah, I guess it was -- it was kind of big, about
that size. It was just going across.
“Q. So it was a -- a line?
“A. Not -- not just a straight line. Like a --like a
bruise, like -- looked like from a taser mark.”
“Q. Okay. Was it an open wound? Was it a cut or was it
just a bruise?
“A. It was open.
“Q. How long was that opening in his skin?
“A. I'm not sure how long it was.
“Q. Was there one opening or were there two openings?
“A. I want to say two -- two -- it looked like two
“Q. And how far -- how far apart were those two
“A. That -- they wasn't that far apart.
“Q. And was each opening the same length, each cut the
“A. I want to say so, yes.
“Q. And how -- how long were those two cuts?
“A. I'm not sure how -- exactly how long it was.
“Q. Was it more than an inch?
“Q. Okay. How far apart were the ...