Chauvin Trial Day 3 Wrap-Up: Floyd Was “High” with Foam Around His Mouth

Chauvin Trial Day 3 Wrap-Up: Floyd Was “High” with Foam Around His Mouth

Welcome to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd.  I am Attorney Andrew Branca for Law of Self Defense, providing guest commentary and analysis of this trial for Legal Insurrection.

Anyone interested in a free podcast version of our daily legal commentary and analysis of the Chauvin trial, you can find that available at the Law of Self Defense News/Q&A Podcast, available on most every podcast platform, including Pandora, iHeart, Spotify, Apple Podcast, Google Podcast, simple RSS feed, and more.

Overview

Today we saw testimony from a variety of state’s witnesses, including wrapping up the testimony of firefighter Genevieve Hansen, a bystander witness, testimony from Christopher Martin, a clerk in the Cup Food store where Floyd passed the counterfeit bill that led to his arrest, testimony from Christopher Belfrey, a driver who observed some of the events from his red SUV parked near the intersection, testimony from Charles McMillian, an elderly man who was among the first bystander witnesses of the event, and testimony from Minneapolis Police Lieutenant Jeff Rugel, a foundational witness who manages the department’s information systems.

Really, the only substantively new evidence in the case came from the clerk Martin, with some modest insights added incidentally by Mr. McMillian.  Most of the witnesses, however, did little more than add more emotion-laden baggage to the trial.  Indeed, McMillian literally broke down crying on the witness stand to the point where the court recessed for a short time—apparently, like Floyd, McMillian had also recently lost his mother.

I won’t spend much time on the testimony of Lieutenant Rugel’s because it is foundational in nature.  For those who may not know, any evidence to be introduced in court must have a foundation, a reason to believe that the evidence is genuinely related to the circumstances of the trial.  One cannot, for example, simply introduce a recording of a 911 call, but instead must first introduce testimony from a human being who is in charge of the 911 recording system who can attest to genuineness of the recording.

The Chauvin trial involves a great deal of audio, video, and computer records within the control of the Minneapolis Police Department, and we can expect much of this to end up in evidence. In order for all this to be admitted into evidence, however, we must first establish foundation—and that’s the role that Lieutenant Rugel, in charge of the MPD’s information systems, is serving with his testimony in court today.

I will note, that much of the testimony of Rugel involved playing a great many body camera videos in open court, so if you’re interested in viewing those, this testimony would be a great source. Perhaps at some point I’ll break out the various video portions from the overall Rugel testimony for purposes of easy reference in the future.

I’ll also only briefly cover the testimony today of firefighter Genevieve Hansen, simply because her testimony itself was brief, and of Christopher Belfrey, because he just didn’t add much substantively to the case narrative.

With that overview out of the way, let’s dive in.

State’s Witness: Genevieve Hansen, Minneapolis Firefighter

You’ll remember that Ms. Hansen is a firefighter who was a bystander witness clad in sweat clothes of Floyd’s arrest.  Yesterday’s court proceedings concluded with Judge Cahill dismissing the jury from the courtroom and chastising Ms. Hansen for being hostile and argumentative with the defense during cross-examination. Ms. Hansen’s response to being scolded for being argumentative with the defense was to become argumentative with Judge Cahill.

Judge Cahill was not amused.  You can view this on-the-record scolding, after which the court recessed for the day, here:

Firefighter Hansen Chastised on Record by Judge Cahill

The court began the day with the not-yet-completed cross-examination of Hansen by the defense. It seemed to me likely that someone had spoken with Hansen about her off-putting conduct the day prior, because she was all “Yes, sir,” and “No, sir” today.

As it happened, the defense really had only one additional question for her on cross:  Had she shown the police officers on scene anything identifying her as a firefighter?  Her answer: She had not.

That was all for cross of Hansen this morning, and you can view that here.

Hansen Cross Examination (3/31/21)

The state took the opportunity to re-direct, asking Hansen if the reason she hadn’t shown identification was because she didn’t have it on her person, this being her day off. She agreed that was the reason.

It’s unclear to me how that cures the fundamental issue here, which is that the officers on scene had no basis to believe she was a firefighter other than her word—the word of an unknown woman who was part of an angry crowd and who herself was referring to the officers as “b*tch.”

Hansen Re-Direct Examination

I suspect that one of the reasons the defense was so brief this last bit of cross is that they didn’t want to give Hansen a chance to rehabilitate the very negative image she’d created by her conduct the day prior. If so, good move.

State’s Witness: Christopher Martin, Cup Foods Clerk

Next up was Christopher Martin, a 19-year-old black male who was the clerk in Cup Foods to whom Floyd attempted to pass the counterfeit $20 bill, and to whom Floyd’s passenger had similarly tried to pass a bad bill earlier in the day. (Martin no longer works at Cup Food.)

Martin’s later testimony was largely as a sidewalk bystander witness of Floyd’s arrest, and that portion of the testimony added little value, in the sense that we’ve already heard from numerous bystander witnesses with essentially the same viewpoint.

His earlier testimony centered on his personal interactions with Floyd inside Cup Foods, and out by Floyd’s car when trying to get Floyd to make good on the cigarettes he’d purchased with the bad bill, did add new substantive value to the trial narrative.

Unfortunately for the state, it seemed to me that this substantive value was to the benefit of the defense, rather than the prosecution.

Several key facets of Martin’s testimony could really only be characterized as favorable to the defense, including:

• Floyd had indeed passed a rather obviously fake counterfeit bill (after his friend had failed to pull this off in the very same store)
• Floyd appeared substantively impaired while in the store (“He did look high,” as Martin put it)
• Floyd was an unusually large man (it was what made Martin take exceptional notice of Floyd in the first place)
• Floyd had refused repeated offers to simply make good on the bad bill, pay for his cigarettes with actual money, and the whole incident would be forgotten

Certainly, it’s hard to imagine how any of that testimony could be characterized as favorable for the prosecution.

That said, the testimony was going to happen, so the state did its best to underplay it.  While Floyd may have high, for example, he wasn’t so high that he couldn’t communicate verbally with enough dexterity to order cigarettes. On the other, Martin had told police investigators that Floyd’s speech was noticeably delayed, and that Floyd struggled saying words like “baseball” while in conversation with Martin.

The state played a rather lengthy video of Floyd while he was inside the Cup Foods, and throughout Floyd’s demeanor is one of someone under the influence. Swaying, weaving, odd stretching motions, wincing, lots of erratic upper body movement, a little dance step performed in the middle of the store—to the point that other store customers backed up to give him additional space—and so forth.

Naturally, to the extent that Floyd was intoxicated, that state is favorable to the officers, as it would be consistent with privileging them to use a higher degree of force in the face of non-compliance than would otherwise be the case.

This is particularly the case given Floyd’s remarkable size—testimony in court has cited him as 6’ 3” tall (although I’ve now sene Texas wanted posters that list his height as 6’ 6”) and about 230 pounds.  The numbers don’t really convey this size as well as does seeing Floyd moving about a convenience store amongst other customers of more typical stature and size.

Martin recounts that while he had immediately recognized as counterfeit the bill offered by Floyd’s friend earlier in the day, and rejected it as payment, when offered an essentially identical bill by Floyd he initially accepted the bill as payment for cigarettes.  Knowing that he himself was going to be obliged by his boss to make good on the bad $20 bill personally (this was store policy), Martin had second thoughts about letting Floyd get away with this fraud.

Martin alerted his boss to the fake bill, and seeing that Floyd was still sitting in the driver’s seat of the Mercedes SUV parked across the street, Martin’s manager sent him out to ask Floyd to come back into the store and make good on the purchase.  Martin did so, but Floyd refused to return to the store, or even discuss the matter.

When Martin returned to the store having been unsuccessful in his mission, the store manager sent out two different employees to speak with Floyd, and make the same offer.  Again, Floyd refused to make good on the purchase.

It was at this point that the manager had a store employee call 911 to report the crime, the call that resulted in the first two officers, Lake and King, arriving on the scene, followed shortly by Chauvin and Thau.

At that point Martin’s testimony reverted to that of being a sidewalk bystander, which again is of little additional value at this point, so I’ll skip over it.

You can view Martin’s direct questioning here:

Martin Direct Examination

On cross-examination by defense counsel Eric Nelson, Martin was obliged to re-affirm statements he’d made to police investigators that Floyd appeared to him to be intoxicated during their interaction in Cup Foods.

Nelson also had Martin affirm that the store manager carried a pistol in his back pocket—this pistol is quite clear and obvious in the surveillance video reviewed during Martin’s testimony—which undercuts the insinuation the state has made with previous witnesses that the neighborhood of Floyd’s arrest was reasonably safe, and in no way high crime in nature.

Naturally, to the extent that the neighborhood could be characterized as unusually dangerous, that again would contribute to the officers’ reasonable perception of the need to use perhaps more force and be more focused on the gathering angry crowd and thus distracted from care of Floyd, than would otherwise have been the case—so, again, good for the defense, rather than the prosecution.

Further, Nelson had Martin recount to investigators how he described the neighborhood around Cup Food as a “hot block,” to indicate that “a lot of situations” occurred in the neighborhood. It’s perhaps worth noting here that Martin not only worked at Cup Foods, he and his mother lived in an apartment immediately above the store, so he would be intimately familiar with criminal events in the immediate neighborhood.

It was here during cross that Martin discussed, or Nelson referenced, in some detail how Floyd’s speech was slow and delayed, and he had difficulty saying the word “baseball.”

Nelson also highlighted that whereas Martin had immediately rejected the fake bill offered by Floyd’s friend earlier in the day, on the grounds that it was obviously fake, he initially accepted an essentially identical bill from Floyd, despite agreeing that it was equally fake in appearance.  Could the difference in response be due to Floyd’s unusually large size and intoxicated demeanor—both factors the officers would also consider in making use-of-force decisions when Floyd refused to comply with lawful arrest?  If such considerations were reasonable for the clerk, could they be unreasonable for the police?

In a moment of testimony that I’ll concede made me laugh out loud, when asked about his perception of the anger of the bystander witness and MMA/security “expert” Williams, Martin told Nelson that it wasn’t so much that Williams was angry, he was just defending himself, because Officer Thau had pushed him. This would be when Williams aggressively advanced off the curb into the street and towards Thau, and Thau held out his hand to stop Williams’ progress.

“Self-defense,” indeed.

Nelson also managed to get Martin to describe how he physically restrained another bystander witness who was apparently sufficiently heated and angry to require physical restraint. This undercuts the state’s claims—and the claims of the same sort by the state’s witnesses—that the crowd was in no way conducting itself in a manner the officers might reasonably perceive as threatening.

Here’s the cross-examination of Martin.

Martin Cross Examination

The state did do a very brief re-direct of Martin, in which they had Martin describe Floyd as having a friendly demeanor, just living life.

Unfortunately for the state, Martin closed these remarks by saying: “But he did seem high.”

There was a similarly brief re-cross by the defense, in which it was once again emphasized how readily Martin had rejected a counterfeit bill offered by Floyd’s friend, but then reluctantly accepted an equally obvious fake from Floyd himself.

And that was that for state’s witness Christopher Martin, at the time of the events a clerk at Cup Food.

State’s Witness: Richard Belfry, Driver of Red SUV

As already noted, I’m not going to spend much time on state’s witness Richard Belfrey, a 45-year-old black male, as he didn’t add much. Indeed, the defense did not even bother to cross-examine Belfrey.

In brief, Belfrey and his fiancé had driven to Cup Food to buy, well, food.  He drove a red SUV and initially pulled up behind Floyd’s black Mercedes at the curb outside China Wok in time to observe Floyd’s interaction there with Officers King and Lane.  During this time his fiancé went into Cup Food to pick up their meal. Belfrey took the opportunity while parked behind Floyd’s Mercedes to make a short video recording.  When he heard sirens he grew concerned about ending up trapped in that spot, and decided to move his vehicle.

Belfrey drove across the street, parked at the opposite curb by Cup Food, where his fiancé, who had gone inside Cup Food to pick up their meal, rejoined him, and video recorded a bit more, this time of Floyd, now handcuffed, being walked across the street to the squad car outside Cup Food.  Shortly after this, Belfrey left the scene.

Neither Belfrey’s two short videos nor his personal observations added anything to the narrative of the case that isn’t better noted from other sources of evidence.

Regardless, here is the direct questioning of Belfrey by the state (there was no cross).

Belfrey Direct Examination

State’s Witness: Charles McMillian, Elderly Bystander Witness

State’s witness Charles McMillian, a 61-year-old black male, provided very emotional testimony about the events of that day, at one point breaking down in sobbing and tears, to the point that Judge Cahill recessed the court for a short time, to allow him to recover himself.

McMillian’s testimony as a bystander witness was a bit different than that of the other bystanders, because he was on the scene well before the rest of the crowd began to gather.  He is seen in videos as standing in the street, but a good 10 to 20 feet (varies over time) from the squad car, and never attempts to approach the officers in any aggressive way whatever.

McMillian can be heard in the various videos as the voice urging Floyd to comply, not resist, to get in the squad car, and to make things easy for himself.  When asked his motivation for this, McMillian said he’d had his own interactions with police, and had learned that once the cuffs were on it was best to just accept that you were going to be arrested, and to stop resisting.

Unlike many of the prior bystander witnesses, McMillian gave no sense that he was attempting to slant his testimony in a manner to favor the prosecution. Certainly, his perception was that Floyd had been badly treated by the police, and perhaps even that the police were responsible for Floyd’s death, but he appeared to be telling the whole truth as he believed it.

Nevertheless, there were several moments during McMillian’s testimony that I felt very much favored the officers, despite the emotional scene of McMillian’s breaking down in tears on the stand.

First, at one point, for example, the prosecution is rolling body camera footage showing the officers moving towards Floyd laying on the ground, as they position themselves to do a full-body restraint, and Floyd deliberately kicks out at the officers with both legs. It was this conduct that led to the officers sending Thau to look for ankle hobbles, and why they were so determined to restrain Floyd’s legs from that point forward.

Second, while being questioned by Prosecutor Eldridge, McMillian was asked how Floyd appeared to him while being restrained, with Chauvin’s knee on Floyd’s neck. I expect Eldridge was hoping for a reply along the lines of “he looked like he was being killed.”

Instead, what Eldridge got was McMillian stating that Floyd had foam running out of his mouth. A perhaps stunned Eldridge responded with, “Foam in his mouth?” and McMillian immediately affirmed, “Yes, foam in and out of his mouth.”

Foaming in the lungs, and by extension out the mouth, is, of course, a notable indication of pathological fentanyl overdose. This would obviously reinforce the likely defense narrative that Floyd was killed not by Chauvin’s knee but by the three-fold fatal dose of meth/fentanyl speedball drug cocktail he rapidly ingested to avoid its discovery by the police.

That was about all the substantive value contained in McMillians’ testimony on direct.

When it was time for Nelson to conduct cross, he briefly consulted with Chauvin, then announced he had no questions. This was likely the smart play.   It seemed to me there would be little upside to cross-examining the elderly and emotionally distraught McMillian—much as was the case with 9-year-old witness Minor 2—and potentially a lot of downside if aggressive cross proved necessary.

Here’s the state’s direct of Charles McMillian.

McMillian Direct Questioning

State’s Witness: Jeff Rugel, Lieutenant, Minneapolis Police Department

The state’s next witness, MPD Lieutenant Jeff Rugel, was called for foundational purposes with respect to MPD body camera and city-controlled surveillance video, as already described, and that being the case it doesn’t seem useful to cover his testimony in any detail. The individual videos introduced during the testimony may prove useful, but if so I’ll break them out individually, so we can discuss them substantively.

Defense Motion on MPD Body and Surveillance Camera Footage.

After Rugel the jury was dismissed for the day, but there was some additional court business. In particular, the defense wanted to admit into evidence fuller-length versions of the body camera and city surveillance camera footage than the state had offered into evidence.

Further, the defense wanted that video introduced in such a manner that it could be manipulated by the MPDs own software systems, which allowed for a zoom and pan ability not equaled in the versions the state had offered.

Nelson offered his version of the videos to Cahill for review.  The state had no objection to the video on foundational grounds—how could they, they just conducted a very lengthy direct questioning of Rugel precisely to establish foundation—but did say there would likely be admissibility objections later.

Why would the prosecution want to object to the admissibility of the video gathered by the body and surveillance cameras owned and controlled by the Minneapolis Police Department itself? Good question.  Things that make you go, hmmmmm.

OK, folks, that’s all I have for all of you today.

Join us again tomorrow morning, right here at Legal Insurrection, for our ongoing LIVE coverage of Minnesota v. Chauvin.

Until then, stay safe!

–Andrew

Attorney Andrew F. Branca

Law of Self Defense LLC

Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years.  Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership service.  If this kind of content is of interest to you, try out our two-week Membership trial for a mere 99 cents, with a 200% no-question- asked money-back guarantee, here:  Law of Self Defense Membership Trial.

[Featured image is a screen capture from video of today’s court proceedings in MN v. Chauvin.]

Donations tax deductible
to the full extent allowed by law.