The Chronicles Of Markia 3

This week's episode features part three of four parts of Mark Halburn's deposition. This week he talks about noise, high weeds and his arrest.

He continues to be questioned by Paul Konstanty on behalf of Cleveland Construction.

Our comments are noted in red. Please leave yours in our comments section.

Q. The videotape that we were provided in this case, one of the videos, as I recall, is family gathering I think at Thanksgiving and it's various recording throughout the day. There was I believe earlier that morning at maybe 2 or 3 in the morning a worker that was picking up some equipment. Do you recall that?

A. Yes, very vividly.

Q. And you went out there with, in your car and your video camera and asked the gentleman who he was and who he worked for. Do you recall that?

A. Yes. When I called in the complaint to Putnam 911, they invited me to meet Sergeant Moore. I think he was sergeant. He got promoted, I don't remember the time line exactly. Jason Moore of the Hurricane Police. And they said, you know, he would like to meet you out there, go ahead and go out there. And it was 4:23 in the morning. I remember that very well. Not a time to disrupt your neighbor to pick up construction equipment on Thanksgiving morning. Completely inappropriate.

Q. In your opinion, does the videotape accurately depict the noise that was going on at that time?

A. Some of it. I didn't roll tape through the entire incident.

Q. You I believe started in the house. You showed the clock either on your stove or microwave. Do you recall that?

A. Correct.

Q. And is it your testimony that you could hear noise from inside your house?

A. Yes. That's what woke me up at 4:23 in the morning was the -- the piece of equipment had a, for lack of a better term, a reverse alarm or beep that I guess is required by OSHA, that he was backing it up across the parking lot, and it woke me up at 4:23 in the morning, otherwise I would have been asleep .

Q. And did you ever discover who that person worked for?

A. No. The police department refused to disclose that to me. I did get a recording of his license plate number.

Q. And what have you done with that?

A. Kept it on the tape.

Q. Have you made any effort to discover that man's identity?

A. I asked the police department to provide it, and they said that he gave Jason Moore a business card, Mr. Moore refused to give it to me. And then later when I went to the chief they said that he threw it away. I don't believe that he did, but that's what I was told by Chief Mullins.

Q. Can you tell me why the Hurricane Police are not a part of this lawsuit?

A. Because my attorneys have advised me that not to file a suit against them.

Q. And I assume that's true with respect to the malicious prosecution lawsuit that's recently been dismissed?

A. Yes, although that will probably be appealed. I'd certainly like for it to be appealed.

(How's that coming, by the way?)

Q. As a result of that dismissal of that malicious prosecution case, did you refer to either Judge Chafin or myself as a communist?

A. I don't recall.

Q. Do you recall whether you suggested that I should lose my law license?

A. I recall suggesting that anybody that argued against the First Amendment of the Constitution should lose their license. And that was a First Amendment issue that got distorted in the in the case.

Q. Are you suggesting that I lied to the court?

A. I don't have to suggest it.

(Right. Like he's willing to risk his law license just to fuck with you, superstar.)

Q. Oh, I did, is that what you're saying?

A. Yeah. It was a First Amendment issue, and you went in there and argued about other things: First Amendment gives the press freedom of the press, and I was doing an investigative story about somebody that did not have a license, and your client had me arrested; and indeed he did not have a license, and that was established and he was cited for that.

(But that doesn't give you the right to trespass or harass the people working there. Write about all you want. Nobody attempted to prevent you from publishing or saying anything.)

Q. As a result of the construction of the Wal-Mart, was your service, your water service ever disrupted?

A. Yes.

Q. Was it ever discolored?

A. It was not discolored. Many, on many occasions we had low water pressure, because a tanker that had Kanawha Stone's label on it that was, or name or sign on the side, however you want to describe it, was consistently filling up at the bottom of the hill, and as a result the water pressure was reduced on more than one occasion, on at least one occasion. I believe more than one occasion the water was actually cut off. The city eventually had to move the water tap to the other side of Hurricane Creek Road because of my complaints as well as those of Sally MacDonald about the reduced pressure. And at one point the city actually had a -- and this water tanker was spraying to keep the dust level down. At one point the city actually had a water shortage and was having to purchase water from someone else and even raised the water rates to pay for that while water was being, instead of being used for human consumption was being sprayed on the Wal-Mart property. Instead of being trucked in from somewhere else they were wasting the water in Hurricane and contributed to water shortage.

(If they hadn't sprayed, he'd have complained about the dust.)

Q. And did the driver of that water truck threaten you with a-

A. Yes.

Q. -- with a wrench?

A. Yes.

Q. And do you know that man's identity?

A. I do not.

Q. Did you ask for him to be arrested?

A. Yes.

Q. And what was the result?

A. They did not arrest him because they told me that I did not have video of it, I only had still pictures of it. He should have been arrested.

Q. As a result of the construction of the Wal-Mart, have you sustained any damage to walls in your house? We talked about the foundation before. Have you lost sheetrock, have screws started to come out of the sheetrock, separate from seams, anything like that?

A. No.

Q. I want to give you an opportunity to tell me, aside from the things that we've already talked about here today, the damages that you have sustained, you and your wife have sustained as a result of my client's activities.

A. Excessive noise, dust, dirt, smoke, destruction of peace and quiet in our home and in our yard. When my wife bought the home and I eventually moved into it, it was a very quiet neighborhood. Even though the interstate is probably a quarter of a mile away, we rarely heard the interstate. I mean, there was -- sometimes you would hear a horn on the interstate or something like that, but it was as if it wasn't there, even though we're probably 90 seconds to the interstate from our, you know, from the front of our lawn. It was, it was a place you would come at the end of the day or from work or wherever you were and you would come home and it was quiet and peaceful, and, you know, it was a pleasant place to be. You could hang out in the front yard, sit in the hammock if you want, or, you know, play with one of the nieces or nephews on the swing. And now it's, you know, it's like having Godzilla stomp on your neighborhood. The noise is terrible. Our Easter egg hunt on Easter of this year, a couple of times a car alarm went off. Little kids are like Uncle Mark or Daddy, or whoever they're talking, you know, what is that or why is that going off. You know, you can't enjoy the home that you're paying a mortgage on and that, you know, was purchased to have a nice, quiet place for a family. We have a 10-month-old baby now that we've been blessed with, we love him dearly, but to take him out in the front yard, there's no, there's no enjoyment anymore, there's no pleasure anymore in enjoying the front yard of our home. And even the side yard, which is over near the construction company, you know, the noise level is so bad that you get out of your car when you come home, open the door, and the first thing you hear is traffic noise from the Wal-Mart. Trucks delivering at 4 or 5 in the morning. You know, 5:00 this morning a truck woke up our son. You know, he went back to sleep, but eventually we -- but, I mean, you can't enjoy it anymore. And I don't know how many times 12:15 in the morning the street sweeper. There's no reason to sweep the parking lot of Wal-Mart, you know, at 12:15 in the morning. That could be done at 8:00 at night before people go to sleep. You mentioned the construction worker on Thanksgiving morning. The day before that the city street sweeper was out at a few minutes before 5 in the morning. And -bless you -- and disrupting us.

Q. Incidentally -

A. And Wal-Mart refuses to cooperate. You know, we've asked them run, I've asked them run the street sweeper at 8:00 at night, you know, when we're still awake.

Q. You agree that my client doesn't have any control over that?

A. No, but had your client not done what they did, the Wal-Mart wouldn't be there.

Q. And that's really the complaint that you have is the fact that there's a Wal-Mart across the street from your house now?

A. No. The complaint that I have is the excessive noise and the excessive traffic. I was up in Barboursville the other night and I've talked to the state of West Virginia about there used to be on that property before the Wal-Mart was built, there was traffic access on the other side of the property, and that access was taken away during the construction at the direction of the DOT, and they made the comment to me, I think it was Mr. Kramer, well, you know, why are you special, we put a lot of traffic in front of homes in Barboursville and they're not calling us and complaining. So I went up there the other night and actually looked at it in anticipation of this meeting, and all of the traffic there ends before it gets to those homes, and there's a berm on one side of the street next to the first home and there's a berm on the Wal-Mart side. We don't have that. There's nothing protecting us from that traffic noise.

Q. Is there something that can be done, in your opinion, to reduce the noise problem that you have?

A. Absolutely.

Q. What is it?

A. They could -- on the land strip between our home and the Wal-Mart they could put up, they could extend the wall higher and they could put up trees to do that. They can go ahead and the road that runs parallel to our road that goes up in front of our home, overnight they could shut that portion of the road down. There's many places where you can't make a right-hand turn during certain hours or you have to go a certain speed during school hours or whatever. As you go up the road, you've been to the property, I'm assuming, you can make, and they send the trucks to the left, you could, they could restrict access to that road overnight. During the day there is the Hurricane Marketplace at the end of the road, and I can understand why they want to have that road open during the day. But they could shut down that road to traffic at night and divert it to the other area of the Wal-Mart property so it's not close to our home. They could aim the lights better or shield the lights better so that it's not near our home. They could put trees on the front of our property, you know, on our, you know, on our lawn to, you know, to block some of the light and some of the noise. You know, I mean, I've even had women screaming at I'm assuming their husbands or boyfriends at 12:00 at night. You're sitting in your house and you hear a woman screaming at somebody from the Wal-Mart parking lot. Nobody wants to live like that, except them or her. I'm not sure he did.

(They could repeal the laws of physics!!!)

Q. Recently you've tried to have the PCDA buy your wife's house; right?

A. That's partly true. We've asked the PCDA to buy our property before the Wal-Mart was even put in.

Q. Okay.

A. So it's not just recently.

Q. Well, I don't want to be untruthful, but recently you posted on your web site that you attended a meeting of the PCDA and when you broached the subject they all just got up and left.

A. Correct.

Q. Is that accurate?

A. Yes. This is an agency that says they want to develop that hill and want jobs, but when they have the opportunity to talk about it they get up and leave.

Q. Do you know why they have that reaction to you?

A. Because they don't want to purchase our property. Because they say one thing to the public and when it comes to the opportunity for them to create jobs and develop the hill and the things that Gary Walton has said in the press, along with admitting to the Daily Mail that he lied to me about the option to buy when I asked him when we discovered it several years ago. They turn their back on us. We've invited them to meet at our home with our neighbors. At one point we had our neighbors come and nobody showed up. They have basically said, you know, Hey, you're on your own and you're not going to help us. Not only is it the issue of them not willing to purchase our neighborhood, and not just our property but the neighbor's, but the PCDA has a web site that has properties listed for sale that they're trying to promote the development of, and you would think an agency that is publicly saying we want to develop this hill and create jobs here would have all of the neighbors' properties posted. And we have asked them to do that, and they have never put it on their web site.

(Or is it because you've done nothing but harass them and call them names?)

Q. And other than being the construction company that built the Wal-Mart, Cleveland Construction doesn't have any control over the PCDA; correct?

A. To my knowledge, correct. I don't think any members of Cleveland Construction live in Putnam County and vote or have anything to ...

Q. Aside from what we've talked about already here today; do you have other complaints about Cleveland Construction that I should know about?

A. They could have worked with us about schedule, they could have put up a sound wall across the construction, around the construction site or at least around the part of the construction site that adjoins neighbor, you know, people's homes. I don't think there was a need for one on the Orchard Park side or the Courts Motor side. They, you know, they could have come to us and said, Look, we're going to build this thing, what can we do to make it easier for all of you. At several point, or one point I even provided them with D and I's work schedule and said, Hey, this is when we're gone, you know, do whatever you got to do, but when we're home please, you know, give us a break, and they refused to do that. That was also provided to Ben Newhouse at the City of Hurricane. Their attitude through the whole thing was, Hey, we're going to do what we're going to do, and if you don't like it, you know, tough.

Q. And do you think that your attitude was fair to them?

A. Yes.

Q. Making multiple phone calls on the same day, that's a fair attitude to take?

A. It is when the noise and the problem continues. If they had solved it the first time, there wouldn't have had to be multiple phone calls. There wouldn't have been multiple complaints. For some reason Cleveland Construction felt like, well, you know, we're going to earn a living and we don't care what it does to you, and, you know, you've got to put up with it. And I don't know of any other industry that acts like the construction industry.

Q. I asked you earlier if you suffered any physical injury as a result of this construction, but to be clear, have you sought any medical care of any kind as a result of this Wal-Mart being constructed?

A. My blood pressure has gone up and I have been prescribed blood pressure medication, and I believe that it's connected to that.

Q. In your opinion, your high blood pressure is related to the construction of the Wal-Mart?

A. Correct.

Q. And did your doctor tell you that?

A. He said I needed to cut down on the stress, and he recommended that I move away from there.

Q. Did he make any other recommendations for you?

A. He prescribed the blood pressure medication.

Q. Just solely because of the stress?

A. Correct.

Q. The arrest that you talked to Ms. Sanders about earlier, that was in '90 in California?

A. 1989.

Q. Was the plea in '90?

A. The plea was in '90.

Q. And that was -

A. Well, the plea agreement was in '90, the not guilty plea was 1989.

Q. And you pled to disturbing the peace on advice of counsel?

A. Correct.

Q. And after that then you also sued the company that made the complaint?

A. Correct.

Q. What did you sue them for?

A. For the false arrest.

Q. And then they went into bankruptcy?

A. And then they went into bankruptcy after the lawsuit was filed. I might add that Lee Baca, who is now the Los Angeles County sheriff, came out and took me out to lunch to apologize for even having me arrested. That, he said that that should never have happened.

(Sure he did)

Q. Did the City of Hurricane police officer or chief of police apologize to you in this case?

A. No.

Q. Do you think it's fair to hold Cleveland Construction responsible for other 4 subcontractors that were on that job?

A. If they're your subcontractors, yes.

Q. Okay. And so tell me, then, how does that square with the statement you made on your blog on May 19th of 2007? I won't read the whole thing, but it says, Shortly after 9 a.m. the first of several cement mixers from Arrow Concrete driving onto the Wal-Mart site wakes me up. Do you remember that?

A. I remember, I remember there were numerous times that Arrow Concrete trucks woke me up.

Q. And Arrow Concrete is not a defendant in this lawsuit; correct?

A. Not yet.

(Not ever from the looks of things)

Q. And then it says, I called the company and they blame Cleveland Construction; however, you can't ethically blame Cleveland Construction for the noisy trucks operated by Arrow Concrete. Do you remember making that statement?

A. I recall making that statement. Arrow Concrete should have quieter trucks.

Q. Okay. And do you, do you believe that it's ethical to blame Cleveland Construction for that?

A. If you're using a company that has noisy trucks, then you should be, you should be blamed for employing somebody that causes a problem. When you have -- you know, Cleveland Construction had numerous opportunities to cut down on the noise level. Having cement mixers arrive at 6 a.m., you know, is not an appropriate time. Not that there's ever an appropriate time to send a bunch of noise into somebody else's house.

Q. In your opinion, if all of the construction had been confined from 9 a.m. to 5 p.m., would you still have all these complaints?

A. I would still have some of them. You know, I work evenings so I'm in my home during the day. I have the right to peace and quiet in my home. I don't think there's ever a good time to disrupt somebody's home and property.

Q. Have you been to the Hurricane Wal-Mart?

A. Yes.

Q. You were there for the opening, were you not?

A. I was not.

Q. You were not?

A. I was not. I hired Lawrence Smith to cover the opening.

Q. When-

A. Actually, I hired him to take pictures of the opening. I wrote the story.

(He wrote the story of an opening which he did not attend. Typical unethical Hallburn bullshit.)

Q. When was the last time you were there?

A. Several days ago.

Q. Why were you there?

A. To try to purchase some baby formula.

Q. Did you?

A. No, they did not have it in stock.

Q. Have you ever purchased anything from the Hurricane Wal-Mart?

A. Yes.

Q. How often do you shop there?

A. Maybe once a month. I try to avoid it, but sometimes with it being right there and having a need, you know, I do go in there. And I have a right to shop there like any other consumer. The first time I went was in the middle of the night when our baby was sick, and I had a choice of going to Kroger which was 20 minutes away or going to the Wal-Mart right there to get the medication, you know, get the medication for him and get it into his body quicker so he t could feel better quicker. I chose the Wal-Mart. My son was more important. I'm assuming you would make the same decision.

(Hypocrite)

THE DEPONENT: Is that rain?

MS. SOLOMON: Um-hmm.

THE DEPONENT: Great, my umbrella's in my car. Honey, now that you know where the car -- I'm just kidding.

(No he's not. It's just that there are other people in the room. If they weren't, she'd be out the door getting his umbrella. He'd probably make her hold it over his head on the way to the car too.)

MR. KONSTANTY: Mr. Halburn, those are all the questions I have for you at this time.

VIDEOGRAPHER: We're now going off the record at 4:15 p.m. (Whereupon, break.)

VIDEOGRAPHER: This begins tape number 4 in the deposition of Mark Halburn, and we're going back on the record at 4:25 p.m.

EXAMINATION

BY-MR.MULDOON:

Q. Good afternoon, Mr. Halburn. My name is Jim Muldoon. We met briefly before this all started a few hours ago. But I'm here on behalf of the City of Hurricane and Ben Newhouse, and I'll be asking you some questions. And just as everyone else, if you have any questions of me to clarify anything, just please do that. Okay?

A. Okay.

Q. I'm going to focus a little bit on the actual complaint. It's probably going to dovetail into some of the questions you've already been asked, and I apologize if they're a bit repetitive, but I want to try to focus on a few different things. In our complaint with regards to the City of Hurricane, you have an allegation that they didn't enforce their ordinance for noise.

A. Correct.

Q. In the complaint we talked, well, it lists as a restriction against excessive noise. We've talked a little bit about some of the noises that you've experienced, but can you explain in detail what excessive noise is?

A. Noise that you can hear inside your home with the windows shut that's generated hundreds of feet away. Noise that robs you of the ability to enjoy your front yard and that wakes you up all hours of the night or early morning or late at night. Noise that's, you know, that's disruptive that basically steamrolls people that, you know, live near, you know, a construction site or a business.

(You know)

Q. With construction sites, is there any level of acceptable noise?

A. I would imagine to the people that are working on the construction site everything is acceptable.

Q. What about-

A. I have no problem with the noise level on the construction site, but when it's coming onto our property and disrupting our home and making our lives miserable, their right to build a building is, you know, there's no doubt about that, their right to do construction, there's no doubt about that. Their right to do that stuff is on our property line.

Q. So in order to be acceptable, the construction noise would have to be as such not to come onto your property?

A. I would say so. They could put up a sound wall, they could get quieter equipment. We put a man on the moon in 1969 and they're saying that they can't produce a quieter tractor in the year 2008. I find that to be unbelievable. I don't think they want to spend the money to buy the better equipment.

(The laws of physics are rather rude.)

Q. And that's just supposition on you, you don't have any facts to support that do you?

A. Correct.

Q. In paragraph 10 of your, of count 2 of your complaint, you talk about, Although repeated requests have been made to the City of Hurricane. Can you describe those repeated requests for me?

A. We appeared before the city council in July of 2007, I had appeared before the city council the previous December, I made several phone calls to former Mayor Peak, current Mayor Edwards, city manager Ben Newhouse, and they all basically said, Look, you know, we want the Wal-Mart, the Wal-Mart's going to happen. I was told I was stupid by the now chief of police Mike Mullins that, you know, you're stupid to, you know, expect them not to disrupt you, and, you know, to complain about it, and, you know, why don't you just shut up. And, you know, they basically have acted like first class asses through the whole thing. And, you know, Mayor Edwards has told us, he says, you know, the bottom line is, he says, you know, if it's a choice between you guys and the Wal-Mart, we'd rather have the Wal-Mart because it generates a whole lot more money and eventually you'll get bought out.

Well, we were told that we'd get bought out before the deal closed, we were we were told we'd get bought out before the construction started, We were told we'd get bought out before the construction. The store has been open since March 7th, and we still haven't had a, you know, a buyout. We're still there. I think they tell us what they think we want to hear while they do what they want to do and screw us and they get their, you know, they get what they want.

Q. Did Chief Mullins actually use the word "stupid" or -

A. Yes.

Q. -- did he say naive?

A. He actually said both. On more than one occasion we had conversations about it. Chief Mullins also refused to arrest the guy that woke us up at 4:23 on Thanksgiving morning.

(If the shoe fits...)

Q. That would have been during the construction; correct?

A. That would have been during the construction, yeah.

Q. Now-

A. I don't understand why he had to show up at 4:23 to pick up equipment to take home to Pennsylvania on Thanksgiving morning. There's so many other times he could have done that.

Q. Before this construction started on the Wal-Mart project, did you make complaints of excessive noise regarding not Wal-Mart but some other entities?

A. The construction company next door. We've discussed that. And they were actually at one point cited until the police chief ripped it up or destroyed it or whatever he did to that citation. Former police chief.

Q. So when you actually made the complaint someone did something?

A. At one point.

Q. At one point. And that would have been to the Kanawha Construction that's adjacent to your property?

A. Adjacent to their property, yes.

Q. Did the police ever refuse to come out to your home?

A. Oh, many times.

Q. When was that?

A. Through the construction, since the construction.

Q. What about preconstruction ?

A. With the Kanawha, not Kanawha, the construction company next door. You know, as I said, I actually wrote a letter that was in the Hurricane Breeze prior to the 2003 election saying why doesn't the city -- the nuisance ordinance is written in the sense , that a police officer can cite someone. So why doesn't the city, why doesn't the police, I don't have the letter in front of me, but why don't they come out and do something. Pardon me. Then councilman Dave Boyles said, Well, you know, they were there first and this is like somebody moving next to, all kinds of bologna, you know. And the bottom line is I don't understand why the city would want property that looks terrible that takes down property values of everybody else around it. I don't know why the city would want to have a city where people can't hear themselves think in their front yard while the dozers are going off. Or, you know, it's supposed to be a civilized society, not the wild wild west with -- you know.

Q. Has there ever been an occasion where you made a complaint about the noise, the police come out, maybe it's not that noisy, have you ever run into that situation?

A. No. What they've told me is, Hey, it's construction noise, you have to live with it.

Q. Did any of the policemen ever say, Yeah, I agree with you that's excessive but it's construction noise?

A. Yes.

Q. Who would that be?

A. Runyon. What's the, what's the guy that they, that Edwards fired? Mullins and Wingo's brother-in-law. He was a chief for a while. I can't remember. Joe.

MS. SOLOMON: Just say you don't remember.

A. I don't remember.

Q. I don't remember is just fine.

A. You know, the chief before the current one.

Q. Okay. The former chief of police?

A. One of the former chiefs of police.

Q. That's for the City of Hurricane?

A. Correct.

MR. KONSTANTY: Joe Sisk?

THE DEPONENT: Thank you.

A. Actually, Joe is his, his middle name. His name is Sonny Sisk.

Q. In that same paragraph you said that the city willfully and intentionally refused to enforce the ordinance?

A. Correct.

Q. Why do you believe they willfully or intentionally failed to enforce it?

A. Because they failed to enforce it they did that willingly, they did it intentionally, they repeatedly refused to take action. The mayor in the, I think it was July 2nd, 2007, council meeting, that should be in the minutes, that, you know, we'll enforce the noise ordinance. And two days later she was crying calling me, you know, on my cell phone as I was coming out of the hospital for some testing, you know, it's a quarter to 7, it's a holiday, I can't even sleep. You know, she was going through, you know, a high-risk pregnancy and all of this is going on. And, you know, what kind of, you know, what kind of neanderthal would blast a home with a woman that's going through a high-risk pregnancy and continually make all that kind of noise, and what kind of neanderthal city would allow that to go on?

Q. And you said you made a lot of complaints about this?

A. Yes.

Q. When you made your complaints, well, how did you make your complaints? Let's just go that way.

A. Sometimes I went in person, sometimes I called, many times I sent e-mails to Ben Newhouse and Scott Edwards, and Joe Sisk and then Mike Mullins.

Q. So and the police chiefs?

A. Most of the time they were ignored with the exception of Patty Hager who's a current councilwoman who wrote back and said I don't care about your First Amendment rights to, you know, referring to my right to complain to my government officials, I think it's redress your government for grievances, wrote back and put in writing, I don't care about your First Amendment rights. Which I think stated volumes about her arrogance and her stupidity.

Q. When you went in person to complain, who did you complain to?

A. Ben Newhouse.

Q. Do you know when the first time you went is?

A. Joe Sisk. I don't recall.

Q. It would have been after the construction started sometime?

A. Correct. There was no reason to complain about the construction noise before it started.

(I'm sure he could have found something to complain about.)

Q. What about Joe Sisk, when did you, when did you first complain to him?

A . During the construction. After my arrest I remember discussing how is it that somebody can falsely accuse you of something. The police never even contacted me to say what was your side of the story, they just, you know, went out and got a warrant issued and had me arrested.

Q. You also said that you called some folks. Who did you call?

A. Don Chaney who's on the council, Lana Call who's on the council. I spoke in person to C. Brian Ellis, I don't know what the C stands for. Brian Ellis is on the council. And, again, we went to the meetings and, you know, complained.

Q. When you complained, did you complain more than once in a day?

A. Sometimes.

Q. More than-

A. And when we went to the meetings, I remember Lana Call and Patty Hager saying, Well, there's an exemption for businesses in the noise ordinance. There's no such exemption. You know, they would lie in a meeting and say, Well, you know, there's an exemption. And when I asked them to produce it, they just sat there.

(There's no exemption in the city code for the media to not pay B&O taxes either, but it doesn't keep him from not paying them.)

Q. So city council members were lying to you?

A. Right. Well, you're in the business district so the noise ordinance doesn't apply to that. No, there was no, no exemption for businesses, no exemption for construction, no exemption for anybody. But, you know, they wanted the Wal-Mart, so to hell with us.

Q. When you made these calls, did you use a cell phone or a land line?

A. Yes. Yes.

Q. Yes. Yes. What was your cell phone number at the time?

A. (304) 415-6397.

Q. And what was your land line at the time?

A. It's always been, well, since we moved to West Virginia or since she bought the house, as far as I know, (304) 562-0524.

(Call him anytime. Day or night.)

Q. Would you be surprised to learn that there could be, you know, 10 to 15 calls made in one day? Would that surprise you?

A. Yes.

Q. What do you think the maximum number of calls you made that day was?

A. I don't recall. However, the noise continued all day and as long as it continues and there's a law in the books that should be enforced, I don't have a problem with a person saying, Hey, you know, it's still not taken care of. Had the City of Hurricane properly enforced its noise ordinance, a lot of this would not have happened.

Q. By a lot, you mean the construction of the Wal-Mart?

A. A lot of the excessive noise. Again, I don't have a problem with construction. We have construction going on down the hill from us that is probably the same distance as part of the Wal-Mart store if not much of the Wal-Mart store, and I don't hear it. There was some rock drilling for the bank or rock breaking for the bank, and the KFC, you know, made some -- Arby's is going in. I've never had a problem with Arby's at all.

Q. So you just had to make a few complaints and then that resolved itself?

A. Well, no. They basically did what they wanted until they were done. But, you know, the bank noise, you know, since they broke the rock is, you know, rarely, I rarely heard anything, and when I have heard it it's been when I've been driving down the road with my window open or something. I don't hear it inside the house at all.

Q. So --

A. KFC was a constant problem.

Q. So you think it was more of a duration issue? If they're making, building a bigger KFC you probably would have made a few more complaints?

A. I don't know. I mean, that's speculation.

(Bullshit. You would have complained your fat ass off. Especially if KFC would have come across with a few buckets of extra crispy)

Q. Did you ever get a chance to speak with the mayor about this noise level?

A. Both of them.

Q. What, what were the circumstances of those contacts?

A. Well, I spoke to Mr. Peak on the phone and in person, and his response is, Well, it's noisy, Mark, there's nothing we can do about it. Mayor Edwards originally said, Well, I'll enforce the noise ordinance, and then he, he would say nice things in the meeting to look good in front of everybody and then not do anything about it. And then he later told me after the July 4th situation when I called him on the telephone, he says, Unless the circuit judge makes me do it, I'm not going to do it, I don't care what the law says. You'll have to get a court ruling to make me enforce that law.

Q. What about the in-person contacts with the mayors, where did they take place?

A. With Mayor Peak at city hall, and I think once I saw him at the post office. And Scott Edwards city hall. And then there was a time when our roadway was blocked and D couldn't get to our home. When Scott Edwards came and trespassed on our property after I told him not to walk on our property, he did it anyway, and I had contact with him there. And that's on the video.

Q. And what did you tell him?

A. Well, we were complaining at that point mostly about the lack of access to, you know, to our home. They, you know, blocked the roadway after they sent us a letter saying, you know, they meaning the construction people and Putnam Sewer District and Mike McNulty sent us a letter saying that, you know, there shouldn't be a problem and it's going to happen on the other side of the road from your house. And, you know, like I said earlier they will say what they want to, you know, try to appease people and then they just do whatever they want. And once they're in the middle of it it's like, Well, you know, what do you want us to do about it, what can we do. It's like, Leave us alone. I think those three words probably sum up this whole problem, Leave us alone. Had they left us alone, we wouldn't have had, you know, we wouldn't be here today.

Q. I don't, I don't want to take your words out of context, but I think you may have said that you spoke with a Mr. Clay -is he one of your neighbors -- about the noise level?

A. He is one of my neighbors, yeah.

Q. Did you get to talk to him about the noise levels?

A. I had talked to him about the noise levels.

Q. What did you talk to him about?

A. About how bad they were. And he says, Yeah, they're bad, but he says, you know, they won't do anything about it, it doesn't do anything, do any good to complain, the city does what they want and they're going to do what they want. Although he did go to city council and complained about noise and traffic and...

Q. What happened at the city council meeting?

A. Oh, they sat there, they listened and they did whatever they damn well pleased. They don't -- Hurricane doesn't enforce any law that Hurricane doesn't want to enforce, whether it's the nuisance law on the property next door. I get e-mails and phone calls from people. I'll give you an example. They cited our property a few, while I was in South Carolina when D was pregnant. We had some weeds on a hill in back of our home as lots of people do, and they gave her I believe it was 48 hours to clean up those weeds. And she had to buy a bigger weed eater and hire her nephews to help clean it up. I was out of state. Scott Edwards' building, the mayor's building had weeds on his property, because I was in town about a week later, took pictures of them. There's still holes in the siding, there's a bullet hole in the window that months later is still there. They won't enforce the nuisance law against his unsightly property, which it clearly says if anybody can see it and it's, you know, unsightly or whatever from, you know, from a public place, that it's a nuisance. They won't -- and it's still like that. I've got pictures taken six months later, and I think if I were to walk you out there today the bullet hole is still in the window, the siding is still missing. He did cut the weeds. But, you know, hey, it's, you know, the Wal-Mart neighbors, they'll screw us but, you know, the city council Brian Ellis's street where his home and business is, people complained about the traffic on the street, they put in speed bumps like that. We complain about the noise, they don't do squat. It's a double standard.

Q. You said that --

A. And you can come out and see those speed bumps, too.

Q. You said that your wife was cited for failing to maintain the property, cutting the weeds and that?

A. The weeds on the hill. We have a hill in back of our home that is probably 150 feet, 200 feet from the roadway. It's not a situation where it's not a, you know, it's a semi rural area. Wal-Mart's hill, by the way, I have pictures of all the weeds on their hill and most of them are still there, but we got, you know -- they come out and cite a pregnant lady knowing that her husband's out of state, giving her 48 hours to fix it or a $500 fine. But the mayor's property, it can look like shit.

(Semi rural but zoned commercial, remember? That's what allegedly makes D's property so valuable.)

Q. Did you get the -- so you had your nephew come out and fix that problem?

A. Her nephews. And the mayor's property still looks terrible. And here's the punch line. After I went out and took pictures of it, put that on my web site, he had Mike Mullins who was then the captain call me up and say, Hey, he doesn't want you on his property. I told Mullins, Has he ever heard of zoom lenses? Councilman Hager had weeds on her property. Councilman Ellis had weeds in back of his property. But, you know, they've got to go after a pregnant lady. Does that make your clients feel more like tough men to harass a pregnant lady like that?

MS. SOLOMON: Don't ask him any questions.

THE DEPONENT: He's laughing, for the record.

(At you, you stupid fuck.)

Q. I believe you may have testified earlier that you believe that the City of Hurricane is corrupt?

A. Um-hmm.

Q. How so?

A. They allow the mayor and their council people to do what they want. They go after people that are critical of them. They harass citizens of -- I get complaints about people that say that, you know, a Realtor contacted me and said that her client was told the grass was too tall, and they had to go out and cut it. I went out there and Mayor Edwards' home grass was taller than the grass at the house that was for sale. They don't enforce the laws that they want. Their FOIA law is -- they require $35 an hour for FOIA research, which the FOIA law in West Virginia doesn't allow for charging for research, but nobody's going to pay $35 an hour for -- and, of course, the reason for them doing that I believe is that they don't want anybody to see the paperwork. They don't want anybody to know. The election for the mayor, which is supervised by their own recorder, which is a complete conflict of interest because she was also running for office, that case is in the Supreme Court's hands, it's going to be heard in November. And a lot of people feel that was rigged. The unsealed ballots are what got the mayor in. On the last ballot box, he was losing all night long until the unsealed ballots were counted. And you can laugh, but a lot of people don't think that's funny.

(No, the reason they charge $35 an hour is because your fishing expeditions tie up employees for hours while they do your research for you.)

Q. I don't think I'm laughing. Is it a fair statement that you believe that there's random law enforcement in the City of Hurricane?

A. I would say that there's random law enforcement, I would say there is malicious law enforcement.

Q. Is any of this based on first-hand knowledge?

A. Yeah. I mean, me. They prosecuted me on a he said situation where I was investigating a blaster that wasn't licensed. We had recently, at the KFC construction, they knocked out the power at the KFC construction. I went down and took pictures of it, and the guy that knocked out the power grabbed me because I was taking his picture. There was another witness who's one of the neighbors up the hill. Lieutenant, Lieutenant Lusher, who is the same man that took the warrant to get me arrested, happened to drive by. I stopped him, told him about it, the witness says, I saw it happen, and he just drove away. Now -- but he prosecuted me. You know, I had an eyewitness that said this guy attacked him, but Lusher drove away, didn't do anything.

Q. Are you aware of any other let's say random law enforcement with not you as being one of the complainants for the victims?

A. Well, yeah. You have a city councilwoman who had the weeds in her front yard. She also, by the way, I believe it was the 29th of May through the 5th of April, had a mountain size or a small hillside size stack of boxes out on the street or next to the street outside of her business/home, Patty Hager. I contacted city hall. Sam Cole who ran against Scott Edwards told me that he contacted city hall about the mess, and nothing was done about it for, you know, pretty close to a week when they -- I don't know if they were picked up or stolen or what happened, but they were finally gone.

You know, we've talked about the situations with Edwards' business. We've got the construction yard next door that's looked terrible. I mean, there's weeds behind that today. There's weeds in that construction yard today that, you know, right next to our property. We get cited, the property right next door has weeds, they didn't get cited and they're still there. You know, it's like Dukes of Hazard, and what was his name, Rosco Coal train or whatever. I mean it's ...

MR. KONSTANTY: It's Rosco P Coltrane, for the record.

A. Yeah, somebody once, somebody just said, Welcome to West Virginia. I don't think it's like that in most towns.

(Dukes of Hazzard reference FTW! And yeah, it's like that in every small town in West Virginia.)

Next week, we'll hear more about excessive noise, and the people that were mean to Mark. 

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