For-Trial Deposition of Eyewitness (3)

0001
1 IN THE SUPERIOR COURT OF FULTON COUNTY
2 STATE OF GEORGIA
3
4 MALCOM SMITH,
5 Plaintiff,
CIVIL ACTION FILE
6 vs. NO. 2012-CV-223874
7 PATIENCE AJUZIE,
8 Defendant.
~~~~~~~~~~~~~~~~~~~~~~~~~~
9
10 VIDEOTAPED DEPOSITION OF
11
12 KEVIN McKINNEY RADCLIFFE
13
14 October 16, 2013
15 10:59 a.m.
16
17 Suite 1040
18 900 75 Circle Parkway
19 Atlanta, Georgia
20
21 Richard Bursky, RMR, CRR, CCR-2509
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0002
1 APPEARANCES OF COUNSEL
2
3 On behalf of the Plaintiff:
4 BUTLER, WOOTEN & FRYHOFER LLP
JEB BUTLER, ESQUIRE
5 2719 Buford Highway
Atlanta, Georgia 30324
6 404.321.1700
jeb@butlerwooten.com
7
8 On behalf of the Defendant:
9 WALDON ADELMAN CASTILLA HIESTAND & PROUT
TREVOR HIESTAND, ESQUIRE
10 Suite 1040
900 Circle 75 Parkway
11 Atlanta, Georgia 30339
770.953.1710
12 thiestand@wachp.com
13
14 Also Present:
15 TERRY WETZ, Videographer
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25

0003
1 INDEX OF EXAMINATION
2 WITNESS: KEVIN McKINNEY RADCLIFFE
3 EXAMINATION PAGE
4 By Mr. Butler 5,17
5 By Mr. Hiestand 14,19
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7
INDEX TO EXHIBITS
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9
10 Plaintiff’s
Exhibit Description Page
11
1 Google Earth aerial photograph 7
12
13
14
15
16 (Original exhibit has been attached to the
17 original transcript.)
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0004
1 VIDEOTAPED DEPOSITION OF KEVIN McKINNEY RADCLIFFE
2 October 16, 2013
3 (Reporter disclosure made pursuant to
4 Article 10.B. of the Rules and Regulations of the Board
5 of Court Reporting of the Judicial Council of Georgia.)
6
7 THE VIDEOGRAPHER: We are on the record. The
8 time is approximately 10:59 a.m. This is the
9 beginning of Tape 1 of the videotaped deposition
10 of Kevin Radcliffe in the matter of Smith versus
11 Ajuzie.
12 Today’s date is October 16, 2013. My name is
13 Terry Wetz, legal video specialist. Would counsel
14 present please identify themselves and who they
15 represent for the record.
16 MR. BUTLER: Jeb Butler on behalf of the
17 Plaintiff, Malcom Smith.
18 MR. HIESTAND: Trevor Hiestand on behalf of
19 the Defendant Ajuzie.
20 THE VIDEOGRAPHER: Thank you, counsel. Would
21 the court reporter please swear in the witness.
22 KEVIN McKINNEY RADCLIFFE,
23 having been first duly sworn, testifies as follows:
24 MR.BUTLER: This will be the deposition of
25 Kevin Radcliffe taken pursuant to notice, subpoena

0005
1 and agreement, taken pursuant to the Civil
2 Practice Act for all purposes permitted under the
3 Civil Practice Act including use at trial. We are
4 here in the office of defense counsel, and we have
5 already announced ourselves for the record.
6 DIRECT EXAMINATION
7 BY-MR.BUTLER:
8 Q. Mr. Radcliffe, would you state your name for
9 the record, please?
10 A. Kevin McKinney Radcliffe.
11 Q. Did you observe a wreck at the intersection of
12 Northside Drive and Martin Luther King Drive on or
13 about December 3, 2010?
14 A. I did, yes.
15 Q. Tell the jury, please, where you were coming
16 from.
17 A. I was coming from picking up my girlfriend, on
18 my way to the airport to pick up my sister.
19 Q. How did you approach the intersection of
20 Northside Drive and Martin Luther King drive? In other
21 words, what road were you on and what direction were
22 you going?
23 A. I was traveling south on Northside Drive.
24 Q. Was the wreck between a black Kia and a
25 gold-colored Tahoe?

0006
1 A. Yes.
2 Q. Were you able to see the Kia before the wreck?
3 A. Yes.
4 Q. Describe what the Kia was doing, please, in
5 terms of what road it was on and what direction it was
6 going?
7 A. Like I was, the black Kia was traveling south
8 on Northside Drive.
9 Q. Was the Kia ahead of you or behind you or next
10 to you?
11 A. Ahead of me.
12 Q. How far ahead?
13 A. Two to four to five car lengths in front of
14 me, the distance.
15 Q. Were there any cars between you and the Kia?
16 A. No.
17 Q. In terms of the other car involved in the
18 wreck, the gold-colored Tahoe, do you have an
19 understanding of how the Tahoe got to the intersection,
20 what road it was on or what direction it was traveling
21 generally before the wreck?
22 A. Traveling north on Northside Drive.
23 Q. As the Kia approached the intersection, as you
24 observed it approach the intersection, did it appear to
25 be going straight or preparing to make a left turn?

0007
1 A. Going straight.
2 Q. Were you able to observe what the Tahoe was
3 doing before the collision, or was that something that
4 you were unable to see?
5 A. I was unable to see what the Tahoe was doing.
6 Q. Tell us, please, what lane you were in as you
7 approached the intersection.
8 A. From the right side curb, second to third lane
9 traveling south on Northside Drive.
10 Q. Let me show you for your reference what I will
11 mark as Plaintiff’s Exhibit 1 to the Radcliffe
12 deposition just so you can refer to it.
13 (Plaintiff’s Exhibit 1 was marked for
14 identification.)
15 (Witness reviewing document.)
16 Q. (By Mr. Butler) Does that appear to be a
17 Google Earth map of the intersection?
18 A. Yes.
19 Q. Please show it to opposing counsel, I forgot
20 to do that, if you don’t mind.
21 MR. HIESTAND: I have seen it.
22 Q. (By Mr. Butler) Do you see which way is north
23 on that picture?
24 A. If I can actually see which is which.
25 Q. How about this, I will represent to you that

0008
1 north is up.
2 A. Yes, I know this is north, but I don’t know,
3 is this the parking lot, the Papa John’s parking lot?
4 Q. This road heading up and down in the middle of
5 it appears to be Northside Drive.
6 A. Okay, north, so this is the parking lot here,
7 okay.
8 Q. There you go. So tell us again, please, what
9 lane you were in as you approached the intersection.
10 A. Second to third lane traveling south on
11 Northside Drive.
12 Q. What lane was the Kia in as it traveled ahead
13 of you?
14 A. From my recollection, second to third lane
15 also traveling south on Northside Drive.
16 Q. On that day, at any time before the
17 intersection, did either you or the Kia ever enter the
18 left turn lane on Northside Drive?
19 A. No.
20 Q. Did you observe at any time the Kia driving
21 too fast or making abrupt traffic maneuvers violating
22 traffic laws in any way?
23 A. No.
24 Q. Was the Kia just going straight through the
25 intersection?

0009
1 A. Yes, from my recollection.
2 Q. When was the last time you recall seeing the
3 Kia before the wreck? Let me strike that and ask a
4 cleaner question.
5 Where was the Kia the last time you recall
6 seeing it before the wreck?
7 A. Traveling south in front of me on Northside
8 Drive.
9 Q. Was the Kia already in the intersection or
10 about to enter the intersection?
11 A. Approaching the intersection.
12 Q. At the last time you saw the Kia before it
13 entered the intersection, was the Kia at such a place
14 that it was abreast of the turn lane, meaning it was
15 beside the turn lane?
16 A. Yes.
17 Q. In other words, could the Kia have been in the
18 left turn lane if the Kia had intended to turn left?
19 A. Yes.
20 Q. Were there any cars backed up and stopped in
21 that left turn lane that would have prevented the Kia
22 from being in the left turn lane if it wanted to turn
23 left?
24 A. No.
25 Q. Did you see the wreck itself?

0010
1 A. No.
2 Q. Tell us why not, please.
3 A. Like I said, I was traveling with my
4 girlfriend and we were in conversation. And upon
5 looking at her, you know, receiving an answer or
6 response is when I saw the accident occur, the end of
7 the accident occur.
8 Q. You weren’t looking at your girlfriend and
9 away from the road for very long, were you?
10 A. No.
11 Q. You said you saw the end of the wreck occur.
12 Explain to us what you mean, please.
13 A. Upon talking to my girlfriend and receiving a
14 response and actually looking at her, and reverting
15 back to the road is when I saw the back side of the Kia
16 Sportage literally in the air and then hitting the
17 ground.
18 Q. So the Kia was still in the air when you saw
19 it immediately after the wreck?
20 A. Yes.
21 MR. HIESTAND: Objection, leading. I am not
22 sure if we said we were going to stay on record or
23 off record, but objection, leading.
24 Q. (By Mr. Butler) Did you see the Kia while the
25 back of the Kia was in the air or not?

0011
1 A. Yes.
2 Q. At that time when you saw the Kia with its
3 back wheels up in the air, was the Kia in the
4 southbound lane as though it were going straight?
5 A. Yes.
6 Q. Do you know whether the — strike that.
7 Do you believe that the Tahoe was turning left
8 or going straight or do you know?
9 A. I believe the Tahoe was going straight, from
10 what I see — from what I saw the position of the Tahoe
11 at the end of the accident.
12 Q. You believe the Kia — were you able to
13 actually see the Kia before the accident and
14 immediately after the accident occurred?
15 A. Yes.
16 Q. Did it appear that the Kia was going straight?
17 A. Yes.
18 Q. Were you able to see the Tahoe at any time
19 before the wreck occurred?
20 A. No.
21 Q. As to the color of the light at the time the
22 wreck occurred, do you know whether it was — what
23 color the light was?
24 A. No.
25 Q. As to what the Tahoe was doing at the time of

0012
1 the wreck, are you sure one way or the other what the
2 Tahoe was doing in terms of going straight, turning
3 right or turning left?
4 A. No, I would only be assuming.
5 Q. When the Kia came to rest after the wreck, was
6 it in the northbound lanes or the southbound lanes?
7 A. Southbound lanes.
8 Q. After this wreck occurred, what did you do?
9 A. Well the Kia being closest to me, that’s the
10 vehicle I immediately ran to just to check on the
11 victims that were in the Kia.
12 Q. Where did you stop your car after the wreck?
13 A. In the Papa John’s parking lot which is
14 traveling south on Northside Drive.
15 Q. Is that in sort of the northwest —
16 A. Northwest corner of the intersection there.
17 Q. I think you said you ran up to the Kia?
18 A. Yes.
19 Q. Did you hear anyone in the Kia saying
20 anything?
21 A. I did.
22 Q. Tell us about that, please.
23 A. Upon approaching the Kia, the doors were open,
24 I do remember that. And the, the passenger in the back
25 seat kept saying, “My back, my back, my back.” And

0013
1 that’s what I remember the victim saying in the back
2 seat.
3 Q. Did you talk to any police officers that day?
4 A. Yes.
5 Q. Tell us about that, please.
6 A. Like I said, the end of the accident, on the
7 southeast corner of the intersection, that’s where I
8 gave the police officer my information. And that was
9 the only conversation I had with the police officer.
10 Q. When you say you gave him your information,
11 what do you mean?
12 A. My name and phone number.
13 Q. Did you tell the officer what you saw in the
14 wreck?
15 A. No.
16 Q. Why not?
17 A. He did not ask.
18 Q. Did you believe or was it your understanding
19 at the time that the officer would call you to ask
20 details about the wreck?
21 A. I would assume so, but, I mean, I don’t know
22 their process. So I didn’t know one way or another.
23 Q. Did he ever call you?
24 A. No.
25 Q. If he had called you, would you have told him

0014
1 what happened?
2 A. Yes.
3 Q. How long after this wreck did you stick
4 around?
5 A. Less than a half hour. I would say about 20
6 minutes.
7 Q. Why did you leave after 20 minutes?
8 A. I was en route to go pick my sister up from
9 the airport.
10 Q. We talked a little bit about whether there
11 were cars in the left turn lane for southbound traffic
12 on Northside. Do you remember that?
13 A. Yes.
14 Q. Were you able to see from your perspective
15 whether there were any cars in the left turn lane for
16 northbound traffic on Northside?
17 A. I couldn’t see.
18 Q. So you couldn’t tell us one way or the other?
19 A. No.
20 MR. BUTLER: That’s all the questions I have.
21 CROSS-EXAMINATION
22 BY-MR.HIESTAND:
23 Q. Sir, let me just make sure I am understanding
24 your testimony. You did not see the collision itself,
25 correct?

0015
1 A. No.
2 Q. You did not see how the Kia actually entered
3 the intersection; is that correct?
4 A. The Kia was in front of me.
5 Q. Did you see the Kia entering the intersection?
6 A. Yes.
7 Q. Do you remember giving a deposition just about
8 20 minutes ago where you told me that you did not see
9 how the Kia entered the intersection?
10 A. I don’t remember saying I don’t see it, but we
11 were both traveling south, so I did see it approaching
12 the intersection. Entering the intersection…
13 Q. Let me ask you this: The last time you saw
14 the Kia before the impact would have been before it got
15 to the intersection; is that correct?
16 A. Yes.
17 Q. You don’t know how the Kia actually entered
18 the intersection; is that correct?
19 A. I don’t understand your question. It was
20 traveling south approaching the intersection.
21 Q. But you are not sure which lane it was in, if
22 it was in the second or third lane from the right; is
23 that correct?
24 A. The second or third lane traveling south, yes.
25 Q. Which lane?

0016
1 A. Second or third.
2 Q. So it was one of those, but you don’t know
3 which lane?
4 A. Yes.
5 Q. After the impact and you had an opportunity to
6 see the Tahoe, the gold Tahoe when it was at rest, it
7 was still on the northbound side of Northside Drive,
8 correct?
9 A. Yes.
10 Q. You saw debris from the impact in the center
11 of the intersection?
12 A. Yes.
13 Q. And in fact, there was debris on the north and
14 south side, in the north and south side lanes; is that
15 correct?
16 A. The exact center of the intersection, yes.
17 Q. You never saw the Tahoe before the impact; is
18 that correct?
19 A. Yes.
20 Q. The only time you saw the Tahoe was after the
21 impact?
22 A. Yes.
23 Q. And when you saw that Tahoe, it was on the
24 northbound side of Northside Drive?
25 A. Yes.

0017
1 Q. You said that you checked on the victims in
2 the Kia. Did you check on the victims in the Tahoe?
3 A. Yes.
4 Q. You didn’t have any conversation with either
5 of the drivers; is that correct?
6 A. Correct.
7 Q. You didn’t overhear either of the drivers
8 describing what happened in the impact?
9 A. No.
10 Q. You mentioned you knew where the Kia was when
11 you saw the back end of the Kia up in the air, but at
12 that point you don’t know where the Tahoe was; is that
13 correct?
14 A. Yes.
15 MR. HIESTAND: Thank you, sir.
16 REDIRECT EXAMINATION
17 BY-MR.BUTLER:
18 Q. Brief followup: You were just asked some
19 questions about whether you saw the Kia enter the
20 intersection. Do you recall those?
21 A. Yes.
22 Q. Did you see — strike that. I meant to say
23 the Kia. I am not sure what I said.
24 You were just asked some questions about
25 whether you saw the Kia as it entered the intersection.

0018
1 Do you recall those?
2 A. Yes.
3 Q. Could you see the Kia immediately before it
4 entered the intersection?
5 A. Yes.
6 Q. Was it in the southbound lanes as though it
7 were going straight?
8 A. Yes.
9 Q. Did you see the Kia while its wheels were
10 still up in the air after the wreck?
11 A. Yes.
12 Q. At that time, was it in the southbound lanes
13 as though it was going straight?
14 A. Yes.
15 Q. Did you ever see it in the turn lane?
16 A. No.
17 Q. You were asked some questions about where the
18 Tahoe was when it was at rest. Do you recall these
19 questions?
20 A. Yes.
21 Q. Does where the Tahoe was at rest tell you
22 where the Tahoe was at the time of the wreck or could
23 the Tahoe have rolled or moved after the wreck?
24 A. The Tahoe could have rolled or moved after the
25 wreck.

0019
1 Q. You were asked about some debris in the
2 intersection. Do you recall that question or those
3 questions?
4 A. Yes.
5 Q. Was there debris scattered generally all over
6 the intersection?
7 A. Yes.
8 MR. BUTLER: Nothing further.
9 RECROSS-EXAMINATION
10 BY-MR.HIESTAND:
11 Q. Sir, at any time did you ever see the Tahoe
12 rolling or moving?
13 A. No.
14 Q. The only time you ever saw the Tahoe was when
15 it was at rest, correct?
16 A. Yes.
17 MR. BUTLER: Nothing further.
18 MR. HIESTAND: I am not quite done, thank you.
19 MR. BUTLER: I am sorry.
20 MR. HIESTAND: That’s all right.
21 Q. (By Mr. Hiestand) You mentioned that you gave
22 your information to the investigating police officer
23 and then you left because you had to go get your sister
24 at the —
25 A. Airport.

0020
1 Q. — airport; is that correct?
2 A. Yes.
3 Q. The police officer didn’t say to you, you can
4 leave or time for you to go; you just gave your
5 information and then you left?
6 A. Exactly.
7 MR. HIESTAND: No further questions.
8 MR. BUTLER: No further questions.
9 THE VIDEOGRAPHER: This concludes the
10 videotape deposition. The time is 11:16. We are
11 off the record.
12
13 (Whereupon, the deposition concluded at 11:16
14 a.m.)
15
16 (It was stipulated and agreed by and between
17 counsel for the respective parties and the witness
18 that the signature of the witness to the
19 deposition be waived.)
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0021
1 C E R T I F I C A T E
2
3 STATE OF GEORGIA:
4 COUNTY OF FULTON:
5
6 I hereby certify that the foregoing transcript
7 was taken down, as stated in the caption, and the
8 questions and answers thereto were reduced to
9 typewriting under my direction; that the foregoing
10 pages 1 through 20 represent a true, complete, and
11 correct transcript of the evidence given upon said
12 hearing, and I further certify that I am not of
13 kin or counsel to the parties in the case; am not
14 in the regular employ of counsel for any of said
15 parties; nor am I in anywise interested in the
16 result of said case.
17 This, the 29th day of October, 2013.
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21 RICHARD BURSKY, CCR-2509
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0022
1 COURT REPORTER DISCLOSURE
2
Pursuant to Article 10.B. of the Rules and
3 Regulations of the Board of Court Reporting of the
Judicial Council of Georgia which states: “Each court
4 reporter shall tender a disclosure form at the time of
the taking of the deposition stating the arrangements
5 made for the reporting services of the certified court
reporter, by the certified court reporter, the court
6 reporter’s employer, or the referral source for the
deposition, with any party to the litigation, counsel
7 to the parties or other entity. Such form shall be
attached to the deposition transcript,” I make the
8 following disclosure:
9 I am a Georgia Certified Court Reporter. I am
here as a representative of Esquire Deposition
10 Solutions. Esquire Deposition Solutions was contacted
to provide court reporting services for the deposition.
11 Esquire Deposition Solutions will not be taking this
deposition under any contract that is prohibited by
12 O.C.G.A. 9-11-28(c).
13 Esquire Deposition Solutions has no
contract/agreement to provide reporting services with
14 any party to the case, any counsel in the case, or any
reporter or reporting agency from whom a referral might
15 have been made to cover this deposition. Esquire
Deposition Solutions will charge its usual and
16 customary rates to all parties in the case, and a
financial discount will not be given to any party to
17 this litigation.
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Richard Bursky, CCR-2509
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