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Nestande companions can’t recall her drink intake on night of hit-and-run

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Before Capitol staffer Gabrielle Nestande struck and killed 30-year-old Courtney Griffin with her black BMW on May 27, 2011, prosecutors say she went out with her boyfriend and friends to The Cloak Room, near the Capitol, and to Clive Bar on Rainey Street. How many drinks the then-23-year-old consumed before she got behind the wheel was debated in court Wednesday.

The second day of testimony began with John Ball, a roommate of Nestande's boyfriend, William Marchbanks. Ball said he got a “sinking feeling” when he left his apartment to go to work and saw Nestande’s damaged car parked outside on the morning of May 27.

Ball said it wasn’t unusual to see Nestande’s car in the morning, but when he saw the damage to the BMW that day, including blue clothing fibers and other evidence of an accident, he knew something “bad had happened.” He said his experience working for personal injury attorneys fueled his suspicion that something had gone wrong.

It wasn't until he got into his car and turned on the radio to hear news that Exposition Boulevard was shut down due to a pedestrian fatality--just blocks away from his apartment--that he put the pieces together. After talking to his bosses at work, he called police and reported the vehicle.

That’s when Detective Evonne McGuire with the Austin Police Department left the accident scene to inspect Nestande's vehicle. She spoke to much of what was said during day one of testimony--that Nestande’s vehicle had heavy front-end damage, with a busted front light and side mirror.

At the start of trial, Nestande, a native of Orange County, pleaded not guilty to manslaughter, intoxication manslaughter and failure to stop and render aid in the hit-and-run death of Griffin. Prosecutors say Griffin drove a friend home after learning her friend had consumed drinks at a restaurant. Prosecutors say Griffin drove her friend's car to her house and then later decided to make the short walk to her own apartment nearby.

Prosecutors say Nestande was drunk when she hit Griffin on her walk home, a claim defense attorneys are disputing.

The discussion of just how many drinks Nestande may have consumed on the evening of May 26 started with testimony from Beverly Pruitt, a bartender at The Cloak Room since 1989. The bar near the State Capitol is frequented by politicians, legislators and staffers. Nestande worked as a legislative aide for Rep. Wayne Christian at the time.

Pruitt says she was familiar with Nestande, as well as her two companions, Luke Bullock and Ward Wyatt, who entered The Cloak Room at about 5:30 p.m. on May 26.

She automatically opened a Bud Light for Nestande when she entered the bar, Pruitt said, but couldn’t recall if she drank it. She told the defense she felt uncomfortable with the state’s previous interviews with her, feeling they were leading her to say that Nestande drank before the accident.

Pruitt was excused, and Clive Bar Manager Mike McMillan was called to the stand. For much of the morning, McMillan combed through bar records and photos from the night of May 26.

McMillan doesn’t remember Nestande specifically that night, or anything out of the ordinary, but gave insight into how tabs and payments are handled at Clive.

Nestande’s bar tab showed two Sierra Nevada pale ales, five Fireman’s #4 beers and two vodka cocktails.

Bar tabs for her boyfriend, Marchbanks, included three shots, more than seven beers, two vodka cocktails and a pack of cigarettes.

Tabs for their friends who accompanied them also were meticulously read before the court, all containing more than one drink.

McMillan pointed out, however, that tabs do not reflect who drank what beverages and Clive Bar has no record of what drinks were consumed by which patrons.

The bar manager also guided the court through many pictures of Clive Bar, taken in the daylight when the bar was empty. They highlighted a table on the front patio and both the state and the defense asked many questions about the view from that table to a nearby food trailer, but it was unclear as to the reason behind the line of questioning.

After McMillan was excused, Jason Shuman, roommate of Marchbanks and Ball, took the stand. Shuman, too, was at Clive bar that night, and the state asked him pointedly to present his independent recollection of how many drinks Nestande consumed, but he did not give a definitive answer.

At one point, he told Assistant District Attorney Mary Farrington, “Again, you can look at the tab. You have it in front of you."

“[Nestande] may have had three or so,” he said. “But that’s just my opinion.”

The state said that when Shuman was originally questioned by investigators, he said Nestande had four drinks. In a later interview, he said it could have been more.

Shuman also observed the damage on Nestande’s car that night after she hit Griffin. Marchbanks told him Nestande returned to their apartment upset because a rock hit her car. Shuman told the court he didn’t question this, even after observing the damage to Nestande’s BMW. He awoke to police tape outside his bedroom window the next morning, he said.

During afternoon questioning, surveillance footage was shown from cameras inside Clive Bar on the evening of May 26. Nestande is clearly visible, wearing a pink dress with her hair pulled back in a ponytail. At many points she is seen carrying a drink in her hand, and receiving drinks from her friends.

While footage showed Nestande with a drink either in her hand or in front of her at various points through the evening, none of her companions could attest to the number of drinks she had.

That includes Dana Parish, a Todd Staples staffer who has also worked for Lt. Gov. David Dewhurst. She took the stand after Shuman. She told the court she formed a friendship with Nestande while they both worked at the Capitol, and took her up on an invitation to join her at Clive Bar on May 26.

Parish said she had about five beers that night, and most people she was with had the same amount, but she wasn't counting. When asked directly how many drinks Nestande had, she said she could not remember. Parish gave Shuman and another friend, Greg Von Volkenburg a ride to West Sixth Street before going home.

The next morning, Parish sent a text message to Nestande to ask if she wanted to get breakfast, Nestande replied and said she was on her way to work, but that a deer had hit her car.

When they talked at the Capitol later, Parish said Nestande “seemed fine,” but was upset her car was damaged.

"Anyone would be upset if her car had gotten in an accident," Parish said.

Parish’s testimony didn’t stray much from Von Volkenburg, next on the stand. Von Volkenburg is a Georgia native currently residing in Austin. He previously worked as a geologist for an engineering firm.

Von Volkenburg admitted he drank heavily the night of May 26, consuming 10 to 12 drinks over the course of the evening, and continuing to drink on West Sixth Street after Clive Bar. He could not, however, comment on how many drinks Nestande may have had.

Even John Kramer, a patron at Clive Bar approached by Nestande that night, couldn’t give a clear answer on how many drinks she may have consumed. Kramer rode his bike to Clive to meet two friends. Nestande approached them and asked if they worked at the Capitol. Kramer’s companions did work for the state, and they all talked with Nestande briefly.

This exchange was visible on the surveillance footage. Kramer said Nestande was “friendly” and showed no visible signs of intoxication.

Heated words between Kramer and defense attorney Perry Minton ensued during cross examination, because like other witnesses, Kramer changed his answer on how many drinks Nestande may have had at Clive. First, he told investigators she could have four to five drinks, but later told Minton in the hallway of the courtroom she had two to three.

After a tense back-and-forth the two seemed to agree on Kramer’s answer that Nestande had at least two drinks, in his opinion, which was an estimation based on how many times her friends approached the bar for a new round. Kramer said someone from Nestande’s group would make a trip to the bar about every 25 minutes or so.

The day wrapped with partial testimony from Nestande’s boyfriend, William Marchbanks. He is a 27-year-old tax consultant from Victoria, Texas who admitted to pursuing Nestande for some time before starting a relationship. The night at Clive Bar was one of those pursuits.

"But you know girls don't always give right in,” he said.

Like Von Volkenburg, he admitted to drinking heavily that night, and having two to three beers before leaving for Clive Bar. He said as the night wore on, his memory “became fuzzy.” He cited this as a reason why he couldn’t recall how many drinks Nestande may have consumed.

He did say that Nestande had at least one beer and a shot with him over the course of the evening, after that he could not remember or speak to any other drinks she may have had.

When asked directly by Assistant District Attorney Allison Wetzel if he had any indication Nestande had more than the one beer and shot he answered, “I cannot recall.”

Judge Karen Sage called it a day before Marchbanks’ testimony was concluded. The jury has yet to hear his interpretation of observing Nestande’s vehicle after the crash.

If found guilty, Nestande faces two to 20 years in prison on both the manslaughter and intoxication manslaughter charges, and up to 10 years for the failure to stop and render aid charge.

Click the links to get caught up on Monday's jury selection and Tuesday's testimony. Also be sure to log onto YNN.com for minute-by-minute updates from the courtroom Thursday.

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