Exclusive: Guard Who Saw Alleged Duke Victim Says No Sign or Mention of Rape

October 23, 2008, 7:15 PM

April 17, 2006 — -- ABC News has obtained a tape in which a security guard -- who may have been the first person to see the alleged victim of a Duke lacrosse gang rape after the alleged attack -- says there were no signs or mention of rape or sexual assault.

ABC News has obtained an audio recording of what is purported to be a private investigator interviewing a security guard at a Kroger grocery store. It was this security guard whose call to 911 brought police to the Kroger parking lot, where they found the woman who claims she was raped by lacrosse team members.

The guard was on duty at the store on the night of March 13, when the two women pulled into the store's parking lot in a dark sedan. The alleged victim, who says three men held her down in a bathroom and kicked, strangled and raped her, was in the passenger seat.

On the tape, which was recorded April 3, three weeks after the lacrosse party, the guard can be heard saying, "There ain't no way she was raped -- ain't no way, no way that happened."

The security guard says she smelled alcohol on the driver, but not on the alleged victim. She says that the alleged victim "couldn't talk at all. … She was out of it." The security guard also suggests the alleged victim may have been high on drugs. She had a series of conversations with the woman who was driving the car, but did not speak with the alleged victim.

The guard says the woman behind the wheel entered the grocery store at approximately 1 a.m. and told her that she needed help, saying there was a girl in her car who refused to get out.

A voice on the tape asks the guard whether there was anything mentioned about stolen items or sexual assault. The guard says that there was no mention of theft nor assault from either woman, adding that the alleged victim didn't act the way she'd expect someone to act after being assaulted or raped.

On the tape, the guard recounts the conversation she had with the the dancer who came into the store: The woman told the guard she was driving down the street and heard people yelling racial slurs at a woman she had never met before, then, out of sympathy, she picked up the woman and brought her to the Kroger parking lot.

This contradicts the scenario that the two women were dancing together for lacrosse players earlier that night. ABC News has seen photos of both women dancing in the house at 610 N. Buchanan Blvd.

The security guard says on the recording that she wondered why the driver didn't take the alleged victim to the hospital or to the police station, both of which are closer to the scene of the party than the Kroger store. She mentions calling 911 and recalls that three officers arrived to the scene. Police documents verify that the 911 call took place at 1:22 am.

When the police came, the alleged victim was still in the car. They tried removing her from the sedan, but she resisted, gripping the brake shaft and holding on tight as they tried to pull her out.

The security guard left the scene as police were questioning the alleged victim. According to police affidavits, the woman told police while she was in the Kroger parking lot that she had been sexually assaulted at a party.

To date, the full context of the alleged victim's story is unknown. The prosecutor, Mike Nifong, believes a crime was committed.

At the end of the recording, the guard says that police had not returned to talk with her since the night of the incident.

A grand jury in Durham, N.C., considered today whether there is probable cause that a crime took place. At least two sealed indictments were returned. The crimes in question include first-degree forcible rape, a class B1 felony.

In addition, the victim claims she was robbed. Other charges related to rape and listed on the application for a search warrant include first degree kidnapping and felonious strangulation.

ABC News has learned that the prosecutor has told defense attorneys the alleged victim has identified two lacrosse players from photos with 100 percent certainty and is 90 percent sure on a third.