1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF WYOMING 3 _______________________________________________________ 4 THE ESTATES OF DEBORAH MARIE TOBIN 5 and ALYSSA ANN TOBIN, Deceased, by TIMOTHY JOHN TOBIN, Personal 6 Representative; and THE ESTATES OF DONALD JACK SCHELL and RITA CHARLOTTE 7 SCHELL, Deceased, by NEVA KAY HARDY, Personal Representative, 8 Plaintiffs, 9 vs. Civil No. 00_CV_025D 10 SMITHKLINE BEECHAM PHARMACEUTICALS, 11 Defendant. 12 _______________________________________________________ 13 DEPOSITION OF SHERRY MCGRATH 14 Taken in behalf of Defendant 2:10 p.m., Tuesday 15 February 13, 2001 16 17 PURSUANT TO NOTICE, the deposition of SHERRY 18 MCGRATH was taken in accordance with the applicable 19 Federal Rules of Civil Procedure at 500 S. Gillette 20 Avenue, Gillette, Wyoming, before Vonni R. Bray, 21 Registered Professional Reporter and Notary Public of 22 the State of Wyoming. 23 24 25 2 1 A P P E A R A N C E S 2 For the Plaintiffs: MR. ANDY VICKERY (By telephone) 3 Attorney at Law VICKERY & WALDNER 4 2929 Allen Parkway Suite 2410 5 Houston, TX 77019 6 For the Defendant: MS. MISHA E. WESTBY 7 Attorney at Law HIRST & APPLEGATE 8 1720 Carey Avenue, Ste. 200 P.O. Box 1083 9 Cheyenne, WY 82003_1083 (307) 632_0541 10 11 I N D E X 12 DEPOSITION OF SHERRY MCGRATH: Page 13 Direct Examination 14 By Ms. Westby 3 Cross_Examination 15 By Mr. Vickery 53 16 INDEX OF EXHIBITS 17 No. Description Identified 18 1 1099 Forms of Rita Schell for 1996 and 1997 49 3 1 P R O C E E D I N G S 2 (Deposition proceedings commenced 3 at 2:10 p.m., February 13, 2001.) 4 (Witness sworn.) 5 SHERRY MCGRATH, 6 called for examination by the Defendant, being first 7 duly sworn, on her oath testified as follows: 8 DIRECT EXAMINATION 9 Q. (BY MS. WESTBY) You and I have spoken before, 10 and I represent the defendant in this case, which is 11 Smithkline Beecham, the maker of the antidepressant that 12 Don Schell was taking. Andy Vickery, who is on the 13 telephone, represents the family through the estate of 14 Don and Rita Schell. 15 Please state your full name and address for 16 the record. 17 A. My name is Sherry L. McGrath. And my address 18 is xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 19 xxxxx. 20 Q. And what's your phone number? 21 A. Personal? 22 Q. Business is fine. 23 A. My business phone number is (307) 686_9200. 24 Q. Would you rather us contact you at work or 25 home? 4 1 A. It's probably easier to reach me at work. 2 MR. VICKERY: I can't hear her real 3 well. Could you ask Ms. McGrath to speak up? 4 MS. WESTBY: Yes. 5 Q. (BY MS. WESTBY) Have you ever had your 6 deposition taken before? 7 A. Yes, I have. 8 Q. So then you're aware of the fact that the 9 court reporter is taking down everything that we say and 10 that you need to make sure you speak clearly and answer 11 yes or no. Don't nod your head. And because we've got 12 somebody on the phone, it will also be necessary to 13 speak up so that he can hear you. 14 And then he may, throughout the deposition, 15 make objections for purposes of the Court, if the Court 16 ever needs to rule on objections. But this is for 17 discovery purposes, so you can go ahead and answer those 18 questions. 19 Let's start with a little bit of background 20 information. Tell me about your educational 21 background. 22 A. I was born and raised and attended schools and 23 graduated in Lead, South Dakota. Attended Black Hills 24 State University in Spearfish, South Dakota. Moved to 25 Gillette, Wyoming in 1971. Started selling real estate 5 1 in 1981, was licensed as a broker in 1983. And that's 2 still what I'm doing today. 3 Q. Okay. And where do you __ where are you 4 currently employed? 5 A. I am the broker/owner of ERA Boardwalk Real 6 Estate. 7 Q. Okay. And have you always either been in that 8 capacity or worked as an agent for ERA? 9 A. Yes, since 1981. 10 Q. Do you have a degree? 11 A. No. 12 Q. Are you married? 13 A. Yes. 14 Q. How long have you been married? 15 A. 30 years. 16 Q. And I know you have children; how many 17 children do you have? 18 A. I have three children. 19 Q. What are their ages? 20 A. Their ages are 27, 24, and 14. 21 Q. When did you __ did you meet Rita or Don 22 Schell first? 23 A. I met Rita Schell first. 24 Q. When did you first meet Rita? 25 A. She originally sold real estate at a company 6 1 called Top Realty. I think I probably knew Rita a 2 little before that. I attend St. Matthew's Catholic 3 Church. She also attended church there for a period of 4 time. Was also secretary at that church. Probably some 5 point after that went into real estate, or maybe she 6 sold real estate slightly before that and then became 7 secretary and then came back to real estate. 8 And then I really got to know Rita when she 9 began working for me. I looked this up. I believe it 10 was maybe 1991. I don't remember the exact date that 11 she started for me. 12 Q. But somewhere around 1991? 13 A. Right. 14 Q. Did you ever have any conversations or any 15 discussions with her prior to the time she came to work 16 with you? 17 A. Oh, we probably had conversations just because 18 she had been employed with her __ or associated with Top 19 Realty. But we were not good friends or anything like 20 that. It would have been strictly business. And that 21 and the fact that we attended the same church. So there 22 may have been some mutual conversations that were held. 23 Q. Okay. After she began working for you in 24 1991, how much time did you spend with her either at 25 work or socially? 7 1 A. At work, probably six hours a day 2 approximately five days a week. On a social level, not 3 a lot of time. We didn't spend a lot of time together 4 socially. 5 Q. Who would you say she was closest to in your 6 office? 7 A. In my office would have been __ Barb Trenholm 8 would have been Number 1 that she was closest to. And 9 then second, probably myself. 10 Q. Did you all have a good relationship in your 11 office, you know, talk during work hours? 12 A. Yes. Rita, Barb and I all smoked. And in 13 today's world, that's a real common bond. There are so 14 few of us left. 15 Q. Did you have a certain area designated for 16 smoking? 17 A. Yes, we did have a smoke area. In the back 18 part of the office at that time there was a smoke room. 19 And so we would take breaks throughout the day and all 20 go back and smoke our cigarettes. 21 Q. Did you usually do that together? 22 A. Yeah. In fact, typically, first thing in the 23 morning because Rita and I were the early arrivers. I 24 was usually the first one there, followed typically by 25 Rita shortly after 8:00. And we'd tidy up and start a 8 1 pot of coffee and get our cup of coffee and go back and 2 smoke a cigarette. Barb Trenholm didn't usually get 3 into the office until usually later in the day. 4 Q. What kind of conversations would you have 5 during these breaks? 6 A. Usually it dealt more with real estate. 7 Typically Barb and I talked more about our families than 8 Rita did. Rita would talk about Deb. Rarely about 9 Mike. Barb and I tended to buy our children everything 10 in the world. And so the conversation usually stemmed 11 around how mad we were at our kids because of some new 12 jackpot they had gotten themselves into. And now we 13 were having to bail them out. 14 Q. I think that's very common. And you said that 15 that would be what you would talk about; what was your 16 impression of was Rita the same way with her children or 17 was there something different? 18 A. No, it didn't seem that Rita was the same 19 way. Maybe with Deb. Rarely about Mike. I don't ever 20 recall her talking about paying off Mike's credit card 21 bills or anything like that, which was real common for 22 Barb and I to have paid off our older kids' credit card 23 bills or sending them more money in college or whatever 24 it was. 25 And Rita, of course, by that time, Deb was 9 1 married. I do recall that she probably lent Deb and Tim 2 money for a down payment on their house. I'm not 3 certain of that because she never actually said, yes, I 4 gave them the down payment. But that was sort of the 5 implication. 6 And Barb and I, it would just mostly be over 7 things like that, real estate deals we were working on. 8 Q. Did you ever talk about your relationship with 9 your spouses? 10 A. Not a lot, because none of the three of us 11 were real vocal about something like that. We might 12 have indicated that we were upset with our spouses for 13 one reason or another. But no real lengthy discussions, 14 no. 15 Q. Do you ever remember Rita discussing her 16 relationship with Don? 17 A. No. She really did not __ she didn't really 18 discuss their relationship. There was __ the one point 19 in time where she came and indicated that Don suffered 20 from depression, and there would be times that she would 21 not be able to come into the office and that she might 22 need my help at that time. And that was a private 23 conversation between her and I, and I said that was 24 fine. 25 And then there was always __ and I don't know 10 1 that it was really __ she never verbalized it. But 2 whatever she ever said, made it very clear that there 3 was an element of possessiveness and control in terms of 4 Don wanting her home by a certain time of the day. And 5 so that was always very clear, even though I don't know 6 that she ever said unhappily or whatever that she had to 7 be home by 4:00 because that's when Don wanted her 8 home. But that was a given. We all knew that. That 9 was understood by everyone. 10 Q. Okay. Let me ask you a couple more questions 11 about that. Do you remember when Rita indicated to you 12 that Don suffered from depression and she might need 13 help? 14 A. I would say that was back in the early '90s. 15 That was not too long after she came to work for us. 16 And for several days Rita was a very methodical, very 17 meticulous person about her desk, about her affairs. 18 She was a rule follower. If she was supposed to be 19 there at 8:00, she was there at 8:00. 20 On the contrary, Barb was the kind that if 21 Barb was supposed to be there at 9:00, she usually 22 showed up at 10 to 10:00. So we always called Rita the 23 rule follower, and Barb was not the rule follower. So 24 Rita was the kind if she was supposed to be there for 25 what's called floor time for us, which is the hours of 11 1 the day that the Realtor on floor is obligated to be 2 there to take the phone calls, Rita would be there. 3 And we went through a period of about a week 4 where mysteriously, on a couple of different occasions, 5 she wasn't there. She was late or something. And 6 that's when she came to me and said Don suffered from 7 depression. And I would say it was early on after she 8 came to work for me. So probably in the early '90s. 9 Q. Did she describe the depression? 10 A. She just said when he went in to one of these, 11 that he didn't want to leave the house. He didn't want 12 to talk to anyone. I don't think he particularly wanted 13 her to leave. It was just, you know, as she described 14 it, he would go into this deep, dark hole. And he 15 wanted all the blinds closed, and he just wanted to sit 16 in the dark. And she just had to sort of be there and 17 help him work his way back out of it again. 18 Q. Did she say anything else about the depression 19 that you remember? 20 A. No. 21 Q. So that conversation would have taken place in 22 early 1990. And you said that __ 23 A. The early '90s. Soon after she went to work 24 for me. Soon after she went to work for me. 25 Q. And you said that this was following a time 12 1 period where she was maybe late, and that was unusual? 2 A. Yes. 3 Q. Did you ever __ was there ever another time 4 following that incident where she was late or where 5 there was any mention of Don having problems with 6 depression? 7 A. No, not until right at the time of her death, 8 when __ I was not aware. She didn't come to me that 9 time. And there may have been __ I shouldn't __ I mean, 10 there may have been a time over the years that she said 11 Don is going through one of his things. I can't 12 remember. But it never really surfaced again. 13 There had been maybe conversations, because I 14 never forgot it. If she was late coming in, I always 15 assumed something like that was going on. But then I 16 never remember it being an issue again until the time of 17 her death. 18 Q. Okay. Did she ask for any help from you or 19 anyone else in the office with regard to these problems 20 with Don? 21 A. The only help that she asked for is that we 22 take over her business or whatever in her absence. But 23 she never really asked advice of us in terms of what we 24 would do or if we had any experience or if we knew of 25 anyone or any of that, other than at the very end, 13 1 again, right prior to her death. And I didn't realize 2 that he was in the depth of depression again. 3 But she did visit with one of the other agents 4 in the office who had been a social worker, and I'm 5 assuming felt like maybe Judy had some knowledge about 6 depression. And they were very closemouthed. They 7 didn't really discuss anything about their personal 8 lives, Rita and Don. So I'm not sure she really 9 discussed the depression with Judy. But she felt more 10 comfortable saying that Don was suffering from a thing 11 of depression. And that she was going to be taking him 12 to a different doctor or something. 13 Q. And you said this person's name was Judy? 14 A. Judy Lafferty. 15 Q. Do you know how long before their deaths this 16 conversation would have taken place? 17 A. That was just a couple of days, few days, 18 maybe three days. 19 Q. Have you ever talked to Judy about Rita's 20 conversation with Judy? 21 A. We talked after Rita's death. We talked 22 about __ and even Friday, the day that Rita and Don were 23 discovered, that particular day, I guess that would be 24 Saturday. 25 Q. I think you're right. I think it was Friday. 14 1 A. Okay. But Friday, Friday was the day Rita was 2 gone. So it was Saturday. Friday night probably, then, 3 that we discussed when we were all together that __ and 4 Friday when Rita was gone, when she did not come in, it 5 was her floor day. She should have been there at 8:00 6 in the morning. Judy was there, and Judy had said she 7 was taking floor for Rita because Rita was taking Don to 8 the doctor. 9 And I want to say that supposedly, the 10 appointment was early in the morning, maybe 9:00 or so. 11 Rita felt like she probably would get in around 11:00. 12 When it got to be 11:00 and we hadn't heard from her, 13 then is when Judy and I had this discussion about where 14 Rita was and the fact that she had asked Judy to take 15 her floor because Don was suffering from depression. 16 And they were going to try to get a different medication 17 or something for them to see if that wouldn't help. And 18 at that time, we discussed the depression a little and 19 what extent it was as far as Judy knew. 20 Q. And what was that? 21 A. Judy had a little more knowledge about how 22 it's difficult to help yourself when you do suffer from 23 depression. Probably because I don't have any 24 knowledge, and it's hard to be real patient if you don't 25 understand that. Judy was just saying that, you know, 15 1 when you do suffer from depression, it's hard to work 2 your way back out of it, no matter how easy it seems for 3 someone who doesn't. And it was that sort of 4 discussion. And actually I think I sort of agree, that 5 probably was so. 6 And mostly throughout the day, we discussed 7 where they might be since we hadn't heard from them, 8 from Rita. 9 Q. Did you have any concern at that point? 10 A. Yes. 11 Q. What was your concern? 12 A. Immediately when she didn't come in and __ I 13 believe that maybe Don's appointment was first thing in 14 the morning. So we felt like also she should be in at 15 11:00. When she didn't come in at 11:00, I asked the 16 secretary to please give her a call. And in some 17 instances, I may have had the secretary call an agent, 18 because I was upset that they weren't doing what they 19 were supposed to be doing for the office at that point 20 in time. 21 But with Rita, I was upset because I 22 immediately felt discomfort. I was truly concerned 23 about her. So about every hour and a half, I would say 24 to the secretary, call again and see if you can get Rita 25 on the phone. And another hour, hour and a half, I 16 1 would say call again and see if we can get her. And it 2 was consistently, no one answered the phone. 3 Q. What was that discomfort or concern based on? 4 A. I believe it was based on the fact that I knew 5 that Don suffered from depression. But also this innate 6 feeling I always had about his controlling and 7 possessiveness. And I always had a concern that 8 something had happened to her that day from the very 9 onset. And I can't tell you why other than the fact 10 that because he was controlling and possessive and 11 because he was suffering from depression, I always had a 12 concern about her safety. 13 Q. You've talked a couple times about your 14 impression that he was controlling and possessive. Can 15 you give me some ideas of how you came to that 16 conclusion or where that opinion came from? 17 A. Probably it started from the fact that Rita 18 needed to be home by 4:00 or shortly after 4:00. And if 19 it was later than 4:00, she became visibly 20 uncomfortable, nervous. She would never go anywhere. 21 There's only one occasion that I remember. 22 Barb, Rita and I went to Harry Belafonte at the Heritage 23 Center, and Rita joined us. Other than that, Rita would 24 never __ rarely go anywhere at night that didn't involve 25 Don. She didn't belong to any outside organizations. 17 1 She always needed to be home by 4:00. Rarely would show 2 property at night. If she did, she would go and show, 3 and then immediately go home. She would never, you 4 know, kind of hang around the office and waste time or 5 anything. 6 So once you started to sort of observe that 7 and the control that, in my estimation __ and it may 8 have been her choice to go home at 4:00. It never 9 seemed that way. If we had a party, like our Christmas 10 parties which were always held at my house, or even if 11 it were the Realtors annual party, Don was always right 12 beside her. He never __ if she got up to go talk to 13 someone, he followed her very quickly. He was never 14 more than like a person away from her. You never saw 15 one of them go in one direction, one in the other and 16 visit. 17 Rita would have done that. Rita was a very 18 social person. But it was very clear that Don was not 19 comfortable with that situation. And he wasn't 20 comfortable with Rita being away from him. So he would 21 be always right behind her. Even if you have pictures 22 that you took of the Christmas party or of an open house 23 at our office, you always see him right beside her. 24 He's never away from her. 25 In church I would always notice that he would 18 1 sit with his arm very firmly around her shoulder. Not 2 comfortably on the back of the pew, but firmly around 3 her shoulder as if to imply that he was keeping ahold of 4 her. It may have been my imagination assuming those 5 things, but that's the assumption I felt. 6 Q. And you made the comment that if she couldn't 7 leave right at 4:00, that she became nervous. What kind 8 of behavior did she have that made you feel she was 9 uncomfortable? 10 A. Well, she would be one that __ for instance, 11 when you're on floor in the afternoon, you have to stay 12 until 5:30. And she never liked afternoon floor because 13 she didn't like to stay to 5:30. And I believe she said 14 to the secretary that Don didn't like her getting home 15 that late. So she would always opt for morning floor. 16 So on the occasions when she would be __ have 17 to show in the evenings or something, most of the time 18 people will go show. They will come back to the office, 19 especially the smokers, would smoke a cigarette and then 20 leave. Rita would always quickly leave the office. I 21 mean, it was clear she was late for something. It would 22 have been __ might have been like my behavior. If I 23 were late for a meeting, I would have grabbed my coat 24 and headed to the next meeting. 25 Rita would grab her coat and head home. It 19 1 was clear that she needed to be somewhere else. I mean, 2 there would be that look about her that didn't hang 3 around the office. In fact, if she returned to the 4 parking lot later in the evening, even though there may 5 have been people in the office, she probably would have 6 just let the people out, let them get in their car, and 7 she would have driven away unless there would have been 8 a reason to run copies or something that she needed to 9 go to the office. 10 Q. Okay. Did she have any mannerisms that would 11 show up when she was nervous? 12 A. Yeah. She would always wiggle her nose if she 13 was nervous. Kind of wiggle her nose and push her 14 glasses up. And I remember the night before she was 15 killed, that __ and the other thing she would do is she 16 would roll her cigarette if she was nervous. When she 17 would flick her ashes, she would roll the cigarette in 18 the ashtray and then flick the ashes quickly and then 19 roll it again and flick it. 20 Meanwhile, she would kind of wrinkle her nose 21 up, which would force her glasses up on the bridge of 22 her nose. And the night before she was killed, she was 23 out showing and got back. And because this was a mutual 24 client that she was showing, it was someone I had 25 started out with, and then I had to be out of town. So 20 1 she had taken over for me, we were discussing had they 2 found anything, that sort of thing. 3 And I said to her, do you want to go back and 4 have a cigarette? And she said okay, which was very 5 uncommon for Rita to do, because I didn't expect her to 6 say okay. I expected her to say no, I have to get home. 7 And she said okay. And I remember that that night, she 8 was very nervous, flicking the ashes, smoking the 9 cigarette prior to heading home. And she did stop, and 10 we discussed the person. But she was nervous. 11 Q. And let's talk about that some more. Tell me 12 about the client she was showing homes to that night. 13 A. She was showing an individual named Mike 14 Jamison, who was the new mine manager for Triton Coal. 15 And historically, throughout the years, I have done all 16 of Triton's business. And I had to be out of town. And 17 so I had asked Rita to show them homes. And I had shown 18 them some homes. And then his wife was coming to town, 19 and so I had asked Rita to take over. 20 And in the real estate business, every agent 21 looks for big clients like this that ultimately turn 22 into repeat business for you. And so it was very 23 important to Rita to do a good job. When I came back 24 from being out of town, it seemed as though the Jamisons 25 were happy with her. She had created a good 21 1 relationship. Normally, I would have taken the people 2 back and paid her a referral. But everyone seemed 3 happy. And Rita seemed pleased to be showing someone 4 who ultimately would buy a two to $300,000 house. So I 5 said to keep working with them. It was Deb and Mike 6 Jamison. 7 Q. How long before the deaths did Rita start 8 showing homes to the Jamisons? 9 A. I want to say two to three weeks. Maybe a 10 little bit longer. 11 Q. And then you made the comment that she was 12 showing homes to __ showing homes the night before she 13 died or that Thursday night? 14 A. Yes. 15 Q. Was she showing homes to both Mike and Deb 16 Jamison? 17 A. No, only to Mike Jamison. At that point, 18 Debbie Jamison was back in Ohio. In fact, she had only 19 been out once. Mike was here working, living in the 20 Holiday Inn. And Debbie was back in Ohio. So she was 21 only showing Mike. 22 Q. And what time frame was this that night when 23 she was showing homes to him? 24 A. I believe that she started showing him around 25 3:00 in the afternoon, 3:00 or 4:00 in the afternoon 22 1 until about 6:00. I know they were looking at two rural 2 properties. And in our market, particularly if you have 3 one ten miles southwest, and the other one ten miles 4 northeast, you can tie up two hours just between showing 5 and getting to the other property. And I believe that 6 she was only showing two properties. 7 Q. Okay. And she got back to the office that 8 night at what time? 9 A. To the best of my recollection, I thought it 10 was somewhere between 6:00 and 6:30. 11 Q. And then she stayed to talk to you after she 12 got back to the office; is that right? 13 A. Yeah, for maybe another 15, 20 minutes at the 14 max. It wasn't a long time. It was enough to smoke a 15 cigarette, visit about what Mike Jamison was looking 16 at. 17 Q. But that struck you as unusual? 18 A. Yes. Because normally she would have hurried 19 right out. And at the time, Deb was here. And now, 20 Rita had told Barb and I that Deb was here because she 21 was working on something. And then Don and her could 22 help with the baby. And I remember at the time __ 23 whenever Deb was here __ Don didn't smoke __ whenever 24 Deb was here, Rita always smoked outside. She didn't 25 smoke in her house. And I remember thinking, you know, 23 1 poor Rita, Deb is here, she has this terrible cold. 2 Supposedly she had this terrible cold. So she was 3 staying longer. 4 Q. And you mean Deb had a terrible cold? 5 A. Yes. 6 Q. Okay. 7 A. And because of the baby and because of 8 whatever project it was she was working on, she was 9 going to stay longer. And then Rita and Don could help 10 her with the baby since she was sick. And the story 11 just at the time didn't really __ I mean, I'm thinking I 12 don't really understand why you would do that. But __ 13 then they would help her with the baby, and she could 14 get well. And meanwhile, Deb could also work on this 15 project, whatever school thing she was working on as she 16 felt better. 17 In retrospect, I feel like Deb probably came 18 down here because her dad, Don, was crazy about Deb and 19 the baby. And in my mind, I guess I felt like maybe she 20 stayed the other week because he was suffering from 21 depression, and she felt maybe she could help him feel 22 better. And I just remember poor Rita, she can't smoke 23 in the house, Deb is sick, she has the baby, she's 24 trying to work. You know, I remember feeling sorry for 25 Rita at the time. 24 1 Q. Okay. Where was Rita going after she left the 2 office that night, do you know? 3 A. No. My understanding was she was going home. 4 Q. Did you ever talk to her again before her 5 death? 6 A. No, I did not. 7 Q. Do you know if anyone from your office or 8 anyone __ do you know of anyone else who talked to her 9 later that night? 10 A. Yes. Shirley Pettigrew talked to her shortly 11 after 9:00. 12 Q. How do you know that? 13 A. Because the next __ after the word came out 14 about Rita's death, Shirley indicated to me that at that 15 time __ Shirley is now affiliated with my office. At 16 that time, she was not. Her and Rita had a deal 17 working. 18 And that was another thing on that Friday, I 19 kept __ her and Rita, Shirley and Rita, had a deal where 20 Rita was the listing agent, Shirley was the selling 21 agent. They were trying to negotiate a contract between 22 buyer and seller. And it was very unusual for Rita just 23 not to show up to do the negotiation. And so that was 24 the reason for Shirley's phone call that night to Rita 25 was to try and see what the seller had said on Thursday 25 1 night. 2 And she talked to Rita shortly after 9:00. 3 And Rita was going to be calling the seller first thing 4 the next morning is what she told her or something like 5 that. So that was why it was another thing that was 6 unusual about Rita not coming in on Friday. 7 But Shirley seemed to feel as though Rita 8 sounded fine on the phone. They discussed the parts of 9 this transaction. They talked about their sons when 10 they were both in Boy Scouts together, and that was the 11 end of the conversation. But __ which sort of struck me 12 as odd. Because it was sort of an unspoken rule, you 13 didn't call Rita after 9:00. 14 Q. Why was that? 15 A. She didn't like phone calls after 9:00. 16 Q. Did she specify why she didn't like them? 17 A. No. I don't know that she ever verbalized Don 18 doesn't like the phone to ring after 9:00. But she 19 didn't like phone calls after 9:00. At some point, she 20 made a comment over the years or something about 21 upsetting Don or something. But I don't remember well 22 enough to even confirm that. But it was just __ so it 23 was unusual. It was clear that Shirley was not in our 24 office, or she would not have called her after 9:00 25 because we all knew that. 26 1 Q. So the next day when she didn't show up at 2 11:00, you had the secretary call every hour and a half 3 or so; when did you hear anything about Rita or when did 4 you get the information first? 5 A. Probably __ my parents were in town. And I 6 live in a subdivision called Antelope Valley. And out 7 by my subdivision is a little restaurant called the 8 Countryside Cafe. And my husband was working, and my 9 folks called and said do you want to run to the 10 Countryside for supper? And I said, yeah, that would be 11 fine. 12 Of course, my mother doesn't understand I 13 don't live like they live with dinner promptly at a 14 certain time. And she had called me a couple times that 15 afternoon wondering what time I'd be able to go. And 16 finally at about 6:00 that night, I said okay, fine, 17 I'll meet you there in a few minutes. Just head over to 18 the Countryside, and I'll just meet you there. And she 19 said okay. 20 So we went to the Countryside, and we ate. 21 And as I was pulling back into my garage, my phone rang, 22 and it was Barb Trenholm. And she said, Sherry, Vern 23 Brown has been trying to get ahold of you. He __ Tim 24 was at his house, and they are looking for Rita and Deb, 25 and Tim can't get into the house. And Vern wonders if 27 1 you know where Rita might be. 2 And Barb and I had a conversation at that time 3 about __ I said something like Barb, I just know damn 4 well she's in that house. I'll be in and get you and 5 we'll go look for her. I remember saying that. 6 Q. And why did you feel that way? 7 A. I just __ I just remember knowing something 8 had happened to her. I just knew that after not being 9 able to reach her all day. My feelings about Don, my 10 feelings about __ and maybe it's lack of knowledge about 11 depression, but I just __ I felt strongly about that. 12 And oddly enough, my folks came driving up the 13 driveway right behind me, and I said to my mother, I've 14 got to go. I've got to go back to town. I need to go 15 look for one of my agents. I'm afraid she's dead in her 16 house. And those were my exact words. And for some 17 reason, I had a sense that something had happened to her 18 in that house or that Don had __ I think I felt like 19 maybe Don had driven out to a well site or something. 20 And my intent was to go get Barb Trenholm, and 21 we were going to go look for her. And on my way to 22 town, I tried calling Vern Brown back. Finally got him 23 on the phone, and I remember trying to talk faster than 24 he could talk because I knew what he was going to tell 25 me. I have no idea why I felt that way, but I did feel 28 1 strongly that at that point something had happened to 2 her. 3 And finally he interrupted me, and he said, 4 Sherry, we found her. And I said she's in the house 5 dead, isn't she? And Vern Brown said I believe she is, 6 Sherry. And I said, was it Don? And he said, they 7 don't know. And that was the end of the conversation. 8 Q. Okay. What did you do after you got that word 9 from Vern Brown? 10 A. Well, I remember being so hysterical and 11 crying so hard that I was __ I had to pull in to McCann 12 Heights and sit for a minute before I could even start 13 to drive again. 14 Q. And go ahead and take as long as you need. 15 MR. VICKERY: Misha, are we taking a 16 break? 17 A. Just a short one. 18 And then I went and told Barb Trenholm, which 19 was a difficult thing to do. 20 Q. (BY MS. WESTBY) Okay. Did you and __ and 21 what did you tell Barb? Did you tell her just exactly 22 what Vern had told you, or did you __ 23 A. I told her that she was dead and that they 24 were all in the house. I believe I probably said that 25 Don had killed them all. And she had said Deb and the 29 1 baby? And I said yes. And, of course, we didn't know 2 what had happened. We had hoped that maybe we were 3 wrong and that there had been carbon monoxide 4 poisoning. But I think that Barb and I knew what 5 happened even then. And then we just proceeded to call 6 all the agents and let them know what had happened. 7 And we were at Barb Trenholm's until probably 8 2:00 or 3:00 in the morning trying to find out any kind 9 of news. At some point, probably around 11:00, 11:30, 10 Joe Hallock called me, who was my attorney. But he was 11 a trustee for the Baptist church or church elder or 12 whatever they are called in that church. And he had 13 called and asked if I could go over and visit with 14 Rita's mom and sister because they really had no idea 15 what had happened. At that point, Tim was still at the 16 police station being investigated. 17 And of course, a Catholic priest had been 18 called, but Rita had converted to Catholicism. So she 19 didn't __ you know, the family doesn't know the Catholic 20 priest. They don't know anything about the Catholic 21 church. They don't know what's happened. So I did 22 agree to go over and visit with Neva and her husband Bob 23 and with Rita's mother, Flo. 24 And Tim never came back in the time we were 25 there. As far as I know, he was still at the police 30 1 station. Then sometime during the night, I remember Joe 2 Hallock calling me and asking me who their attorney 3 was. And I said I guess I don't know, Joe. When Flo's 4 dad had died, Rita had come to me and asked who I 5 recommended. And I suggested Joe Hallock for some of 6 her dad and mother's affairs. And I know they had gone 7 to Joe for that. And so my comment to Joe was I guess 8 you're the attorney, Joe, because I don't know who else 9 it is. 10 So throughout the night, we spent a lot of 11 time on the phone trying to figure out where safety 12 deposit boxes might be, et cetera, things they were 13 trying to get to in order to kind of proceed with where 14 they were. 15 Q. What was your understanding of how or why this 16 happened? Did you ever hear from anyone, ever get 17 information about how these events happened and how this 18 all took place? 19 MR. VICKERY: Okay. For the record, 20 Misha, I'm going to object to that. That would be 21 either hearsay or speculation. 22 MS. WESTBY: Okay. 23 Q. (BY MS. WESTBY) Go ahead and answer if you 24 can. 25 A. I don't know that I ever heard officially what 31 1 happened. I was always curious what happened. And I 2 know that __ I guess I had assumed that it had probably 3 taken place at night, maybe at midnight or 1:00 in the 4 morning. Because to me, at night, things always seem 5 worse. So it made perfect sense to me that if you did 6 suffer from depression or suffer from anything, that at 7 night you might feel more desperate. 8 And then I remember that I believe the police 9 department had indicated that they felt that it happened 10 between 5:00 and 6:00 in the morning. I don't know 11 exactly what they reported. And that came as a surprise 12 to me. But in my mind, I just envisioned that later in 13 the night, maybe Rita and Don were arguing and that Rita 14 had finally said, fine. You know, I guess I probably 15 assumed that maybe Don was going to kill himself, that 16 that was what he was threatening. And, you know, you 17 sort of imagine your own story. 18 And in my mind, my story was he had determined 19 he was going to kill himself. And finally Rita said 20 fine, do whatever the hell you want, Don. And there in 21 a heated argument, she proceeds to start walking out the 22 room. Then Deb and the baby comes down the hallway. He 23 fires a shot. It hits Deb and the baby and kills them 24 both. And Rita decides she's going to call 911, and he 25 jumped across the bed and fires and kills her because 32 1 now she has look what you've done sort of thing. 2 And that's purely my speculation. I don't 3 know if there was anything from police officers to 4 indicate that. I really don't remember. I remember 5 wondering __ I'll always wonder what happened that 6 night. But I don't guess any of us will ever know. 7 Q. Okay. Did you get that information __ or did 8 anybody else ever tell you that they thought that's what 9 happened? 10 A. No. I remember the police department or 11 possibly Joe Hallock saying one bullet had grazed Rita's 12 neck. And I don't remember who said this. But one 13 bullet had grazed Rita's neck, and potentially that 14 would have been the bullet that went into Deb and the 15 baby. Because I assumed she was carrying the baby. And 16 if Deb were carrying a baby, the baby's head would have 17 been about heart level. So __ and I don't honestly know 18 if someone told me that. It seems that someone did. 19 And that's really __ you know, I don't know. I don't 20 know if the police __ I don't believe Joe Hallock ever 21 made any speculation about it. So if it were, it were 22 the police department if someone told me. 23 Q. Okay. Did you have contact with the family 24 following that first night when you went and talked to 25 Flo and Neva and Bob? 33 1 A. Yes. 2 Q. What was that contact? 3 A. We were really at the family's, one or another 4 of us, throughout the time between the __ their deaths 5 and the funeral. There was a time when I was there soon 6 after Mike came. And then I remember there was a big 7 discussion or disagreement between the two families. 8 Because at that time, Tim did not __ Tim or Tim's 9 family, I'm not sure which it really was, did not want 10 Don and Deb and the baby to be in the same church at the 11 same time. And that was very important to Flo that they 12 all be together. And Tim and his family had a real 13 problem with that and did not want them together. 14 And finally, I remember calling Father Ogg and 15 asking him to come over and try to get the whole family 16 to work together on this, because it became a real issue 17 of Don together with the baby and Deb in the church. 18 Q. And how was that resolved, if it was? 19 A. Well, Tim's family kept saying in the Catholic 20 church you could not have two Catholic funerals. And I 21 knew that wasn't the truth. And in fact, I called 22 Father Ogg to come over. And finally they did go ahead 23 and have two funerals. One was here at the Catholic 24 church in Gillette, which was Don, Rita, Deb and the 25 baby. And then before the burial, they took Deb and the 34 1 baby to Billings, and there was another funeral in 2 Billings for Deb and the baby. 3 Q. Did it appear to you that Tim and __ Tim's 4 family and Rita's family worked that out together, or 5 was there still some animosity or concern there? 6 A. I felt there was still some animosity. It was 7 somewhat adversarial. It was clear that Tim was trying 8 very hard to do what Deb would have wanted him to do, 9 which was to have made her grandmother happy. And this 10 was clearly going to make her grandmother happy. And it 11 was also clear that he didn't have any animosity toward 12 Rita. And so he was trying to keep that separate. 13 But clearly at that point in time, as I'm sure 14 anyone would have felt, he had very strong feelings 15 about Don at that point. You know, he's lost his wife 16 and baby. And he was trying to be understanding. And 17 it was clear that his family played a big part in that, 18 too. They seemed to feel pretty strongly, have pretty 19 strong feelings about Don at that point. 20 Q. What about Flo? What was Flo's reaction to 21 Don immediately following this and thereafter? 22 A. She kept saying then over and over again that 23 this was very out of character for Don. That this was 24 not the Don that she knew. The Don she knew would never 25 have done something like this. 35 1 Q. Was there any talk by the family or you or 2 anybody else about the depression that Don was suffering 3 right around this time? 4 A. You know, I don't really remember that there 5 was. There might have been some, because they talked 6 about his medicine. That it would have had to have been 7 the medicine. Don wouldn't do something like that. But 8 I don't know that they really discussed his depression. 9 I don't remember that at all. 10 Q. Okay. What was your impression of that, of 11 them blaming the medication? 12 A. I remember thinking to myself that I didn't 13 believe that __ I didn't say anything. I just remember 14 thinking to myself that nobody in their right mind 15 obviously could do something this horrific. However, I 16 didn't believe it was solely the medication. 17 Q. During this time or after the deaths, did you 18 ever become aware of any other behavior by Don prior to 19 his death that you viewed as, you know, unusual or 20 something that in hindsight seemed significant to you? 21 MR. VICKERY: Misha, for the record, I'm 22 going to object as that calls for hearsay. 23 MS. WESTBY: Okay. 24 Q. (BY MS. WESTBY) You can go ahead and answer. 25 A. You know, I don't really remember. Several 36 1 people who had worked with Rita previously had talked 2 about when they worked with her at Stockman's Bank or 3 First National Bank, how she had to quit because Don 4 didn't want her to work, or he didn't want her to be 5 there until 5:00. 6 Or one of the previous neighbors had talked 7 about whenever they had their sorority garage sale, Don 8 would always come screaming out into the neighborhood 9 and tell everyone to move their cars. And things like 10 that, that in retrospect, at the time, didn't __ you 11 know, I had never heard of these things before. But I 12 guess those are kind of the only things I remember. I 13 mean, it was like anyone who had ever had contact with 14 the two of them or with Rita in the earlier days, it was 15 sort of the same thing, that, you know, this 16 controlling, possessiveness, this tendency to do 17 something like that. I don't remember anything specific 18 other than those. 19 Q. Did you ever go to Don and Rita's home? 20 A. Fairly frequently I had gone there for one 21 reason or another, pick up a contract, deliver a 22 contract. But it would have been all business 23 purposes. Never __ I was never invited to her home for 24 the evening or anything. 25 Q. Okay. When you went there to take the 37 1 contract or pick up the contract or do those things, 2 were you invited into the home? 3 A. No. I always thought it was odd, because if 4 someone were to deliver something to my house, even if 5 it's the pizza guy, I always invite them inside, to step 6 inside to get out of the weather. And with Rita, she 7 would always take the contract. You would stand 8 outside. She would take whatever you were delivering, 9 and you stood outside. She took it, said okay, see you 10 later and closed the door. I don't ever remember being 11 invited to step inside, her ever saying, come on in, 12 like to the kitchen area or can I get you a cup of 13 coffee. I don't ever remember that. She took whatever 14 you delivered and closed the door, and you went on your 15 way. And I always felt that was sort of unusual. 16 Q. And that was true in the winter as well as __ 17 A. Oh, absolutely. That's when you noticed it. 18 In the summer, I probably wouldn't have noticed it. But 19 in the winter, you notice that you weren't invited in. 20 Where any of the other agents might have said, come on 21 in, you might have said no, I don't have time, thanks 22 anyway and left. But you were never invited in, no. 23 Q. Don and Rita had notebooks in their house that 24 basically had funeral arrangements, property division 25 wishes, those kinds of things in it. Were you aware 38 1 that Rita kept such a notebook or that Rita and Don have 2 some notebooks? 3 A. No. In fact, in the middle of the night when 4 Joe Hallock and I are trying to figure out where the 5 safety deposit boxes are, et cetera, et cetera, et 6 cetera __ 7 Q. And this is the night you found out what 8 happened to them? 9 A. Right, the night of her death. If I would 10 have had any idea that such a thing existed, I could 11 have said to Joe, just get a court order and go in. She 12 has a notebook that tells everything. And it probably 13 would have told where the safety deposit boxes were. 14 But, no, I didn't have any knowledge of that at all. 15 Q. Was that something __ since you attended the 16 same church, was that something that your church 17 encouraged you or the clergy of the church encouraged? 18 A. Well, I think they did, just kind of as a 19 little aside. It was never a thing they announced in 20 Mass, please do this. I think whenever you have a 21 death, you, as a husband and wife, you come away from a 22 church and say, you know, we really should do that some 23 day. We should write down who we want for pallbearers 24 and what music you want and all of that so that you're 25 not leaving the family with that decision. But if the 39 1 church encourages it, it may have been as part of a 2 funeral service sometime. I'm not aware of it. Maybe 3 they do. I don't know. 4 Q. Okay. I had talked earlier a little bit about 5 some stress that you thought Rita was under in terms of 6 not being able to smoke in the house with Deb and the 7 baby around and all of that going on at the same time 8 that Don was suffering from this bout of depression. 9 Was there anything else in terms of work that would have 10 been __ that was going on at that time that would have 11 potentially been causing stress for Rita? 12 A. Yes. 13 Q. What was that? 14 MR. VICKERY: Misha, before you get into 15 that, I don't know how much longer you have on your 16 questioning. We've been going about an hour. I want to 17 take a little comfort break here at some point. Do you 18 want to finish up? Are you close to finishing up or 19 should we break now? 20 MS. WESTBY: I probably have another 15 21 or 20 minutes. We're trying to get out of town because 22 we have to drive to Powell tonight, and the weather is 23 bad. If you want to take a couple minutes, we can do 24 that. 25 MR. VICKERY: How about a five_minute 40 1 bathroom break, and I'll call you back? 2 MS. WESTBY: Okay. 3 (Recess taken 3:08 to 3:16 p.m., 4 February 13, 2001.) 5 Q. (BY MS. WESTBY) I had asked you if there was 6 anything else work_related that was causing Rita stress 7 or concern about this time. And you were going to tell 8 me about that. 9 A. Yes. Back in probably a few months earlier, 10 Rita had put this house under contract. I want to say 11 the end of September. I represented a builder. It was 12 a $300,000 house. And Rita put it under contract to 13 some people named Wagners, who he was Don's boss. 14 Actually, I think Don sort of subbed out underneath from 15 him checking wells. But it was very important, that Ron 16 Wagner was very big in Don Schell's life. 17 And previously, Rita had sold a house to them. 18 And they were demanding people. They were demanding of 19 Rita. It seemed like it had caused her a lot of undue 20 pressure at that time. And it was apparent that Don 21 wanted her to make them happy at any cost. 22 And so when this ranch style house came on the 23 market when it was finished building and she showed it 24 to them __ and Barb and I said to her, Rita, do you 25 really want to get involved again with the Wagners? 41 1 Because the last deal had been so stressful, and it 2 apparently had caused some friction between her and 3 Don. Rita said, yeah, they seemed fine. 4 And of course, 300,000 is a pretty substantial 5 sale. I think it was 329,000. I don't really 6 remember. And so she did. And it happened to be an 7 offer that had a contingency upon the sale of their 8 other home. 9 And we got another offer. And it had a 10 72_hour first right of refusal in the counteroffer to 11 them which they accepted. And we got another offer on 12 the house. And they were given notice that they had 72 13 hours within which to drop their condition or lose the 14 deal. 15 And the Wagners dropped their condition of the 16 sale of their other home. They were to have closed in 17 November sometime. And I don't remember the exact 18 date. And then all of a sudden, they decided that they 19 just simply could not close. And contractually, they 20 were bound to close. The offer had removed the 21 condition of their home. You could tell that Rita was 22 feeling really between a rock and a hard spot. She knew 23 that the Wagners were wrong. She knew they had removed 24 that condition. She maintained that she had explained 25 that fully to them. 42 1 I was in a position because I had sellers that 2 were very angry that one of the agents in my office had 3 written an offer that the people had removed a 4 condition. Now they were failing to close. We had lost 5 another buyer. A lawsuit ensued there. And you could 6 tell that Don, I believe, was really putting pressure on 7 Rita to just, you know, try to make the whole thing go 8 away. He was afraid he would lose the Wagners' work 9 over this. And I'm not sure what the name of the 10 Wagners' company is. But it caused a great deal of 11 friction. 12 And I remember one day back smoking, out of 13 the clear blue sky she said to me, so do you think the 14 Tonns are going to sue? And what do you think will 15 happen? And we weren't really even having that 16 conversation. I mean, we weren't talking anything about 17 this house. We tried to kind of avoid the subject. 18 Because I had a really bad taste in my mouth 19 about it, both as it related to Rita and clearly to the 20 Wagners. And so it was odd that this would come up. 21 And I remember that day she was really flipping her 22 cigarette and scrunching up her nose. And so it became 23 apparent to me at that time that she was really 24 concerned about this. And she said, well, Don just 25 wondered what was going to happen on that. And 43 1 something to that effect. And so I knew then that 2 obviously was a common concern in their house was what 3 was going to happen with this lawsuit. 4 And, yes, a lawsuit was going forward with the 5 builder on this house. So at that time, that was the 6 one thing that she was very concerned about. 7 Q. How long before the deaths do you think that 8 the conversation where Rita asked you about a potential 9 lawsuit and the outcome took place? 10 A. I'd say maybe as little as two to three weeks 11 maximum. I mean, it wasn't long before that. 12 Q. Is there anything else that you can think of 13 that was going on around that time that would have been 14 stressful or would have been potentially causing 15 problems for Rita and Don? 16 A. I don't remember anything else, other than at 17 that time, you know, they were __ the oil fields were 18 kind of slow. A lot of the rigs were down. And I 19 remember Don had a rig down somewhere. And maybe it was 20 one of Ron Wagner's rigs. And he was concerned about it 21 which caused her concern. 22 And she made the comment, you know, if the 23 rigs aren't operational, then Don isn't working because 24 that's what he does is check rigs. And because he was a 25 subcontractor, he only got paid if he was checking 44 1 rigs. He wasn't necessarily on __ he wasn't on the 2 payroll. He was paid as a sub. He wasn't __ he was an 3 independent contractor. So he only got paid if he was 4 working. And Rita and Don seemed to worry a lot about 5 money, to be really focused on money. 6 Q. Do you know why that was? Do you know if this 7 was more Rita or Don or __ 8 A. I always sensed it was more Don, that there 9 was maybe a __ I always sensed it was more Don than it 10 was Rita. And I remember at the funeral, that his 11 sister had made the comment, you know, Don, we were just 12 raised as old dirt farmers in North Dakota. And I don't 13 know what that had to do with anything. But she just 14 made that comment. It was sort of like maybe in 15 relationship to their concern about money and that they 16 had gotten that way because he was raised as an old dirt 17 farmer. But money, prices, I guess maybe I thought it 18 was more Don. Because if Rita went shopping and bought 19 three pair of shoes, she would hide them from him. 20 Q. Did she tell you why she would hide them? 21 A. No. She just said if Don knew she had bought 22 those shoes, he'd be mad, so she had to hide them. 23 Q. Did Rita carry money with her that you know 24 of, any significant amount of money? 25 A. You know, I never noticed that she did. 45 1 Typically, if we chipped in for something in the office, 2 like a gift for someone, she most frequently would write 3 a check. I never knew her to carry a substantial amount 4 of money at all, no. 5 Q. You had mentioned that when the three of you, 6 you and Barb and Rita, would get together, that you and 7 Barb might say something about your husbands, something 8 they had done that had upset you. And I think you said 9 that Rita __ did Rita ever mention anything to you about 10 anything that Don had done that had upset her? 11 A. No. I mean, I don't remember that she did. 12 She just didn't talk much about __ she, to me, always 13 made it sound like, you know, Don was perfect. They had 14 this perfect marriage. I don't remember ever saying __ 15 I guess I don't know. I don't remember anything. 16 Q. Did that seem strange to you? 17 A. Yeah. 'Cause to me, if it's so perfect, 18 sometimes when things are so perfect, they are not so 19 perfect. I don't ever remember her saying anything 20 negative at all really about Don, about her children, 21 about anyone in her family. So really, that's just sort 22 of a key. If it's so perfect, it isn't. 23 Q. Okay. You had talked about you viewing Don as 24 being controlling and possessive. Did you ever witness 25 or hear about any physical abuse or anything physical? 46 1 A. No. 2 Q. Did you ever tell Rita your concerns about 3 Don's behavior? 4 A. No. Because it was always apparent to me that 5 if I ever said anything about my feeling like Don was 6 controlling and possessive and that, even in a joking 7 manner, that that would be the end of a friendship. It 8 was like I had to just accept that about them and sort 9 of ignore it. 10 Now, I would see, you know, the two of them 11 off __ you know, they would go for a walk every night. 12 They were always holding hands. They seemed happy all 13 the time out in public. But I never said anything to 14 her because it was like that's the picture that she 15 wanted me to see. And she did not __ I didn't want to 16 lose her friendship over how I felt about it. So, no, I 17 never said anything to her. 18 Q. Did you get the impression that Don was 19 jealous or would have been jealous of Rita? 20 A. Yes. You just had that sense. And then I 21 sometimes felt like Rita always had this saying that we 22 were going to go back __ and there was also another 23 individual, Bill Zoebel, who smoked with us quite a 24 bit. And Rita always had this saying that we were 25 always going to go talk dirty and smoke. And she always 47 1 had a joke or someone could tell her a joke. But it was 2 like __ and she was a very fun person, a very __ you 3 know, she was fun to be around. Never moody, any of 4 those things. 5 And yet when Don was around, I always felt 6 like it was a different Rita than what was around when 7 Don wasn't there. I mean, if she were back in the back 8 room smoking, and Zoebel was telling her off_colored 9 jokes, it was sometimes a different Rita than we saw if 10 Don was around. So I got a sense that, yes, Don was 11 jealous. And if she __ when he was around, she just 12 stayed with Don. And then that way, it maybe didn't 13 incite the jealousy. 14 Q. How did you think he would have viewed Rita 15 showing homes to Mike Jamison right around this time 16 period at night? 17 MR. VICKERY: I'm going to object, 18 speculative. 19 Q. (BY MS. WESTBY) Okay, you can go ahead and 20 answer. 21 A. You know, I don't have any idea. I don't 22 think it really mattered to Don. He just didn't like 23 her out after __ he liked her to come home after 4:00. 24 So I don't know if it would have mattered if it was a 25 man or if it was a woman or anything. The sense I got 48 1 was that if it took away from his time with her, then he 2 didn't like anything that kind of interfered with his 3 time with Rita. 4 Q. Okay. Was Rita successful in selling real 5 estate? 6 A. She did fairly well. She could have done a 7 lot better if she could have __ in real estate, a lot of 8 what we do takes place at night and on weekends. And I 9 felt like maybe that sort of interfered with her ability 10 to be successful. Because there was always the concern 11 on her part about showing at night and on weekends. And 12 if you're trying to schedule everything during the time 13 of the day that works for you, not for the customer or 14 client, it's going to sort of limit your ability for 15 success. 16 And yet, it was clear that Rita liked 17 working. Maybe for the money she got, maybe for the 18 self_confidence it gave her. But I know when the office 19 manager's position became available, she had talked to 20 me about that position. Because it was a job that the 21 office manager typically left between 2:00 and 3:00 in 22 the afternoon. And I think she saw that as a more 23 palatable schedule for her to work that would satisfy 24 Don. But I just didn't feel she had the skills for that 25 position. 49 1 And so she had asked me if she could interview 2 for it. And I said, Rita, I just don't feel like you 3 have the skill level necessary for that position. So __ 4 and I knew that the only reason she was interested in it 5 was the hours and the fact that it was set pay, where as 6 an agent, it's commission. And you don't necessarily 7 make money all the time. But Rita had wonderful 8 communication skills, excellent follow_up. She could 9 have been very, very successful in terms of financial 10 success if she could have worked the number of hours 11 that it takes to be successful. 12 Q. Okay. I have some 1099 forms that I received 13 from your office. And I'm going to have the court 14 reporter mark them as Deposition Exhibit 1 for your 15 deposition. Are these the 1099s that are kept in the 16 ordinary course of business in your office? 17 A. Yes, they are. 18 Q. And are these the 1099s for Rita Schell for 19 1996 and 1997? 20 A. Yes, they are. 21 Q. Are you the person responsible or somebody 22 under your direction responsible for preparing these 23 documents? 24 MR. VICKERY: Misha, I'll stipulate that 25 they are business records. 50 1 MS. WESTBY: Okay, we'll call it good. 2 Q. (BY MS. WESTBY) What did __ if you know, what 3 did Don and Rita do in their spare time? What did they 4 do for fun? 5 A. The only thing that I know that they did for 6 fun is Deb and the baby, go for walks, and go to 7 Deadwood gambling. Rita liked to gamble. I don't know 8 that Don necessarily liked to gamble. But Rita liked to 9 gamble. She liked to play slot machines. 10 Q. And how often would they do that; do you 11 know? 12 A. I would say a couple times a month. 13 Q. Would those just be day trips? 14 A. Yes. 15 Q. And I think that you mentioned at one point 16 medications that Don had been on. Were you aware of 17 what types of medications Don was taking while Rita 18 worked for you? 19 A. No. 20 Q. Do you __ are you aware of any time periods 21 when Don was on medication? 22 A. No, not specifically. No, I'm not. 23 Q. And do you recall the names of any medications 24 or drugs that Rita would have mentioned? 25 A. No. 51 1 Q. Okay. Do you know who Don and Rita treated 2 with for medical or psychological issues? 3 A. She had talked about, in terms of 4 psychological, I remember at a point in time there was a 5 doctor here named Dr. Suhaney, and Don went to him. And 6 I had sold them a house. But I remember that they were 7 unable __ Suhaneys were unable to reach a satisfactory 8 contract with the hospital, and they were going to be 9 leaving Gillette. 10 And at the time, Rita mentioned that that was 11 real disconcerting to Don because he really liked 12 Dr. Suhaney. And then I don't remember who he went to 13 next. I remember talking about him. And I remember her 14 asking at some point what I thought of somebody. But I 15 don't really remember who that was. 16 Q. Okay. Did you ever see Don when he was, by 17 Rita's account, suffering from depression? 18 A. No. 19 Q. Did you ever see him when he appeared 20 different in some way than normal? 21 A. No. 22 Q. And I think you mentioned when I spoke to you 23 that when he suffered from depression, that Rita would 24 ask the people in the office to bring in reading 25 material; is that right? 52 1 A. Yes. 2 Q. Do you remember on how many occasions that 3 happened? 4 A. Well, I just remember that as a rule, people 5 started bringing in their paperbacks, not necessarily 6 because he may have been having any problems at that 7 point in time, but then for the future. If he did, he 8 had the reading materials. 9 Q. Okay. And why was that? Did she explain why 10 she wanted those materials? 11 A. Well, I think that she would __ he liked to 12 read. And I think she would try to get him to read to 13 sort of come out of it, to get his mind in a different 14 place, though I'm not really sure. 15 Q. Okay. 16 A. One of the other agents may have a better 17 answer. 18 Q. Okay. Do you know if Don was right_ or 19 left_handed? 20 A. No. 21 Q. Do you know if he and Rita had guns in the 22 house? 23 A. I only know that they had guns in the house 24 because Joe Hallock told me they had guns in the house. 25 And I don't know if Rita had ever mentioned it. She may 53 1 have mentioned that he had a handgun, I don't know. 2 Q. Okay. I think that's all the questions that I 3 have for you. Mr. Vickery may have some. 4 CROSS_EXAMINATION 5 Q. (BY MR. VICKERY) Ms. McGrath, can you hear 6 me? 7 A. Yes. 8 Q. This is Andy Vickery. And along with my 9 colleague, Jim Fitzgerald in Cheyenne, I represent the 10 families of Tim Tobin and Don and Rita Schell. You also 11 visited with Mr. Fitzgerald and I; did you not? 12 A. Yes, I did. 13 Q. This case is set for trial in Wyoming on May 14 the 21st of this year. Do you have any plans to be 15 outside of the state of Wyoming at that time? 16 A. I don't have any plans at this point. My 17 daughter is expecting a baby in the early part of June. 18 Q. Okay. So as far as you know right now, you 19 have no reason to believe you would be unavailable in 20 the state of Wyoming if necessary to testify in the 21 case? 22 A. Right. 23 Q. Okay. Good, that will shorten my examination 24 a bit. 25 Did I understand correctly that you said 54 1 Shirley Pettigrew talked to Rita the night of her death 2 about 9:30? 3 A. No, probably about 9:15. 4 Q. About 9:15 that night? 5 A. Uh_huh, 10 after 9:00. 6 Q. When did Shirley tell you that she had had 7 this conversation? 8 A. She told me that the very next day. I mean, 9 the day that the death __ the word on the street was out 10 about the death. Probably on that Saturday. Then all 11 of my agents, myself, were either at my office or at 12 Flo's home, which was Rita's mother, throughout the 13 course of the day. 14 Q. Tell me as you best recollect it what 15 Ms. Pettigrew told you about her conversation with Rita 16 on the night that she died? 17 A. She told me that she had spoken to Rita 18 because __ actually, Shirley and I, on the day of Rita's 19 death, on that Friday __ that was one of the issues 20 Shirley and I kept going back and forth with was this 21 deal, this contract they were negotiating. And Rita 22 apparently was to have gotten back with her with some 23 word. And she never did. 24 And the word she was to have gotten back with 25 her was as a result of that conversation on Thursday 55 1 evening, somewhere I want to say between 9:00 and 9:30. 2 Shirley had called Rita at home and visited with her. 3 And Shirley related the, you know, as far as I said, how 4 does she sound? And Shirley said she sounded fine. 5 They talked about their old days in Boy Scouts and their 6 sons. And she also __ you know, of course, the issues 7 as it was related to the contract they were negotiating 8 on between the buyers and the sellers. And I don't 9 remember those specific details. I do remember her 10 saying they talked about when their sons were in Boy 11 Scouts together. 12 Q. Did she say how long she and Rita talked? 13 A. I think she said about 20 minutes. 14 Q. Okay. And did Shirley call with good news or 15 bad news about the contract negotiation? 16 A. Call Rita with good news or bad news? 17 Q. Yes, ma'am. 18 A. I don't know that it was good or bad, either 19 one. I think they were still negotiating. It was a 20 house that Rita had listed. I think the buyers wanted 21 early occupancy. Rita __ the sellers of that particular 22 property were military, and they had moved to 23 Pennsylvania. And Rita had gotten in contact with them 24 to see if they would allow the buyers to move in early. 25 I don't know that it was __ I don't remember that it was 56 1 good or bad news or just news in general. 2 Q. Okay. So as far as you know, nothing in 3 particular that would have been distressing to Rita? 4 A. No, no. 5 Q. And was there anything in Shirley's recount to 6 you of the conversation with Rita that would indicate 7 anything untoward, alarm, anything to be alarmed about 8 in Rita's attitude that evening? 9 A. No. 10 MR. VICKERY: Misha, I don't know what 11 your schedule is up there. But at some point, I think 12 we need to get Ms. Pettigrew's deposition, which we can 13 do by phone if not on this trip. 14 MS. WESTBY: We're going to have to 15 because I'm heading up to Powell to take Father Ogg's 16 deposition tomorrow morning. 17 MR. VICKERY: Why don't you talk to Jim 18 about it. If it works coming back through, if you're 19 coming back to Gillette, maybe we can do it then. 20 Q. (BY MR. VICKERY) Ms. McGrath, I want to make 21 sure I understand and our record is real clear about 22 your testimony regarding Don being, quote, controlling 23 and possessive. Is it true that Rita herself never said 24 a word to you that any way was critical of her husband's 25 behavior? 57 1 A. Yes, that's true. 2 Q. Okay. And did she ever even make a gesture, 3 like a __ make an ugly face or something when Don's name 4 was mentioned that would cause you to think that Rita is 5 mad at Don or mad about his behavior in any way? 6 A. No, not in that sense. She would say __ when 7 she would say that Don wanted her home after 4:00 or 8 whatever, her mannerisms would be such that you knew 9 that was not necessarily her idea but his idea. 10 Q. Okay. Now, did __ when you think about the 11 behavior that causes you to infer or conclude or come to 12 the opinion that he was controlling and possessive, what 13 are we talking about? I know you've mentioned his arm 14 firmly around her shoulders in church, right? 15 A. Uh_huh. He was just very clear that it was by 16 his wish that she would be home by 4:00. That she went 17 home for lunch. You never saw Rita in the grocery store 18 by herself. She rarely worked on weekends unless it was 19 her floor day. She took morning floor time versus 20 afternoon because then she would be home at the 21 appropriate time that made him happy. It was just those 22 kinds of things that it was clear that he was fairly 23 controlling. Whether or not she agreed to that 24 controlling, I have no idea. Obviously she did. She 25 stayed with him. But that he was controlling and 58 1 possessive. 2 Q. Let me ask you about that, because I think 3 when my colleague Mr. Fitzgerald and I were up there 4 visiting with you, he asked you whether or not the 5 various attention that Don showed toward her was 6 welcomed by her or unwelcomed. And as I recollect, you 7 told us that she seemed to welcome his attention; is 8 that true or not true? 9 A. Well, I think I said welcome the attention. 10 But I also think that I told you then that I felt he was 11 very controlling and possessive. 12 Q. I know that is your opinion. 13 A. Right, and it is my opinion. And it's my 14 opinion that probably it was welcomed on some occasion 15 and on other occasions, I'm not sure that it was. I 16 can't answer that. It would be pure speculation. 17 Q. Okay. But when we try to discern fact from 18 opinion, the fact is that Rita herself never said or did 19 anything that would indicate either that her husband's 20 attentions were unwelcome or that she was mad or angry 21 with him, correct? 22 MS. WESTBY: I'm going to object to the 23 question. I think it misstates the record. And I guess 24 that's all. 25 Q. (BY MR. VICKERY) Okay. You may answer my 59 1 question. Is that correct or not? 2 A. You know, I guess I don't know that I think 3 it's correct. Because somewhere I determined that the 4 possessiveness and the controlling was not altogether 5 welcomed by her. Otherwise I might not have thought it 6 was controlling and possessive. 7 Q. Please tell me everything that Rita said or 8 did that caused you to come to the opinion that his 9 attentions towards her were unwelcomed by Rita. 10 A. I never got the idea that she was happy to be 11 home by 4:00. I can't tell you a specific 12 conversation. But I think any agent in my office would 13 say that she wasn't necessarily happy about that. But I 14 can't give you a specific time. 15 Q. Okay. Was Rita a part_time real estate lady? 16 A. No. She was __ I only had full_time agents in 17 my office. And I say they are full_time by profession. 18 Many of them are not full_time by reason of income, 19 because they aren't willing to work the hours. But she 20 was a full_time agent, yes. 21 Q. Was she full_time by reason of income? 22 A. No. No, I __ well, I guess it depends on what 23 you call full_time. She was there typically from 8:00 24 in the morning until 3:30, quarter to 4:00 in the 25 afternoon. And in 1997, she earned $12,472. 60 1 Q. How does that compare generally to the average 2 agent in your office? 3 A. Well, the average agent __ for instance, my 4 income might be $100,000. The average agent is 5 probably __ it's hard to say in the office. I have 6 probably five agents in my office who earn in excess of 7 $60,000 a year. Now, this is several years ago or a few 8 years ago. And I have agents who probably the least 9 amount of money an agent in my office will have earned 10 for the year 2000 is about $20,000. 11 Q. So Rita was really below the pack in terms of 12 her earnings, correct? 13 A. Yes. And specifically, as I said earlier, in 14 my estimation, she was below because she could not 15 commit the kind of time necessary. If you can only show 16 between 8:00 and 4:00 on weekdays and rarely on 17 weekends, you will not make a lot of money in real 18 estate. 19 Q. What did she make in '96? 20 A. In '96, she made __ it's hard to read it. But 21 I would say it's probably around $13,456. 22 Q. Let's see, I've got my copy. Yes, that's what 23 it looks like to me as well. 24 You had talked about this incident in the 25 early '90s when Rita sort of told you in confidence that 61 1 Don was depressed and that she might have to take some 2 time away from the office, and that he would go 3 through __ as she called it, he will go through bouts 4 like this, Sherry, where all of a sudden, he's just in a 5 real state of depression. 6 A. And it may be necessary for me to take some 7 time off without a lot of notice because I have to help 8 him work his way back out of it again. 9 Q. Well, was she compensated totally on a 10 commission sales basis? 11 A. Yes. 12 Q. Now, about __ how long did it take Don to work 13 through that first bout of depression that she told you 14 about? 15 A. You know, that was so long ago, I don't really 16 remember. But to the best of my recollection, it was a 17 few days. I mean, it was a minor inconvenience in terms 18 of things that I might have worked for her. 19 Q. Okay. Did she ever have a subsequent 20 discussion with you involving any other bouts of 21 depression that Don had? 22 A. Not that I remember. 23 Q. Any discussion with her in the last, say, 24 month of her life about Don's health, mental or 25 physical? 62 1 A. We didn't then, and that was primarily because 2 there were a lot of other things going on in the office 3 that I felt like she probably didn't want to bring them 4 up to me. Because we had had a secretary that had 5 quit. We were having some changes with agents in the 6 office. She did mention some health issues to another 7 agent. She did not mention them to me at that time. 8 Q. You also talked about a previous deal with the 9 Wagners causing some friction between Rita and Don; did 10 I hear that correctly? 11 A. Yes, that is correct. 12 Q. What was said by Rita or Don, either one, that 13 led you to believe that business deal involving the 14 Wagners led to friction? 15 A. I didn't visit with Don at all about it, so I 16 don't know what Don said. I know that Rita made 17 comments, and I can't tell you what those were 18 specifically. There would have been other agents who 19 would have witnessed those as well. And maybe they have 20 some idea of those comments, where it was clear that Don 21 was upset that this builder was potentially suing the 22 Wagners, which might affect his contract. And it was __ 23 it was clear that Don was upset about this, and there 24 were comments made. And I can't tell you what those 25 were. 63 1 Q. Ms. McGrath, is your testimony on that issue 2 based on what other people have told you that they heard 3 Rita say? 4 A. No. I would have been sitting there, too. 5 It's just if it doesn't seem important at the time, it's 6 difficult to remember those conversations. There was __ 7 Q. I understand. I just want to understand the 8 basis of your opinion about there being friction. So is 9 it that you heard something that you cannot now 10 remember? 11 A. Yes, that would be my testimony. That I heard 12 something that I don't remember exactly what it was. 13 And there may be someone else: Barb Trenholm, Bill 14 Zoebel, someone who sat back there who might remember 15 what she said. But I don't remember the specific 16 comments. And I couldn't tell you what those were. 17 Q. Approximately how long before their deaths had 18 this previous incident happened? 19 A. Well, actually, the property __ she had put 20 the property under contract, I'm going to say, in 21 September. And all of this would be a matter of records 22 in my office. So I mean, it can all __ I can look it up 23 and have absolutes for you. 24 Q. Sure. 25 A. But it would have been toward the end of 64 1 September that she put the contract __ the property 2 under contract to the Wagners conditioned upon the sale 3 of their current home at that time. And then sometime 4 in October, we got another __ and at that time on that 5 contract, the sellers countered or maybe it was in the 6 actual contract with the 72_hour first right of 7 refusal. And somewhere, probably in October, we got 8 another offer on the property. The Wagners were given 9 their 72_hour notice that we had received another offer. 10 Q. Are you talking about the October before their 11 deaths in February? 12 A. Yes. 13 Q. Was there anything going on with the Wagners 14 at the time of Don and Rita's death? 15 A. Well, what was going on was the threat of a 16 lawsuit from the sellers. Tonn Construction were 17 still __ because that deal should have closed in 18 November. It did not close. They immediately went to 19 attorneys. And attorneys said, you know, we've got to 20 have a clear indication of what your damage is. 21 Q. So the sellers were threatening to sue the 22 Wagners? 23 A. Yes, and that was very upsetting to Don 24 Schell. It was upsetting to the Wagners. 25 Q. When you say it was upsetting to Don Schell, 65 1 what's that based on? 2 A. On Rita's conversation. It was upsetting to 3 Rita because Don was upset. She was hoping that we 4 could resolve it without it going to court. 5 Q. Which one of them was your firm's client, the 6 seller or the buyer? 7 A. Both. 8 Q. Okay. I believe that's all I have at this 9 time.