KENTUCKY HIGH SCHOOL MOCK TRIAL TOURNAMENT
2016-17 Case Problem
ANDY AND LEE PARK
v.
HAYDEN DURAN
Written by the American Mock Trial Association’s Civil Case Committee
Adapted with Permission for use in the 2017 Kentucky High School Mock Trial Tournament
INDEX OF CASE MATERIALS:
LEGAL/SUPPORTING DOCUMENTS 1. Complaint 2. Answer 3. Stipulations 4. Special Instructions 5. Deposition of Jesse Duran 6. Midlands Civil Code (selected provisions) 7. Available Case Law
PLAINTIFF WITNESSES 1. Affidavit of Andy Park 2. Affidavit of Danny Brooks 3. Report of Campbell Solo
DEFENSE WITNESSES 1. Affidavit of Hayden Duran 2. Affidavit of Shannon Ellis 3. Report of Ash DeRosa
EXHIBITS 1. Police Report of Dale Williams 2. Autopsy of Sydney Park 3. Diagram-Park Home 4. Photo – File Drawer 5. Email from Hayden Duran 6. Notification of Student Discipline 7. “Me and My Gun” 8. Combination 9. Call Log 10. Text message chat with “Voldemort” 11. Text message chat with “Sydney” 12. Call Info 13. Search History 14. Image of AD Baker & Co. Revolver SUPERIOR COURT FOR THE STATE OF MIDLANDS BRECKENRIDGE COUNTY
Andy and Lee Park, on behalf of Case No. CV11-715 Sydney Park, Action Filed: April 15, 2013 Plaintiffs, Judge Brynn Jackson v. Complaint
Hayden Duran,
Defendant
Plaintiffs Andy and Lee Park, on behalf of Plaintiff Sydney Park, state as follows:
Introduction
1. This is a wrongful death action brought by Plaintiffs Andy and Lee Park on behalf of their deceased daughter Sydney Park against Defendant Hayden Duran based on the fatal shooting death of Sydney Park by Defendant Hayden Duran’s minor child, Jesse Duran.
Parties
2. Plaintiff Sydney Park (“Sydney”) was a minor child born on January 4, 2001.
3. Plaintiffs Andy and Lee Park (“the Parks”) are the parents of Plaintiff Sydney Park.
4. Jesse Duran is a minor child born on May 9, 2001.
5. Defendant Hayden Duran is the parent of Jesse Duran.
Jurisdiction and Venue
6. This Court has subject matter jurisdiction because this action is brought under the Midlands Civil Code.
7. This Court has personal jurisdiction over Defendant because Defendant resides in Midlands and the acts and omissions forming the basis for this Complaint occurred in Midlands.
8. Venue is proper because Defendant resides in this judicial district and the acts and omissions forming the basis for this Complaint occurred in this district.
Factual Background
9. On August 8, 2012, the Parks and the Durans were next-door neighbors in Breckenridge County, Midlands.
10. On August 8, 2012, the Parks’ street address was 23 Maple Street, Fairview, Midlands.
11. On August 8, 2012, both Sydney and Jesse Duran were 11 years old.
12. On August 8, 2012, Defendant was the parent and legal guardian of Jesse Duran.
13. On August 8, 2012, Jesse Duran resided with Defendant.
14. On August 8, 2012, Sydney was killed by a single gunshot wound to the head.
15. The bullet that killed Sydney was fired from a 9mm handgun (“the firearm”) that had been stored in a locked safe inside the Parks’ bedroom.
16. Jesse Duran was present at the Park residence at the time Sydney was killed.
17. Jesse Duran was holding the firearm at the time the bullet was fired that killed Sydney.
Count 1—Negligent Parental Supervision (Midlands Civil Code § 10.24)
18. Plaintiffs repeat and reallege paragraphs 1-17 as if fully set forth herein.
19. On August 8, 2012, Defendant had a duty to exercise reasonable care so as to control Jesse Duran to prevent Jesse Duran from acting in a way as to create an unreasonable risk of bodily harm to Sydney Park.
20. Defendant violated the duty described in the previous paragraph by failing to:
a. Properly warn Jesse Duran about the inappropriateness of use of firearms by minors and the need to exercise caution with respect to firearms;
b. Properly discipline and admonish Jesse Duran after previous incidents involving firearms and/or violence;
c. Notify Plaintiffs about Jesse Duran’s interest in and previous incidents involving firearms; and/or
d. Ensure that Jesse Duran was supervised while in Sydney’s presence.
21. On August 8, 2012, Jesse Duran acted in a way that created an unreasonable risk of bodily harm to Sydney Park.
22. The acts and omissions described in Paragraphs 20 and 21 were the direct and proximate cause of Sydney’s death.
23. As a result, Defendant is liable to Plaintiffs under M.C.C. § 10.24.
Prayer for Relief
THEREFORE, Plaintiffs demand judgment against Defendant in an amount greater than the jurisdictional amount.
Respectfully submitted,
Frazier, Joyce, & Sack Counsel for Plaintiffs
SUPERIOR COURT FOR THE STATE OF MIDLANDS BRECKENRIDGE COUNTY
Andy and Lee Park, on behalf of Case No. CV11-715 Sydney Park, Action Filed: April 15, 2013 Plaintiffs, Judge Brynn Jackson v. Answer Hayden Duran,
Defendant
Defendant Hayden Duran answers as follows:
Introduction
1. The allegations contained in paragraph 1 of the Complaint do not appear to require a response. To the extent that a response is required, defendant denies the allegations.
Parties
2. Defendant denies having knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 of the Complaint.
3. Defendant denies having knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 3 of the Complaint.
4. Defendant admits the allegations contained in paragraph 4 of the Complaint.
5. Defendant admits the allegations contained in paragraph 5 of the Complaint.
Jurisdiction and Venue
6. Defendant admits the allegations contained in paragraph 6 of the Complaint.
7. Defendant admits that Defendant resides in the State of Midlands, and otherwise denies the allegations contained in paragraph 7 of the Complaint.
8. Defendant admits that Defendant resides in the State of Midlands, and otherwise denies the allegations contained in paragraph 8 of the Complaint.
Factual Background
9. Defendant admits the allegations contained in paragraph 9 of the Complaint.
10. Defendant admits the allegations contained in paragraph 10 of the Complaint.
11. Defendant admits the allegations contained in paragraph 11 of the Complaint.
12. Defendant admits the allegations contained in paragraph 12 of the Complaint.
13. Defendant admits the allegations contained in paragraph 13 of the Complaint.
14. Defendant admits the allegations contained in paragraph 14 of the Complaint.
15. Defendant admits that the bullet that killed Sydney Park was fired from a handgun that had been kept inside the Parks’ home but lacks knowledge or information sufficient to form a belief as to the truth of the other allegations contained in paragraph 15 of the Complaint.
16. Defendant admits the allegations contained in paragraph 16 of the Complaint.
17. Defendant denies the allegations contained in paragraph 17 of the Complaint.
Answer to Count 1 of the Complaint
18. Defendant repeats and realleges Defendant’s responses to paragraphs 1-17 of the Complaint as if fully set forth herein.
19. Defendant admits the allegations contained in paragraph 19 of the Complaint.
20. Defendant denies the allegations contained in paragraph 20 of the Complaint.
21. Defendant denies the allegations contained in paragraph 21 of the Complaint.
22. Defendant denies the allegations contained in paragraph 22 of the Complaint.
23. Defendant denies the allegations contained in paragraph 23 of the Complaint.
Affirmative Defenses
24. Plaintiffs’ claims are barred by the doctrine of comparative fault because any harm suffered by Plaintiff Sydney Park is more attributable to wrongful conduct by Plaintiffs and/or Plaintiffs’ decedent than to any wrongful conduct by Defendant.
Respectfully submitted,
Ross, Oliver, Norton, & Philips Counsel for Defendant SUPERIOR COURT FOR THE STATE OF MIDLANDS BRECKENRIDGE COUNTY
Andy and Lee Park, on behalf of Case No. CV11-715 Sydney Park, Action Filed: April 15, 2013 Plaintiffs, Judge Brynn Jackson v. Stipulations Hayden Duran,
Defendant
1. This trial has been bifurcated. Damages are not an issue in this proceeding.
2. Jesse Duran is of at least normal intelligence and, as of August 8, 2012, had no medical or physical condition that would have prevented Jesse from performing any act described in the affidavits, depositions, reports, and exhibits in this case.
3. Sydney Park died at approximately 9:46 a.m. on August 8, 2012, as a result of a single gunshot wound to the head. No other injuries, pre-existing conditions, or post-shooting treatment contributed in any way to her death.
4. The bullet that killed Sydney Park was fired from a 9 mm 6-shot revolver manufactured by AD Baker & Co., Inc. that was lawfully owned by and registered to Andy Park. The handgun that fired the bullet that killed Sydney Park was found inside the Parks’ home after the shooting. Since August 8, 2012, the Midlands Police Department has maintained custody of the handgun. Neither party may fault the other for the absence of the gun from this trial.
5. Exhibits 1-14 in the case packet are authentic, though both parties reserve the right to make other objections as to their admissibility except as stipulated below.
6. At the deposition of Jesse Duran, all parties to this lawsuit were represented by counsel and had a full and fair opportunity to examine Jesse Duran. The document labeled Deposition of Jesse Duran is authentic, as are all the signatures on it.
______Counsel for Plaintiffs Counsel for Defendant SPECIAL INSTRUCTIONS
1. Party Representatives. The only witnesses who may be seated at counsel’s table are Andy Park (for the plaintiff) and Hayden Duran (for the defense).
2. Case Documents. All case documents are the final and only versions of those documents. No attorney or witness may state or imply that there are earlier or later versions.
3. Revision Dates. Any revision date at the top of a document is included only to ensure that teams are using the most current copy of every document. For purposes of the trial, revision dates do not indicate anything else about the history of the document, including that (or when) a witness has revised his or her affidavit or report. (For example, the revision date on an affidavit may not be offered as evidence that the witness provided an earlier version of the affidavit and subsequently changed his or her testimony in the revised version.)
4. Authenticity of Documents. The Rules of Evidence (Mock Trial Version) do not include provisions regarding authentication of documents. Any document or exhibit included in the case packet is presumed authentic. This does not preclude the parties from raising other evidentiary objections to the admissibility of all or part of a document or exhibit.
5. Expert Reports as Affidavits. The expert reports of Campbell Solo and Ash DeRosa may be used as if they are sworn affidavits for the purpose of impeachment.
6. Constitutional issues. No party may raise any objections specifically related to the United States Constitution at trial. No witness who is called to testify may refuse to answer any question – and no attorney may instruct a witness not to respond – based on the witness’s Fifth Amendment rights to avoid self-incrimination.
7. Time spent reading from exhibits or stipulations. Should a team wish to read aloud for the jury any part of any exhibit or stipulation, any such reading must be deducted from the team’s time to present arguments and evidence. The time spent reading the exhibit or stipulation aloud shall be deducted from that team’s total 5 minutes for opening statement, 25 minutes for direct examination, 20 minutes for cross examination, or 5 minutes for closing argument, depending on whether the reading occurs before the conclusion of the second opening statement, after opening statements but before the plaintiff has rested, after the plaintiff has rested but before the defense has rested, or during the reading team’s closing argument. This Special Instruction addresses only issues of timing, not issues of evidence or admissibility. SUPERIOR COURT FOR THE STATE OF MIDLANDS BRECKENRIDGE COUNTY
Andy and Lee Park, on behalf of Case No. CV11-715 Sydney Park, Action Filed: April 15, 2013 Plaintiffs, Judge Brynn Jackson v. Deposition of Jesse Duran Hayden Duran, August 3, 2016
Defendant
The deponent herein, after having been first duly sworn, testified as follows: Examination by Monika Mudd, Lawyer for Plaintiffs Q. Please state your name. A. Jesse Duran. Q. Did you know a girl by the name of Sydney Park? Mary Kathryn Atkinson: I instruct my client not to answer on Fifth Amendment grounds. A. On Fifth Amendment grounds, I refuse to answer. Q. Okay. What is your current address? Atkinson: Same instruction. A. On Fifth Amendment grounds, I refuse to answer. Atkinson: Ask what you want; my instruction won’t change. Q. Good luck at trial without Jesse’s testimony. (The deposition was adjourned.) I declare under penalty of perjury that the foregoing is true and correct.
Laureen Bousmail August 3, 2016 Laureen Bousmail Date
I certify I have read the foregoing transcript of my deposition and I swear it is a true, correct and complete transcript of my deposition. I have no changes or amendments.
Jesse Duran August 6, 2016 Jesse Duran Date Midlands Civil Code (selected provisions)
Chapter 1: General Provisions Section 1.01 Definitions As used in this Code, ... Minor child means any person who is less than 18 years old at the time in question.
Section 1.99 Plaintiff in wrongful death action When a person’s death is caused by the wrongful act or omission of another, the surviving spouse, personal representative, or, if the deceased was a minor, the parent or legal guardian of the deceased may bring and maintain any action against that person for such wrongful act or omission that the deceased could have brought had the deceased not so died. The action shall be brought by and in the name of the surviving spouse, legal representative, parent, or legal guardian, and the person or persons in whose name the action is brought shall have the exclusive right to dismiss or settle any claim with prejudice. For the purpose of this Code, the term “plaintiff” shall include both a deceased person (the plaintiff’s decedent) upon whose behalf that deceased person’s surviving spouse, personal representative, parent or legal guardian has brought suit pursuant to this provision as well as the surviving spouse, personal representative, parent, or legal guardian himself or herself.
Chapter 2: Torts Section 2.01 Levels of culpability As used in this Chapter, ... a. Definition of intent: A person acts with the intent to produce a consequence if: (1) the person acts with the purpose of producing that consequence; or (2) the person acts knowing that the consequence is substantially likely to result. b. Definition of recklessness: A person acts recklessly in engaging in conduct if: (1) the person knows of the risk of harm created by the conduct or knows facts that would make the risk obvious to another in the person’s situation, and (2) the precautions that would eliminate or reduce the risk involve burdens that are so slight relative to the magnitude of the risk as to render the person's failure to adopt the precaution a demonstration of the person’s indifference to the risk. c. Definition of negligence: A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.
1 Section 2.02 Tort liability of minor children a. Children below the age of 5 at the time of any allegedly wrongful conduct are absolutely immune from tort liability. b. A child of 12 years old or older presumptively may be held liable on the same terms as adults. c. Children between the ages of 5 and 12 years old. (1) A child who is at least 5 years old but not yet 12 years old may be subject to tort liability. (2) Subject to subsection (3), the determination of whether such a child’s conduct is intentional, reckless, or negligent must take into account the child’s age, intelligence, and experience. (3) The special rule created in Subsection (2) does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults. d. The rules stated in (a)-(c) also apply to a child who is a plaintiff or a plaintiff’s decedent.
Section 2.10 Liability for intentional physical harm A person who intentionally causes physical harm to another is subject to liability for that harm.
Section 2.13 Plaintiff’s conduct as defense to liability A plaintiff’s own wrongful conduct is a defense to liability if and only if the plaintiff’s level of culpability (as defined in Section 2.01) was as great or greater than the defendant’s level of culpability, and the plaintiff’s culpable actions were at least as responsible for the harm suffered by the plaintiff as the defendant’s harmful actions.
Chapter 10: Parents and Children Section 10.24 Negligent Parental Supervision A parent or legal guardian of a minor child has a duty to exercise reasonable care to prevent the minor child from creating an unreasonable risk of bodily harm to another, if the parent or legal guardian has the ability to control the child, and knows of or should know of the necessity and opportunity for exercising such control.
Section 10.56 Imputation of Statements in Actions Brought Under This Chapter When a parent or legal guardian is sued based on the acts or omissions of a minor child over whom the parent or legal guardian has lawful custody, statements by said minor child shall be imputed to the parent or legal guardian as party-opponent statements for hearsay purposes.
2 AVAILABLE CASE LAW
NOTE: All cases are from the Midlands Supreme Court, the highest court in Midlands.
Negligent Parental Supervision (M.C.C. § 10.24) Gwozdz v. DeGroote (2014) To establish a claim for Negligent Parental Supervision under M.C.C. § 10.24, a plaintiff must prove the following elements: 1. The parent (or guardian) of a minor child knew or should have known of the need to prevent the child from creating an unreasonable risk of bodily harm to another; 2. The parent failed to exercise reasonable control over the child; 3. The child acted in a way that was negligent, reckless, or intentional; 4. A third party suffered bodily harm; and 5. The harm to the third party was the direct and proximate result of the acts or omissions of both the minor child and of the defendant.
Niazi v. Crespo (2010) M.C.C. § 10.24 is not a strict liability statute. To trigger a duty under § 10.24, there must be some specific propensity of the child of which the parent had adequate notice. In deciding whether the parent had adequate notice, courts must consider the nature of the child’s past actions, the parent’s knowledge of such past actions, and the degree of correlation between those past actions and the child’s later misconduct.
Totten v. M.A.F. (2013) A plaintiff may satisfy its burden under Gwozdz v. DeGroote in a variety of ways. The plaintiff may of course identify facts of which the defendant had direct, personal knowledge. But the plaintiff also may prove that the defendant “knew or should have known of the need to prevent the child from creating an unreasonable risk of bodily harm to another” by showing that the defendant parent was told or otherwise received notice of facts that would have caused a reasonable person in the defendant’s position to act or at least to have investigated further.
Sokol v. Kitchener (2011) In analyzing whether a parent exercised reasonable control over a minor child under M.C.C. § 10.24, a court must consider a variety of factors, including whether the parent responded appropriately to specific prior acts, whether the parent’s subsequent efforts to control the child were reasonable, whether the parent should have foreseen the need to prevent the specific incident in question, and, if so, whether the parent made reasonable efforts to do so.
Holt v. Garcia (2014) Comparative negligence, as set forth in M.C.C. § 2.13, by the plaintiff (or the plaintiff’s decedent) is an available defense in an action brought under M.C.C. § 10.24.
1 Burdens of proof Lawton v. Donnelly & DeCamp (1974) A plaintiff in a civil case must establish all of the elements of its claim by a preponderance of the evidence (i.e., it must establish that all elements are more likely than not true). Likewise, an affirmative defense must be proven by the defendant by a preponderance of evidence.
Causation Vinson v. Yao (1961) Causation has two components: cause in fact (or direct cause) and proximate cause. To show cause in fact, the plaintiff must establish either that the plaintiff would not have been harmed “but for” the defendant’s conduct or that the defendant’s conduct was a substantial factor in bringing about the harm. Proximate cause requires showing that the particular harm suffered by the plaintiff was both a foreseeable result of the defendant’s wrongful or unlawful conduct and is of a type that could reasonably have been anticipated. In performing this analysis, the factfinder must first identify the particular risks that made the defendant’s actions culpable and then determine whether the injury suffered is among those risks.
Competency of Witnesses Block v. Brodkin (1979) The provisions of M.C.C. § 1.08 are fully applicable to persons who were minor children at the time of the events in question, the testimony, or both. Because the record discloses no “pretrial motion seeking a judicial determination of incompetency,” any such claim has been forfeited with respect to the 7-year-old child witness in this case. This holding does not, however, prevent the adverse party from arguing or introducing evidence that the age of the child in question should be considered in assessing the reliability of the child’s testimony.
Role of Named Plaintiff in Wrongful Death Action Davis v. HappyLand Toy Co. (2011) In a wrongful death action, both the deceased and the person(s) prosecuting the action on behalf of the deceased are considered “parties” for all evidentiary purposes. Accordingly, whenever the defendant offers statements of either the decedent or those prosecuting the action on the decedent’s behalf, such statements qualify under Midlands Rule of Evidence 801(d)(2)(A) as “an opposing party’s statement” and therefore are not hearsay.
Privilege Against Self-Incrimination Inapplicable in Civil Cases Bach v. Bronshteyn (2014) The privilege against compulsory self-incrimination protected by both the United States and Midlands Constitutions is inapplicable to civil cases. A party who is still subject to a risk of prosecution may, of course, decline to testify. But, unlike in criminal cases, the trier of fact in a civil case is permitted to draw an adverse inference from a person’s decision not to testify or refusal to do so, and the opposing party is likewise free to comment on such failure.
2 Experts Longstreet v. Floyd (2014) Expert testimony about psychological conditions—even those that bear directly on the matter at hand— does not constitute “[e]vidence of a person’s character or character trait” under Rule 404. Rule 702 and our cases implementing it contain numerous safeguards designed to ensure the reliability of proposed expert testimony, and those safeguards are sufficient for the circumstances presented by such expert testimony.
Davis v. Adams (1993) Under the Midlands Rules of Evidence, trial judges must ensure that any scientific testimony or evidence admitted is not only relevant but reliable. In determining whether expert testimony is sufficiently reliable, judges should consider only the methods employed and the data relied upon, not the conclusions themselves.
Richards v. Mississippi BBQ (1997) Midlands Rule of Evidence 703 does not afford an expert unlimited license to testify or present a chart in a manner that simply summarizes inadmissible hearsay without first relating that hearsay to some specialized knowledge on the expert’s part, as required under Midlands Rule of Evidence 702. The court must distinguish experts relying on otherwise inadmissible hearsay to form scientific conclusions from conduits who merely repeat what they are told. The testimony of the former is admissible; that of the latter is not. This ruling does not, of course, render inadmissible any other information that would be admissible if offered through any other witness; it merely qualifies the scope of the exception to inadmissibility created by Rule 703. In other words, statements that would be admissible if offered through any other witness are not rendered inadmissible simply because they are offered by an expert witness. Thus, this case does not apply to and does not render inadmissible (a) statements that are not hearsay; (b) statements that qualify as party opponent statements under Rule 801(d)(2); and (c) statements that qualify as exceptions to the hearsay rule.
Tarot Readers Association of Midlands v. Merrell Dow (1994) In assessing reliability under Davis v. Adams, judges should consider, among other factors, whether the theory or technique has been or can be tested, whether it has been subjected to peer review and publication, whether it has a known error rate, and whether it has gained widespread acceptance within the field. These factors, while relevant, are not necessarily dispositive. For example, lack of publication does not automatically foreclose admission; sometimes well- grounded but innovative theories will not have been published. Indeed, there is no definitive checklist in making a preliminary assessment of whether reasoning or methodology underlying expert testimony is scientifically reliable. Judges must make such assessments based on the totality of the circumstances, and the proponent of such expert testimony must meet the threshold proof requirement of a preponderance of the evidence.
3 Affidavit of Andy Park
1 After being duly sworn upon oath, Andy Park hereby states as follows: I am over 18 and
2 competent to make this affidavit.
3 My name is Andy Park. I currently reside in Breckinridge County, Midlands. My spouse
4 is Lee Park. We have been together for over 20 years. Sydney Park was my daughter.
5 Lee and I met in college. I spent four years in the Navy after high school. After the Navy,
6 I enrolled in Midlands State University, majoring in business administration and finance. Right
7 out of college, I got a job as a manager at a local hospital system and Lee began work as a
8 human-resources consultant. We’d been together about nine years when Sydney came into our
9 lives.
10 Sydney was a perfect baby. While Lee and I each took time off from our jobs when she
11 was born, there was never a plan for either of us to stay home full-time with Sydney. Lee had a
12 fair amount of flexibility with Lee’s job, and I switched my hours at the hospital to 7 a.m. to 3
13 p.m. so that I could be home in the afternoons more.
14 We moved to a suburb of Midlands City called Fairview when Sydney was five years old.
15 I heard about Fairview through Hayden Duran, whom I met at the hospital. Hayden lived there
16 with Hayden’s son Jesse, who was only four months younger than Sydney. Hayden informed me
17 that the house right next to Hayden’s was on the market. We jumped at the chance to live in our
18 dream neighborhood next to Hayden and Jesse. We lived at 23 Maple Street until August 8,
19 2012.
20 Sydney and Jesse were good friends and we were glad that Sydney had someone to play
21 with. Sydney was developing quite a knack for computers. She spent a lot of time in our home
22 office working on our family computer. She always got annoyed when Lee or I kicked her out of
23 the office so that we could do work or manage the family finances.
1 24 I think that Sydney’s love of computers was one of the reasons why she and Jesse got
25 along so well. Jesse loved video games as much as if not more than Sydney loved her computer
26 games, but that shared interest became the first thing that caused a bit of a rift between Hayden
27 and Lee and me.
28 Lee and I were incredibly strict about the games that Sydney was allowed to play. If the
29 rating on the game was “E – for everyone,” she could play it any time she had computer
30 privileges. Any game that didn’t have that rating was kept in a locked nightstand next to Lee’s
31 and my bed. Sydney could only play those games if Lee or I, or her babysitter Danny Brooks,
32 was sitting right next to her. Lee and I didn’t want Sydney seeing anything that was
33 inappropriate for her age level, especially the violence that you see in some video games, even if
34 it was “fake.”
35 Hayden didn’t have the same rules for Jesse. From what we could tell, Hayden allowed
36 Jesse to play whatever video games he wanted, regardless of the rating. Jesse spent a lot of time
37 at our house playing with Sydney; I also would watch Jesse sometimes if Hayden got stuck at
38 work. There were a number of occasions when I had to tell Jesse that the war-based games that
39 he brought over to play were not appropriate. Jesse would get pretty upset and say, “I can play
40 them at my house.” I would simply respond that we had different rules at our house and Jesse
41 would have to put the video games away until Jesse was back at home. Jesse would always
42 comply, although I could tell that he was unhappy about not being able to play the games. I
43 thought this was the solution to the problem, until Lee and I caught Sydney going through the
44 file drawer in the desk we kept in our guestroom/office one day in May of 2012.
45 Here’s what happened: Jesse had gotten what I believed to be a particularly violent first-
46 person shooter game for his 11th birthday. One day in May 2012, Jesse came over to our house
47 so excited about the game and wanted to show it to Sydney. I looked at the case and was
48 shocked. I asked Jesse if Hayden knew he had such a game. Jesse looked at me and said that 2 49 Hayden had given him the game. I reminded Jesse that our rule was that those types of games
50 couldn’t be played at our house. Jesse threw a fit. I had never seen Jesse act that way. Hayden
51 called not five minutes after this all took place. I started to explain to Hayden what Jesse had
52 done but Hayden was in a hurry. The computer systems at the hospital had crashed, and Hayden
53 had to go to work.
54 Hayden asked if Jesse could spend the night. I said that was fine and sent Jesse home to
55 get some stuff. While Jesse was gone, I locked the game in the nightstand with the games that
56 Sydney was only allowed to play under our supervision. When Jesse got back, Jesse asked where
57 the game was. I said it was locked up and I would give it back to Hayden when I had a chance to
58 talk to Hayden about what had happened. Jesse seemed fine with that and walked away. The rest
59 of the evening was fine. Hayden ended up picking Jesse up around midnight that night, so there
60 was no time to talk about what had happened or get the game.
61 The next day, I caught Sydney going through the file drawer in our desk. When I asked
62 Sydney what she was doing, she told me, “Jesse told me to get the game back, and I know this is
63 where you keep all the important stuff.” I immediately told Sydney that she knew she was not
64 allowed to go through the file drawer. She apologized and started to cry. I couldn’t believe that
65 she did something she knew she was not supposed to do just because Jesse told her to. She
66 promised never to do it again, and we dropped the issue.
67 While the game was fresh on my mind, I grabbed it from the nightstand and walked over
68 to Hayden’s house. I gave the game to Hayden and explained that I had taken it from Jesse the
69 night before because we didn’t allow violent games at our house. Hayden apologized and said
70 that Jesse had been told the game was only for playing at home. I also told Hayden about Jesse’s
71 reaction. Hayden brushed it off and said that Jesse had a rough end of the school year and they
72 were working on it. Since I had never seen Jesse act like that before, I took Hayden at Hayden’s
73 word and went back home. 3 74 I regret that I didn’t see Jesse’s behavior as a sign of what was coming. Our babysitter,
75 Danny Brooks, had expressed concern about Jesse for quite some time. Danny told Lee and me
76 that Jesse was bullying Sydney and that Sydney would do things and act defiant when Jesse was
77 around in a way that she never did when it was just Danny and Sydney. If I had connected the
78 dots then, maybe my daughter would be alive today.
79 Sydney’s behavior in going through the file drawer was even more concerning because of
80 something else that was in that same drawer. Not only did it contain all our personal financial
81 information, but we also kept the combinations for our gun safe in that same drawer. In January
82 of 2012, we had purchased a gun, a 6-shot, 9 mm revolver manufactured by AD Baker & Co.
83 Our home was broken into one weekend while we were away and the only way that either Lee or
84 I felt safe in the home, especially with Sydney, was to have some type of protection. I was a
85 certified marksman from my days in the Navy, and Lee had grown up in the country and had
86 been hunting with rifles since a very young age. We were both well aware of the dangers of the
87 weapon and therefore were committed to storing it safely. We knew the importance of keeping
88 the gun in a secure location not accessible to children or guests, keeping the bullets in a different
89 spot than the gun, and making sure anyone who might use the gun knew how to use it properly
90 and safely.
91 At the same time that we purchased the gun, we purchased a small steel safe
92 manufactured by the Gallucci Safe Company. I had done some research online and the Gallucci
93 safe had great reviews and ratings. In particular, the safe was supposed to be very durable. I
94 found out why when we unpacked it. Although the safe wasn’t bolted to the wall and just sat on
95 the floor, the thing must have weighed at least 100 pounds.
96 The safe that we purchased was a combination safe with a keypad. It required a three-
97 number combination to open. We chose 37-14-41 to match our three birthdays: I was born March
98 7 (37), Sydney was January 4 (14), and Lee was born April 1 (41). Neither Lee nor I ever told 4 99 Sydney the combination, though Sydney knew all of our birthdays. We recorded the combination
100 on a piece of paper that we put in the “For Emergencies Only” file in the filing cabinet, but it
101 was just the numbers, nothing else. The gun safe was stored in our bedroom. I didn’t even realize
102 that Sydney knew we had purchased the gun until she asked me about it on August 7, 2012.
103 On August 7, Jesse came over to spend the day with Sydney. Danny was babysitting
104 Sydney that day so it was not a problem. I never checked with Danny to make sure it was okay. I
105 thought we paid Danny more than enough money, even if there was another child to watch.
106 When I got home from work that day, Jesse was sitting at the dining room table eating a snack.
107 Sydney pulled me aside, down the hallway toward the bedrooms, and asked, “Where do
108 you keep the gun?” I explained to Sydney that guns are dangerous and that she didn’t need to
109 know where the gun was. Sydney shrugged and walked away. As I looked up, I saw Jesse
110 standing in the hall. I do not know how much of the conversation Jesse heard. As Sydney walked
111 away, I heard Sydney say to Jesse, “Whatever. I’m sure it’s in their bedroom.” I went to the
112 bedroom and double-checked that the safe was locked and the gun wasn’t loaded. (We stored the
113 bullets - a single case of 20 - on a shelf in our garage.) Right around the same time, Danny
114 started to tell me something about Jesse but then got a call and had to leave quickly, something
115 about a family emergency.
116 Jesse came back on the 8th. I didn’t have to leave for work right away that morning,
117 which turned out to be a good thing because Danny had called and said that Danny was sick and
118 wouldn’t be over that day. I’ll admit that Danny didn’t sound sick, but I wasn’t going to question
119 it. I called our neighbor, Keith Dunlap, to ask if he would be home all day. Keith lives directly
120 across the street at 22 Maple. He is also super reliable. That’s why I felt a lot better when Keith
121 said he would be home all day on August 8 and he promised to check in on Sydney and Jesse
122 every few hours.
5 123 While it was not my first choice, Sydney was 11 years old and we had let her stay home a
124 few other times when we knew Keith would be home all day. While we had never allowed
125 Sydney to do that when Jesse was over, I didn’t see why it would be a problem.
126 I explained the situation to Hayden when Hayden and Jesse came over with some of
127 Jesse’s things. Hayden seemed a little wary about the situation, but I assume that Hayden, like
128 Lee and I, had no choice and needed to be at work that day. Hayden pulled Jesse aside and had a
129 conversation with him. I couldn’t hear what they were talking about. I left the house about 9:15
130 a.m. that morning.
131 At about 9:50 a.m., I got a call from Officer Dale Williams from the Midlands State
132 Police Department. Officer Williams told me there had been an “incident” at the house and I
133 needed to come home as soon as possible. I asked for more information but Williams insisted I
134 come home so Williams could discuss it in person. Lee was at a meeting out of town so I called
135 and left a message on Lee’s phone and drove home. My normally 20-minute drive turned into an
136 11-minute drive, and I was home by 10:01 a.m.
137 My street and driveway were filled with police cars and emergency vehicles. I slammed
138 my car into park and ran towards the house. Two officers stopped me near the front porch and
139 asked me who I was. I told them I was the homeowner and demanded that they let me in. The
140 officers led me into the house.
141 There were some people in the dining room directly in front of me, but they were just a
142 blur. I remember my head turning to the left and seeing a small, silhouetted figure lying on the
143 floor covered with a sheet. The feet were poking out from under the sheet and my eyes fixated on
144 the pink, sparkly flip flops sticking out from the end of the sheet. I said, “That is Sydney.” I was
145 confused by how calm I seemed. It didn’t seem real.
146 I was escorted back to the front porch, where a police officer (who I later realized was
147 Officer Williams, the person who had called me) told me my daughter was dead. Officer 6 148 Williams said, “A gun was discharged. We believe Jesse Duran, your neighbor, was holding the
149 gun. Sydney was shot in the head and was dead by the time emergency vehicles arrived. I’m so
150 sorry for your loss.” I dropped to my knees crying.
151 The next hour or so is a total blur. I remember being back in the living room later when
152 someone who looked like a CSI came in the room and I started screaming. Hayden Duran
153 showed up at some point. I screamed at Hayden, “Jesse killed my Sydney. Your crazy Jesse
154 killed my Sydney.” I remember my phone ringing and it being Lee. Lee booked the first flight
155 home but couldn’t get back until the next day.
156 After I got myself together a little more, the police asked me questions about the gun, and
157 I showed them my registration and the receipt for the purchase of the safe. Officer Williams
158 asked me how Jesse would have gotten access to the gun. I said I didn’t know because Sydney
159 didn’t even know for sure where the gun was and she certainly didn’t know where the
160 combination was. Officer Williams asked me whether the gun was loaded when it was kept in
161 the safe. I told Officer Williams that I had checked it the day before and knew for a fact it was
162 not loaded. I told Officer Williams that Jesse must have loaded it. Officer Williams informed me
163 that the box of bullets was found on top of the safe. I was shocked. I told Officer Williams that
164 the bullets were not there when I last checked the gun on August 7 and I didn’t know how they
165 got there.
166 I asked Officer Williams if Jesse would be charged with Sydney’s murder. Officer
167 Williams told me it was too early to determine what had happened for sure and that ultimately
168 the district attorney would make the decision about criminal charges. I couldn’t believe what I
169 was hearing. Jesse had killed my daughter and the police knew it. Jesse was obsessed with guns
170 from playing those violent video games. I blame Jesse, but I blame Hayden more. Hayden’s lax
171 parenting is what led to Jesse’s behavior.
7 172 Lee and I never went to the house in Fairview after August 8. We recently purchased a
173 new home in Georgia and plan to move out of state when the trial is done. I changed jobs. Lee
174 took about a year off from work and has just recently gone back to the job with the software
175 company. Nothing seems to matter anymore now that Sydney is gone. Every time a milestone
176 rolls around, the first day of school, Sydney’s birthday, Christmases, all Lee and I can do is think
177 about Sydney. Our lives are over.
178 Of the available exhibits, I am familiar with only the following: Exhibit 3 accurately
179 depicts the layout of our home as of the spring of 2012, including August 8, 2012. The top-right
180 bedroom was Sydney’s, the bottom-right room was Lee’s and mine, and the bottom middle room
181 is the office/guestroom with the desk. In this affidavit, when I refer to locations inside the Park
182 house as being left or right of something else, I am assuming that the person is standing at the
183 front door looking back towards the dining room. Exhibit 4 is a photo of the file drawer in our
184 guestroom/office that accurately depicts how it looked on August 8, 2012. Exhibit 8 is the piece
185 of paper we kept in a folder labeled “For Emergencies Only” that had the combination for our
186 gun safe. Exhibit 14 is an accurate and to-scale drawing of our AD Baker & Co. revolver.
187 I swear or affirm the truthfulness of everything stated in this affidavit. Before giving this
188 statement, I was told it should contain everything I know that may be relevant to my testimony,
189 and I followed those instructions. I know that I can and must update this affidavit if anything
190 new occurs to me until the moment before opening statements begin in this case.
191
192 Subscribed and sworn before me on this, the 1st day of June, 2016.
193 Andy Park
194 Andy Park
195 Yancy Cobb
196 Yancy Cobb, Notary Public 8 Affidavit of Danny Brooks
1 After being duly sworn upon oath, Danny Brooks hereby states as follows: I am over 18
2 and competent to make this affidavit. I am testifying voluntarily. I was not subpoenaed or
3 compelled to testify.
4 I live in Fairview, Midlands, where I work as a full-time babysitter. I graduated from D.J.
5 Kumar High School but never went to college. At first, I wanted to save the world, so I took an
6 unpaid internship with the Nitis Center for Peace and Tolerance. Then I decided to become a
7 babysitter. That made perfect sense since I am a great role model for kids: I don’t drink, I don’t
8 do drugs, and I don’t even eat meat (though I do have a weakness for Pepsi).
9 I babysat for Andy and Lee Park, before their 11-year-old daughter Sydney was killed. I
10 adore Andy and Lee and owe them a great deal. After Sydney died, the Parks didn’t need me
11 anymore, but they made sure to recommend me to all of their friends with children. I doubt that I
12 would have most of my current customers if it weren’t for Andy and Lee.
13 I first met Andy Park in February 2012. Andy and Lee needed a babysitter for Sydney on
14 weekdays from 3:30 p.m. (when Sydney came home from school) until around 8:00 p.m. (when
15 Andy got home from work). At 11, Sydney was already fairly self-sufficient, but Andy and Lee
16 wanted an adult in the house just the same. I rarely saw Lee, who was usually traveling for work.
17 When I first visited the Parks’ house in February 2012, I saw a safe in Andy and Lee’s
18 bedroom closet. I asked Andy why they had a safe. Andy said that the Parks’ house had been
19 broken into a month earlier. Andy was scared, and a neighbor recommended that Andy buy a
20 gun. I asked for the combination so I could protect myself (and Sydney) if something like that
21 happened again. Andy said, “Absolutely not. Only Lee and I know the combination. I won’t even
22 tell Sydney. The gun is too dangerous for anybody but Lee and me to have access to it.” I never
23 raised the issue with Andy or Lee again—though I still wondered why they kept the safe in a
1 24 room that was accessible to Sydney. I never tried to open the safe, so I don’t know how secure it
25 was, but the safe looked pretty new and sturdy to me.
26 Babysitting Sydney was a blast. Though a bit shy, Sydney was a lot smarter and more
27 perceptive than I think Andy and Lee realized. Once in March 2012, I asked Sydney, “Do you
28 know what’s in the safe?” Sydney said, “Yeah, the gun is in the safe in my parents’ bedroom.
29 I’m not supposed to touch it. I’m not even supposed to know how to open the safe.” I asked
30 Sydney what she meant. Sydney said: “I don’t know the combination, but I’m sure it’s in there.
31 They put everything important in there.” Sydney pointed to a desk inside the room that the Parks
32 used as their guest room/office. “Bottom right drawer,” Sydney said. I opened the drawer, which
33 had no lock, and saw file folders inside. I didn’t pull any of the folders or look at their contents,
34 because the last thing I wanted was for Andy or Lee to have reason to believe that I went through
35 their files. But I did notice one folder labeled “For Emergencies Only.” I never told Andy or Lee
36 about that conversation with Sydney. I never saw a lock on the file drawer or the desk.
37 The only unpleasant part of babysitting Sydney was Jesse Duran, who lived next door.
38 Jesse and Sydney were obviously each other’s best friends. They had fun playing with one
39 another, and they almost never played with any other children. But Jesse’s constant presence at
40 the Parks’ home made me angry. Andy and Lee were paying me to watch Sydney. But usually I
41 ended up watching both Sydney and Jesse without any increase in pay. That seemed unfair. I was
42 babysitting Jesse for free, and Hayden Duran, Jesse’s parent, never even offered to pay me.
43 Worse, Jesse was always bossing Sydney around. Everything had to be what Jesse
44 wanted or he would scream at Sydney. Whenever I told Jesse to knock it off, he would say,
45 “You’re not my mom or dad! You can’t tell me what to do!” Jesse seemed obsessed with guns
46 and always insisted that they play games involving guns, like cops and robbers or video games
47 like Call of Duty. Sydney always gave in.
2 48 I repeatedly tried to talk to Hayden Duran about Jesse’s behavior when Hayden would
49 come to pick Jesse up. But I got nowhere. Hayden’s response to everything was “It’s just a
50 game,” or “they’re playing—that’s what children do.” I told Hayden that while Jesse and Sydney
51 were playing a video game, I’d heard Jesse say, “I want to shoot you, Sydney! You’re going to
52 die! Bang bang!” Hayden said, “Relax. I know my child. Jesse talks a big game, but Jesse is
53 harmless. Jesse doesn’t mean it.” In one sense, I guess Hayden was right. I never saw Jesse
54 threaten, hit, kick, punch, or hurt Sydney in any way. One time when they were arguing about a
55 school project, I saw Sydney shove Jesse, knocking Jesse over. Jesse didn’t hit back.
56 Still, I was extremely concerned, and in May 2012, I spoke with Andy and Lee about
57 Jesse’s behavior. I told Andy and Lee everything I described in the previous two paragraphs.
58 Andy said, “Yeah, Jesse is an aggressive kid. But Sydney is shy and doesn’t have many
59 other friends. Playing with Jesse is good for Sydney. For now, at least, let’s let it be.”
60 Things were fine until August 7, 2012. I came over that morning to babysit Sydney (who
61 had finished up summer camp several days before). Unfortunately, Jesse was there too. Andy left
62 shortly after I got there, leaving me, Sydney, and Jesse as the only people in the house. As soon
63 as Andy was out the door, Jesse began screaming, “I want the gun! I want the gun!” I asked Jesse
64 what Jesse was talking about. Jesse said, “Fake gun games are boring! Syd, let’s play real games
65 with the gun in the safe!” I looked at Sydney in horror. This little maniac had found out about the
66 lethal weapon sitting in the safe in the bedroom. I said, “Listen very carefully. The gun in that
67 safe is very dangerous! If I see either of you even go near that safe, then no playing outside, no
68 video games, no nothing!” I considered trying to move the safe into another room, but I figured I
69 should not even try to do that without Andy’s and Lee’s permission.
70 When Hayden came over to pick up Jesse, I said to Hayden: “Your child knows that there
71 is a gun in this house and wants to play with it. I don’t think Jesse should be allowed over here
3 72 anymore.” Hayden, as usual, shrugged it off. “You don’t know what you’re talking about! And
73 who are you to tell me where I can and can’t allow my child to play?” With that, Hayden
74 stormed out with Jesse in tow. Andy and Lee got home later that night. I was about to tell them
75 what happened, but before I said anything, my cell phone rang. I had a family emergency and
76 had to rush out immediately. I never told the Parks about Jesse’s behavior on August 7.
77 I was not at the Park house on August 8, 2012. I saw nothing that happened that day.
78 I spoke to police officer Dale Williams on August 9, 2012. I told the officer I had never
79 seen any bullets stored in the Parks’ home. Officer Williams specifically asked if I had ever seen
80 bullets on the only shelf in the Parks’ garage. I did look on the shelf exactly once, in May 2012,
81 when Sydney needed family pictures for a school project and Andy said some good pictures
82 were in a box on the shelf in the garage. But when I went out to the garage there were no bullets
83 on that shelf. If there had been, I would remember and I would have asked Andy about it.
84 Of the available exhibits, I am familiar with only the following: Exhibit 3 accurately
85 depicts the layout of the Parks’ home as of Spring 2012. Exhibit 4 accurately depicts the file
86 drawer in the Parks’ guest room/office as of Spring 2012. On Exhibit 3, Andy and Lee Park’s
87 bedroom is in the bottom right, the guestroom/office is in the bottom middle, and Sydney’s
88 bedroom is in the top right.
89 I swear or affirm the truthfulness of everything stated in this affidavit. Before giving this
90 statement, I was told it should contain everything I know that may be relevant to my testimony,
91 and I followed those instructions. I also understand that I can and must update this affidavit if
92 anything new occurs to me before opening statements begin in this case.
93
94 Subscribed and sworn before me on this, this 1st day of June 2016.
95 Danny Brooks
4 96 Danny Brooks
97 Mary Ana Costanzo
98 Mary Ana Costanzo, Notary Public
5 Report of Expert Witness Campbell Solo, M.D. Submitted: September 15, 2016
Park v. Duran Civil Case Number CV11-715
1. Name: Dr. Campbell Solo
2. Education and Post-Graduate Training: • 1989-1993 B.A., Psychology, University of Oregon • 1993-1997 M.D., University of Michigan • 1997-2000 General Psychiatry Residency, St. Mary’s Hospital, Madison, WI • 2000-2002 Child and Adolescent Psychiatry Residency, Breckenridge County Mental Health Center, ML
3. Licenses, Certifications, and Professional Memberships: • Licensed to practice in Midlands and Wisconsin • Board Certified in Child and Adolescent Psychiatry by the American Board of Psychiatry and Neurology • Member of the American Psychiatric Association and the American Academy of Child and Adolescent Psychiatry
4. Work experience: Principal, Solo & Associates, P.C., Springfield, Midlands 2005-present • Sole shareholder of firm employing seven fully licensed psychiatrists and a therapist. • Offering personal, couples, and group therapy, with a particular focus on therapy for children. Also offering consulting in forensic psychology.
Adjunct Professor, Midlands State University 2010-12 • Recruited to teach course “The Psychology of Childhood & Memory” • Averaged 4.8/5 on course evaluations for “taught course effectively”
Staff Psychiatrist, Breckenridge County Mental Health Center 2003-2005 • Assigned to juvenile wing, treating patients between ages of 7-17
5. Publications: None.
6. Compensation: I was first retained by the Parks shortly before this suit was filed. I received $5,000 for an initial consultation. After the Parks decided to retain me, I charged additional time at a rate of $300 per hour. I have billed 22 additional hours as of the date I submitted this report. If I am called as a witness at trial, I will receive an additional $10,000 to cover the time spent preparing for trial, the time at trial, and all transportation and expenses.
7. Previous testimony: I have been retained to discuss matters of child development and child psychiatry in more than 50 criminal cases and 100 civil matters. I have testified in court 17 times, 15 of which were in criminal cases.
1 Assignment
8. I was asked to examine three and only three questions in this case: “(1) whether Jesse Duran posed a special danger with respect to firearms; (2) if so, whether the signs of such special danger manifested before August 8, 2012; and (3) if so, whether the signs of such special danger were or should have been clear to Hayden Duran before August 8, 2012.”
9. In conducting my analysis, I examined only the following materials: the Affidavits of Danny Brooks, Hayden Duran, Shannon Ellis, and Andy Park, as well as Exhibits 5, 6, 7, 10, and 13, which were provided to me by plaintiff’s counsel.
10. I did not speak with Jesse Duran or review any statement prepared by Jesse Duran after August 8, 2012. I asked to interview Jesse Duran, but I understand that the attorney representing Jesse Duran’s interests refused to make Jesse available to me. In any event, speaking with Jesse Duran was unnecessary given the nature of my work in this case.
11. This report contains all of my conclusions associated with this case. I understand that this report will be provided to both parties in preparation for trial and that I have a duty to update this report if I receive any additional information or make any further observations or conclusions. I understand that I have an obligation to be truthful and complete in this report, and I have complied with that obligation. All of the conclusions listed in this report are professional conclusions drawn to a reasonable level of certainty based on accepted standards within the field of psychiatry.
Opinions
12. Parents, teachers, and caregivers must watch for violent behavior or warning signs for violent behavior in children (defined as people under the age of 18). Children may show violent behavior as early as preschool age (< 5 years old). Parents are often unsure how to deal with this and can be tempted to minimize the behavior or characterize it as something their child will “grow out of.” That is a serious mistake. Although some age-appropriate roughhouse play is normal and not necessarily a cause for concern, violent behavior (not limited to physical aggression but can include explosive temper tantrums, use of weapons, and threats to hurt others) is always cause for serious concern and should never be dismissed or minimized.
13. Although every case is different, peer-reviewed studies have identified a number of factors that increase the risk of violent behavior in children. They include: (a) heredity factors (a.k.a. genetics); (b) being the victim of physical or sexual abuse; (c) a stressful home life (poverty, family breakup, drug or alcohol abuse by the parent, etc.); (d) exposure to violence in media; (e) presence of firearms; and (f) previous aggressive or violent behavior.
14. Studies also have identified various warning signs that suggest increased risk of a violent incident, including: (a) frequent loss of temper or extreme frustration; (b) severe irritability; (c) extreme impulsiveness; and/or (d) intense anger.
15. Of course, not all children who show one (or even multiple) risk factors will necessarily engage in violence. Every case is unique and must be evaluated on its own terms. However, the “warning signs” listed above should always be taken seriously. Any child who displays warning signs while also having multiple risk factors should be evaluated by a qualified mental health professional. Prompt intervention has been shown to reduce or prevent future violent behavior.
2 16. My review indicates that Jesse Duran was at severe risk for violent behavior long before August 8, 2012. Although Hayden Duran is, of course, not a physician, my review also indicates that Hayden Duran had more than enough information to be aware of Jesse’s violent tendencies and to take steps to address them, including warning the Parks. In fact, the evidence indicates Hayden Duran recognized that Jesse had violent tendencies.
17. First, there were serious warning signs before August 8. The Notification of Student Discipline (Exhibit 6) manifests loss of temper, extreme impulsiveness, and intense anger, as do (to a lesser extent) the incident recounted in Exhibit 5 and the fantasies acted out in Exhibit 7.
18. Second, these warning signs were accompanied by numerous risk factors. I found no evidence of the first three factors listed above (hereditary; prior victimization; or stressful home life). But I found significant presence of two risk factors (exposure to violence in media; previous aggressive or violent behavior) and some presence of a third (presence of firearms).
19. American children average approximately four hours of television and other media viewing a day. This sort of exposure can have a profound influence in developing values and shaping behavior. Unfortunately, much of today’s media environment is awash in violence. Scores of studies have conclusively demonstrated that exposure to violence in television and other media can result in children becoming increasingly numbed to the effects of violence; increasingly accepting of violence as a legitimate solution to problems; and increasingly likely to imitate the violence they have observed. Children who view programming or play video games in which violence is frequent, realistic, and/or rewarded are more likely to imitate what they see than children whose exposure to such materials is more limited or sporadic. They are also often more aggressive after being exposed to acts of violence; and there is a general correlation between the frequency, intensity, and recency of the violence to which children are exposed and the frequency and intensity of the child’s aggression. These results can manifest even when the overall family situation shows no tendency towards violence.
20. Parents should take steps to protect their children from the effects of excessive television and other media violence. Parents should impose limits both on what children view and for how long they view it. When violence occurs, parents should make sure to point out that although the actor or the character in the video game is not really dead, such violence in real life often results in genuine harm to others. Parents should refuse to let children be exposed to age-inappropriate materials, such as by heeding warnings that air before programs or appear on the front of video- game packaging. Parents should work to mitigate the effects of peer pressure by communicating with babysitters, family members, and the parents of peers and agreeing to enforce similar rules regarding the amount of time or nature of programming that children may watch.
21. In this case, I found evidence that Jesse had extensive exposure to violent media, particularly violent video games. This was attested to in several sources I reviewed, including the Affidavits of Danny Brooks, Hayden Duran, and Andy Park and Exhibits 5 and 7. Although Hayden Duran describes taking some steps to limit Jesse’s exposure to violent video games, it is undisputed that Jesse Duran was allowed extensive contact with age-inappropriate material.
22. The second indisputably present risk factor I found is previous aggressive or violent behavior. The most striking piece of evidence here is Exhibit 6, but I would include both Exhibits 5 and 7 as well. Exhibit 5 recounts an incident in which Jesse Duran subverted the rules of an already violent video game in order to shoot Jesse’s friend Sydney, which I would characterize as violent
3 behavior. The same is true of the bottom-center panel of Exhibit 7, in which Jesse describes using a firearm to “scar[e] all the bad kids away.”
23. A third risk factor (presence of firearms) is less clear. But, in my view, that factor too is likewise properly deemed to have been present in this case. Children have long been fascinated by firearms. But the modern media environment has only exacerbated that fascination. Between television, movies, and modern hyper-realistic video games, the average child may witness numerous acts of violence involving firearms on a daily basis. The fact that children frequently imitate what they see is obviously of special concern with respect to firearms.
24. Parents should also take steps to protect their children from firearm violence. The single best way to do so is to remove all firearms from the home. Failing that, all firearms should be securely stored in a place that is not accessible to children. Secure storage is necessary not only for the safety of parents’ own children, but also for that of playmates who may not have the same appreciation of the dangers posed by firearms. Parents who introduce their children to firearms or keep firearms in the home should take care to emphasize the dangers posed by firearms and the need to treat them with utmost respect and care.
25. But even parents who do not keep firearms in the home should talk to their children about firearms, because there can be no assurance that their children will not come into contact with them or seek information easily available on the Internet about where to acquire firearms or how to operate them. This is demonstrated by Exhibit 13 – a screenshot taken by Officer Dale Williams of the search history from Jesse Duran’s phone on August 8, 2012 – in which the phone was used to search for “recoil pistol” and “how to load a revolver.” All parents are responsible for making sure that their children receive appropriate instruction and understand that firearms are not toys and can do serious damage.
26. There is no dispute that there was no firearm in the Duran home. I do not know if Hayden Duran made a conscious decision in this regard, but it was the right one in any event. I likewise commend Hayden Duran for refusing to permit Jesse to play any video games that involved using a fake or toy gun as a controller.
27. At the same time, there were numerous prior warnings involving Jesse and firearms. Exhibit 5 shows that Hayden Duran was aware of Jesse Duran’s fascination with “shooting” people, both in a video-game context and in others. Most disturbing is Exhibit 7, which shows Jesse Duran’s extreme fascination with firearms and shifts seamlessly from the use of a (presumably) fake gun to play a video game to using a real gun to engage in fairly innocuous activities, to pointing a gun at other children. Hayden Duran’s statement for this case also confirms that Hayden Duran was aware that the Parks kept a gun in their house and that Jesse had expressed interest in playing with it. For those reasons, I think it is appropriate to treat this situation as one involving the presence of firearms.
28. The materials I reviewed reveal some efforts by Hayden Duran to address Jesse’s troubling behavior (such as attempting to speak with Jesse about the dangers of firearms). In my view, however, those efforts were plainly insufficient. Hayden Duran should have warned the Parks about Jesse’s history of violence, warned the Parks about Jesse’s interest in firearms, prevented Jesse from playing violent video games, and had Jesse evaluated by a mental health professional. I found no evidence that Hayden Duran took any of those steps. In my view, that was inexcusable, especially since the materials reveal that Hayden Duran was aware that the Parks kept a firearm in their home.
4 Affidavit of Hayden Duran
1 After being duly sworn, Hayden Duran states as follows: I am over 18 and competent to
2 make this affidavit. I reside at 25 Maple Street, Fairview, Midlands. I am the director of
3 information technology for a local hospital system. Jesse Duran is my only child. I have never
4 been married. I adopted an embryo from a fertility clinic and found a surrogate. Jesse was born
5 May 9, 2001. I was thrilled, though adapting to life as a single parent was tough.
6 I never intended to have another child, so I chose a neighborhood with young families so
7 Jesse would have plenty of children to play with. That is why we moved to Fairview when Jesse
8 was 18 months old. I’d like to say I don’t spoil Jesse, but others would probably disagree. Guilt
9 about having to work so much is a pretty strong driving force for me; it’s definitely what led me
10 to buy Jesse both a corgi named Amanda and multiple video-game systems.
11 The Parks moved to Fairview two years later. I knew Andy before that. Andy was
12 working at the hospital on the day Jesse was born. After that, Andy and I kept in touch. When the
13 house next to ours came up for sale, I told Andy because I knew the Parks wanted to move to
14 Fairview. The Parks purchased the home within weeks. I was thrilled to have Andy and Lee as
15 neighbors, and Jesse was beyond thrilled to have Sydney right next door.
16 From the time that Sydney and Jesse were five, they were constantly running back and
17 forth between the two houses. We actually put a door in the fence between our two backyards so
18 the kids could run back and forth safely without having to go out front. So, when I needed
19 someone to be “on call” to help with Jesse after school, the Parks were the natural first choice. At
20 that time, Andy worked the 7 a.m. to 3 p.m. shift at the hospital, so Andy was more than happy
21 to help out on those days when I couldn’t get Jesse picked up on time.
22 When Jesse turned 10, I was more comfortable allowing Jesse to get off the bus at home.
23 By that time, Andy had gone to working a different shift, so the Parks hired a babysitter, Danny
1 24 Brooks, to stay with Sydney after school. While I never had a formal babysitting arrangement
25 with Danny, Jesse would still pop over to Sydney’s house after school most days during the
26 week, and I knew that if anything went wrong, Jesse could ask Danny for help. I’m sure Danny
27 resented watching two kids for the price of one and thought that Danny should be paid for
28 watching Jesse. In hindsight, I probably should have talked to Danny and paid Danny something.
29 But at the time, I just saw it as Sydney and Jesse hanging out and playing like they always had.
30 Danny’s resentment was most evident in the way that Danny handled Jesse’s fascination
31 with guns. Since Jesse was a young child, Jesse has been fascinated with the military. I vividly
32 remember Jesse begging me for “army guys” for every birthday, Christmas, and special occasion
33 from the age of five on. As Jesse got older, the request changed to one for video games involving
34 army guys rather than the actual figurines. I’m a techie—that’s what makes me good at my job—
35 so I bought Jesse all the newest gaming systems as they were released. Jesse was constantly
36 asking for more realistic war games. At first I was reluctant given the rating of most of those
37 types of games, but having played the games myself, I concluded that the games weren’t realistic
38 at all. I told Jesse, “You can start playing the first-person shooter games when you turn 10.” A
39 first-person shooter game is one in which the player sees armed combat through the eyes of the
40 shooter. The first few times Jesse played these war-type video games, I played with him.
41 While we were playing together, I talked a lot about how the games are not real. I
42 specifically remember telling Jesse, “Everything you are seeing on the screen is pretend. War is
43 sad and guns are very dangerous. Do you understand?” Jesse nodded and kept playing. I drew the
44 line at purchasing any of the gun-type accessories that you could hook up to the games. I didn’t
45 see any reason why Jesse needed to know how to handle a gun, even if it was fake.
46 Danny had a huge problem with the fact that I allowed Jesse to play these types of video
47 games. Danny confronted me on several occasions and tried to tell me that Jesse was obsessed
48 with guns and was always talking about them. I specifically remember that Danny started 2 49 making these statements after Jesse’s 10th birthday when I first bought Jesse the video games. I
50 told Danny that Jesse was just infatuated with a new toy and that the interest would pass. Danny
51 tried to tell me that it went beyond video games and that Jesse liked to play pretend games
52 involving shooting like cops and robbers. I never observed that type of behavior when Jesse was
53 at home but, even if I had, I wouldn’t have given it a second thought. I grew up playing the same
54 types of games. I also chalked Danny’s statements up to resentment about having to watch two
55 kids but only being paid for one. I also told Danny to stop focusing on the behavior so much
56 because the more Danny focused on it, the more Jesse would do it.
57 The issues with Danny came to a head on August 7, 2012. Jesse had been spending less
58 time at the Parks’ house when Danny was there because I was increasingly uncomfortable with
59 how Danny treated Jesse. Jesse’s summer day camp was closed on August 7 and 8. While I was
60 okay with Jesse staying home for a few hours after school, I never let Jesse stay home for whole
61 days during the summer. I checked with Andy who said Jesse could come over and play with
62 Sydney for those two days. I never checked with Danny but I never had in the past either.
63 When I arrived to pick Jesse up on August 7, Danny was freaking out. I had just finished
64 a very long day and was in no mood for Danny’s overreactions. Danny told me Jesse knew that
65 Andy and Lee kept a real gun in the house. At first, I was a little taken aback that Lee and Andy
66 had a gun in their home. Then I remembered that they told me they had purchased the gun when
67 their house was broken into during January of 2012. I assumed they kept the gun in a safe and
68 out of the reach of Sydney although I don’t recall ever asking either Andy or Lee about it.
69 Anyway, Danny said, “Jesse knows there is a gun in this house and wants to play with it. I don’t
70 think Jesse should be allowed over here anymore.” I don’t recall my exact reaction, but I told
71 Danny that wasn’t a decision for Danny to make, and I would discuss the matter with Andy and
72 Lee. I never got a chance to do so before everything happened with Sydney on August 8.
3 73 I do recall discussing guns with Jesse at home during the evening of August 7. I told
74 Jesse that real guns are dangerous and that he should never touch one. Jesse replied, “I just want
75 to see what it feels like to hold it.” I reiterated that real guns are not like the ones that Jesse uses
76 in the video games. Jesse said, “I know. The ones in video games are fake. That’s why I want to
77 see a real one.” I said, “Jesse, real guns can hurt real people, even kill them.” I’m not sure that
78 Jesse understood just how dangerous real guns could be, because he shrugged and walked away.
79 I suppose that I could have threatened to punish Jesse if he touched the gun, but I did not. I
80 considered that the end of the matter, especially since neither Lee nor Andy objected to Jesse
81 coming back to play with Sydney as planned the next day, August 8.
82 Jesse knew that he was going to go play with Sydney on the 8th. Jesse came into my
83 room at 7:30 a.m. that day, much earlier than usual, asking me if it was time to go to Sydney’s
84 house. I told Jesse that I didn’t have to leave for work until 9, so Jesse needed to go back to bed.
85 Minutes later, I heard the video-game system come on in the living room and the familiar
86 gunshot sounds and explosions from Jesse’s video games. As I was getting ready for work, at
87 about 8:55 a.m., Jesse came in and told me he was going to Sydney’s house. I found Jesse’s
88 excitement a little odd, but I figured maybe he and Sydney had something fun planned for the
89 day. I do remember Jesse saying something about maybe going to the splash pad at the park. I
90 figured that was the reason for the excitement, although Jesse didn’t grab any swim gear.
91 Jesse and I walked over to the Parks’ house. Andy was still home, but Danny wasn’t
92 there. I asked where Danny was. Andy informed me Danny would not be over that day but that
93 Keith Dunlap, who lived across the street, would be home all day and “on call” for Sydney and
94 Jesse if anything went wrong. This made me very nervous. I didn’t allow Jesse to stay home
95 alone at age 11, and I thought it was a bad idea for Jesse and Sydney to play without adult
96 supervision, especially with a gun in the house. But I had no choice. I had to work and had no
97 other option for Jesse. I called Jesse over and told him that staying at Sydney’s house without 4 98 supervision was a big responsibility and that I expected his best behavior. As I was leaving a few
99 minutes before 9 a.m., I looked back at Jesse and reminded him of the discussion we had the
100 night before. I should have never let Jesse stay alone with Sydney.
101 At about 10:15 a.m., the Midlands State Police called me. They said there had been an
102 incident at the Parks’ home and I needed to come home immediately. I arrived around 10:30 a.m.
103 to a street filled with emergency vehicles. I ran to the first uniform I could find and told the
104 person who I was. The person escorted me through the front door. As I walked through the living
105 room towards the dining room, I saw a white sheet covering a child-size body on the floor.
106 I was escorted into the Parks’ dining room. I found Jesse surrounded by police officers,
107 who told me I couldn’t touch Jesse until the crime-scene unit had processed everything. I told
108 them I needed to make sure Jesse was okay. The officers told me I could sit next to Jesse and
109 talk. I asked if we could talk alone, but they said that policy prohibited a suspect from being left
110 alone. “A suspect in what?” I asked. Finally a detective explained to me that Sydney Park was
111 dead, killed by a gunshot, and they believed that Jesse had fired the gun.
112 Only then did I hear Andy wailing in the next room. Time seemed to move in slow
113 motion. I looked at Jesse, who sat expressionless in the chair. I finally caught Jesse’s gaze. He
114 looked straight at me and said, “Sydney opened the safe. Sydney said we should play with the
115 gun. It was all Sydney. I’m sorry.” I immediately told Jesse not to say anything else, and I looked
116 at the officers and told them no one could talk to my child without me present. The detective
117 asked me for a statement. I declined. It was clear to me that they believed that Jesse had done
118 something wrong, and I knew not to say anything to anyone until I consulted with a lawyer.
119 As we were leaving the Parks’ house that day I saw Andy. I walked toward Andy, but
120 Andy screamed at me to stop. Andy yelled, “This is all your fault. Jesse is a murderer.” Jesse and
121 I were escorted back to the police station where my child was processed and booked on suspicion
122 of manslaughter. We saw a juvenile judge the next day and, in light of the uncertainty 5 123 surrounding Sydney’s death, Jesse was released into my custody pending adjudication of the
124 charges, which still hasn’t happened. The district attorney told me she is unlikely to press
125 charges, but if she does, Jesse could face prison. Apparently Lee and Andy are not satisfied with
126 that possibility for what is clearly an accident, and have decided to sue me as well.
127 I was not in the Parks’ home at the time of the shooting and did not see what happened.
128 But if the Parks didn’t keep a gun in their house, if they had locked it away better, or if they had
129 locked away the bullets, none of this would have happened. I’ve heard about the things Jesse’s
130 fifth-grade teacher, Shannon Ellis, has been saying about Jesse’s suspension. I only met Ellis
131 once at a parent-teacher conference in February 2012.
132 Of the available exhibits, I am familiar with only the following: Exhibit 3 accurately
133 depicts the layout of the Parks’ home as of the spring of 2012, including August 8, 2012. I had
134 been to the Parks’ home many times before. When I arrived at the Park house on August 8, 2012,
135 Sydney Park’s body was between the coffee table and the couch. In this affidavit, when I refer to
136 locations inside the Park house as being left or right of something else, I am assuming that the
137 person is standing just inside the front door looking back towards the dining room.
138 Exhibit 5 is an email I wrote and sent to my friend Casey French. I never received a
139 response from Casey. Everything in the email is true. Exhibit 6 is a Notification I received from
140 Jesse’s school on January 6, 2012. I signed it on January 9, 2012. When I asked Jesse about the
141 incident, Jesse said it was all true except the biting. Jesse also said the Notification omitted the
142 fact that other kids had yelled the same thing to Jesse first. Nonetheless, I disciplined Jesse by
143 suspending Jesse’s video-game privileges during the five days Jesse was suspended from school.
144 That is the only discipline I gave Jesse as a result of the incident described in the January
145 6 Notification, but I think it was enough. Also, as the Notification states, it was Jesse’s third
146 aggressive incident of the year. With the first two incidents, Jesse did not deny hitting a
147 classmate. I did not discipline Jesse for those incidents because it was clear Jesse already felt 6 148 guilty enough. Exhibit 7 is a drawing that police found in my house and showed me on August 8,
149 and I identified the drawing style and handwriting as Jesse’s. I do not recall seeing the drawing
150 prior to when the police showed it to me.
151 Exhibit 10 is a screenshot of a text message conversation I had with Jesse on August 8,
152 2012. Officer Williams took the screenshot from Jesse’s phone in my presence on August 8,
153 2012. I have compared it to the texts on my phone. The screenshot accurately reflects our
154 conversation. I recall sending and receiving those texts. Exhibit 12 is a screenshot of the call
155 information for the call between Jesse and me on August 8, 2012. Officer Williams took the
156 screenshot from Jesse’s phone in my presence on August 8, 2012. I have compared it to the call
157 information on my phone, and that screenshot is identical to the information displayed on my
158 phone (except my phone displayed Jesse’s name and phone number). Jesse did in fact call me at
159 9:46 a.m. I answered after two or three rings, Jesse said, “You need to come home,” and I
160 immediately hung up and drove to the Parks’. That was the entirety of our conversation. The
161 phone number on Exhibit 12 is my cell phone and the email address on Exhibit 12 is my personal
162 email address. Exhibits 9, 11, and 13 are screenshots from Jesse’s phone that Officer Williams
163 took in my presence and that Officer Williams showed to me on the afternoon of August 8, 2012.
164 I swear or affirm the truthfulness of everything stated in this affidavit. Before giving this
165 statement, I was told it should contain everything I know that may be relevant to my testimony,
166 and I followed those instructions. I know that I can and must update this affidavit if anything
167 new occurs to me until the moment before opening statements begin in this case.
168 Subscribed and sworn before me on this, the 1st day of June, 2016.
169 Hayden Duran
170 Hayden Duran
171 Nick Zurawski
172 Nick Zurawski, Notary Public 7 Affidavit of Shannon Ellis
1 After being sworn, Shannon Ellis states as follows: I am over 18 and competent to make
2 this affidavit. I am testifying voluntarily. I was not subpoenaed or compelled to testify.
3 My name is Shannon Ellis. I teach fifth grade at Fairview Middle School. Some days,
4 it feels like I just got out of college. Other days, it feels like I’ve been there for thirty-seven
5 years. But every day is an adventure!
6 I taught Jesse Duran and Sydney Park during the 2011-12 school year. At Fairview,
7 the fifth graders have their own wing and spend most school days in the same classroom with the
8 same teacher. There were 25 students in my class the year I taught Jesse and Sydney.
9 The first thing I remember noticing about Jesse was that Jesse seemed obsessed
10 with guns. Of course, interest in guns isn’t that unusual: I teach fifth graders, after all. In my
11 years teaching, I’ve confiscated more toy guns, drawings of guns, and phones with gun-themed
12 games on them than I can count.
13 But Jesse’s level of interest was a bit more than most. One day in November 2011, we
14 had some extra time at the end of a day, so I told the students we were going to do a little art
15 project. I told the kids to draw a story about their best friend, what sorts of things they did
16 with that friend, and how that friend made them feel. Almost all of them drew another child,
17 though one child drew a horse, another drew some sort of robot vacuum cleaner, and a third drew
18 Katniss from The Hunger Games. But Jesse drew a gun and titled the story, “Me and My Gun.” I
19 had never seen anything like it before. I was a little concerned, and I made a mental note to speak
20 to Jesse’s parent, Hayden, about it during the next parent-teacher conference a few months later.
21 The other main thing I remember is Jesse getting in a pretty bad fight during January
22 of 2012. I wasn’t there when it happened, but I heard about it later from the gym teacher, Mr.
23 Queen. Apparently the children were playing dodgeball when Jesse completely lost it and
1 24 attacked a little girl named Katie. As Jesse’s teacher, it was my job to write a Notification of
25 School Discipline after Principal Newman ordered that Jesse be suspended for a full week. I
26 write such Notifications several times every school year and place signed Notifications in student
27 files that are stored in the school counselor’s office. I wrote the Notification after speaking with
28 Mr. Queen and Principal Newman. I also talked about the Notification with Jesse. Jesse said that
29 everything Mr. Queen told me was true except for the part about Jesse trying to bite the other
30 student, which is why I wrote the words “The teacher also reports” at the beginning of that
31 sentence.
32 I was present for both of the two previous incidents mentioned in the Notification. The
33 first happened in October 2011. I was walking the class to physical education class, and I saw
34 Jesse walk up and shove another child named Austin in the back. I watched the entire thing
35 happen, and I have no idea why Jesse did that. I did notice that Jesse did not like physical
36 education class and was more stressed and irritable on days when it took place.
37 The second incident happened in December of 2011. I was in my classroom when I heard
38 Jesse yelling in the hallway. I went outside just in time to see Jesse shove another student into a
39 locker. Sydney Park was there when it happened, and I heard Sydney tell Jesse to “calm down.”
40 Jesse turned to Sydney and yelled, “I thought you were my friend! You’re just like all the
41 others!” Jesse tried to run off but another teacher grabbed Jesse and brought Jesse down to the
42 principal’s office. So far as I know, there was never a formal written notification sent to Hayden
43 Duran about either of those incidents.
44 The first (and only) time I met or spoke to Hayden Duran was during parent-teacher
45 conferences in February 2012. Jesse had just won first place at the school science fair and was
46 advancing to the state competition. Hayden was very proud of this accomplishment and we spent
47 most of the conference discussing science enrichment activities that would help Jesse prepare to
48 be successful in later competitions. Hayden expressed concern about the previous suspension, 2 49 but I told her that I was hopeful that the new science enrichment program would improve Jesse’s
50 self-esteem and provide him with a positive peer group for the rest of the school year. I forgot to
51 show Hayden the drawing that Jesse did in November 2011 (which I’d saved), but I did send the
52 picture home with Jesse the next day to give to Hayden. Jesse reported that Hayden received the
53 picture and hung it on the refrigerator. I thought that was an odd reaction to the gun cartoon, but
54 I did nothing further regarding the picture.
55 There were no discipline incidents at school after Jesse’s suspension in January. Jesse
56 really blossomed in the science enrichment program. The program took place during the fifth-
57 grade elective period, which meant Jesse no longer attended physical-education class. This
58 appeared to lower his stress level throughout the week. Jesse won second place at the state
59 science fair and I recommended him for a STEM gifted program at Fairview Middle School, but
60 I understand Jesse is currently being homeschooled instead.
61 I also met Andy Park during the February 2012 parent-teacher conferences. (Lee Park
62 was out of town.) We talked mostly about Sydney’s recent test scores in math and reading.
63 Sydney was two grades behind in reading and Andy was concerned. Andy also asked about Jesse
64 Duran. Andy told me that Jesse and Sydney had been spending a lot of time together and that
65 Andy was a little worried, both about some of the things that Andy had seen and some things
66 Andy had heard from the babysitter. That put me in a tough spot. I told Andy that, because of
67 student privacy, I really wasn’t allowed to discuss any student other than Sydney. It was obvious
68 that was frustrating to Andy. I remember Andy saying, “I’m just trying to keep Sydney safe.” I
69 suggested that Andy could talk to Hayden. It was all I could do.
70 I first heard about this lawsuit during October 2015, when I was contacted by Dr.
71 Campbell Solo. I have never been to the Park or Duran homes, and I have no firsthand
72 knowledge of anything that happened on August 8, 2012. At the same time, I obviously knew
73 that Sydney had been tragically shot while she and Jesse were alone in Sydney’s house in August 3 74 of 2012. Not only was it all over the news when it happened, but everyone at Fairview Middle
75 School was talking about it for months afterwards. It’s such a shame.
76 Of the available exhibits, I am familiar with only the following: Exhibit 7 is the drawing
77 that Jesse drew for my class, and Exhibit 6 is the Notification that I wrote after the incident
78 during gym class. I swear or affirm the truthfulness of everything stated in this affidavit. Before
79 giving this statement, I was told it should contain everything I know that may be relevant to my
80 testimony, and I followed those instructions. I also understand that I can and must update this
81 affidavit if anything new occurs to me before opening statements begin in this case.
82
83 Subscribed and sworn before me on this, this 1st day of June 2016.
84 Shannon Ellis
85 Shannon Ellis
86 Coco Markle
87 Coco Markle, Notary Public
4 Report of Expert Witness Ash DeRosa 2519 Park County Road Gaston, Midlands 07436 [email protected]
July 15, 2016
I. Background and Qualifications
1. I began my career in public safety research in 1995 as a Research Associate at Tufts University and have focused most of my research on gun-related injuries and violence during the past 21 years. I have a Masters of Public Health from Tufts University and a Doctorate in Health Policy and Management from Midlands State University. This graduate training included advanced courses in epidemiology, research methods, and statistical analysis.
2. I joined the faculty of Midlands State University’s Jacob Noah School of Public Health in 2004, and I am a tenured Professor of Health Policy and Management. For the past 10 years, I have also served as Co-Director of the Midlands Center for Responsible Gun Policy and Legislation. I teach undergraduate and graduate courses on violence prevention and research and evaluation methods at Midlands State University.
3. I have directed numerous studies related to gun violence and its prevention, including the effectiveness of various methods of gun storage in homes, stores, and other places. I have published over 30 articles in scientific, peer-reviewed journals. The articles most closely related to this case include:
• Secure Gun Safes: A Way to Prevent Tragedy, Midlands Journal of Public Policy (2012) (with A. Reid) • Guns in the Home: What Must Be Done, American Firearm Report (2015) • Children and Firearms, Pediatric Policy Journal (2014) • Keeping Your Family Safe, Midlands Journal of Public Policy (2016)
4. Hayden Duran is compensating me $500 per hour for my investigation of this matter. I spent 75 hours investigating this matter. If I am called to testify at trial, I will receive another $5,000 to compensate me for my preparation and for my day in court.
5. I have previously been retained as an expert in fifteen civil cases. Three of those cases went to trial, which required my testimony. In all of the cases in which I was retained, the opposing party was a gun owner or gun manufacturer.
II. Assignment and Materials Reviewed
6. In September 2013, I was hired by Hayden Duran to evaluate whether or not Andy and Lee Park safely stored and maintained the firearm that they owned and kept in their home. This case was unusual right off the bat. When I first heard that two children had been playing, one of them had been shot, and the parents of one child were suing the parent of the other, I assumed that Sydney Park (the child of the gun owner) had shot Jesse Duran and that Hayden Duran was suing the Parks. Hayden Duran explained, however, that the Parks were saying that Jesse Duran 1 had shot Sydney Park and that the Parks were suing Hayden Duran. At first, I was torn. I had never previously been retained to testify against a party whose loved one had been killed as a result of gun violence. Two things changed my mind, however. First, Hayden Duran offered to double my usual hourly rate (from $250 to $500 per hour). Second, after speaking with Hayden Duran for about an hour, and before I agreed to take the case, I began to see this case as an opportunity to send a message that keeping guns in the home is not just dangerous for guests (like Jesse Duran), but can also be deadly for the very family members that gun owners are trying to protect (like Sydney Park).
7. The opinions that I articulate in this report are based on my review of numerous studies published in scientific peer-reviewed journals and in books. I also read the affidavits of Danny Brooks, Hayden Duran, and Andy Park, and relied on their affidavits in forming my conclusions. I did not interview any of these individuals. I reviewed Exhibits 1, 3, 4, 8, and 14, which I recognized instantly as an accurate, to-scale drawing of an AD Baker & Co. revolver. I was not permitted to speak with Jesse Duran.
8. The Breckinridge County Police Department denied my request for access to the revolver that was allegedly used to shoot Sydney Park. The Department did send me a copy of the Police Report of Dale Williams (Exhibit 1), which I read. However, the only portion of the Police Report that I relied upon in rendering my opinions and conclusions herein is the paragraph which reads:
“The firearm recovered at the scene was verified to be a 6-shot, 9 mm revolver manufactured by AD Baker & Co. The cylinder contained one spent shell casing but was otherwise empty. I removed the shell casing from the cylinder and put it aside for later analysis.”
I am not qualified to give an expert opinion on any other aspect of Police Report or investigation.
9. I also have never visited 23 Maple Street. I was advised that the plaintiffs had vacated the home and were willing to permit me to examine it, but I declined their offer. I was hired more than a year after the incident and knew that the home might not be in the same condition as on August 8, 2012.
III. Opinions and Conclusions
10. This report contains all of my conclusions associated with this case. I understand that this report will be provided to both parties in preparation for trial and that I have a duty to update this report if I receive any additional information or make any further observations or conclusions. I understand that I have an obligation to be truthful and complete in this report, and I have complied with that obligation. All of the conclusions listed in this report are professional conclusions drawn to a reasonable level of certainty based on accepted standards within my field.
A. Risks Associated with Gun Storage in the Home
11. In the United States, approximately 40% of households and 30% of adults own a gun. Approximately 18% of adults own a handgun. The most common reasons for gun ownership are self-protection, target practice, and hunting. In 1988, a joint study by Fliehr, Lunde, Rogowski,
2 and Blanchard of approximately 5,000 gun owners found that, in the previous five years, 3.5% of all adult gun owners reported using a gun for “self- protection or protection of others or property.” A 2006 study reached a similar conclusion. Neither study was limited to the home setting. A controversial 1996 study determined that Americans use guns to scare away intruders who are breaking into their homes approximately 500,000 times per year. A reputable, non- partisan research center has determined that, since 2000, firearm accidents cause approximately 600 fatalities and 16,000 nonfatal emergency room visits annually. The age group most likely to die from a firearm accident includes children age 10-14 years, and the second most likely group includes children age 5-9 years. In 2014, firearms were the 16th-leading cause of fatal accidents in the United States.
12. Keeping a firearm in one’s home is always a risky and potentially dangerous endeavor. Studies have shown that living in a home where there are guns increases the risk of homicide by 40-170% and the risk of suicide by 90-460%. Guns in the home are associated with an increase in the risk of homicide by a family member or friend.
13. One reason why gun ownership is so risky is that it is very easy for even experienced gun owners to accidentally fire their weapons. The most recent studies have shown that over half of people who have owned a weapon for over a year have unintentionally fired that weapon on at least one occasion.
14. This can happen for several reasons. First, a person can deliberately pull the trigger without intending to fire (such as for practice, demonstration, or testing) in a situation where ammunition has been accidentally left in the weapon. Unintentionally leaving a firearm loaded most often occurs when the individual handling the gun has little training or experience.
15. Firearms can also accidentally discharge when the person holding the gun puts his or her finger on the trigger but has no current intent to fire. All that it takes to fire a gun is to compress the trigger. That can happen unintentionally in numerous scenarios. It can be as simple as stumbling or tripping while the finger is on the trigger, and the grasping motion of both hands will likely cause the trigger finger to compress the trigger. In addition, if somebody is holding a loaded weapon and drops it, the gun may go off.
16. The chance of an accidental discharge of the weapon dramatically increases when the person holding the gun is a child who has never held or fired a gun before. None of the materials I reviewed indicated that Jesse had ever held a gun, much less fired one, before August 8, 2012.
17. These risks, however, can be effectively mitigated. Keeping a firearm unloaded and locked away in a safe with the bullets stored separately significantly decreases the risk of injury and death from firearms. These safe storage measures have been shown to assist significantly in reducing youth suicide and unintentional injury in homes with children and teenagers where guns are stored.
B. The Parks’ Purchase and Storage of Their Revolver
18. In January 2012, Andy and Lee Park purchased a 6-shot, 9 mm revolver manufactured by AD Baker & Co. (based in Bergen County, New Jersey). Though I did not examine the specific firearm that the Parks purchased, AD Baker & Co. is a reputable gun manufacturer that has
3 never, to my knowledge, been sued or implicated in any gun-related homicides, suicides, or accidental deaths. I cannot fault the Parks for purchasing a revolver from AD Baker & Co.
19. The Parks stored their weapon in their bedroom in a small steel safe manufactured by the Gallucci Safe Company. Gallucci makes the toughest safes in the country. Its safes are known to remain intact even when exposed to unusual levels of force and trauma. They are virtually impenetrable. Weight is a big part of the reason; the type of Gallucci safe owned by the Parks weighs 86 pounds. The only way to retrieve an item from a Gallucci safe is to know the combination and enter it into the keypad. Everything I have read indicates that the safe in the Parks’ bedroom was in perfect working order. Again the Parks clearly acted properly in storing their revolver in a Gallucci safe.
20. The Parks’ decision to keep the safe in their bedroom was not ideal. The bedroom door had no lock and was completely accessible to the Parks’ daughter Sydney at all times. That said, I do not consider the Parks’ decision to keep the safe in their bedroom to be unreasonable. I saw no indication that Sydney spent a great deal of time in the bedroom, and the gun was kept in a locked and secure safe. Moreover, while I do not favor keeping guns in the home, I recognize that the entire point of keeping a gun in the home for safety reasons would be lost if the gun were stored in a room that was inaccessible.
21. I do not know if the Parks stored the bullets in the safe with the weapon. There is a broad consensus in the firearms industry that bullets should never be stored in the same area as a gun, even if they are kept together in a locked safe. This is especially important when children are in the house, because if the children are able to find the gun, they would be unable to fire it if the bullets were stored separately. Even the most cursory Internet search for safety tips on gun ownership would reveal this.
22. There is a dispute over whether the Parks’ gun was unloaded when it was stored in the safe. The Police Report of Dale Williams indicated that the gun’s cylinder contained one spent shell casing but was otherwise empty. I do not know if the Parks stored bullets in the safe with their gun. If the Parks kept a bullet in their gun while it was stored in the safe, that was extremely irresponsible. Moreover, it is easy to tell if there is a bullet in a revolver. All you need to do is look at each chamber in the cylinder. Any reasonable gun owner should examine the chambers to ensure that the gun is completely unloaded before storing it.
23. I understand that the Parks claim that Jesse Duran loaded the revolver after it was retrieved from the safe on August 8, 2012. While I cannot rule that out completely, it seems unlikely. Jesse was only 11 years old on August 8, 2012. Most 11-year-olds have never even touched a gun, much less know how to properly load one. I saw no indication that Jesse had ever loaded or attempted to load a revolver prior to August 8, 2012. However, the affidavits that I reviewed made it very clear that Jesse was enthusiastic about guns and frequently expressed a desire to fire one particularly the revolver owned by the Parks. Easy-to-follow instructions for loading a revolver (such as the one owned by the Parks) are readily accessible through a simple Internet search. It is also very possible that Jesse could have figured out the process simply by examining the gun itself. I therefore cannot rule out the possibility that Jesse either read instructions or otherwise figured out how to load the Parks’ gun.
4 C. The Safe Combination
24. From the affidavits I read, it appears that the Parks never revealed the safe combination to Sydney or anybody else. That is commendable. But the Parks made at least two errors with respect to the combination.
25. Gun owners must take care to keep the safe locked and to keep the combination away from children. Gun owners should avoid combinations that are easily guessed, such as birthdays or anniversaries.
26. The Parks’ decision to keep the safe combination on a piece of paper in an unlocked file drawer in their guest room was questionable at best. Several affidavits made clear that both Sydney and Jesse had easy access to the guest room. I saw no evidence that the Parks ever told Sydney that the combination was in the file drawer, but there appears to be no dispute that Sydney was well aware that the Parks kept all of their important documents in there. Andy and Lee Park clearly understood that it was vital to keep the combination away from Sydney and her friends. Therefore they should have taken extra precautions to ensure that the combination could not be found by anybody. I recognize that the combination was not clearly marked in the Parks’ files; rather, it was kept in a folder ambiguously labeled “For Emergencies Only.” But that folder contained a piece of paper with three numbers on it. Figuring out what was on the piece of paper did not require a giant leap in logic, especially since Sydney had already figured out that the combination was somewhere in the file drawer.
5
***Midlands State Police Department*** ***Officer Case Report***
On August 8, 2012, at approximately 9:48am, I received a call from dispatch that there was a report of “shots fired” at 23 Maple Street in Fairview. I activated my lights and sirens and proceeded to this location as quickly as possible. While en route, I asked dispatch to locate contact information for the homeowner of record. I spoke with Andy Park by phone at approximately 9:51am and advised Park to proceed home as soon as possible.
I was the first officer at the scene, arriving at the same time as the paramedics, 9:55am. I directed the paramedics to remain outside while I searched the premises. I entered the front door into a living room where I found two children. One child, later identified as Jesse Duran, was sitting on a chair staring ahead with a blank expression. The other, later identified as Sydney Park, was lying on the floor with an obvious gunshot to the head. There was a 9mm revolver on the floor in front of the chair where Jesse Duran sat. I instructed Jesse Duran not to move as I secured the rest of the residence. I then proceeded outside to instruct the paramedics to enter and tend to Sydney. Sydney was pronounced dead a few minutes later.
Once other police units arrived, I removed Jesse Duran from the living room and placed Jesse with two other officers in the dining room. Andy Park entered the residence a few minutes later. I had other officers inform Park that Sydney had been shot and killed. The officers then removed Park from the premises to wait outside while the investigation proceeded.
I requested dispatch of crime scene technicians, who arrived at approximately 10:05am. They immediately preserved the crime scene and started collecting forensic evidence. The firearm recovered at the scene was verified to be a 6-shot, 9 mm revolver manufactured by AD Baker & Co. The cylinder contained one spent shell casing but was otherwise empty. They also swabbed the hands of both Sydney Park and Jesse Duran. Jesse Duran’s hands had gunshot residue consistent with recently firing a firearm. I searched the bedroom and found an open gun safe on the floor of the master bedroom. On top of this safe was an open box of bullets that could be used in the firearm. Four bullets were missing.
Hayden Duran arrived at approximately 10:25. I informed Hayden that Jesse would need to go so the police station for questioning. I asked Hayden to go get Jesse other clothes. Hayden would not leave Jesse so I went to Hayden’s home to retrieve clothing. While there, I saw a number of video games in Jesse’s room that were intended for users 17 or older.
I drove Jesse and Hayden to the police station where we booked Jesse on suspicion of murder. During booking, we collected clothes and a cell phone in the pocket of Jesse’s pants for evidence. I took screenshots of all text messages and recent website
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searches on the phone from August 8, 2012. I later discovered that the contact labeled “Voldemort” was actually Hayden Duran.
A later search of the Park home revealed that the Parks kept their registered 6-shot, 9mm AD Baker & Co. revolver in a locked Gallucci safe in their bedroom. The combination was also written down on an unlabeled piece of paper in a folder marked “For Emergencies Only” that was kept in a home office desk drawer that was not locked. Andy stated that Andy and Lee Park were the only individuals who knew the safe combination. Andy insisted that the gun was not loaded while stored in the safe and that bullets were stored separately in the garage.
On a subsequent search of the Duran home, I also saw a number of army-type toys and military books in Jesse’s room. I also found a discipline notification from Jesse Duran’s school and a document labeled “Me and My Gun. By Jesse D” in the family living room. There was nothing else pertinent to the investigation.
Respectfully Submitted,
Officer Dale Williams Officer Dale Williams August 10, 2012
2 Office of the Medical Examiner for Breckinridge County 100 Grand Avenue, State Center, ML 10055 Phone (555) 612-9920 ✢ Fax (555) 612-9921
Autopsy Report #: 514-684-920 Subject: Sydney Park Autopsy Performed By: Anya Havriliak, Chief Medical Examiner Present: CSI Jules Sebastian
Characteristics The examination was performed at 9 a.m. on August 9, 2012, the day after the subject was pronounced dead at her home. Subject was identified by parents Andy and Lee Park. Records show deceased to be 11 years old.
Medical History Subject has little negative medical history. Medical records reveal stitches to the head at age 24 months, a broken right arm at age 5, and chicken pox at age 8.
Findings 1. External Examination Subject is 54 inches tall and 68 pounds, both of which are within normal parameters. Subject was wearing pink jumper, dark purple pants, and pink sandals. Pockets empty. Hair and eyes both brown.
Only externally visible trauma is a single circular wound to the head, almost certainly caused by gunshot. Wound located approximately 2.1 centimeters directly above extreme outer edge of subject’s left eyebrow. Wound is oval-shaped with maximum diameter of 1.9 centimeters. Dried blood caked around entrance of wound. Light gunpowder present around wound. Wound circumference and shape indicate subject shot at distance ranging from 4 to 8 feet.
2. Internal Examination Body opened with Y incision. Chest cavity appears normal. All organs present and appear intact. Stomach contents unremarkable.
Bullet removed from skull cavity and confirmed to be standard 9 mm round, largely intact. Bullet turned over to CSI Jules Sebastian for analysis.
3. Toxicology Nothing remarkable found during toxicology examination.
Conclusion Cause of death is massive trauma caused by gunshot wound to the head. Subject likely incapacitated instantaneously and dead within 1 minute. HW
Hayden Duran
To: “Casey”
Casey,
Hope all is well. Are you still in New Zealand? I’ve never been able to keep track of all the things you’re up to.
Things are fairly well here. Work’s good. The co-workers are nice. I really like our house.
I’m a little worried about Jesse. Jesse’s been interested in guns for a while. But ever since we got this new video game system, Jesse only wants to play the game that seems to involve shooting hundreds of people. I even caught Jesse and Sydney Park playing a two-player version of the game where, instead of shooting the bad guys, they were taking turns shooting each other! I know that it’s just a game, and I’m probably being a worrywart. But I’ve also been hearing things from other parents about Jesse pointing sticks at kids and saying things like “Bang! You’re dead.” Thank goodness we don’t have any guns in our house.
Sorry for going on like that -- there I go being one of those parents who can’t talk about anything other than their kids. I know Jesse is a good kid and never would hurt anyone.
Miss you!
Hayden NOTIFICATION OF STUDENT DISCIPLINE
Student’s Name: Jesse Duran Parent on File: Hayden Duran Date of Notice: Friday, April 6, 2012 Nature of Infraction: Striking other student
Jesse’s fifth-grade class was playing dodgeball against another class. At one point, the teacher heard Jesse scream “Hey!” and saw Jesse run across the gymnasium to the other team’s “side.” Jesse grabbed another student’s arm and yelled, “I hit you. You’re dead. You need to fall down and die.” The other student tried to pull away, at which point Jesse began violently kicking and punching the other student. The teacher also reports that she saw Jesse attempt to bite the other student before they were separated.
This school has a zero-tolerance policy for violence against students of any kind. Because this is the third incident this school year in which Jesse has struck another student—and because of the seriousness of this incident— Principal Newman has ordered that Jesse will be suspended from school for the next five school days. Jesse may return to school on Monday, April 16, 2012.
Acknowledgement
I have read the notification above and agree to implement discipline at home so that my child does not repeat this behavior at school.
Hayden Duran Hayden Duran
April 9, 2012 Date
Fairview Middle School • 2600 Catlin Ave • Fairview, ML • (715) 555-3116
3:44 PM < Calls Call Log Edit
ALL MISSED
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FRIDAY i Recents Contacts Keypad Voicemail 3:46 PM < Chats Voldemort i Today 8:57 AM I mean it, Jesse. Guns aren’t toys and you need to stay V away from them
Yeah, yeah, i got it
I just want to make sure no V one gets hurt
Roger that
Send 3:46 PM < Chats Sydney i
Today 7:01 AM r u up?
Today 7:24 AM WAKE UP!!!
Today 8:16 AM omw
S Wait. No one’s even up yet
Can’t wait to see it. You said combo in For Emergencies Only, right?
Kinda wishing I hadn’t told S u that
Send