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MichaelCorbinElectronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 IN THE MISSOURI COURT OF APPEALS
EASTERN DISTRICT OF MISSOURI
2
3 RUSSELL S. FARIA, )
4 Appellant, )
5 vs. ) ED No. 100964
6 STATE OF MISSOURI, )
7 Respondent. )
9 IN THE LINCOLN COUNTY CIRCUIT COURT OF THE STATE OF MISSOURI
FORTY-FIFTH JUDICIAL CIRCUIT
10 JUDGE DAN DILDINE
11 STATE OF MISSOURI, )
12 Plaintiff, )
13 vs. ) Cause No. 12L6-CR001312
14 RUSSELL S. FARIA, )
15 Defendant. )
16
17 TRANSCRIPT ON APPEAL
2-20-13, 3-4-13, 5-21-13, 6-18-13,
18 7-2-13, 7-10-13, 10-28-13
11-18-13, 11-19-13, 11-20-13, 11-21-13
19
20 VOLUME 3
21
22 APPEARANCES
23 Ms. Leah Askey Attorneys for the Plaintiff
Mr. Richard Hicks
24
Mr. Joel Schwartz Attorneys for the Defendant
25 Mr. Nathan Swanson
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 (Day 3 of the Jury Trial of State vs. Russell
2 Faria was taken in Lincoln County, City of Troy, State of
3 Missouri, with Judge Chris Kunza Menneyer presiding on
4 November 19, 2013.)
5 THE COURT: Do we have any preliminary matters
6 before we call the jury in?
7 MR. SCHWARTZ: I don't think so. I ask this
8 Exhibit be taken down in front of the jury.
9 MS. ASKEY: I can move it over here.
10 THE COURT: Or put it behind the screen because
11 once you move the screen --
12 (Discussion off the record.)
13 THE COURT: We are on the record on Cause No.
14 12L6-CR001312, State of Missouri versus Russell Faria.
15 (The jury entered the Courtroom.)
16 THE COURT: Thank you. You may be seated. If
17 the jurors would please raise their hand when I call your
18 number for the record.
19 Juror Number 2, 3, 4, 11, 12, 15, 27, 29, 35,
20 38, 39, 44, 51, 58 and 61. The Court will note for the
21 record all jurors are present.
22 Is the State ready to proceed?
23 MS. ASKEY: We are, Your Honor.
24 THE COURT: Thank you. State may proceed.
25 MS. ASKEY: State would call Lieutenant Mark
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Schimweg.
2 THE COURT: Sir, if you would please come
3 forward and raise your right hand to be sworn by the Clerk.
4 MARK SCHIMWEG,
5 a witness, having been duly sworn by the Circuit Clerk to
6 tell the truth, the whole truth and nothing but the truth, so
7 help you God, under the pain and penalty of the Perjury Laws
8 of Missouri, testifies as follows:
9 MS. ASKEY: May it please Court?
10 THE COURT: Yes.
11 DIRECT EXAMINATION
12 BY MS. ASKEY:
13 Q. Lieutenant Schimweg, please introduce yourself
14 to the jury.
15 A. My name is Mark Schimweg.
16 Q. Where are you employed?
17 A. I'm employed by the City of St. Peters,
18 Missouri.
19 Q. In what capacity?
20 A. I'm a police Lieutenant.
21 Q. And are you familiar with the Major Case
22 Squad?
23 A. I am.
24 Q. And can you describe and explain to the jury
25 what the Major Case Squad is?
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1 A. Without getting too much in detail about it,
2 the Major Case Squad was formed in approximately 1965. The
3 reason it was done so was to form like a coalition or group
4 of police departments banding together to share manpower for
5 suspicious deaths and other type crimes that might require a
6 lot of manpower.
7 Basically, it's a sharing organization. It's
8 set up -- there's a person, there's a board of directors and
9 the board of directors is made up of like Sheriffs from
10 several counties and several Police Chiefs.
11 They, in turn, make administrative decisions
12 about how the Squad will be made up. There's a person that
13 is appointed as the Commander of the Major Case Squad. That
14 person would be responsible for doling out the different
15 cases of when they may arise or when the department asks for
16 them. What would happen as far as the, well, let me back up.
17 Under the Commander of the Major Case Squad
18 would be several Deputy Commanders, which I am one of the
19 Deputy Commanders who are assigned to go out on these
20 investigations to organize them in different locales.
21 Currently, I believe the Major Case Squad is
22 made up of approximately, encompasses like ten counties.
23 That would be like, maybe, six counties in Missouri and maybe
24 four counties or maybe five on the Illinois side that we work
25 as a group.
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1 I believe the six counties in Missouri are St.
2 Louis County, St. Charles County, Lincoln County, Warren
3 County and Jefferson County, I believe. Franklin County, I
4 believe, is also a member.
5 It's basically a sharing of manpower. Your
6 department would participate by, participate by signing up.
7 They would ask that you give the names of several experienced
8 investigators your department may have to be members.
9 There would be a process where they would be
10 reviewed by the Commander and decided if they would be
11 included on as a member of the Major Case Squad and then
12 annually, there's an annual retraining for all members that
13 we must attend. It will be based on various types of
14 investigative techniques and processes.
15 Basically, the way the Major Case Squad works
16 within the areas that are members is if there's an incident
17 that would occur, let's say -- I'll just use my own agency.
18 For example, in St. Peters, it was decided a
19 great amount of manpower would probably be needed to try to
20 work through a great amount of leads or activities that have
21 to be done with that investigation, the head of that
22 department, like the Chief of Police, would then call the
23 Commander and request activation of the Squad.
24 At that point in time, the Commander would make
25 a decision, yes, we will activate. He would contact the
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Deputy Commander and report writer who would, more or less,
2 be responsible for organizing this investigation.
3 They would be sent to that location and then a
4 call-down list would start amongst the investigators to each
5 department, and each department might send one, maybe two,
6 sometimes three, depending on what they can afford at the
7 time.
8 That, we try to get approximately 20 or 25
9 investigators at the beginning to try to work through these
10 large amount of leads and things that need to be checked into
11 when you have an incident.
12 As far as the activation, I believe in the
13 guidelines, it's not a set forth guideline but they ask that
14 the incident be no more than four hours old when they call to
15 request help.
16 The reason they do that is, over time, there
17 may be cases where a department might have it and keep it for
18 a couple days and then they don't know what to do and then
19 they call and then some things may have been lost in the
20 initial stages that couldn't be redone.
21 So that's why they ask to have the activation
22 requested within four hours. Now sometimes there may be
23 circumstances that allows that to be a little longer,
24 shorter, whatever.
25 But upon activation, members of the Squad will
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1 go out and they will be, it will be decided where you are
2 going to meet or where you are going to gather for the
3 investigation.
4 At that point in time, you would start into
5 your investigation, running down leads or checking into the
6 things that need to be done.
7 As far as purposes of the investigation, we try
8 in most cases to do it as a team where it would be two
9 officers teamed together for every lead. Naturally, with
10 manpower issues, sometimes on some leads maybe if it's just
11 to obtain a report or a copy of something, there may just be
12 one investigator assigned to go do that. But as a rule, they
13 try to team people up throughout the investigation.
14 Q. And Lieutenant, were you -- thank you for that
15 explanation.
16 A. I hope that wasn't too long.
17 Q. It was perfect. Were you employed as Deputy
18 Commander of the Major Case Squad in December of 2011?
19 A. Yes, I was.
20 Q. And subsequent to being employed in that
21 capacity, did you receive a call from the Commander
22 activating the Squad here in Lincoln County?
23 A. Yes, I did.
24 Q. And did you respond to that call?
25 A. Yes, I did.
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1 Q. And do you recall, Lieutenant, how many
2 detectives approximately reported here to Lincoln County?
3 A. Well, as that case goes, as most cases go, we
4 probably had anywhere from 20 to 25 at some point in time.
5 Without looking at the roster, I can't give you the exact
6 amount.
7 But sometimes we don't have 20 or 25
8 immediately. Sometimes they might trickle in, in increments
9 of time. So, you know, initially, you may just have four or
10 five when you first arrive and then maybe two more will show
11 up.
12 It's not like everybody shows up at the same
13 time because they are coming from different locations and
14 things of that nature.
15 Q. And have you had the opportunity to serve as a
16 Deputy Commander here in Lincoln County on cases previously?
17 A. Yes, I did.
18 Q. So you are familiar with our area and our
19 Sheriff's Department, at least?
20 A. Yes, I am.
21 Q. Now, does the Major Case Squad then, if you
22 have got detectives from all over the Greater St. Louis Area,
23 essentially, how long does it stay active within each
24 investigation?
25 A. That will vary. What we try to do is -- they
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1 try to go by a guideline of not more than five days, unless
2 there may be some circumstances that would dictate more than
3 five days. Then we would just go day-to-day.
4 Like we're going to keep going another day.
5 We're going to keep going another day. But there's been some
6 cases that we've been able to work through leads and get with
7 the department head like, just say for an example, maybe a
8 day. We might just be at a place for a day, two days, or
9 three days.
10 We try not to go more than five days because we
11 are using other people's resources and manpower and you can't
12 be just a carte blanche to whenever. There is no set fast
13 ending time, but the rule of thumb we go by and the
14 guidelines are to try to work through the fast amount of
15 leads that we can, and when it gets to a manageable point,
16 that the host agency can kind of follow up from there.
17 Then we may deactivate and turn it back over to
18 the host agency when the amount of leads gets down back to
19 where they can handle it with the manpower they have.
20 Q. When you say "host agency", in this case it
21 would have been Lincoln County Sheriff's Department?
22 A. Yes.
23 Q. Now you talk about these different detectives
24 that come in and basically track down leads. You are located
25 in the hub or the command station; is that right?
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1 A. Yes.
2 Q. Our command station here would be where?
3 A. The Sheriff's Office.
4 Q. And so as the leads come in, how do you dole
5 them out?
6 A. Well, they may be assigned out in different
7 methods. There's no set fast method, and the reason I say
8 that is because we have to have some type of system of
9 prioritizing what might be more important now than this lead
10 can wait a little bit or maybe we need to go do this lead
11 now.
12 Another thing that dictates it is like the
13 manpower that you have. You may have a list of leads and,
14 like I said at the beginning, as the guys are starting to
15 arrive, you may not have enough people initially.
16 So you are trying to prioritize what you think
17 needs to be done or what needs to be done now or what can
18 wait or things of that nature. So there's no set fast method
19 of setting out the leads, if that answers your question.
20 Q. Well, do you have specific detectives that are
21 more well-versed in certain areas?
22 A. There could be. There could be.
23 Q. For an example, are there people that would be
24 more likely to deal with bank records or people that would be
25 more likely to deal with technical information?
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1 A. In some cases there could be, but everybody
2 that we have as members are trained, should be trained in
3 multi-facets of the investigation. So they should be capable
4 of doing any lead that's assigned to them.
5 Q. And after you have, you kind of doled out the
6 leads and everybody is kind of out investigating whatever it
7 is that you've received the call for and then sent them out
8 to do, is there a time that you reconvene and share all that
9 information?
10 A. Well, we try to meet twice a day with as many
11 of the investigators as we can. Usually we meet in the
12 morning, early. We will meet and share what has been learned
13 by the other guys that are out in the field.
14 We try to do that as we go but we have like a
15 session usually in the morning and we try to have one in the
16 evening. Now depending on who's out on leads, some may have
17 to travel long distances. They may not be back. Everybody
18 is not there for all of those, but we try to get as many
19 people back to go over, just review what we find out.
20 Q. What is the purpose of that?
21 A. Just so everybody is like up to speed on what's
22 going on or what we've found out or what information that we
23 have learned during that day. And another thing, too, is to
24 share information about any other possible leads that they
25 may have come up when they were talking to other people or
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 handling other leads.
2 Q. Now at the end of the day, do you make an
3 arrest?
4 A. Sometimes, and sometimes not.
5 Q. And why would you not?
6 A. Well, sometimes there may not be circumstances
7 that would dictate that or probable cause or other
8 circumstances that may lead to it. Some of our
9 investigations end up not being a homicide.
10 Some of our investigations into suspicious
11 deaths end up being a suicide or accidental death or they
12 could be any one of a number of things or there could be more
13 work that needs to be done by the host agency or it may not
14 be resolved. I mean, you don't know going into that what it
15 will be, so there's a variety of ends.
16 Q. So it's fair to say that when you turn it back
17 over to the host agency, then they kind of tie up the loose
18 ends or those things that haven't been completed yet?
19 A. Oh, yes. And usually in all cases, even in
20 cases where we've made an arrest or it's been solved or
21 whatever word you want to use, there's usually always things
22 that have to be followed up, that are done by the host agency
23 after we disband.
24 Q. And do you recall, specifically in December of
25 2011, when you were called in as the Deputy Commander of this
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1 case, was an arrest made before the Major Case Squad was
2 disbanded from Lincoln County?
3 A. There was an arrest made.
4 Q. Prior to?
5 A. There was an arrest made prior to us
6 disbanding, however warrants were not issued.
7 Q. Okay.
8 MS. ASKEY: I don't have anything further.
9 THE COURT: Mr. Schwartz?
10 CROSS-EXAMINATION
11 BY MR. SCHWARTZ:
12 Q. What does that mean, "warrants were not
13 issued"?
14 A. We applied for warrants on an individual and
15 they did not -- we have a certain amount of time to get a
16 warrant issued if the warrant is issued before the person is
17 released.
18 Q. Right. The person we're talking about in this
19 case is Russell Faria?
20 A. Yes.
21 Q. And you stated on Direct you applied for
22 warrants after the Major, before the Major Case Squad was
23 deactivated?
24 A. Yes.
25 Q. And warrants were not issued?
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1 A. Yes.
2 Q. Now would you consider yourself to be, as head
3 of the Major Case Squad, the case agent?
4 A. I am not head of the Major Case Squad. I'm a
5 Deputy Commander.
6 Q. In this particular --
7 A. In this particular case, I guess you could say
8 that but I don't know what the true definition of the case
9 agent would be.
10 Q. Well, you were the one responsible for --
11 excuse me one moment.
12 You basically control and monitor the case
13 progress, correct?
14 A. To see what leads need to be followed up on,
15 yes.
16 Q. You make decisions as to who to interview?
17 A. Yes.
18 Q. Who will conduct those interviews?
19 A. Yes.
20 Q. And what part of the investigation each
21 Detective will be tasked to or assigned to?
22 A. Yes.
23 Q. How do you base that decision?
24 A. I base that decision on -- as far as the
25 assignment of people?
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1 Q. Yes.
2 A. A lot of it's based upon availability and
3 familiarity with the investigators, if I'm familiar with
4 them. A lot has to do with availability. Like I said, we
5 may have -- just to give you an example, there could be six
6 leads and I may only have four teams available. So these
7 four teams would be sent out to do these leads.
8 Or say I have six teams to send them out. All
9 of those teams are out on leads. One or two more teams
10 happen to show up from doing another lead and, at that time,
11 I may assign them to go do the next lead on the list.
12 Q. And you are the one who tasks that?
13 A. Yes.
14 Q. And when you begin an investigation, you want
15 to gather facts in an attempt to solve the case, correct?
16 A. Yes.
17 Q. Solving the case is the ultimate goal?
18 A. Yes.
19 Q. Solving the case correctly is the ultimate
20 goal?
21 A. Yes.
22 Q. As a fact gatherer, you would agree it's
23 important to keep an open mind?
24 A. Yes.
25 Q. Not jump to any conclusions?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 A. Yes, sir.
2 Q. Not dismiss certain leads or various
3 possibilities without thorough consideration?
4 A. Well, we would consider all things but
5 sometimes some leads you dismiss based on what you find out.
6 Q. Correct, but you just don't dismiss those out
7 of hand?
8 A. That's correct.
9 Q. The more information you possess, the more
10 thorough your investigation could be?
11 A. That's correct.
12 Q. Which would lead to the correct answer?
13 A. Yes.
14 Q. In this case, you said in this particular case,
15 you deactivated and there had not been charges filed?
16 A. That is correct.
17 Q. You applied for warrants and they were refused
18 at that time?
19 A. Yes.
20 Q. The more information you have, the less chance
21 of making a mistake and arresting the wrong person, correct?
22 A. Sure.
23 Q. And you wouldn't want to make a mistake and
24 arrest the wrong person, would you?
25 A. No.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 Q. In this particular case, you got some
2 information and you assigned leads?
3 A. Yes.
4 Q. All right. And you had, there was actually 104
5 leads that you assigned out or that had been assigned,
6 correct?
7 A. That could be correct. I don't have any of the
8 reports here, but that would be like a normal amount, yes.
9 Q. And when you do that, you want to talk to
10 witnesses and then, many times, you'll have them
11 reinterviewed to confirm what they said before?
12 A. Yes.
13 Q. And in this particular case, you had Russell
14 Faria interviewed, correct?
15 A. Yes.
16 Q. And then reinterviewed?
17 A. Yes.
18 Q. Based on what he had indicated to you, you sent
19 out detectives to confirm his whereabouts, correct?
20 A. Yes.
21 Q. You sent them to the U-Gas, to the Conoco, to
22 Greenes Country Store, to Arby's, to QuikTrip, correct?
23 A. I don't have the list of where. There was a
24 number of places, yes, but I don't have the list of where
25 those were but there were a number of places, yes.
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1 Q. And you were able to find, go through their
2 records, or your detectives were, and find information of
3 where he said he was or where his whereabouts where?
4 A. I'm not sure about all of them, but there were
5 some that confirmed, yes.
6 Q. And then you had another detective reinterview
7 Mr. Faria, correct?
8 A. I'm not sure if it was the same detectives or
9 other detectives or not but, yes, there would have been more
10 interviews, yes.
11 Q. You also had detectives go out and talk to the
12 people who he said he was with?
13 A. Yes.
14 Q. There were four separate people, correct?
15 A. I'm not sure in the exact amount but if you are
16 saying there was four, I think there was four or five people,
17 something like that.
18 Q. Would the names ring a bell to you?
19 A. I'm not sure, sir, if they would or not.
20 Q. Does the name Michael Corbin ring a bell?
21 A. That does a little bit, yes.
22 Q. All right. The information you possess was he
23 indicated to you that he had gone over to this person's home
24 and normally plays a game but that night they watched movies?
25 A. I did not talk to Michael Corbin. The officers
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1 that we sent out to talk to Michael Corbin, they would have
2 to address what Mr. Corbin told them.
3 Q. But the information was that he was at this
4 place from approximately 6 o'clock until approximately 9
5 o'clock, correct?
6 A. I'm not sure on the exact times on that.
7 Q. Well, all four people were interviewed?
8 A. All of the people that he claimed to have been
9 with were located and interviewed, yes.
10 Q. Not only that, it turns out that there was
11 usually a sixth person, those four people, Russ and another
12 person who is normally there that night. A person by the
13 name of Richard May, do you recall that?
14 A. I don't recall his name, but I do recall there
15 was another person, yes.
16 Q. And then they spoke to him to confirm that he
17 wasn't able to go to that game that night, correct?
18 A. I believe so, yes.
19 Q. Not only did they speak to him, they went to
20 talk to his boss to make sure he was working that night,
21 correct?
22 MS. ASKEY: Judge, objection.
23 A. I don't know.
24 MR. SCHWARTZ: It goes into what, the leads he
25 directed.
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1 MS. ASKEY: It's all based upon hearsay.
2 Exactly.
3 MR. SCHWARTZ: No, it's what he assigned them
4 to do.
5 MS. ASKEY: What he assigned them to do and
6 what the detectives learned prior to coming back is hearsay.
7 MR. SCHWARTZ: I didn't ask what the detectives
8 learned.
9 MS. ASKEY: Actually, double hearsay.
10 MR. SCHWARTZ: I'm not asking what the
11 detective learned.
12 THE COURT: I thought what he was asking was
13 what he asked them to do.
14 MS. ASKEY: What he asked them to do but he's
15 saying --
16 Q. (By Mr. Schwartz) Officer, would it refresh
17 your recollection if I showed you a copy of your leads?
18 A. That would be fine, I mean.
19 Q. Okay. It's only on the computer. I apologize.
20 MR. SCHWARTZ: May I approach, Your Honor?
21 THE COURT: Yes.
22 Q. (By Mr. Schwartz) Does that refresh your
23 recollection?
24 A. Yes. It refreshes my recollection that we did
25 send somebody to talk to or locate him and interview him.
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1 Q. And did you also not only send someone to talk
2 to him but you sent someone to talk to his boss in order to
3 confirm he was working that night?
4 A. Maybe. I'm not sure of that. I'd have to look
5 at that, also. That could be true, yes.
6 Q. Okay.
7 A. I would have expected somebody to contact -- if
8 he gave an alibi of a boss, I would have expected somebody to
9 verify that alibi.
10 Q. Well, even going so far as to interview
11 somebody who claimed they weren't with him that night to
12 determine why they weren't with him?
13 A. Could you say that again?
14 Q. All right. Let me back it up just a little
15 bit.
16 A. All right.
17 Q. You had information they normally play this
18 role game every Tuesday night, correct?
19 A. It was some type of role-playing game.
20 Q. Right. And that it normally takes six people
21 to do it, but one of them couldn't be there that night by the
22 name of Richard May?
23 A. There was somebody missing and I believe it was
24 Richard May, right.
25 Q. When you talked to him, and based on than
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1 conversation, you sent someone to talk to his boss to confirm
2 where he was?
3 A. Yes.
4 Q. Okay. And not only did you then, and just to
5 back up, you sent detectives to talk to the four witnesses
6 who Russell Faria said he was with. I'm backing up now.
7 A. Okay. Go ahead. From the four witnesses
8 from --
9 Q. Michael Corbin, Angela Julian, Brandon Sweeney?
10 A. The role-playing people?
11 Q. The role-playing game people.
12 A. Yes.
13 Q. They all gave similar accounts of the times
14 Russ arrived? You don't recall?
15 A. I don't recall what their accounts were in
16 specifically what their accounts --
17 Q. They were interviewed separately by the
18 detectives, correct?
19 A. I believe so, yes.
20 Q. Not only were they interviewed separately by
21 the detectives, you then sent other detectives to go
22 reinterview them, correct?
23 A. I believe they were reinterviewed at some point
24 in time, yes.
25 Q. Do you believe or are you certain?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
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1 A. I believe they would have been.
2 Q. Would it refresh your recollection if I showed
3 you?
4 A. Sure.
5 Q. Okay.
6 A. That's correct.
7 Q. So you sent detectives originally to interview
8 them and, just so we're clear, while all of these interviews
9 were being done, Russell Faria had not left the police
10 station?
11 A. I believe not.
12 Q. He had not been in contact with anybody?
13 MS. ASKEY: Objection. Calls for speculation.
14 THE COURT: Sustained.
15 Q. (By Mr. Schwartz) He was not allowed to make
16 any phone calls?
17 A. I don't know that.
18 MS. ASKEY: Objection. Calls for --
19 Q. He was always under observation, correct?
20 MS. ASKEY: Objection. Calls for speculation.
21 Q. (By Mr. Schwartz) Do you know if he was
22 always under observation?
23 A. I'm not 100 percent sure he was under
24 observation all the time.
25 Q. Nevertheless, you sent four detectives to
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1 interview Michael Corbin, Brandon Sweeney, Marshall Bock and
2 Angela Julian?
3 A. If those were the four role-playing people,
4 game people, yes.
5 Q. Then you sent four others to confirm what they
6 had told you earlier?
7 A. I believe it was the same people that were sent
8 back to reinterview. I could be wrong on that, but some of
9 the same officers I believe. If you could check on that.
10 Q. Let me check. You had Officer McCann did the
11 initial interviews of the four individuals, Officers McCann
12 and Frye. Would you agree with that?
13 A. If that's what shows on the log, that would be
14 correct.
15 Q. Would you like me to show you? Would it
16 refresh your recollection?
17 A. No. If you are telling me that's who is on the
18 log, then that would have been who it was.
19 Q. Okay. Then it looks like you had Officer
20 McCann and Frye reinterview Marshall Bock, but you had
21 Officers Kaiser and Smith interview Brandon Sweeney and
22 Officers Floyd and Rider interview Michael Corbin?
23 A. That's possible, yes.
24 Q. Would you like --
25 A. If that's whose name was assigned to that lead,
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485
1 that's who did it.
2 Q. I just want to be certain.
3 MR. SCHWARTZ: May I approach, Your Honor?
4 THE COURT: Yes.
5 A. That would be correct.
6 Q. (By Mr. Schwartz) Okay. So in those
7 instances, you had different detectives go talk to them?
8 A. Yes.
9 Q. And they interviewed them each separately?
10 A. Yes.
11 Q. And as far as you can recall, there was no
12 differences in the statements and there was nothing different
13 from what Russ Faria had told you?
14 A. I did not talk to him, so I don't know what
15 their differences or what discrepancy they may have said or
16 not said. It would be in their report what it was
17 specifically they said.
18 Q. All right. It's not only important to be
19 thorough with Russ Faria. You were thorough with everybody.
20 You had officers assigned to go speak with his daughter,
21 Leah?
22 A. Oh, yes.
23 Q. They confirmed her whereabouts?
24 A. Yes.
25 Q. And you had investigators go speak with her
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486
1 boyfriend, Devan Rogers?
2 A. Yes.
3 Q. And they confirmed his whereabouts. And how do
4 they confirm whereabouts?
5 A. Well, it's through different processes.
6 Without speaking about these directly, if someone was to tell
7 us, I was with this person or at this location, we would try
8 to verify that by talking to that other person or getting
9 some confirmation that they may be at this location at this
10 time.
11 Q. In this particular case, you confirmed Leah's
12 whereabouts by her cell phone records in talking to her
13 boyfriend, in talking to her cousin and talking to her aunt?
14 A. I'm not sure what was confirmed with,
15 specifically with them.
16 Q. Would you disagree with those things I stated?
17 A. Can you repeat that again?
18 Q. Would you disagree with what I just stated as
19 to how you confirm where she said she was?
20 A. I'm not sure how it was confirmed on those
21 particular individuals.
22 Q. All right.
23 A. But just speaking of the general process, we
24 would try to confirm with other people. If one person tells
25 us they are with their aunt or they are with their uncle or
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487
1 Grandma or whatever, we would go and talk to that person or
2 somehow try to confirm, yeah, that person was with them.
3 Q. You did the same with Devan Rogers, correct?
4 The boyfriend -- I'm sorry. I'm sorry. Yeah, Devan Rogers.
5 Leah Day's boyfriend?
6 A. Somebody would have been assigned to that, yes.
7 Q. You confirmed that with his mother?
8 A. If that's what the report indicates, that would
9 be accurate.
10 Q. All right. How come nobody ever confirmed Pam
11 Hupp's whereabouts or Pam Hupp's, what clothing she was
12 wearing?
13 MS. ASKEY: Objection, Judge. Can we approach?
14 THE COURT: Yes.
15 (Discussion at the bench.)
16 MR. HICKS: Object for two reasons. One, the
17 form of the question. They did try to confirm her
18 whereabouts. They went and spoke to her. Found out where
19 she had been, where she had been the last night. When she
20 dropped her off. When she got home and talked to her
21 husband. So the form of the question.
22 The second thing is, it would be in violation
23 to ask this question, would be in violation of the Pretrial
24 Order based on our Motion in Limine. There would be no
25 relevance except to suggest that Pam did this.
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488
1 MR. SCHWARTZ: Your Honor, the Major Case
2 Squad, they had 104 leads. I'm entitled to ask the Officer
3 whether or not this was confirmed and why it wasn't
4 confirmed.
5 THE COURT: Yes, and that's why you cannot
6 single her out with 104 of them.
7 MR. SCHWARTZ: I have already singled out Leah.
8 She wasn't investigated. I just want to confirm that. Her
9 clothing, the clothing she wore was never confirmed nor was
10 where she said she was.
11 MR. HICKS: Okay. One, I disagree.
12 MR. SCHWARTZ: Fine.
13 MR. HICKS: No, this is the other thing. When
14 Pam Hupp was on there, when these officers get up there that
15 maybe talked to Pam Hupp, she consented to a Buccal swab.
16 Gave them her clothing. She cooperated and did these sort of
17 things.
18 We have not gone down that road based upon this
19 Pretrial Order. For him now to get out here and confirm you
20 didn't confirm Pam Hupp's whereabouts, which one, I don't
21 think is true and, two, to go down this road, it's not
22 relevant at this point. There's no other reason to do this,
23 other than to suggest that she did this.
24 MR. SCHWARTZ: I'm asking him, can I just ask
25 him if it was confirmed?
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489
1 THE COURT: I don't understand the whole point
2 of the pretrial Motion in Limine if we're going to keep
3 bringing her up over and over.
4 MR. SCHWARTZ: I'm not accusing anybody of
5 anything.
6 THE COURT: It's sustained.
7 (End of bench discussion.)
8 THE COURT: You may continue when you are
9 ready.
10 Q. (By Mr. Schwartz) Other than the individuals
11 I've mentioned, Leah Day, Devan Rogers, Russ Faria, was there
12 anybody else whose whereabouts during the course of the
13 evening were confirmed?
14 A. There could have been. Anybody that we would
15 have had reason to believe whose names would have came up, we
16 would have attempted to confirm their whereabouts.
17 Q. And how would you do that?
18 A. Through various means. I mean, either by
19 trying to talk to people they may have been with, if they
20 were at a location where there was some type of a video
21 device or cameras, you do it that way, but it could be done
22 several different ways and in some facts you may not be able
23 to confirm it.
24 Q. In this case, is there anyone else specifically
25 who you can say that was, those other things were conducted?
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490
1 A. What kind of things?
2 MR. HICKS: I'm going to object to the form of
3 the question. Vague.
4 MR. SCHWARTZ: I'll withdraw the question.
5 Q. (By Mr. Schwartz) So you said that you
6 sometimes are lucky enough to get it through video evidence
7 and/or receipts, correct, to confirm whereabouts?
8 A. That could be helpful, yes.
9 Q. Sometimes you do cell sites as well, correct?
10 A. Yes.
11 Q. In this case, all of those methods were
12 utilized?
13 A. I'm not sure. Whatever the reports would
14 indicate, that would be when they were used. They may not
15 have used them all.
16 Q. As far as Russ Faria goes, you were able to get
17 cell phone information?
18 A. There may have been information obtained but I
19 wouldn't have any of that.
20 Q. You were lucky enough to get video information
21 as to where he said he was and it was confirmed?
22 A. There was video confirmation on some of the
23 locations.
24 Q. And you were able to get receipts on the
25 locations as well?
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491
1 A. I believe, I only recall one receipt.
2 Q. Greenes Country Store as well as Arby's. Would
3 you recall two receipts?
4 A. Oh, maybe there was two. I do recall there was
5 a receipt.
6 Q. Everything he told those detectives during the
7 course of that interview as far as his whereabouts was
8 confirmed?
9 A. I'm not sure of all of the details of what he
10 told those guys during the interview if they were all
11 confirmed or not, but those specific ones you asked me about.
12 Q. Are you familiar or not with the clothing he
13 was wearing when he was arrested?
14 A. No.
15 Q. So you can't -- did you even view the videos?
16 A. No.
17 Q. You, yourself?
18 A. No.
19 Q. All right.
20 MR. SCHWARTZ: Nothing further.
21 THE COURT: State?
22 MS. ASKEY: Yes, Your Honor.
23 REDIRECT EXAMINATION
24 BY MS. ASKEY:
25 Q. Lieutenant, when verifying a person's
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492
1 whereabouts, do the detectives then also have the opportunity
2 to, basically as jurors do, judge the credibility of those
3 witnesses?
4 A. Yes.
5 Q. And does that go into whether or not they
6 essentially believe the whereabouts?
7 MR. SCHWARTZ: Objection. It calls for
8 speculation on whether or not a detective believes or does
9 not believe.
10 MS. ASKEY: He's asking. He opened the door as
11 to whether or not --
12 MR. SCHWARTZ: I didn't ask that, Your Honor.
13 MS. ASKEY: You asked whether or not they
14 verified his whereabouts.
15 MR. SCHWARTZ: That has nothing to do with
16 belief.
17 THE COURT: Sustained at this point. You can
18 rephrase.
19 Q. (By Ms. Askey) If a Detective were to verify
20 whereabouts and no charges were entered, would it be fair to
21 say that they believed the whereabouts or the verification of
22 that whereabouts?
23 MR. SCHWARTZ: Same objection, Your Honor.
24 MS. ASKEY: Withdrawn.
25 MR. SCHWARTZ: Calls for speculation.
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493
1 Q. (By Ms. Askey) Once the whereabouts of Leah
2 and Devan were verified, did the lead extinguish at that
3 point?
4 A. No.
5 Q. As to them?
6 A. Well, as to specifically them, yes.
7 Q. When you request cell site data or cell phone
8 data, is it fair to say that you don't receive that
9 information until long after the Major Case Squad is
10 disbanded?
11 A. There's many things, including cell phone site
12 information and records that -- you know, it's not T.V. where
13 you get it right away. Sometimes it takes days to get
14 information back, weeks and months.
15 Q. Because these are subpoenas issued on the
16 companies; is that right?
17 A. Yes.
18 Q. The videos that Mr. Schwartz was asking you
19 about where the defendant was on video at Conoco, at Arby's,
20 at these locations, do you recall what time roughly those
21 videos were taken?
22 A. I did not view the videos.
23 Q. Wasn't the purpose to go out and reinterview
24 the defendant's alibi witnesses specifically to ask him them
25 to take a polygraph?
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494
1 MR. SCHWARTZ: Objection, Your Honor. May we
2 approach?
3 THE COURT: Yes.
4 (Discussion at the bench.)
5 MR. SWANSON: Those facts aren't contained in
6 the report. You can't even get into evidence there.
7 MS. ASKEY: They didn't take it.
8 MR. SWANSON: They didn't ask. If you
9 put it in the report, you show me the report right
10 now.
11 MR. SCHWARTZ: Most importantly, Judge, it's
12 not a science. It's inadmissible in Court. It is incredibly
13 prejudicial with this jury. I would ask the jury to be
14 instructed to disregard the last question, and I would ask
15 for a mistrial based upon that last question.
16 MR. HICKS: Okay. One, the mere mention of a
17 polygraph is not error in a trial. The Case Law --
18 MR. SCHWARTZ: We can recall Pam Hupp. We are
19 talking about refusing to take a polygraph. That's fine if
20 we want to go down that road. Very fine.
21 MR. HICKS: These are your alibi witnesses.
22 MR. SCHWARTZ: We'll call her in.
23 MR. HICKS: Anyway, the issue here is not
24 whether they took a polygraph. It's the fact that they were
25 not willing to. They said that they were --
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1 MR. SWANSON: No. It's not in the report and
2 it's not in evidence at this point.
3 MR. HICKS: Okay. I will withdraw the
4 question. Let's verify the report and find out --
5 MR. SCHWARTZ: We'll call Pam up and go down
6 that road. The question is Pam Hupp--
7 MS. ASKEY: It's not about --
8 MR. HICKS: The Case Law says that a person's
9 willingness, unwillingness, not the defendant, but a
10 witness's unwillingness to take a polygraph is irrelevant
11 impeachment and--
12 MR. SWANSON: It's not--
13 MR. HICKS: -- there you go.
14 COURT REPORTER: You know what? You guys are
15 all talking at the same time. If you want a clear record, I
16 can't hear nor take all of you talking at the same time.
17 MR. SWANSON: It says this is completely
18 inadmissible. The Case Law, and this was in our Motion in
19 Limine to exclude this issue well back in June, is that the
20 request to take a polygraph, the refusal to take a polygraph
21 and the offer to take a polygraph were all inadmissible.
22 MS. ASKEY: Why would you put it in your Motion
23 in Limine if you didn't know it occurred?
24 MR. SCHWARTZ: We were talking about Russ
25 Faria.
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496
1 MS. ASKEY: I agree with Russ Faria.
2 MR. SWANSON: It assumes facts not in evidence
3 and they are not there.
4 MR. HICKS: We're not assuming facts not in
5 evidence.
6 MR. SWANSON: You just asked him if they
7 refused.
8 MR. HICKS: Nathan, I can't ever talk because
9 as soon as I respond, you keep talking over me.
10 This Major Case Squad -- Joel asked him
11 questions, did you send him out again and again, and the only
12 thing we were trying to point out is it wasn't to go out and
13 to reinterview them and get another. It was to say okay,
14 fine, let's go back and see if they would be willing to take
15 a polygraph and they weren't.
16 That's all we were trying to clarify is that it
17 wasn't that we were trying to get him to give another story
18 and another story. Fine, you've given us that story, this
19 alibi. Are you willing to take a polygraph? That was the
20 whole purpose of this.
21 That is not assuming facts not in evidence.
22 We're asking wasn't that the reason that you sent them out to
23 do this?
24 MS. ASKEY: I'll withdraw the question.
25 MR. SCHWARTZ: I would still request a
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497
1 mistrial.
2 THE COURT: The jury is going to be instructed
3 to disregard the last question. The request for mistrial is
4 denied at this point.
5 (End of bench discussion.)
6 THE COURT: The Court will instruct the jury to
7 disregard the last question. State may continue.
8 MS. ASKEY: I don't have any further questions.
9 THE COURT: Mr. Schwartz?
10 MR. SCHWARTZ: Nothing further.
11 THE COURT: Thank you, sir. You may step down.
12 Is this witness released at this time?
13 MS. ASKEY: Yes, Your Honor.
14 THE COURT: Thank you, sir. You are released
15 at this time.
16 Further evidence by the State?
17 MS. ASKEY: The State would call Amy Pratt.
18 THE COURT: Amy Pratt.
19 AMY PRATT,
20 a witness, having been duly sworn by the Circuit Clerk to
21 tell the truth, the whole truth and nothing but the truth, so
22 help you God, under the pain and penalty of the Perjury Laws
23 of Missouri, testifies as follows:
24 MS. ASKEY: May it please the Court?
25 THE COURT: Yes.
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1 DIRECT EXAMINATION
2 BY MS. ASKEY:
3 Q. Amy, please state your name for the record.
4 A. Amy Pratt.
5 Q. And where are you employed?
6 A. I'm employed at the St. Charles County
7 Sheriff's Department.
8 Q. And what do you do for St. Charles County?
9 A. I'm a crime scene investigator.
10 Q. And explain to the jury what a crime scene
11 investigator does?
12 A. As crime scene investigator, I respond to crime
13 scenes and photograph and document any type of crime scene
14 and collect any type of evidence, which is seizing of the
15 evidence. I process that evidence for possible latent or
16 trace DNA and then that evidence could possibly be sent on or
17 further to a crime lab for further analysis, as well to our
18 computer or crime lab for analysis there as well.
19 Q. And I'm not assuming that they don't know, but
20 I didn't know until getting into things like this, can you
21 explain what latent and trace DNA is?
22 A. A latent fingerprint is a fingerprint that
23 actually has to be processed. A latent fingerprint is
24 invisible by the naked eye.
25 So if I left a fingerprint on the wood here
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499
1 that's next to the stand, you can't actually visibly see it,
2 so I would have to process that fingerprint by using a
3 method, by fingerprint powder or a chemical method and that
4 would then become evidence.
5 I would seize it and then process it going
6 through the fingerprint process, going into AFIS, into a
7 computer and it would generate whether there was a hit or
8 not, if there's an actual fingerprint that is into the
9 computer base that would identify it.
10 And what was your, what was the other one?
11 Q. Well, you said "trace DNA".
12 A. Trace DNA is, once again, if someone was to
13 touch the wood, obviously your body is secreting DNA at all
14 times because you are sweating and so you are leaving trace
15 DNA behind.
16 So in order to seize or possibly obtain that
17 trace DNA, I'm going to take a sterile Buccal swab or sterile
18 swab and moisten it with distilled water and I'm going to rub
19 the area that I believe that the trace DNA is going to be
20 and, by rubbing that area, I'm actually lifting the DNA or
21 the possible DNA up and I'm putting it into a box and sending
22 it to the crime lab where they are actually able to determine
23 whether or not there was trace DNA there.
24 Q. Okay. By way of taking that swab on an area,
25 you could in fact be doing away with fingerprints in an
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500
1 effort to get DNA; is that fair?
2 A. Yes, that is fair.
3 Q. Because you are kind of diluting it, for lack
4 of a better term?
5 A. Yes. Because your fingerprint, obviously, is
6 your secretions. You are either-- when you are leaving
7 something behind, you are leaving not only your secretion
8 which -- what you are leaving behind is your fingerprint
9 which is the secretion, your sweat glands, is leaving the
10 print, but it's also your DNA. So if I'm swabbing for DNA,
11 I'm removing that fingerprint.
12 Q. Okay. And is it every time, I mean, just
13 because I put my hand here, doesn't mean you are going to get
14 anything that necessarily matches me; is that right?
15 A. Correct.
16 Q. And why is that?
17 A. Because there's obviously -- ten different
18 people can touch that surface, for one, so I can get five
19 other sources; and if you just recently washed your hands,
20 you could possibly be washing away the secretions at that
21 moment.
22 You may not be a heavily secreting type of
23 person where you may not leave too many secretions behind.
24 If it's very cold outside in the winter, lots of people don't
25 secrete very much. There's different reasons why you may not
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501
1 actually secrete.
2 Q. What is the difference, then, between a latent
3 -- which I always think of on glass, like my kids leave on
4 the door. Is that not a latent?
5 A. No, that's a patent print.
6 Q. Okay.
7 A. A latent print, like I said, is a print that is
8 not visible by the naked eye.
9 Q. Okay.
10 A. That is one that needs to be processed with
11 fingerprint powder or with some type of chemical, some type
12 of processing.
13 A patent print is the ones you will see that
14 your kids leave behind on your window glass, the ones you can
15 actually see the sweat and the actual secretions behind.
16 Q. Okay. You process those as well?
17 A. Yes.
18 Q. Are there any other types that you would
19 process?
20 A. No.
21 Q. Okay. And how long have you been employed in
22 that capacity?
23 A. I have been working as a crime scene
24 investigator for nearly 11 years.
25 Q. Are you also a member of the Major Case Squad?
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502
1 A. I am not a member of the Major Case Squad, but
2 our Sheriff's Department is. It's basically like we're
3 assigned to the Major Case Squad per our Sheriff's
4 Department.
5 Q. As the crime scene investigators?
6 A. Yes. On this side of the river.
7 Q. Okay. So even though you are not specifically
8 a member, if a crime occurs, how are you activated, then?
9 A. If a crime occurs on this side of the river and
10 the Major Case Squad is activated, we are the only crime
11 scene unit this side of the river that will go.
12 Q. Okay.
13 A. Generally.
14 Q. And do you go alone?
15 A. No. Our entire team would generally go.
16 Q. How many are in the team?
17 A. There are seven of us.
18 Q. And when you get there to the scene, is there a
19 method of allocating jobs or do you oversee? How does that
20 work?
21 A. There's generally a method of allocating. We
22 have a Sergeant who is a commissioned officer and then the
23 remaining six of us are noncommissioned officers. So the
24 Sergeant will oversee us and just for general scene security
25 type of thing.
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503
1 We kind of split up different things. One of
2 us will definitely be the lead photographer. The person who
3 is doing the photography, that person will generally also do
4 all of the seizing and writing the reports.
5 That way that person can keep in line exactly
6 what's going on with the crime scene and the remaining people
7 will actually help search and help with that person. They
8 are basically -- like I'm a lead on this particular case and
9 the other crime scene investigators that were there to help
10 me, they were just assisting me and just helping me out
11 trying to find other evidence and pinpointing things out to
12 me.
13 Q. So that was my next question. You were
14 employed as a crime scene investigator specifically on
15 December 27, 2011?
16 A. yes.
17 Q. And did you respond to 130 Sumac in Troy,
18 Missouri?
19 A. Yes, I did, on the morning of the 28th.
20 Q. And do you remember approximately what time you
21 responded to that locale?
22 A. I believe it was after 5:00 in the morning;
23 5:55 or something like that. I'd have to refer to my report.
24 Q. Just to be clear, in order for your crime scene
25 bus to get called out, a major case needs to be activated
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504
1 first?
2 A. Correct.
3 Q. So you wouldn't just come out to Lincoln County
4 and help us out just because?
5 A. No. Major Case has to call us.
6 Q. What happens when you arrive on the scene?
7 A. When I arrive on scene, generally there is
8 either a Major Case detective or the responding agency is
9 there and they are the ones who are basically going to give
10 me the information and give me the idea of what happened on
11 the scene.
12 They are going to inform me of all of the
13 circumstances. The scene is generally barricaded or you see
14 the yellow crime scene tape up. They are going to basically
15 give me a walk through of the crime scene and give me an idea
16 or a general idea of what has happened and I'm just going to
17 go to work.
18 Q. Okay. And when you say "go to work", you start
19 taking photographs?
20 A. Yes. I started with exterior photographs.
21 After I go through my walk through of the residence or
22 wherever my crime scene may be. Start with my exterior
23 photographs. Work my way in to the interior.
24 On the interior, I'm doing interior, overall
25 interior photographs, medial and then, obviously, up close
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505
1 photographs of my particular evidence.
2 Q. And how many photographs would you say you
3 took, approximately?
4 A. I have no idea. Generally on cases, I go
5 anywhere from 300, 500 to a thousand.
6 Q. Okay. So don't worry, I'm not going to show
7 all of those photographs, but you took photographs of the
8 entire exterior; is that right?
9 A. Yes.
10 Q. Every doorway, every window?
11 A. Yes.
12 Q. And those photographs were then produced for my
13 office?
14 A. Yes.
15 Q. Did you, in taking those photographs, have any
16 reason to believe there was a forced entry?
17 A. No. Actually, there was one particular area on
18 the exterior of the residence that had looked like there
19 possibly could have been forced entry. And I processed that,
20 that window only to find that there was no forced entry. It
21 may have been at one time. The window screen had been pried
22 on or something but there was no forced entry.
23 Q. Subsequent to determining that, did you then go
24 inside and start taking photographs there?
25 A. Yes.
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506
1 Q. Amy, is it fair to say you pretty well take
2 pictures of anything that you think is significant?
3 A. Yes.
4 Q. And things that you don't think that are
5 significant?
6 A. Yes, because you never know what may become
7 significant.
8 (State's Exhibit Numbers 15 and 16 were
9 marked for identification.)
10 Q. Amy, I'm going to show you --
11 MS. ASKEY: Any objection?
12 MR. SWANSON: No.
13 Q. (By Ms. Askey) I'm going to show you what's
14 been marked as State's Exhibit 15. Is this a photograph you
15 would have taken?
16 A. Yes.
17 Q. And do you immediately start taking pictures
18 when you enter the residence?
19 A. Yes.
20 Q. Okay. And was there anything of significance
21 that you noted when you walked into the residence and were
22 taking those photographs?
23 A. When this particular picture, you immediately
24 notice that there's some packages and some Kohl's bags, that
25 type of thing, in front, the chair. There's a Dollar General
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507
1 bag on the chair with some toilet paper in it, and there is a
2 coat just laying on the back of the chair.
3 Q. Nicely laid there; is that right?
4 A. Yes, ma'am.
5 Q. Do you move anything at that point?
6 A. No, nothing is moved at this point. These are
7 my overall photos.
8 Q. Before anything is touched or moved, you take a
9 picture of it?
10 A. Yes.
11 Q. What's the purpose of that?
12 A. So that I can show the overall scene before
13 anything is touched.
14 Q. Now State's Exhibit 16, what's that?
15 A. These are a pair of leather gloves that are
16 located on the love seat, the back of the love seat.
17 Q. How are they positioned?
18 A. They are positioned just as they are, perfectly
19 laid there.
20 Q. So it's not like they are thrown off?
21 A. No.
22 Q. Disheveled in any way?
23 A. No.
24 Q. They are laid nicely?
25 A. Yes, ma'am.
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1 Q. And you specifically took a close up of those
2 gloves?
3 A. Yes because of the way they are perfectly laid.
4 Q. Why did you do that?
5 A. Because it was unusual to me.
6 Q. Okay.
7 MS. ASKEY: I'd ask for State's Exhibit 15 and
8 16 to be admitted.
9 THE COURT: Any objection?
10 MR. SWANSON: No, Your Honor.
11 THE COURT: State's 15 and 16 are admitted.
12 Q. (By Ms. Askey) Amy, for the jury's purpose we
13 have put pictures, State's Exhibit 15 and 16 on there, 15
14 being the coat laid on the chair and then 16. Why did you
15 say that was unusual to you?
16 A. Because this particular day, the type of, in
17 the month of December, it was extremely frigid cold
18 temperatures and just to see the gloves laying there
19 perfectly after coming in, I just thought they were, they
20 were just laying there perfect.
21 Q. You would be able, could you see Betsy Faria's
22 body where those gloves were laid?
23 A. Yes and from the position of the coat on the
24 chair, which was immediately upon entering, her body and then
25 the gloves were completely across the other side of the room
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509
1 laid perfectly on the back of the love seat. It was just odd
2 positioning.
3 Q. Now once you proceeded through, and we've shown
4 pictures of different ones throughout the interior of the
5 home, there was a significant amount of blood in the living
6 room; is that fair to say?
7 A. Yes, ma'am.
8 Q. Beyond the living room, was there any other
9 blood evidence that you found?
10 A. We located blood evidence in the master
11 bedroom.
12 Q. And do you remember where specifically you
13 located it?
14 A. It was on the switch plate to the light switch.
15 Q. Okay.
16 A. And there was blood evidence on a pair of
17 slippers located in the master bedroom closet.
18 Q. And were you able to determine, were you able
19 to determine where, whether the slippers in the closet were
20 men or women's slippers?
21 A. I believe they were men's.
22 (State's Exhibit Number 17 marked for
23 identification.)
24 Q. Amy, I'm going to show you what has been marked
25 as State's Exhibit Number 17. Do you recognize that?
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510
1 A. Yes, ma'am.
2 Q. And what is that?
3 A. This is the switch plate in the master bedroom.
4 Q. And based on this, did it appear to be blood to
5 you?
6 A. Yes.
7 Q. And you took a photograph of it?
8 A. Yes.
9 Q. And did you do any further processing of that?
10 A. We did do some processing with this. We did a
11 chemical processing in order to attempt to process for
12 fingerprints.
13 Q. Okay. But not DNA, then, in this particular
14 case?
15 A. I'm not positive if we sent it over to the lab
16 for that or not.
17 Q. Okay. Now sometimes you can, as a lay person,
18 it appears on some things that there might be a fingerprint
19 there?
20 A. Right. That's, there appears that there is a
21 pattern and that's why we worked so hard on trying to, trying
22 to figure out if there is a fingerprint there or not and we
23 used a chemical instead of just using a normal fingerprint
24 powder and we did not get any results.
25 Q. And when you say you didn't get any results,
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511
1 explain to the jury what's required at this stage of
2 technology.
3 A. What is required in order to have identifiable
4 fingerprint is, I think, you need eight different points to
5 make it identifiable, and there is ridge detail of some sort
6 of pattern in this, but not enough to make it identifiable.
7 Q. If there were six points, you still couldn't,
8 from a forensic perspective, declare it identifiable; is that
9 right?
10 A. Correct.
11 MS. ASKEY: I'd ask for State's Exhibit 17 be
12 admitted into evidence.
13 THE COURT: Any objection?
14 MR. SWANSON: No objection, Your Honor.
15 THE COURT: State's 17 is admitted into
16 evidence.
17 Q. (By Ms. Askey) Now to further ask you
18 questions about State's Exhibit 17, it appears that the blood
19 was put on that switch when the light was getting turned off;
20 is that right?
21 A. Yes, ma'am.
22 (State's Exhibit Number 25 marked for
23 identification.)
24 Q. Amy, was that switch plate, then, the entire
25 thing, actually seized?
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512
1 A. The switch plate was, yes.
2 Q. And was sent to the lab; is that right?
3 A. Yes.
4 Q. And would that be how it was packaged?
5 A. Yes.
6 Q. And then would it be transferred then to our
7 location; is that right?
8 A. Yes.
9 Q. Okay. Amy, this is State's Exhibit 25, the
10 actual -- and can you explain why there would be blue all
11 over it?
12 A. That is the chemical process that we used.
13 Q. Okay. But it's the actual switch plate?
14 A. Yes, ma'am.
15 MS. ASKEY: I'd ask for State's Exhibit 25 to
16 be admitted into evidence.
17 THE COURT: Any objection?
18 MR. SWANSON: No objection.
19 THE COURT: State's 25 is admitted.
20 Q. (By Ms. Askey) Now you said from there you
21 went into the closet?
22 A. Yes, ma'am.
23 Q. And how close in proximity was the switch, that
24 switch to the closet that you entered?
25 A. I'd say approximately eight feet.
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513
1 Q. That was the switch to the room?
2 A. Yes, ma'am.
3 Q. And while in the closet, describe to the jury
4 how the closet looked?
5 A. The closet is an L-shaped closet and there
6 would be, it's wire shelving. There's a wire shelving on the
7 top. There's like two rows of wire shelving on the top and
8 on the bottom and clothes are hanging from the top and the
9 bottom racks, as well as items stored on the shelves of each,
10 of the two rows.
11 There's plastic tubs in there. There's clothes
12 baskets and items, clothes and miscellaneous items in there.
13 There's a piece of luggage.
14 There is -- being an L-shaped, L-shaped closet,
15 when you are walking in the closet door to the right, you can
16 actually see on the floor there's a pair of brown colored
17 slippers down on the floor and I immediately observed a red
18 blood-like substance on those.
19 Q. Is it fair to say that the closet was not
20 organized at all?
21 A. It is not organized. I mean, there's an
22 attempt to it but it's, it's a little cluttered.
23 (State's Exhibit Number 14 marked for
24 identification.)
25 Q. (By Ms. Askey) Amy, I'm going to show you what
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514
1 has been marked as State's Exhibit 18, which is a combination
2 of four photographs. Do you recognize those?
3 A. Yes.
4 Q. And what are those photographs of?
5 A. These are in the interior section of the
6 closet.
7 Q. And specifically, which portion?
8 A. This would be I guess the, on the L-section, it
9 would be the right section of the closet. I would lean to
10 say the male portion of the closet.
11 Q. Okay.
12 A. And because there would be two sections, the
13 female part and the male part and this is the male part of
14 the closet.
15 Q. Meaning there were female clothes on one side
16 and male clothes on the other; is that right?
17 A. Yes.
18 Q. Is that where you noticed the slippers?
19 A. Yes.
20 Q. Are the slippers depicted in those photographs?
21 A. Yes, ma'am.
22 Q. Did you take those photographs?
23 A. Yes, ma'am.
24 Q. And do they accurately depict what you saw when
25 you entered the closet?
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515
1 A. Yes.
2 MS. ASKEY: At this time, I would ask for
3 State's Exhibit 18 to be admitted into evidence.
4 THE COURT: Any objection?
5 MR. SCHWARTZ: No objection, Your Honor.
6 THE COURT: State's 18 is admitted into
7 evidence.
8 Q. (By Ms. Askey) Now I'm going to ask you --
9 that's really blurry. I'm going to ask you, the jury has
10 these in this order. Describe to the jury where I'm standing
11 -- there we go. Where am I standing at the front? I noticed
12 there's a shoe hanger. It appears to be on a door?
13 A. The shoe hanger is -- this picture is, let's
14 see. Here's your L-shape closet. The closet door opens
15 inward, and so it's looking on the "L". It's looking towards
16 the right, because if you are looking -- it's hard to
17 describe.
18 When you are looking straight in, that would be
19 the female section of the closet and to the right-hand side
20 this is the male section of the closet, and so this is the
21 right-hand side of the closet.
22 Q. Okay. And then the next picture?
23 A. That is the lower part where or the lower
24 portion or the bottom rack, I guess, of the right-hand side
25 of the closet.
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516
1 Q. Which was the male section?
2 A. The male section.
3 Q. And in that picture, you can sort of depict the
4 slipper that you saw the blood on; is that right?
5 A. Yes, ma'am.
6 Q. And that's down here in the bottom corner?
7 A. Yes.
8 Q. Okay.
9 A. You can kind of see on the top left-hand
10 corner, the corner of the wall, which kind of would depict
11 your corner of the L-shape, that would be the "L" there.
12 Q. Okay. The next picture. The next photograph
13 then, Amy, is that just -- now we're back at the end of the
14 "L"; is that right?
15 A. You are back on the end of the "L" as far to
16 the right as you can possibly go. There's some containers,
17 some type of storage-type things. There's a suitcase and
18 then there's the slippers.
19 Q. And did they -- obviously, they appeared to be
20 just tossed in there; is that fair to say?
21 A. Yes.
22 Q. Did that jump out at you, that color?
23 A. The color? I mean, it was just, obviously, I
24 can immediately notice that there was red, a red blood-like
25 substance, and being on such a light-colored slipper, I just
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517
1 immediately just noticed it.
2 Q. Okay. Then the last one was just a close-up;
3 is that right?
4 A. Yes, ma'am.
5 Q. Now is there a difference in the way blood
6 appears based on how long it's been somewhere?
7 A. With blood, if it's a large pool of blood, it
8 becomes dark and coagulated. With blood on the slippers,
9 there's no way for me to tell.
10 Q. Ultimately, Amy, then did you seize those
11 slippers?
12 A. Yes, I did.
13 Q. And once you seized them, then what happens to
14 them?
15 A. They are seized. They are photographed in our
16 evidence processing lab and they are further sent to our
17 crime lab for analysis.
18 Q. And do you photograph them again once they
19 are --
20 A. Yes.
21 Q. -- in evidence?
22 A. They are photographed in our evidence
23 processing lab up close with scale.
24 (State's Exhibit Number 19 marked for
25 identification.)
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518
1 Q. (By Ms. Askey) Amy, I'm going to show you
2 what's been marked as State's Exhibit 19. Do you recognize
3 that?
4 A. Yes, ma'am.
5 Q. And is that what, is that the type of
6 photograph that you take once the evidence is seized?
7 A. Yes, ma'am.
8 Q. And you have some denotation at the bottom.
9 What is that?
10 A. This is stating Major Case Squad case number,
11 the date that we photographed it in our processing lab and my
12 DSN as well as Crime Investigator Fischer's DSN.
13 Q. What specifically did you note about this
14 specific photo that you can't see very well in these
15 pictures?
16 A. We are noting the brand of the slipper and that
17 there is blood not only just on top of the slipper but on the
18 sole of the slipper as well.
19 Q. Okay.
20 MS. ASKEY: I'd ask State's Exhibit 19 to be
21 admitted into evidence.
22 THE COURT: Any objection to State's Exhibit
23 19?
24 MR. SWANSON: No objection, Your Honor.
25 THE COURT: State's 19 is admitted into
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519
1 evidence.
2 (State's Exhibit Number 27 marked for
3 identification.)
4 Q. (By Ms. Askey) Amy, I'm going to show you
5 what's been marked State's Exhibit 27. Do you recognize
6 this?
7 A. Yes.
8 Q. What would this be?
9 A. This is the bag containing the slippers.
10 Q. And those are the slippers we have shown the
11 jury in the photographs from the closet, as well as the
12 photograph after seizure; is that right?
13 A. Yes, ma'am.
14 Q. Are these the slippers that you seized?
15 A. Yes, ma'am.
16 Q. And they were processed; is that right?
17 A. Yes, ma'am.
18 Q. Now during processing, was that at times, the
19 same as what we're talking about with the DNA, will that
20 dilute the sample?
21 A. Not when we were processing it. The reason
22 being is the only thing we are doing at this point is
23 photographing it and then we are forwarding it to the crime
24 lab. We don't want to do anything that's going to dilute it.
25 Q. When the crime lab gets it, in an effort to
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520
1 process it there, will that dilute the sample?
2 A. I do not know.
3 Q. Okay.
4 MS. ASKEY: The State requests permission to
5 admit State's Exhibit 27.
6 THE COURT: Any objection to State's
7 Exhibit 27?
8 MR. SWANSON: No, Judge.
9 THE COURT: State's Exhibit 27 is admitted into
10 evidence.
11 Q. (By Ms. Askey) Now Amy, going through -- once
12 you have taken photographs, after you have done that of the
13 entire residence and then you go back and seize items, is
14 that how it works?
15 A. Yes, ma'am.
16 Q. So how long does that process take, would you
17 say?
18 A. Hours. I would say that we were there
19 approximately six to eight hours.
20 Q. Okay. At some point while you were there
21 processing that scene on December 28th, did you receive a
22 phone call regarding the family dog?
23 A. Yes, ma'am.
24 Q. And what, if anything, did you do with regard
25 to the dog in processing the scene?
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521
1 A. We actually processed the animal for standards.
2 For the hair standards, for one. So we actually pulled hair
3 from the dog in order to have a trace standard from, trace
4 samples that we received from the victim's body as well as
5 seizing paw impressions from the dog. So basically like
6 taking the dog's fingerprint.
7 (State's Exhibit 20 marked for
8 identification.)
9 Q. (By Ms. Askey) Amy, I'm going to show you
10 what's been marked as State's Exhibit 20. Do you recognize
11 that, those photos?
12 A. Yes.
13 Q. And what are they photos of?
14 A. A photo of myself and Sergeant Dulin actually
15 taking the paw prints and a picture of the dog's paw.
16 Q. It's a close-up; is that right?
17 A. Yes.
18 Q. And I notice -- this is you?
19 A. Yes, ma'am.
20 Q. I noticed in the photograph you've kind of got
21 your hand up like in apprehension?
22 A. I do because I wasn't sure on how he was going
23 to be towards us. You just never know with a dog.
24 Q. And how did you find his demeanor to be?
25 A. He was a little timid. A little scared, but
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522
1 when offering treats, he let us take his paw prints and he
2 let us pull his hair, which is a little scary because that's
3 when you don't know if they are going to bite.
4 Q. Now where had he been the entire time prior to
5 you getting his prints?
6 A. He was outside freezing to death and that's why
7 we were a little concerned at how he was going to be.
8 Q. Had he been barking or?
9 A. No. He actually seemed a little sad standing
10 at the door watching us.
11 Q. Okay.
12 MS. ASKEY: I'd ask for State's Exhibit 20 to
13 be admitted into evidence.
14 THE COURT: Any objection to State's 20?
15 MR. SWANSON: No, Your Honor.
16 THE COURT: State's Exhibit 20 is admitted.
17 (State's Exhibit 21 marked for
18 identification.)
19 Q. (By Ms. Askey) Amy, I'm going to show you
20 what's been marked as State's Exhibit 21. Do you recognize
21 this?
22 A. Yes.
23 Q. What are these?
24 A. These are going to be the paw print cards or
25 the inked cards that we pulled or, actually, inked of the
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523
1 dog.
2 Q. As we are going through them, you recognize
3 these prints as the ones that you and Sergeant Dulin took?
4 A. Yes, ma'am.
5 Q. Do you have them denoted which paw correlates
6 with which?
7 A. Yes, ma'am.
8 Q. So you took one of each; is that right?
9 A. Yes, ma'am.
10 MS. ASKEY: I'd ask for State's Exhibit 21 to
11 be admitted into evidence.
12 THE COURT: Any objection to State's 21?
13 MR. SWANSON: No, Your Honor.
14 THE COURT: State's Exhibit 21 is admitted into
15 evidence.
16 Q. (By Ms. Askey) Amy, did you also take the
17 photographs of the victim?
18 A. Yes.
19 Q. And so you were able to take photographs of --
20 did you take close-up photographs of her?
21 A. Yes.
22 Q. And you took photographs of her attire, as
23 well?
24 A. Yes.
25 (State's Exhibit 29 marked for
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524
1 identification.)
2 Q. (By Ms. Askey) Amy, I'm going to show you
3 what's been marked as State's Exhibit 29. Do you recognize
4 this photograph?
5 A. Yes, ma'am.
6 Q. And is that one that you took?
7 A. Yes.
8 Q. Actually, there are two photographs?
9 A. Yes.
10 Q. And can you tell the jury why we zoomed in or
11 why you zoomed in on that specific area?
12 A. On her pants, the reason why is because I was
13 unsure of what that spot actually was and I had no idea if it
14 was a paw print.
15 Q. And so, subsequently, we took prints of the
16 dog; is that right?
17 A. That is correct.
18 MS. ASKEY: I'd ask for State's Exhibit 29 to
19 be admitted into evidence.
20 THE COURT: Any objection to State's 29?
21 MR. SWANSON: No, objection.
22 THE COURT: State's 29 is admitted.
23 Q. (By Ms. Askey) After you processed the scene,
24 Amy, did you have any further interaction with the case?
25 A. We did. We actually, we did go back through
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525
1 the scene one other time with Major Case to do a walk through
2 and we processed the suspect vehicle and, I believe with
3 processing evidence and writing reports, I'm not sure that
4 we, I don't recall anything else.
5 Q. Thank you.
6 MS. ASKEY: I have no further questions at this
7 time.
8 THE COURT: Mr. Schwartz?
9 MR. SCHWARTZ: Mr. Swanson.
10 CROSS-EXAMINATION
11 BY MR. SWANSON:
12 Q. You said that when you arrived, the scenes are
13 typically barricaded?
14 A. Yes.
15 Q. And why is that?
16 A. In order to maintain custody of the crime scene
17 and try to keep people out of the crime scene.
18 Q. And you said the officers give you a walk
19 through?
20 A. Yes.
21 Q. You start taking pictures of the scene?
22 A. Yes.
23 Q. After you are done, you seize evidence?
24 A. Yes.
25 Q. And it's important that the scene not be
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526
1 disturbed prior to your arrival?
2 A. That is correct.
3 Q. It seems basic to say that?
4 A. It's very big, important. Yes.
5 Q. So no one is moving things before you arrive or
6 they shouldn't be?
7 A. They should not be.
8 Q. All right. You testified that you took a
9 picture of some gloves that were on the love seat --
10 A. Yes.
11 Q. -- because you thought it was odd they just
12 were laid perfectly there?
13 A. Yes.
14 Q. And then --
15 (Discussion held off the record.)
16 MR. SWANSON: May I approach, Your Honor?
17 THE COURT: Yes.
18 Q. (By Mr. Swanson) This is a picture of the
19 scene. I presume you would have been the one to take it?
20 A. Yes.
21 Q. Do you see those gloves?
22 A. Yes.
23 MR. SWANSON: I'm going ask this be admitted as
24 Defendant's Exhibit D.
25 THE COURT: Any objection to Defendant's D?
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527
1 MR. HICKS: Is that a new picture?
2 MR. SWANSON: I believe you saw it previously.
3 MR. HICKS: That specific one?
4 MR. SCHWARTZ: Yes.
5 MR. HICKS: I mean, is it your copy?
6 MR. SWANSON: That was a copy you gave us.
7 THE COURT: I assume there's no objection to
8 Defendant's Exhibit D?
9 MR. HICKS: No objection.
10 THE COURT: Defendant's Exhibit D is admitted
11 into evidence.
12 Q. (By Mr. Swanson) Looking at that picture, you
13 see the love seat?
14 A. Yes.
15 Q. And the gloves on top of the love seat?
16 A. Yes.
17 Q. Is there anything else on the love seat?
18 A. Let me look at the picture again.
19 Q. Okay.
20 A. There is a blanket or an afghan-type thing.
21 Q. That's just laid across the top?
22 A. Yes.
23 Q. And are there any pillows?
24 A. There are.
25 Q. Besides just the normal couch pillows, throw
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528
1 pillows?
2 A. Two throw pillows.
3 Q. Those are just laid on the side?
4 A. Yes.
5 Q. Now I realize that it's a little far away. Do
6 you see any blood stains on there?
7 A. I do.
8 Q. So there's blood stains from Mrs. Faria on the
9 couch?
10 A. There are unknown blood stains on the couch,
11 yes.
12 Q. And the gloves, the blanket, pillows, they are
13 just laid there. They don't appear disturbed?
14 A. No, they do not.
15 Q. I'm now handing you another picture, well,
16 further back at the scene.
17 (Defendant's Exhibit F marked for identification.)
18 Q. (By Mr. Swanson) On that picture, do you see
19 an ottoman?
20 A. Yes.
21 Q. Do you see anything on that ottoman?
22 A. It looks looked like a piece of paper.
23 Q. Again, not disturbed?
24 A. Not disturbed.
25 Q. All right. Now you don't know when those
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529
1 gloves were placed there?
2 A. I do not.
3 Q. You don't know when any of those things were
4 placed on the couch?
5 A. I don't.
6 Q. It would have been crucial for your performance
7 of the investigation that no one be moving anything?
8 A. Correct.
9 Q. All right. Then you photographed the switch
10 plate?
11 A. Yes.
12 Q. And you said you recognized a pattern on it?
13 A. I recognize that there is a pattern.
14 Q. All right. That's all I'm asking.
15 A. Yes.
16 Q. This was State's Exhibit 17. You called two
17 stains?
18 A. Yes.
19 Q. The one in the lower right-hand corner, does
20 there appear to be a pattern there?
21 A. Yes.
22 Q. Does there appear to be a cross-hatched
23 pattern?
24 A. Yes, it does.
25 Q. That would be fabric?
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530
1 A. Possibly.
2 Q. Okay. So someone likely touched that cross
3 plate with a piece of fabric that had blood on it, leaving a
4 stain?
5 MS. ASKEY: I'm going to object. It calls for
6 speculation.
7 THE COURT: Sustained.
8 Q. (By Mr. Swanson) Do you see the crosshatch
9 pattern?
10 A. I do.
11 Q. Does that resemble fabric?
12 A. It does.
13 Q. For there to be a fabric stain someone would
14 have had to touch it with a piece of bloody fabric?
15 MS. ASKEY: I'm going to object as it calls for
16 speculation.
17 THE COURT: Sustained.
18 Q. (By Mr. Swanson) How would that pattern get
19 there?
20 MS. ASKEY: I'm going to object as it calls for
21 speculation.
22 THE COURT: Sustained.
23 Q. (By Mr. Swanson) With regards to the slippers?
24 A. Yes.
25 Q. You processed those when you went through the
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531
1 evidence processing?
2 A. Photographing, yes.
3 Q. Photographing.
4 (Defendant's Exhibit G marked for
5 identification.)
6 Q. (By Mr. Swanson) Are those photos of the
7 slippers?
8 A. Yes, sir.
9 Q. And look at the second one. Is that the bottom
10 of the slippers?
11 A. Yes, it is.
12 Q. Is there blood on the bottom of the slipper?
13 A. Yes.
14 Q. Did you locate any bloody footprints in the
15 home?
16 A. No.
17 Q. Any?
18 A. No.
19 Q. Nothing that matches the bottom of those
20 slippers?
21 A. No.
22 Q. How would blood get on the bottom of them
23 besides stepping in them, stepping in blood?
24 A. That's a good question.
25 Q. Do you know how the slippers got into the
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532
1 closet?
2 A. I do not know that.
3 Q. But you didn't find any bloody footprints
4 anywhere in the home?
5 A. No.
6 Q. And I'm talking about the evidence processing?
7 A. Uh-huh.
8 Q. You seized the knife from Mrs. Faria's neck or
9 it was seized?
10 A. It was seized.
11 Q. And you photographed it?
12 A. On scene, yes.
13 Q. On scene. Did you photograph it in processing?
14 A. I'm not positive if I did or not. I'd have to
15 look.
16 Q. If I showed you a photo, would that help
17 refresh your recollection?
18 A. Yes, if my DSN is on it.
19 MR. SWANSON: May I approach, Your Honor?
20 THE COURT: Yes.
21 (Defendant's Exhibit H marked for
22 identification.)
23 Q. Could you describe what the first photo is or,
24 I'm sorry, the photo that shows your DSN?
25 A. Okay. It is the knife. It has a red
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533
1 blood-like substance and it has the Major Case number and the
2 date of processing and my DSN.
3 Q. And the second photograph is?
4 A. Is an up-close of the handle of the knife.
5 Q. And does it appear that there is a palm print?
6 A. There is a pattern. Again, unknown if it is a
7 palm print or a fingerprint.
8 Q. In your experience, what does it resemble?
9 A. A palm print.
10 Q. Were you able to pull a, the eight points
11 necessary to do an identification?
12 A. I do not believe we were.
13 Q. Were you able to pull any points?
14 A. I don't know. We'd have to ask a latent
15 examiner.
16 Q. Speaking of latents, can there be latent blood
17 stains?
18 A. Yes.
19 Q. Do you recall if Mrs. Faria's pants were
20 processed for latent blood stains or patent blood stains?
21 A. I believe they were visually examined but I
22 don't know if we found any bloodstain fingerprints.
23 Q. Would your report refresh your recollection on
24 that?
25 A. It's possible. Okay. I do remember.
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534
1 Q. So you performed a test of the pants using Blue
2 Star, which reacts with blood?
3 A. Yes, it does.
4 Q. Read the last sentence of the paragraph?
5 A. (As read) "The very last attempt enhancing the
6 visible paw print pattern on victim's pants met with negative
7 results."
8 Q. So the paw print pattern, you applied Blue Star
9 to it and it had no reaction?
10 A. Correct.
11 Q. That would indicate it was not blood?
12 A. Correct.
13 Q. Did you take pictures of Mrs. Faria on the
14 scene?
15 A. Yes.
16 Q. Including some of the wounds?
17 A. Correct.
18 Q. Is this one of them?
19 A. Yes.
20 Q. At this point, the body would not have been
21 cleaned up?
22 A. Correct.
23 Q. There was no blood in the wound on her arm or a
24 very minimal amount of blood from the very large gash on her
25 arm?
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535
1 A. There is blood, but how much are we talking?
2 Q. Would you call it a lot or a little?
3 A. Minimal.
4 Q. No one would have cleaned that up?
5 A. No.
6 Q. And that's State's Exhibit 10?
7 MR. SWANSON: I apologize, Your Honor. I would
8 ask that, I believe it is Exhibit G, the knife picture, be
9 admitted into evidence.
10 THE COURT: Any objection to Defendant's
11 Exhibit G?
12 MR. SWANSON: It was the knife. Hence, I would
13 ask that G and H both be admitted.
14 MS. ASKEY: We have no objection to H. What's
15 that last picture? I didn't see it.
16 MR. SWANSON: That was your Exhibit 10.
17 MR. HICKS: Oh, okay.
18 THE COURT: So Exhibit G is the same as State's
19 10?
20 MR. SWANSON: No, these are different. I
21 realized I didn't admit them earlier.
22 THE COURT: Is there any objection to
23 Defendant's Exhibit G and H?
24 MR. HICKS: No.
25 THE COURT: Defendant's exhibits G and H are
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536
1 admitted into evidence.
2 Q. (By Mr. Swanson) And then you took this
3 picture of Mrs. Faria at the scene, of the wounds to her
4 back?
5 A. Yes, sir.
6 (Defendant's Exhibit I marked for
7 identification.)
8 MR. SWANSON: I'll ask that Defendant's
9 Exhibit I be admitted.
10 THE COURT: Any objection to State's Exhibit I,
11 I'm sorry, Defendant's Exhibit I?
12 MS. ASKEY: No.
13 THE COURT: Defendant's Exhibit I is admitted
14 into evidence.
15 MR. SCHWARTZ: Thank you, Your Honor.
16 Q. (By Mr. Swanson) Again, those are pictures of
17 Mrs. Faria's wounds at the scene?
18 A. Yes.
19 Q. It would not have been cleaned up?
20 A. No, sir.
21 Q. And minimal might be stressing the amount of
22 blood?
23 A. Correct.
24 Q. There is almost no blood whatsoever from those
25 two wounds?
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537
1 A. No.
2 Q. Just to recap, Mrs. Faria's pants were
3 processed. There was no blood on those? I'm sorry. The
4 alleged paw print was not blood?
5 A. Correct.
6 MS. ASKEY: I'm going to object as to her
7 first answer was she wasn't sure the pants were processed
8 or not.
9 MR. SWANSON: Then she was refreshed.
10 MS. ASKEY: I didn't hear that.
11 MR. SCHWARTZ: Go through it again.
12 MR. SWANSON: I can go through it again.
13 MS. ASKEY: Then I would object as to the
14 foundation.
15 Q. (By Mr. Swanson) Did you process Mrs. Faria's
16 pants?
17 A. Yes.
18 Q. Did you apply Blue Star chemical?
19 MR. HICKS: May we approach, Your Honor?
20 THE COURT: Yes.
21 (Discussion at the bench.)
22 MR. HICKS: My objection is that I believe he's
23 trying to elicit from this witness that the luminol testing,
24 the Blue Star test that they did on these sweatpants
25 indicated that there was not blood. Yet, we're not going to
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538
1 be able to, per their Motion in Limine, argue that the
2 positive testing that they got on the floor is not indicative
3 of blood. So I don't see why they can use a test procedure
4 to try to say there isn't blood when we can't use that same
5 test procedure to see there was an indication of blood.
6 So that's my objection is there was an improper
7 foundation for her to conclude that this paw print wasn't
8 blood.
9 MR. SWANSON: Our Motion in Limine referenced
10 specific Case Law dealing with the issue of whether or not a
11 positive luminol result indicates the presence of blood. The
12 specific Case Law said it did not.
13 What I'm going to ask her, and I already did
14 ask her but apparently they missed it, was you applied Blue
15 Star and it met with negative results. That's different from
16 saying there was no blood. To the best of your knowledge,
17 there was not blood.
18 MS. ASKEY: No. You are still using the Blue
19 Star application.
20 MR. SWANSON: I have Case Law.
21 MS. ASKEY: Then we should be able to say, you
22 applied Blue Star to the floor and it appeared positive.
23 MR. SWANSON: She didn't.
24 MS. ASKEY: But it was done and the Motion in
25 Limine precluded us from indicating there was a positive
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539
1 reaction.
2 MR. SCHWARTZ: It's two different animals
3 altogether. One is positive doesn't necessarily indicate
4 blood. Negative indicates no blood.
5 MS. ASKEY: No.
6 MR. SCHWARTZ: It's a big difference.
7 MR. HICKS: That's why our objection is lack of
8 foundation for her to then make the ultimate conclusion.
9 MR. SCHWARTZ: I'm not asking to make the
10 ultimate conclusion. I'm asking her, did that indicate to
11 you that there was no blood?
12 MR. HICKS: That's the conclusion. There's an
13 improper -- she does luminol testing. There's no expert to
14 come in here that would be the person to say, look, I looked
15 at these pants and that is not blood. I did a DNA test and
16 there was no blood. I don't know that there are any
17 witnesses who are going to come in and do that.
18 What they are doing is what the officer is
19 saying. I did the preliminary testing. It didn't hit. I'm
20 concluding -- I don't think that she can draw that ultimate
21 conclusion that it wasn't blood, just like we couldn't if it
22 did hit, draw the ultimate conclusion that it is.
23 THE COURT: Can she not be Crossed on that to
24 bring it out?
25 MR. HICKS: I guess we can Redirect and try to
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540
1 clear it up. I'm saying our objection was improper, lack of
2 foundation for her to make this ultimate conclusion to, you
3 know, I'm bothered by the fact they can and we can't. I
4 understand their argument but --
5 MR. SCHWARTZ: Judge, if this was a positive
6 for luminol, then it would be forwarded to the lab for a DNA
7 test to determine if it actually was blood.
8 MS. ASKEY: No.
9 MR. SCHWARTZ: Negative luminol indicates that
10 it's not blood, so it's not forwarded to them. Therefore,
11 the tile they were talking about, what they're talking about
12 was a Blue Star/luminol test that was positive, it was
13 indicated it was sent to the lab and indicated it was not
14 blood. There's a massive difference there.
15 There's no reason to go any further when the
16 Blue Star is negative because it indicates no blood.
17 MS. ASKEY: Number one, there is a difference
18 between luminol and Blue Star. You guys are arguing both
19 sides of that. We, the product that was used was Blue Star,
20 which where the false positives were coming out. Those are
21 all luminol-related.
22 Number two, the reason, whether we process the
23 pants or didn't, had nothing to do with their initial
24 processing. She had the same color, which explains now why
25 you called me last night to ask me that question, Joel, but
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541
1 the color, the color all over her pants.
2 MR. SWANSON: You're not arguing, as well.
3 MS. ASKEY: I'm going to argue that it's a
4 substance that looks exactly the same as the substance on the
5 front.
6 MR. HICKS: That's a paw print.
7 MR. SCHWARTZ: You stated in opening it was
8 blood and there isn't any evidence of that.
9 MR. SWANSON: There's contrary evidence to
10 that.
11 MR. SCHWARTZ: Right. To eliminate us from
12 marking it and proposing it is not fair.
13 THE COURT: They can proceed to argue it but I
14 think it needs to be cleared up with the jury exactly what
15 you guys are saying a negative means this and a positive
16 means that, in fairness to them. Otherwise, they are getting
17 a piece of it.
18 MR. SCHWARTZ: That was all in our Motion in
19 Limine was all we wanted to be clear was a positive result
20 could mean blood but doesn't necessarily mean blood. That
21 was our Motion in Limine. Negative result is negative.
22 MS. ASKEY: Your Motion in Limine precluded us
23 from mentioning that it could be blood.
24 MR. SWANSON: Our Motion in Limine said you
25 can't say it means blood was there. That's the Case Law.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
542
1 MS. ASKEY: Your Motion in Limine precluded us
2 from saying that; am I correct? We could say there were
3 cleaning agents.
4 MR. SCHWARTZ: As matter of course, I need to
5 go to the bathroom. Can we take a break now?
6 MR. HICKS: If we can take a break now, maybe
7 we can figure out how to clear this up.
8 THE COURT: At this point, I don't see any
9 problem with what you are doing, but if anybody wants to
10 clarify -- I mean, I expect somebody to clarify with them and
11 say positive means this and negative means that.
12 MS. ASKEY: Can we take a break for people to
13 go to the bathroom and we can figure out whether or not, what
14 report he's talking about?
15 THE COURT: Yes. You want to take a break and
16 let them have a break and do it and figure out what we're
17 going to do.
18 MR. SCHWARTZ: I'd love to finish with this
19 witness. It can't be that much longer.
20 MS. ASKEY: I would anticipate our Redirect
21 will take some time and everyone has to go to the bathroom.
22 The jurors have been in here almost two hours.
23 MR. SCHWARTZ: With the rules invoked as far as
24 conversation with the witness.
25 MS. ASKEY: I'm sorry?
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543
1 MR. HICKS: We can talk to this witness.
2 MR. SCHWARTZ: Then I would ask that we don't
3 have, that we have no break. There is a rule that you are
4 not allowed to confer with a witness while she's testifying.
5 MR. HICKS: There is a rule that I can't go
6 talk to other witnesses and tell them what previous witnesses
7 have said, but there's no rule about talking to a witness
8 during a break about, hey, we didn't discuss this. We are
9 going to try to talk about this now. I've done that a
10 zillion times. I don't understand what you are talking
11 about.
12 MR. SCHWARTZ: I'm asking the rule be invoked
13 they not discuss anything with the witness if we take a
14 break.
15 MS. ASKEY: She's our witness.
16 MR. SWANSON: You are welcome to Cross-examine
17 her about what did you guys discuss during break. I don't
18 care. That's the recourse.
19 THE COURT: I don't know of any such rule.
20 MR. SCHWARTZ: I ask we continue with this
21 witness prior to the break.
22 MS. ASKEY: I ask we take a break.
23 THE COURT: Let's just take a break.
24 (End of bench discussion.)
25 THE COURT: Ladies and gentlemen of the jury,
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544
1 at this time we are going to take a short break. The Court
2 again reminds you of what you were told at the first recess
3 of the Court.
4 Until you retire to consider your verdict, you
5 must not discuss this case among yourselves or with others or
6 permit anyone to discuss it in your hearing. You should not
7 form or express any opinion about the case until it is
8 finally given to you to decide.
9 Do not do any research or investigation on your
10 own about any matter regarding this case or anyone involved
11 with the trial. Do not communicate with others about the
12 case by any means. Do not read, view or listen to any
13 newspaper, radio, electronic communication from the Internet
14 or television report of the trial.
15 At this time, the Court will be in recess until
16 about 10:30. Thank you.
17 (The jury left the Courtroom.)
18 THE COURT: The Court, having reviewed the
19 Defendant's Motion in Limine to exclude testimony regarding
20 luminol/Blue Star. It's referring to Paragraph 6 where it's
21 indicating State can argue that the positive result indicates
22 human blood might have been present.
23 The Court is determining that Motion in Limine
24 was to prevent the State from making a positive statement
25 that a positive absolutely means blood was present. That
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
545
1 Motion has not prevented either side from arguing that a
2 positive result could mean blood or not or that a negative
3 result couldn't be a false negative. Therefore, parties will
4 be allowed to proceed with such arguments and Cross
5 accordingly.
6 Are we ready to bring the jury in?
7 MS. ASKEY: I think so. Yes, Your Honor.
8 (The jury entered the Courtroom.)
9 THE COURT: Thank you. You may be seated. I
10 will, again, for the record call the numbers of each juror.
11 If you will please indicate you are present. Number 2, 3, 4,
12 11, 12 15, 27, 29, 35, 38, 39, 44, 51, 58 and 61. Thank you.
13 For the record, all jurors are present.
14 I believe when we left off, actually, Mr.
15 Schwartz or Mr. Swanson was on Cross. Continue when you're
16 ready.
17 MR. SWANSON: May I approach this witness, Your
18 Honor?
19 THE COURT: Yes.
20 Q. (By Mr. Swanson) When we left, we were talking
21 about Blue Star. We'll come back to that in a second, but
22 one more thing. This is a picture of Betsy Faria's torso
23 that you took at the scene; is that correct?
24 A. Yes.
25 Q. Do you recall taking that picture?
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546
1 A. I do.
2 Q. Do you see two wounds on it?
3 A. I do.
4 Q. Do you see any blood coming from those wounds?
5 A. No.
6 Q. Not even minimal. No blood?
7 A. It's hard to tell on the right-hand side but,
8 no.
9 Q. All right. During the break, did you confer
10 with the prosecution?
11 A. Yes.
12 Q. For the majority of the break, you spoke with
13 the prosecution?
14 A. A portion of it.
15 Q. What did you talk about?
16 A. The report that does not belong to me regarding
17 the Blue Star.
18 Q. And the report doesn't belong to you, but it
19 describes your activities?
20 A. Yes, it does.
21 Q. So you did those things?
22 A. I participated, yes.
23 Q. You just didn't author the report?
24 A. Correct. That's why I didn't recall it.
25 Q. Fair enough. In that report, it says that you
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1 applied Blue Star to Betsy Faria's pants?
2 A. Yes.
3 Q. And Blue Star reacts with blood?
4 A. Yes, it does.
5 Q. It's what's called a presumptive test?
6 A. Yes.
7 Q. That means if it's positive, it indicates there
8 may be blood present?
9 A. Correct.
10 Q. It doesn't mean necessarily that there is
11 blood, but it might be blood?
12 A. Correct.
13 Q. If it's negative, is it still presumptive
14 negative or?
15 A. If it's negative, it should not react.
16 Q. So a negative, to put it a different way. Blue
17 Star can have a false positive but probably doesn't have a
18 false negative?
19 A. Correct.
20 Q. And in fact, when you applied the Blue Star to
21 the pants, some areas of the pants reacted?
22 A. Yes.
23 Q. But I think you actually, the report quotes it
24 as a paw print, so I'm going to hate myself for doing it but
25 the quote, unquote, paw print wasn't blood?
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548
1 A. I don't know for sure if it was blood or not.
2 Q. But it had a negative result?
3 A. When we're trained to enhance it, we're trying
4 to bring the paw print out even further, but I don't know if
5 it was blood.
6 Q. It was a negative result on the paw print?
7 A. It is, enhancing the paw print meaning trying
8 to match it to the paw prints that we seized from the dog.
9 Q. You applied Blue Star to the paw print?
10 A. Yes.
11 Q. It did not react?
12 A. It did react.
13 Q. It's not what the report says.
14 A. It says enhancing the paw print pattern on the
15 pants are met with negative results, meaning trying to pull
16 it out, making it look more like or trying to decide if it
17 actually is a paw print, not whether or not it was blood,
18 which we do not know because it had to go to the lab.
19 Q. So if it was blood, it would have gone to the
20 lab for further testing?
21 A. Regardless, it was going to the lab.
22 Q. Do you know if it was sent to the lab for
23 further testing?
24 A. Yes.
25 Q. Who did that testing, do you know?
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549
1 A. I do not know.
2 Q. Would it have been Daniel Fahnestock?
3 A. Probably, yes.
4 Q. The blood on the bottom of the slippers, you do
5 not know how that got there?
6 A. I do not.
7 Q. You did not find bloody footprints?
8 A. No, I did not.
9 Q. You did not find any impressions of the
10 slippers anywhere in the house?
11 A. No.
12 MR. SWANSON: I'd ask that Exhibit J be
13 admitted.
14 THE COURT: Is there any objection to the
15 Defendant's Exhibit J?
16 MS. ASKEY: No, Judge.
17 THE COURT: Defendant's Exhibit J is admitted.
18 MR. SWANSON: Nothing further, your Honor.
19 THE COURT: State?
20 (State's Exhibit Numbers 37 and 38 marked
21 for identification.)
22 REDIRECT EXAMINATION
23 BY MS. ASKEY:
24 Q. Amy, I'm going to show you what's been marked
25 as State's Exhibit 37. Do you recognize that photograph?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
550
1 A. Yes.
2 Q. And is that a photograph that you took?
3 A. Yes, it is.
4 Q. And what's it a photograph of?
5 A. It is a butcher block with knives.
6 Q. Two butcher blocks, actually; is that right?
7 A. Yes.
8 Q. Do you notice that there's one missing in this
9 butcher block of steak knives?
10 A. Yes.
11 Q. That's the MasterChef; is that right?
12 A. Yes, it is.
13 Q. And is the knife -- is there a reason you took
14 a picture of that?
15 A. Because it looked similar to the one that was
16 in the victim's neck.
17 Q. Okay.
18 MS. ASKEY: I'd ask for State's Exhibit 37 to
19 be admitted.
20 THE COURT: Is there any objection to State's
21 37?
22 MR. SWANSON: No objection.
23 THE COURT: State's 37 is admitted into
24 evidence.
25 MS. ASKEY: Thank you.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
551
1 Q. (By Ms. Askey) I'm showing you State's 38.
2 What is that?
3 A. This is also an additional picture of the
4 butcher block with the block steel knives. It's an evidence
5 processing photo.
6 Q. So once it's been seized, that's the photo that
7 was taken?
8 A. Yes.
9 Q. And still indicates the knife that's missing;
10 is that correct?
11 A. Yes.
12 Q. And specifically when you went into the
13 kitchen, were these knives visible upon entry into the
14 kitchen or did you have to go around and look for them?
15 A. They are visible.
16 Q. They are visible on the counter, but do you
17 remember or recall where they were exactly?
18 A. Exactly? There on the counter, next to the
19 microwave.
20 THE COURT: Were you admitting 38? You
21 admitted 37.
22 MS. ASKEY: Yes. Judge, I ask to admit 38,
23 please.
24 THE COURT: Is there an objection to State's
25 38?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
552
1 MR. SWANSON: No, Your Honor.
2 THE COURT: State's Exhibit 38 is admitted into
3 evidence.
4 (State's Exhibit Number 39 marked for
5 identification.)
6 Q. I'm going to show you what's been marked as
7 State's 39. Do you recognize that photograph?
8 A. Yes. That is the kitchen.
9 Q. And is the knife block actually on the side of
10 this refrigerator?
11 A. Yes.
12 Q. So you would have had to have walked all the
13 way in the kitchen to look for them; is that right?
14 A. Yes, ma'am.
15 MS. ASKEY: I'd ask for State's 39 to be
16 admitted.
17 THE COURT: Any objection to State's 39?
18 MR. SWANSON: No objection.
19 THE COURT: State's Exhibit 39 is admitted.
20 MS. ASKEY: I don't have anything further,
21 Judge.
22 THE COURT: Mr. Swanson?
23 RECROSS-EXAMINATION
24 BY MR. SWANSON:
25 Q. Just a recap. After the break, you said there
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553
1 was a positive result for the paw print?
2 MS. ASKEY: Judge, I'm going to object as it
3 goes beyond the scope of my Redirect.
4 MR. SWANSON: You Redirected on knives that
5 were never brought up at all.
6 MS. ASKEY: You brought up the knives. You
7 absolutely brought up the knives. You had her identify the
8 one sticking out of the victim's neck. That's why I showed
9 her the picture she took.
10 THE COURT: Overruled this time. She can
11 answer.
12 A. Can you restate your question?
13 Q. (By Mr. Swanson) After the break, you
14 testified that there may have been a positive result on the
15 paw prints?
16 A. There may have been.
17 Q. You were dead certain that was sent for further
18 processing.
19 A I do believe so, yes.
20 Q. You don't know if it's a paw print?
21 A. I do not know.
22 Q. You don't know if it's blood?
23 A. I do not.
24 Q. You don't know how old it is?
25 A. No.
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554
1 Q. You don't know how it got there?
2 A. No clue.
3 MR. SWANSON: Nothing further.
4 THE COURT: State?
5 FURTHER REDIRECT EXAMINATION
6 BY MS. ASKEY:
7 Q. Amy, State's Exhibit 10 is going to be up on
8 the screen in one second and I'm going to show you what's
9 been marked as State's Exhibit 12, which are the victim's
10 pants that were seized. Do you recognize these?
11 A. Yes, ma'am.
12 Q. And do you recognize the denotation on the back
13 of the tape?
14 A. Yes.
15 Q. Is that something you would have put there?
16 A. That was the area that we believed at the time
17 to be the paw print.
18 Q. And was the color of the area that you believed
19 to be a paw print consistent with the other colors that
20 appear to be blood over the pants?
21 A. Yes.
22 Q. Was there anything different about those?
23 A. No.
24 MS. ASKEY: I don't have anything further.
25 THE COURT: Mr. Schwartz or Swanson?
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1 MR. SCHWARTZ: I have one question.
2 FURTHER RECROSS-EXAMINATION
3 BY MR. SCHWARTZ:
4 Q. Is that how you make your assessments, by
5 color?
6 A. It appears to be a red, blood-like substance.
7 Q. But you tested it and, according to your
8 report, it's negative?
9 A. When we enhanced it for the paw print it was
10 negative as a paw print.
11 Q. That's not what you testified to earlier when
12 Mr. Swanson was questioning you. You said you enhanced it
13 with the Blue Star/luminol and that was negative?
14 A. To enhance it.
15 Q. So you never enhanced it for blood?
16 A. We did enhance it for blood.
17 Q. And that was never -- you don't have any
18 positive result, do you? There's nothing to indicate that
19 that's blood?
20 MS. ASKEY: I'm going to object as
21 argumentative. Asked and answered.
22 THE COURT: Sustained.
23 Q. (By Mr. Schwartz) Was there ever a test to
24 determine that was blood?
25 A. Blue Star was done on it.
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1 Q. And that test was negative?
2 A. I do not -- it was used as an enhancement tool
3 to try to draw the paw print up. That was the whole reason
4 for it.
5 Q. And you keep calling it a "paw print", but now
6 you are saying you enhanced it to determine if it was a paw
7 print and you can't even say that, can you?
8 A. I can't. I can't tell you if it was a paw
9 print.
10 Q. You can't even say if it appears to be the same
11 color as blood?
12 A. It looks like a red, blood-like substance.
13 Q. That could have been on those pants for a
14 month, couldn't it?
15 A. It could have.
16 Q. It could be mud from outside in that drainage
17 ditch outside, couldn't it?
18 A. Yes.
19 Q. So you don't know if it's a paw print, right?
20 A. Right.
21 Q. You don't know if it's been there for a month?
22 A. Correct.
23 Q. You don't have anything to say it's blood?
24 A. No.
25 Q. As far as you know, it could simply be mud from
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1 when she took the dog out that day or Russ took the dog out
2 that day or anybody took the dog out?
3 A. True.
4 Q. You had information that dog jumps all over
5 you. You were actually kind of scared of the dog, right?
6 A. Correct.
7 Q. Just so I know, was that dog left outside the
8 entire night until you got there in the morning?
9 A. It was.
10 MR. SCHWARTZ: Nothing further.
11 THE COURT: State?
12 MS. ASKEY: Nothing further.
13 THE COURT: Thank you. May this witness be
14 released?
15 MS. ASKEY: Yes, Your Honor.
16 THE COURT: Thank you, ma'am. You may be
17 released.
18 Further evidence on behalf of State?
19 MR. HICKS: Dr. Sabharwal.
20 THE COURT: Dr. Sabharwal, if you would please
21 come forward.
22 KAMAL SABHARWAL,
23 a witness, having been duly sworn by the Circuit Clerk to
24 tell the truth, the whole truth and nothing but the truth, so
25 help you God, under pain and penalty of the Perjury Laws of
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
558
1 Missouri, testifies as follows:
2 MR. SCHWARTZ: Judge, may we approach prior to
3 the witness testifying very briefly?
4 THE COURT: Yes.
5 (Discussion at the bench.)
6 MR. SCHWARTZ: Your Honor, prior to the
7 testimony of Dr. Sabharwal, Mr. Hicks has informed me he does
8 intend to get into the phenomenon known as the cadaveric
9 spasm.
10 Pursuant to my earlier objection, I would
11 object to this line of questioning with this witness based on
12 our motion for Frye Hearing and offered to examine the
13 witness if this actually exists and what physical testing
14 procedures he went into in order to determine that this may
15 have existed.
16 And we believe at that point, if there's not
17 any test that he conducted, then it would barely be a guess
18 or conjecture to put this in front of this jury.
19 THE COURT: Are you referring to the Frye
20 Hearing that was requested the same day we chose the jury?
21 MR. SCHWARTZ: Yes. I'm just renewing my
22 objection that the witness is not prepared to testify.
23 THE COURT: Is there some scientific procedure
24 he can use that we would have added a Frye Hearing?
25 MR. SCHWARTZ: That's my point.
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559
1 MR. HICKS: That's my point. There is no
2 scientific measure or test that can be done to figure out if
3 this happened. One, I would agree and characterize it as a
4 phenomenon. There is a lot of literature out there.
5 A lot of doctors, him included, who believe
6 this can occur, although it may be rare. I'm not going to go
7 as far as to ask him to say, is it your opinion that she
8 could have experienced cadaveric spasms. All he's going to
9 do is explain what cadaveric spasms are and what can bring
10 them on. I'm not going to go any further on that.
11 I think it's up to the jury to conclude, well,
12 if it is possible that the stiffening of the, that the
13 officer said that they felt could have been not because of,
14 you know, the onset of rigor mortis but because, possibly,
15 that had to go to cadaveric spasm so.
16 THE COURT: Due to the nature of his testimony
17 as well as the timing of the filing for the Frye Hearing, the
18 Court's going to deny the Frye Hearing and you can proceed on
19 the scope of describing. If you have further objection,
20 object please.
21 MR. SCHWARTZ: I would simply ask for a
22 continuing objection at this point to that line of
23 questioning.
24 THE COURT: Continuing objection is noted for
25 the record on behalf of Mr. Schwartz.
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560
1 MR. SCHWARTZ: Thank you, Your Honor.
2 DIRECT EXAMINATION
3 BY MR. HICKS:
4 Q. Would you state your full name for the record?
5 A. My name is Kamal Sabharwal.
6 Q. Sabharwal?
7 A. Yes.
8 Q. You are a Doctor, right?
9 A. Yes.
10 Q. I'm going to call you "Doctor"; is that okay?
11 A. Okay.
12 Q. I'm not good with names unless it's Tony or
13 Jim. I'm sorry. So, Doctor, let's start there. I'm calling
14 you "Doctor". What kind of -- tell us about your education
15 that gives you this title?
16 A. Okay. After college, I attended four years of
17 medical school. After medical school, I attended -- I did
18 five years of residency training in pathology. After that, I
19 did an additional year of subspecialty training in forensic
20 pathology.
21 Q. Would you back up and tell us what schools did
22 you go to?
23 A. For undergrad, I went to St. Louis University.
24 Medical school, I went to St. George's University.
25 Residency, I did through the University of Missouri in
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
561
1 Kansas City and St. Louis University, and then my
2 fellowship training in forensic pathology, I did through
3 St. Louis University.
4 Q. At some point, it sounds like you decided to go
5 into the -- like the law, in medicine, there's a lot of
6 different areas you can go into; is that correct?
7 A. Yes.
8 Q. You chose, it sounds like, forensic pathology?
9 A. Yes.
10 Q. At what point in your education did you decide
11 this is the area that you wanted to practice?
12 A. This was during my five years of residency
13 training in pathology. That's when I decided to go to
14 subspecialize into forensic pathology.
15 Q. Okay. Now I know a lot of jurors understand,
16 you know, we've been to doctors. Tell us how forensic
17 pathology differs from what we expect from the other type of
18 doctors that we're normally associating with or having
19 interaction with.
20 A. Okay. Pathology basically is the study and
21 diagnosis of disease processes and injuries and how they
22 affect the body. Now forensic pathology basically applies to
23 the principals of pathology to problems or occurrences in the
24 field of law.
25 Q. Okay. Meaning, because of your expertise here,
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562
1 does that mean that often you are asked to conduct what we
2 commonly know as autopsies?
3 A. Yes.
4 Q. What is an autopsy?
5 A. An autopsy is an examination performed to
6 document injuries, document natural disease processes, to
7 recover evidence from the body, recover specimens for testing
8 for toxicology and to kind of interpret how any diseases or
9 injuries could have played a role in the death. Also,
10 autopsies are performed to establish the cause of death and
11 the manner of death.
12 Q. How is forensic pathology, your training in
13 that area, enabled you to do autopsies? What's the
14 connection?
15 A. Well, I did my training in forensic pathology
16 in the City of St. Louis, through St. Louis University.
17 During that training, I performed pretty much autopsies for
18 the City of St. Louis. Made interpretations of those to
19 establish a cause and manner of death and to provide
20 testimony.
21 Q. How many years have you been performing
22 autopsies as a medical examiner?
23 A. Almost eight years now.
24 Q. Okay. And about how many autopsies on average
25 do you do a year, do you think?
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563
1 A. Between 250 and 500, depending on how busy I am
2 that year.
3 Q. Because right now, you're in the St. Louis
4 area, correct?
5 A. I work for St. Louis County. I do St. Charles
6 County, Franklin County, Jefferson County, St. Louis City,
7 Lincoln County. I was also covering cases, for a while, up
8 in the Kansas City area.
9 I'll occasionally do work in Nevada. Also,
10 I'll do other cases for other more rural counties surrounding
11 St. Louis.
12 Q. All right. Do you hold any special licenses or
13 credentials that, as a forensic pathologist, that allows you
14 to do autopsies?
15 A. I am licensed to practice medicine in Missouri,
16 Kansas, Illinois and Nevada and I am Board Certified in
17 anatomic pathology and in forensic pathology.
18 Q. Okay. And how often, what does that mean, to
19 be "Board Certified" in those two areas?
20 A. That means I have completed the required
21 training and then also I've sat for the examinations and I've
22 passed the examinations.
23 Q. Okay. Now since you've done all of that in the
24 last eight years you've been a practicing medical examiner,
25 are you ever called upon to testify?
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564
1 A. Yes.
2 Q. Testify -- is it usually a criminal
3 proceeding?
4 A. Yes.
5 Q. All right. But occasionally is it a
6 non-criminal proceeding?
7 A. Yes.
8 Q. Okay. But it always has to do with, it sounds
9 like, having conducted an autopsy and determining a cause of
10 death, if you could; --
11 A. Yes.
12 Q. -- is that right?
13 A. Yes.
14 Q. Okay. And have you testified in the State of
15 Missouri before?
16 A. Yes.
17 Q. As an expert?
18 A. Yes.
19 Q. How about any other states?
20 A. I have testified in Illinois, as well.
21 Q. Okay. That makes sense being there in St.
22 Louis. All right. Well, were you asked in December of 2011
23 to conduct an autopsy of an Elizabeth Faria?
24 A. Yes.
25 Q. Okay. Where was this autopsy conducted?
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565
1 A. The autopsy was performed at the St. Louis
2 County Medical Examiner's Office.
3 Q. Okay. And do you recall whether you did this
4 in the morning or afternoon?
5 A. It was at 1:00 p.m. in the afternoon.
6 Q. And what was the date again?
7 A. It was on December 28th of 2011.
8 Q. Okay. So that would have been -- Christmas,
9 it's been established that year was on a Sunday. That would
10 make that Wednesday afternoon is when you were conducting
11 this autopsy. Does that sound about correct?
12 A. Yes.
13 Q. All right. When you conduct an autopsy, is
14 there kind of a general procedure that you always go through?
15 A. Yes.
16 Q. And describe that briefly for us.
17 A. Well, first I'll get a briefing from the person
18 who took the call about the death. After that, what we'll do
19 is we'll x-ray the body in our office. I will examine those
20 x-rays looking for things like any type of evidence in the
21 body, like maybe any metal objects, any bullets, anything
22 like that. Also, in reviewing the x-rays, I'll be able to
23 note things like broken ribs.
24 After I review the x-rays, I move on to what is
25 called the external examination part of the autopsy. And
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566
1 during the external examination, what I do is I look over the
2 entire body.
3 I'll note the general appearance of the person.
4 I'll note what clothing they are wearing. I'll document
5 things like any injuries they have, any scars, any tattoos.
6 If there is any evidence on the outside of the body, I'll
7 recover that during the external examination.
8 After that, I'll move on to the internal
9 examination part of the autopsy where I'll open up the
10 different body cavities. I'll examine the body cavities and
11 I'll examine each of the organs. The type of things I'm
12 looking for is any evidence of any injuries or any natural
13 disease processes.
14 If there is any type of evidence inside the
15 body that I need to recover, I'll recover that during the
16 internal examination. I'll also be taking specimens for any
17 toxicology testing during the internal examination.
18 Following that, I prepare a preliminary report
19 and then what I do is, after I prepare the report, I'll wait
20 for some things that I've sent off to the lab to come back,
21 like the toxicology specimens.
22 If I have taken tissues to look at under the
23 microscope, I'm waiting for those to come back from the lab.
24 Also, if I need to order medical records, I'll wait for that
25 to get back.
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567
1 And once I have everything together, I'll
2 review that again together with my preliminary report and, at
3 that time, I'll come up with a cause and manner of death.
4 Q. As you perform this standard procedure in a
5 autopsy, how do you document or preserve what it is that you
6 are doing in your findings?
7 A. What I will do is I will make notes for myself
8 and then, immediately after the autopsy, I will go ahead and
9 dictate it and one of our transcriptionists will type it up
10 for me.
11 Q. Is there anybody else there assisting you when
12 you are doing autopsies?
13 A. I will usually have an autopsy assistant
14 present.
15 Q. Are there any photographs taken during the
16 autopsies?
17 A. There are photographs taken. We take
18 identification photographs in our morgue and then if law
19 enforcement is present, they can also take photographs, as
20 well.
21 Q. Okay. And are these photographs then later
22 also helpful to you in putting together, ultimately, your
23 autopsy report, your findings?
24 A. Yes.
25 Q. Okay. Of course, these then are passed on to
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568
1 law enforcement, to the Prosecutor's office, correct?
2 A. That's correct.
3 Q. All right. Is that what you did on December
4 28th with Elizabeth Faria?
5 A. Yes, that is.
6 Q. You were provided a history first, it sounds
7 like?
8 A. Yes.
9 Q. Was there any law enforcement present there
10 during the autopsy with you?
11 A. Yes.
12 Q. You may not even recall who that was at this
13 point, but do you recall law enforcement being present?
14 A. I remember law enforcement was present, but I
15 don't remember who was there.
16 Q. I understand. Now let's start here. Let's
17 just go externally. All right. Head-to-toe, so to speak.
18 Did you do that with Elizabeth Faria?
19 A. Yes.
20 Q. And let's talk about the injuries that you
21 found to her head?
22 A. Okay.
23 Q. Is that okay?
24 A. All right.
25 Q. All right. What injuries, if any, did you find
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569
1 to her head region?
2 A. To basically, to her head and neck region, I
3 noted multiple sharp force injuries. When I say "sharp
4 force", sharp force consists of both stab wounds and incised
5 wounds or cutting wounds.
6 Q. I want to stop you right there because that was
7 a question that I had. You have got stab wounds that you
8 reference in here. You call them "stabs", and then "incise"?
9 A. Yes.
10 Q. Explain the difference to the jury.
11 A. A stab wound is a penetrating wound which
12 penetrates deeper into the skin and tissue than the actual
13 injury on the surface of the skin.
14 An incised wound is basically a cut wound.
15 It's another word for a cut, and the incised wound is longer
16 on the surface of the skin than it is deeper into the skin
17 and tissue.
18 Q. Is that the typical way you tell the
19 difference? If it's deeper than it is wide, it could be
20 considered a stab, but if it's wider than it is deep, you are
21 going to maybe identify it as an incision?
22 A. Yes.
23 Q. Okay. Now the reason I asked that is that, is
24 it possible if a person is stabbed but, you know, something
25 stops so they barely, you know, they just stab superficially,
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570
1 is it possible that a stab wound can look like an incised
2 because it didn't penetrate that deep and I'm just --
3 A. Yes, it's possible.
4 Q. All right. So when you are looking at all of
5 the injuries in an autopsy, are you necessarily trying to
6 determine how the incision was made as opposed to whether it
7 was a stabbing or are you just kind of working within that
8 category of, if it's deeper than it is, you know, wide then
9 we're going to call it a stab or if it's wider than it is
10 deep, we're going to call it an incision?
11 A. Yes, that's correct.
12 Q. You are not making any determination,
13 ultimately, about whether an incision was actually a stabbing
14 motion or vice versa; is that correct?
15 A. I haven't been asked to do that, no.
16 Q. That would be -- that's not part of your role
17 to determine actually how it was inflicted, just what the
18 injuries were; is that correct?
19 A. Yes. Yes.
20 Q. So I just want to clear that up when we talk
21 because I think you are going to be back and forth between
22 stab wounds and incisions; is that correct?
23 A. Yes, that is.
24 Q. Going back to the head area, all right. Tell
25 us about the wounds, the injuries that you found on Elizabeth
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
571
1 Faria.
2 A. On the head, on the left side of the head on
3 the upper back side, which is the posterior-superior aspect
4 of the scalp, there was a 1 centimeter by 0.1 centimeter stab
5 wound. This stab wound tracks through a depth of
6 approximately 1 centimeter through the scalp tissue.
7 It tracked in a frontward and rightward
8 direction through the skin and underlying soft tissue, and it
9 produced an underlying hemorrhage in the scalp there and it
10 produced, also, a defect in the outer portion of the skull
11 and that defect measured about 0.5 x. 0.3 x 0.2 centimeters.
12 Q. Is it true that the head area, as comparatively
13 speaking to some other areas of the body, you can get a lot
14 more bleeding?
15 A. Yes.
16 Q. Why is that?
17 A. Within the scalp, there's a lot of small blood
18 vessels there, so it doesn't take a very large injury to the
19 head to produce a lot of blood.
20 Q. That's why when my ten-year-old falls down and
21 hits his head and it bleeds, it can look a lot worse than it
22 actually is, correct?
23 A. That's correct.
24 Q. All right. What other juries, besides the one
25 up there on the left side of the head, did you find on the
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
572
1 head?
2 A. On the left lower eyelid, there was a 1.5
3 centimeter slit-like stab wound. This was located
4 approximately 15 centimeters below the crown of the head and
5 about 3.5 centimeters to the left of the midline. This stab
6 wound tracked backward through the skin and soft tissue of
7 the eye to a depth of approximately 3 centimeters.
8 Q. So this one was 3 centimeters long?
9 A. It was 3 centimeters in depth.
10 Q. In depth?
11 A. Yes.
12 Q. Okay. Of course, the one you just talked about
13 was 1 centimeter in depth?
14 A. That one was 1 centimeter in depth. The one on
15 the scalp.
16 Q. Okay. What other injuries did you note to the
17 head?
18 A. On the left ear, there was two stab wounds on
19 the left ear. One of the stab wounds measured approximately
20 2 centimeters in length. It was slit-like. That one was
21 located approximately 12 centimeters below the top of the
22 head and about 7 centimeters to the left of the midline.
23 This one tracked to a depth of about 6 centimeters deep.
24 The second stab wound to the ear measured
25 approximately 1 centimeter in length. This was also
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573
1 slit-like. This one was located approximately 14 centimeters
2 below the top of the head and about 7 centimeters to the left
3 of the midline, and this one tracked about 3 centimeters in
4 depth.
5 Q. I'm going to stop you right there before we go
6 any further because I know you are, what you're getting ready
7 to talk about. I'm going to show you State's Exhibit 32.
8 (State's Exhibit Number 32 marked for
9 identification.)
10 Q. (By Mr. Hicks) I'm going to show you State's
11 Exhibit 32. I want to ask you if you recognize that
12 photograph?
13 A. Yes.
14 Q. Okay. And what is that a photograph, what is
15 that photograph depicting?
16 A. This is a photograph depicting the left side of
17 Elizabeth Faria's face and neck showing some of the sharp
18 force injuries involving her ear and then her face and then
19 the neck region.
20 Q. Is this the area that you were just talking
21 about, particularly when you were talking about the ear and
22 working down?
23 A. Yes.
24 Q. Okay. Would this be helpful in, at least when
25 you're talking about the jury being able, talking to the jury
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
574
1 about the injuries you found, being able to identify each one
2 of these?
3 A. Yes.
4 Q. All right.
5 MR. HICKS: Your Honor, the State would move to
6 admit into evidence State's Exhibit 32.
7 THE COURT: Any objection to State's 32?
8 MR. SCHWARTZ: May I see it?
9 MR. HICKS: I gave you a copy of it.
10 Permission to publish that he testifies about
11 each of these injuries.
12 MR. SCHWARTZ: No objection.
13 THE COURT: No objection to State's Exhibit 32,
14 so it is admitted and it's published to the jury.
15 Q. (By Mr. Hicks) Now, Doctor, I think you were
16 -- before I interrupted you, you had just talked about a
17 couple of injuries to the ear, and one of them was 6
18 centimeters in depth?
19 A. Yes.
20 Q. Can you identify from that photograph which
21 injury you are talking about that went 6 centimeters in? And
22 if you want to get out, that probably would be great, if you
23 don't mind?
24 A. Let's see. The first one, which is 12
25 centimeters below the top of the head, is this stab wound
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
575
1 right here. This is the one that tracked about 6 centimeters
2 deep.
3 And then the second stab wound, this one right
4 here, this one tracked about 3 centimeters deep.
5 MR. HICKS: I'm going to inquire if the jurors
6 can see? It doesn't have a very good angle. I want to make
7 sure they can see. Can everybody see all right? Do you want
8 me to --
9 THE COURT: I think if it had a little bit of a
10 tilt.
11 MR. HICKS: Doctor, if you want to come down
12 here?
13 THE WITNESS: That's fine.
14 MR. HICKS: You can.
15 THE WITNESS: Okay.
16 MR. HICKS: How is that? Is that better?
17 Okay.
18 Q. (By Mr. Hicks) What's the next injury that you
19 note here?
20 A. The next injury that I note is the left
21 postauricular aspect of the scalp contains two stab wounds.
22 The postauricular means it's behind the ear and it's on the
23 left side.
24 Q. Okay.
25 A. So there was two stab wounds in that area that
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576
1 I described. One stab wound measures approximately 1.5
2 centimeters in length. That one is slit-like. That one
3 tracks about 3 centimeters in depth.
4 The second stab wound in that area measures at
5 approximately 2 centimeters in length. That's also slit-like
6 and that tracks, again, to approximately 6 centimeters in
7 depth.
8 Q. Can you see those injuries in the picture?
9 A. Yes.
10 Q. Okay. Could you point those out for us?
11 A. These two right here.
12 Q. Okay. What's the next -- and again, I think
13 you said we were just going to work down from the top of the,
14 you know, from the top of the head down. What's the next
15 injury that you noted?
16 A. Okay. I note the anterior and left lateral
17 aspects of the neck contained seven additional stab wounds
18 and then three incised wounds.
19 One of the stab wounds measures approximately
20 2.5 x 0.3 centimeters and is located approximately 17
21 centimeters below the crown of the head and about 7
22 centimeters to the left of the midline.
23 Q. Now is that the injury that we're looking at
24 that looks like it's almost on her jaw bone?
25 A. Yes. This whole group of injuries are going to
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
577
1 be, all of these injuries like right in here. This is the
2 first one I'm describing. Those are going to be the others.
3 Q. Okay. So if you could just begin to tell us
4 what the depth or what the size of each of these wounds was?
5 A. Okay. One stab wound measured about 2.5 x 0.3
6 centimeters. That was located 17 centimeters below the crown
7 of the head and 7 centimeters to the left of the midline.
8 That one tracked about 14 centimeters through the neck and it
9 produced an exit stab wound on the other side of the neck
10 below the right ear.
11 Q. Now let me ask you that. How did you determine
12 -- we're talking about 14 centimeters, right?
13 A. Yes.
14 Q. How did you determine that the entry that you
15 were looking at, and that there was an exit and how the other
16 side wasn't the exit as opposed to being an injury? Does
17 that make sense?
18 How were you able to determine which, if it's
19 through and through, how were you able to determine which was
20 an entry and which was an exit?
21 A. The entry wound was larger. The exit wound was
22 smaller --
23 Q. Okay.
24 A. -- on the other side of the neck.
25 Q. Did you do anything to determine whether, in
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
578
1 fact, that was -- how did you determine it was actually an
2 entry and exit? It was through and through?
3 A. I used a probe to stick through one side and it
4 came out on the other side. Then when I did the examination
5 of the neck on the internal examination, I tracked it from
6 inside, as well.
7 Q. Okay. I'm going to show you State's Exhibit 33
8 and ask if you recognize that photograph?
9 A. Yes.
10 Q. What is that a photograph of?
11 A. This is a photograph of when I used the probe
12 through the entrance stab wound and had it come out the exit
13 stab wound to depict the direction of the wound.
14 Q. What you just described, does it accurately
15 depict how the probe looked when it was in Mrs. Faria's neck?
16 A. Yes.
17 MR. HICKS: Your Honor, the State would move to
18 admit into evidence State's 33.
19 THE COURT: Any objection?
20 MR. SCHWARTZ: No.
21 THE COURT: State's Exhibit 33 is admitted.
22 MR. HICKS: Permission to just to publish that
23 for a second?
24 THE COURT: Any objection?
25 MR. SCHWARTZ: No.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
579
1 THE COURT: Same is published to the jury.
2 (State's Exhibit Number 33 marked for
3 identification.)
4 Q. (By Mr. Hicks) I believe I have back on the
5 board State's Exhibit 32, okay? On the screen. What other
6 injuries did you note after this through and through?
7 A. There was another stab wound that measured
8 approximately 1.5 x 0.5 centimeters and this one was located
9 approximately 20 centimeters below the top of the head and
10 about 5 centimeters to the left of the midline.
11 After that, I note another stab wound which
12 measures approximately 1.5 x 0.4 centimeters. This one is
13 located approximately 19 centimeters below the crown of the
14 head and 5 centimeters to the left of the midline.
15 Q. Okay.
16 A. In this one, there's a knife, which is still,
17 at the time of the autopsy, there was a knife that was still
18 present in this penetrating wound and that knife penetrated
19 to a depth of approximately 14 centimeters through the tissue
20 of the neck.
21 Q. So I want to stop you right there. Can you
22 tell by looking at State's Exhibit 10 or, I'm sorry, 32,
23 which wound in that picture the knife was sticking out of?
24 A. From the picture, it's a little bit hard to
25 tell which one they were from this picture here.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
580
1 Q. All right. So when Ms. Faria showed up at this
2 autopsy, she still had the knife in her neck?
3 A. Yes.
4 Q. And was that knife removed?
5 A. Yes.
6 Q. And ultimately, what did you do with it?
7 A. That was handed over to law enforcement.
8 Q. Okay. I'm going to --
9 (State's Exhibit Number 14 marked for
10 identification.)
11 Q. (By Mr. Hicks) I've got a bag. I've got a bag
12 that I've marked here as State's Exhibit 14. In it -- now
13 did you package this or did you hand it off to law
14 enforcement?
15 A. I handed it off to law enforcement.
16 Q. Yes. That's what I figured. I'm going to ask
17 you to look at this real quick and ask you, does that appear
18 to be the knife that was removed during the autopsy?
19 A. Yes.
20 Q. Yes. Okay. After that knife was removed and
21 you handed that to law enforcement, did you continue your
22 autopsy, I mean, identifying these different injuries?
23 A. Yes.
24 Q. What is the next one that you noted?
25 A. In my report, I noted a 5 centimeter
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
581
1 superficial incision connects this stab wound to a 2 x 0.5
2 stab wound located approximately 20 centimeters below the
3 crown of the head and 4 centimeters to the left of the
4 midline.
5 Q. If we go to back to that picture, so we can
6 show you.
7 A. So the injury with the knife in it was this one
8 here. I describe it as superficial incision connecting the
9 two wounds. This is the one with the knife in it. This is
10 the superficial incision and this the exit wound that I
11 described.
12 Q. Okay. That one that the night knife was in,
13 you said it went to a depth of 14 centimeters?
14 A. Fourteen centimeters.
15 Q. But it did not go through and through?
16 A. That's correct.
17 Q. So were those the two -- I guess what I'm going
18 to call the longest, the greatest length as far as wounds
19 that you saw?
20 A. Yes. Those are the two with the greatest
21 amount of depth through the neck.
22 Q. Fourteen centimeters, correct?
23 A. Yes.
24 Q. What is the next injury you after you noticed,
25 after the ones you just talked about, I guess we're moving
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
582
1 down to her neck now or is there anything else left on the
2 head?
3 A. Yes, in the neck region, then.
4 Q. I want to stop you right there. It sounds to
5 me like that the injuries that you are noting here, all of
6 the injuries are from the left side of the head, basically,
7 the back and left side of the head, ear, down to the cheek;
8 is that correct?
9 A. Yes.
10 Q. Okay. Did not note any injuries on the right
11 side of the head?
12 A. No injuries to where the knife went in. We
13 only had the exit injury on the right side.
14 Q. All right. So again, injuries to the left side
15 of the head. Would that be consistent with somebody
16 right-handed if they were stabbing like this?
17 A. If they were, if you were face-to-face --
18 Q. Yes.
19 A. -- then it would be, but I don't know the
20 position.
21 Q. I understand. I got you. Let's talk about the
22 injury to the neck.
23 A. Okay. I note a 3.5 centimeter incision which
24 measures 0.5 centimeters in depth that connects that last
25 stab wound to a 2 x 0.5 centimeter stab wound, which is
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
583
1 located 20 centimeters below the crown of the head and a half
2 a centimeter to the left of the midline.
3 Q. Okay.
4 A. And that incision that I'm talking about is
5 this one. The incision is going up that way.
6 Q. All right. So right underneath her chin, it's
7 going up through, I guess, left to right?
8 A. Yes. It's going this way.
9 Q. Okay. Any other injuries that you noted?
10 A. I note a 0.2 centimeter linear abrasion which
11 extends upward from that stab wound which, in this
12 photograph, we can't see that.
13 Q. Okay.
14 A. Then there's another stab wound that measures
15 1.5 x 0.3 centimeters and that's located approximately 20
16 centimeters below the crown of the head and about 3
17 centimeters, this time to the right of the midline, which in
18 this photograph we can't see that.
19 Q. Using your face, where would that have been?
20 A. That would be about this right here. In this
21 area here.
22 Q. Down in the neck?
23 A. Yes.
24 Q. Okay. Any other injuries to the neck that you
25 noted?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
584
1 A. Then I note a larger 7 x 3 centimeter gaping
2 stab wound with irregular edges that's present approximately
3 24 centimeters below the crown of the head and 7 centimeters
4 to the left of the midline.
5 Q. Can we see that in the photograph?
6 A. Yes. That's this injury right here.
7 Q. Okay. Now did you identify that as a stab or
8 incise?
9 A. I identified that one as a stab wound.
10 Q. Okay. And how deep was it?
11 A. This one I don't have a measurement of how deep
12 it is.
13 Q. Was that all of the injuries that you noted in
14 the neck?
15 A. After that, I have a 5 centimeter superficial
16 incision which extends from this stab wound over the anterior
17 aspect of the neck to a blue area of bruising or blue
18 contusion which measures 4.5 x 2 centimeters, and that's in
19 the midline of the upper chest.
20 Q. So do you see in the photograph?
21 A. We have from -- this wound is a superficial
22 incision that extends to an area of bruising, which is that
23 blue area up there.
24 Q. Got you. So now we're down to the chest area,
25 it sounds like?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
585
1 A. Yes. All of these injuries to the neck, I have
2 them going backward and rightward, so going that direction
3 and then it penetrates some of the tissues underneath.
4 So then the next injury is going to be the left
5 upper proximal area of the shoulder. So it's the top of the
6 left shoulder towards the neck. This area contains three
7 stab wounds.
8 One of these wounds measures 1.5 x 0.5
9 centimeters and the remaining two stab wounds each measure
10 2 x 0.2 centimeters, and these stab wounds track rightward
11 through the skin and soft tissue of the proximal upper aspect
12 of the left shoulder and then go into the soft tissue of the
13 neck to a depth of approximately 3 centimeters.
14 Q. What other injuries did you note, then, to the
15 chest?
16 A. Then the left upper aspect of the shoulder, it
17 contains two other areas of superficial stab wounds. These
18 are through and through stab wounds, meaning they go parallel
19 to the surface of the skin. They basically go in the skin,
20 out the skin and back in because they are going parallel or
21 basically tangential with the skin.
22 Q. So you have entry and exit and then another
23 entry from the same?
24 A. Yes.
25 Q. Okay. What other injuries did you note next?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
586
1 A. Then on the anterior or the front aspect of the
2 chest, just to the left of the midline of the chest, there's
3 a 1.3 x 0.3 centimeter stab wound located approximately 29
4 centimeters below the crown of the head and 1 centimeter to
5 the left of the midline.
6 Q. Okay.
7 A. This stab wound tracks backward through the
8 skin and soft tissue of the anterior front of the chest just
9 to the left of the midline. It penetrates to a depth of
10 about 1.5 centimeters.
11 Q. What was the next injury you then noted?
12 A. Just above that, there was a 4.5 x 2 centimeter
13 blue contusion or blue bruise that connects to an incised
14 wound that leads up to the neck.
15 Q. Okay.
16 A. Next injury I note is the proximal aspect of
17 the left bicep region. So this is the left bicep region.
18 It's proximal aspect, which is close to the shoulder.
19 This contains a 1.5 x 0.5 centimeters stab
20 wound, and there is a 1.5 centimeter abrasion trail coming
21 off this stab wound. That stab wound tracks in a rightward
22 direction through the skin of the left bicep region and then,
23 actually, through the skin and soft tissue of the left bicep
24 region and into the chest.
25 That goes through the left second intercostal
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
587
1 space, which is the space below the second rib on the left
2 side of the chest, and then that penetrates or that goes into
3 and involves the upper lobe of the left lung within the
4 chest. And that produces approximately 300 milliliters of
5 blood in the left chest cavity.
6 Q. What other injuries did you note externally,
7 then?
8 A. On the right anterolateral aspect of the
9 abdomen, so that is the front of the abdomen area. It's on
10 the right side towards the lateral aspect. I note two stab
11 wounds in this area.
12 One of the stab wounds measures 1.3 x 0.5
13 centimeters. That's located about 54 centimeters below the
14 top of the head and about 19 centimeters to the right of the
15 midline. From this stab wound, there is also a 1.5
16 centimeter abrasion tail on the skin.
17 The next stab wound in this area, it measures 2
18 x 0.8 centimeters and that has a 2.5 centimeter linear
19 abrasion tail that extends downward. This one is located
20 about 59 centimeters below the crown of the head and 18
21 centimeters to the right of the midline, and both of these
22 stab wounds they track in a backward direction.
23 They track backward, leftward and slightly
24 upward. So they are tracking in this direction in the
25 abdomen.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
588
1 Q. Okay.
2 A. These go through the skin and soft tissue of
3 the abdomen and they actually go into the liver.
4 Q. So how deep of a stab would that need to be in
5 order to reach the liver and damage it?
6 A. Depending on the amount of skin and soft tissue
7 in that area, it could be a couple inches or a couple
8 centimeters depending on how much skin and soft tissue is in
9 that area, but I have that measuring about 15 centimeters in
10 length.
11 Q. So that was a pretty deep stab?
12 A. It was deep enough to involve the liver and
13 that produced about 300 milliliters of blood within the
14 abdominal cavity.
15 Q. What was the next injury you then noted?
16 A. Now on the left anterolateral aspect of the
17 abdomen, there's three stab wounds. So this is now the left
18 side of the abdomen on the front and lateral aspect.
19 One of the stab wounds measures 1.5 x 0.8
20 centimeters and is located about 54 centimeters below the top
21 of the head and about 19 centimeters to the left of the
22 midline. This one tracks to a depth of about 3.5
23 centimeters.
24 The next stab wound measures approximately 1.2
25 x 0.5 centimeters and it's located about 56.5 centimeters
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
589
1 below the top of the head and about 18 centimeters to the
2 left of the midline. This one tracks to a depth of also
3 about 3.5 centimeters.
4 Then the third stab wound I describe over here
5 measures approximately 2 x 1 centimeters, and this is located
6 about 62 centimeters below the top of the head and about 19
7 centimeters to the left of the midline. This one penetrates
8 to about 7 centimeters in depth.
9 Q. So I'm going to stop you back there. I think
10 you've talked about four stab wounds, basically, to the
11 abdomen, correct? One on the right side and three on the
12 left?
13 A. There's two on the right --
14 Q. Two on the right.
15 A. -- and three on the left.
16 Q. So five. And one of those, the one being of
17 the most depth, is 15 centimeters, correct?
18 A. Yes.
19 Q. And then the ones on the left up to -- what was
20 the last one, 7 centimeters?
21 A. That was 7 centimeters.
22 Q. Okay. So not as deep as the one on the right?
23 A. Correct.
24 Q. Did those cause any internal damage or internal
25 injuries to any vital organs on the left side?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
590
1 A. The three from the left side, they just tracked
2 through the skin and soft tissue. They did not enter the
3 abdominal cavity at all.
4 Q. Okay. What was the next injury you then noted?
5 A. Now on the left side of the back, I note two
6 stab wounds. One of the stab wounds measures approximately
7 1.2 x 0.5 centimeters. That's located about 45 centimeters
8 below the top of the head and about 7.5 centimeters to the
9 left of the midline. That one, from the back, tracks about 7
10 centimeters in depth.
11 The other stab wound in that area measures
12 approximately 1.2 x 0.5 centimeters. That one is located
13 about 44.5 centimeters below the top of the head and about 5
14 centimeters to the left of the midline. That one tracks to a
15 depth of also approximately 7 centimeters.
16 Q. Did any one of those stabbings or stab wounds
17 cause internal injury to a vital organ?
18 A. Yes. Both of these stab wounds track from the
19 back in a frontward and rightward direction to go into
20 abdominal cavity and penetrate the spleen and the pancreas,
21 and they produced approximately 300 milliliters of blood
22 within the abdomen.
23 Q. Did you note any more external injuries?
24 A. On the right side of the back, I noted a 0.2
25 centimeter area of abrasion about 57 centimeters below the
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
591
1 top of the head and about 10 centimeters to the right of the
2 midline. An abrasion is just a superficial erosion of the
3 skin. It's kind of like a rug burn.
4 Q. Okay. Did you note any more external injuries
5 to the torso? I guess we're talking about the back now?
6 A. No. That's it on the back.
7 Q. Did you check her lower extremities? Her legs
8 and the rest of her body?
9 A. Yes. She had injuries to her arms and legs, as
10 well.
11 Q. We'll get to her arms. Let's start with her
12 arms. You're right. I know you covered the shoulders and
13 you covered the biceps, didn't you?
14 A. I covered the bicep injury that went into the
15 chest, but there's other injuries to the arms.
16 Q. Let's talk about the other injuries to the
17 arms, then?
18 A. Now on -- this time on the right mid-bicep
19 region, I noted a 1.5 x 0.6 centimeters stab wound located
20 approximately 6 centimeters above the elbow and about 1
21 centimeter to the right of the midline.
22 This stab wound tracks backward through the
23 skin and soft tissue of the right bicep region to a depth of
24 approximately 7 centimeters.
25 Q. So it was a 7 centimeter stab wound?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
592
1 A. In depth, yes.
2 Q. Okay.
3 A. The right upper extremity then, I describe it
4 as containing ten incised wounds over the right upper
5 extremity, or the right arm.
6 Q. "Incised wounds" meaning they didn't have much
7 depth?
8 A. Yes. Those were more of cut wounds.
9 Q. There were how many of those?
10 A. Ten of them over the right arm.
11 Q. Okay.
12 A. Do you want me to give the measurements of each
13 one?
14 Q. We don't have to do that since they are
15 incised.
16 A. Okay.
17 Q. What's the next injury that you noted?
18 A. Some of these incised wounds over the right
19 upper extremity involved, well, all over the arm and then as
20 well as in the wrist region.
21 Q. All right. Did you notice significant incised
22 wounds to the wrist region?
23 A. On the anterior or the front of the right
24 wrist, I note a 10 x 4 centimeter incised wound and this
25 incised wound is at a depth of approximately 4 centimeters.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
593
1 This transects or cuts across the tendons, the muscles and
2 the blood vessels in the wrist.
3 Q. I'm going to show you what I've marked as
4 State's Exhibit 31 and ask if you recognize that photograph?
5 A. Yes.
6 Q. Okay. Is that the arm or the wrist you were
7 just talking about?
8 A. This is the incised wounds of one of the
9 wrists.
10 Q. Okay. Then I'm going to show you State's
11 Exhibit 30. Do you recognize that?
12 A. Yes. This is another picture of the incised
13 wounds from the wrist.
14 Q. Okay. Do you recall, was there one -- was the
15 right wrist or left wrist -- which was larger?
16 (State's Exhibit Number 34 marked for
17 identification.)
18 A. The right wrist, I have that injury measuring
19 10 x 4 centimeters, and then there was an incised wound on
20 the left wrist that measured 4 x 0.2 centimeters.
21 So the one on the right wrist was larger.
22 Q. The one on the right wrist was larger. So I
23 think we're going to be looking at the right wrist here.
24 State's Exhibit that I handed you, 31?
25 A. Yes.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
594
1 Q. Okay.
2 MR. HICKS: Now I want to move to admit State's
3 Exhibit 30 and 31.
4 THE COURT: Any objection to 30, 31?
5 State's 30 and 31 are admitted.
6 MR. HICKS: Right.
7 Q. (By Mr. Hicks) Now, Doctor, these are pretty
8 gruesome looking, aren't they? I mean, probably not to you,
9 but I understand -- in fair warning to the jury, I want them
10 to see this real quickly because I think you talked about how
11 -- you called these incise wounds, correct?
12 A. Yes.
13 Q. But they are really deep for incise wounds,
14 weren't they?
15 A. Well, the injury was longer on the skin than it
16 was deeper into the arm.
17 Q. All right. How deep into the arm did it go?
18 A. This one went 4 centimeters in depth.
19 Q. Okay. And by going 4 centimeters in depth, did
20 that mean that you went past what you described as skin and
21 tissue?
22 A. Yes.
23 Q. And what -- in order to go to that depth, what
24 would have to be damaged or cut?
25 A. To get to this depth, it would have to go
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
595
1 through the skin and immediate, underlying soft tissue. Then
2 it would go through the tendons and the muscles underneath
3 that and it would also involve some of the blood vessels
4 beneath that, as well.
5 Q. You performed autopsies before. This is
6 already established. And you have had to cut into the
7 cavities of a human being, correct? A body cavity?
8 A. Yes.
9 Q. All right. If a knife was used like we've
10 talked here, you know, the knife that you found in the neck.
11 If a knife like that was used to make this sort of injury, is
12 that going to be, will that only require a, one slashing-type
13 motion or is that going to require some force and some effort
14 to do that?
15 A. Well, it depends on how sharp the knife is. A
16 dull knife, it would take several, you know, several motions
17 but a sharp knife, it could be done in one motion.
18 Q. Okay. How about the force?
19 A. With a sharp knife, it would take less force
20 than with a dull knife.
21 Q. I understand. I understand you work with
22 scalpels and things?
23 A. Yes.
24 Q. What about with just a common steak knife from
25 the kitchen?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
596
1 A. It could be done with a steak knife.
2 Q. I understand it could be done, but is it going
3 to take some effort?
4 A. It would take a little effort, yes.
5 Q. Okay. I want to just show the jury real quick
6 -- I think these photographs that you can, is this how these
7 photographs looked? Is this how the tendons were exposed
8 when you did the autopsy?
9 A. Yes.
10 Q. Okay. All right. Okay. And what are we
11 seeing there in the white inside the wrist?
12 A. This is the skin. The yellow is the underlying
13 soft tissue or fat. The dark brown is the muscle and then
14 the white is the tendons that connect the muscles.
15 Q. Okay. Then the next photograph, what are you
16 depicting here in this photograph from the side?
17 A. This is the side view of the same injury just
18 showing the depth into the wrist, into the skin, the soft
19 tissue, the muscle and the tendon there.
20 Q. Okay. Thank you. And there was a similar type
21 injury to the other wrist; is that correct?
22 A. The other wrist was not as deep and it was
23 smaller.
24 Q. It was smaller. Okay. Any other injuries that
25 you noted to the wrist or the arm that we haven't talked
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597
1 about?
2 A. On the right hand on the anteromedial aspect of
3 the right hand, there was a 1.3 centimeter incised wound that
4 was 0.3 centimeters deep.
5 The first digit of the right hand, being the
6 thumb, contained a 4.5 centimeter incised wound, which is
7 0.5 centimeters deep and a 0.8 centimeter incised wound which
8 was 0.3 centimeters deep.
9 The third digit of the right hand contains a
10 0.5 centimeter superficial incised wound. The posterolateral
11 aspect of the right forearm, which would be this area right
12 here, contains a 3 centimeter linear superficial incised
13 wound.
14 Q. Okay. I want to stop you there. Based upon
15 your training and experience over the eight years of doing
16 these types of autopsies, the injuries that you were looking
17 at to the hand and maybe even the forearm, are those
18 consistent with defensive-type wounds?
19 A. They can be consistent with defensive-type of
20 wounds.
21 Q. What other thing I failed to ask you, getting
22 back to those wrists. Had, would a person whose wrist had
23 been cut that severely through the muscle down to the tendon,
24 would they be able to grasp, hold on to a knife after having
25 that type of injury and would they have been able to hold on
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
598
1 to anything and do anything with their hands with that type
2 of injury?
3 A. With the injury through the muscle and tendons
4 there, I don't think that there would be much use of that
5 hand.
6 Q. Okay.
7 A. As far as grasping.
8 Q. Grasping and being able to do much of anything
9 with that hand, correct?
10 A. You can slap, but as far as grasping --
11 Q. All right. I understand. Because you lose the
12 function of the muscle, right?
13 A. Yeah, the muscle.
14 Q. What about the left wrist?
15 A. The left wrist I note a 4 x 0.2 cm incised
16 wound, which only involves the skin and soft tissue to a
17 depth of 0.8 centimeters. So that, the one on the left
18 wrist, that does not involve any underlying muscle or tendon.
19 Q. It's just the right one?
20 A. It was just the right one.
21 Q. Okay. So then you had talked about the
22 injuries to the forearm. Anything else to the hand and the
23 forearm? Any other injuries that you noted that we haven't
24 talked about?
25 A. As I mentioned a posterolateral aspect of the
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599
1 right forearm contains a 3 centimeter superficial incised
2 wound. The posterior aspect of the right hand contained a
3 0.5 centimeter incised wound.
4 The posterior aspect of the second digit of the
5 right hand contains a 0.5 centimeter and a 0.2 centimeter
6 incised wound. And then I note a 0.3 centimeter blue/red
7 contusion or bruise over the right upper extremity, and then
8 I note a 1 centimeter blue/red contusion on the right
9 shoulder.
10 Q. Okay. Any other injuries to the arms?
11 A. That was the right arm.
12 Q. That was the right arm. What about the left
13 arm?
14 A. Okay. The left arm contains a through and
15 through stab wound, meaning the stab wound enters one side
16 and exits the other side. That's connecting two defects in
17 the skin.
18 One measures 2 x 1 centimeter and the other
19 measures 1.1 x 0.2 centimeters, and that's in the bicep
20 region, the proximal aspect of the left bicep region. And
21 that one goes through one side and out the other side through
22 a depth through the arm of about 13 centimeters in depth.
23 Q. That was a through and through?
24 A. That was through and through.
25 Q. Okay.
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600
1 A. Then the left posterolateral mid-tricep region
2 contains a stab wound which measures approximately 3 x 0.5
3 centimeters. That's located approximately 6 centimeters
4 above the elbow and about 5 centimeters to the left of the
5 midline. That tracks in a frontward direction and that
6 involves the skin and soft tissue only to a depth of about 4
7 centimeters.
8 Q. Okay.
9 A. Then I have the left arm contains another
10 through and through stab wound which connects the entrance
11 and exit wound.
12 Those wounds measure 1.8 x 0.5 cm on the
13 posterior distal tricep region located about 4 centimeters
14 above the elbow and 3 centimeters to the left of the midline.
15 It goes through the tissue, produces a 2 x 0.5 centimeter
16 stab wound with a 2 cm linear abrasion tail over the
17 posterior aspect of the left forearm.
18 Q. So there were two through and through stab
19 wounds to the left arm?
20 A. Yes.
21 Q. Okay.
22 A. And the distance between the entrance and exit
23 there is 9 centimeters.
24 Q. Okay.
25 A. So then I describe another through and through
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601
1 stab wound to the left arm on the posterior medial aspect of
2 the left forearm. That's this area right here.
3 Q. How deep was it?
4 A. That one is another through and through and the
5 depth is about 7 centimeters.
6 Q. Okay. Any other injuries on that arm?
7 A. Then the left arm, I have contains nine more
8 incised wounds.
9 Q. Nine more of those incised wounds that don't
10 have much depth; is that correct?
11 A. That's correct.
12 Q. All right.
13 A. One of those being the on the left wrist.
14 Q. Right. Okay. Any other injuries to the top
15 half of her body that we haven't discussed?
16 A. No, not the top half of her body.
17 Q. Did you look at her legs?
18 A. Yes. Now the left leg has another or has a
19 superficial incised wound that measures 1 x 0.1 centimeters
20 and that's on the left thigh.
21 Q. And how deep was it?
22 A. That is -- I describe that one as being
23 superficial, so it was just skin and soft tissue. Not very
24 deep at all.
25 Q. Any other injuries?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
602
1 A. No.
2 Q. So it sounds to me like most of the stab wounds
3 and incises are to her waist up; is that correct?
4 A. Yes.
5 Q. Two questions about that. Do you know how many
6 total there were of stabs and incised?
7 A. There was fifty-five.
8 Q. Fifty-five?
9 A. Both stabs and the incised-type wounds?
10 A. Yes. Total sharp force injuries, there are
11 about fifty-five.
12 Q. Okay. From what, from the injuries that you
13 observed there, you already testified about how you retrieved
14 the knife from the neck.
15 All right. Were the injuries you were looking
16 at consistent with having maybe, possibly been inflicted by
17 the use of a knife that you found on her?
18 A. Yes.
19 Q. Okay. So there wasn't any -- it was a bad
20 question, but you didn't find any injuries that were
21 inconsistent with the knife that you found?
22 A. That's correct.
23 Q. Okay. After you do the external, then you do
24 an internal, correct?
25 A. Yes.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
603
1 Q. All right. And basically, what you are
2 checking for when you do the internal examination is to see
3 if the vital organs have been damaged, what's going on
4 inside, whether she could have died of natural causes or some
5 other cause; is that correct?
6 A. That's correct.
7 Q. You have already talked about these stab
8 wounds. Let me ask you to just go through what internal
9 organs were damaged?
10 A. In the neck region, there was sharp force
11 injuries to the thyroid gland, to the trachea, which is the
12 windpipe, and then to the right jugular vein.
13 Q. Was there any hemorrhage in there?
14 A. Yes. There was bleeding in that area.
15 Q. Okay. If you get the jugular vein, there could
16 potentially be a lot of blood, correct?
17 A. That's correct.
18 Q. What other internal injuries did you note?
19 A. In the chest region, the stab wound that went
20 through the left bicep, that went through and it penetrated
21 the upper lobe of the left lung.
22 Q. Is that going to cause internal hemorrhaging,
23 bleeding?
24 A. Yes. There was bleeding there as well.
25 Q. Okay. And what other internal organs were
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604
1 damaged?
2 A. And then with the stab wounds to the abdomen,
3 there was stab wounds to the right side of the liver and then
4 there was also stab wounds to the spleen on the left side of
5 the pancreas, on the left side.
6 Q. Likewise, are these going to cause hemorrhaging
7 and bleeding?
8 A. Yes.
9 Q. Okay. Let me ask you this. Ultimately, after
10 doing an external and internal examination, were you able to
11 determine within a reasonable degree of scientific certainty,
12 medical certainty what the cause of death was in this case?
13 A. Yes.
14 Q. What was it?
15 A. I labeled it as stab wounds to the neck, chest
16 and abdomen.
17 Q. All right. And what ultimately caused her
18 death? Was it just bleeding to death?
19 A. Yes. There was, well, it was bleeding to death
20 and then there was also the stab wound to the trachea, which
21 would have diminished some of her oxygen supply as well.
22 Q. Okay. Now real quickly, besides doing the
23 external and internal, I believe there's standard evidence
24 that's collected that's given to law enforcement, correct?
25 A. Yes.
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605
1 Q. In every autopsy?
2 A. Yes.
3 Q. Okay. Was that done in this case?
4 A. Yes.
5 Q. All right. And what kind of collections or
6 what did you collect? What did you do and hand off to law
7 enforcement?
8 A. The things I handed off to law enforcement were
9 the bags that were from the hands and feet, the knife that
10 was recovered from the neck. I took fingernail clippings
11 from the right and left hands. I took the clothing.
12 I took pulled hair from the head. I took
13 pulled hair from the pubic region. I took combed hair from
14 the pubic region.
15 I took swabs of the oral cavity. I took swabs
16 from the vaginal area. I took swabs from the rectal area and
17 then there was some hair fibers that were on the hands as
18 well as some hair fibers that were on the chest and neck
19 region, and then I took a blood spot card and I handed all of
20 that off to law enforcement.
21 Q. First, I'm going to have you identify a couple
22 of items and we'll be finished real quickly. I'm going to
23 show you State's Exhibit 26.
24 (State's Exhibit Number 26 marked for
25 identification.)
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
606
1 Q. (By Mr. Hicks) I'm going to have you, because
2 you probably don't recognize that box, do you?
3 A. It's one of the boxes.
4 Q. It is one of the boxes. Yeah. All right. I'm
5 going to ask you if you can look in here and tell me what
6 items are contained within State's Exhibit 26?
7 A. There's the swabs from the oral region, the
8 vaginal region and the rectal region. There's the combed
9 pubic hair. There's the pulled pubic hair. There's the head
10 hair. And then these would be smears on the slides from the
11 swabs.
12 Q. That's State's Exhibit 26 and these are all
13 items that you took and handed off to law enforcement?
14 A. Yes.
15 MR. HICKS: State would move to have admitted
16 into evidence State's Exhibit Number 26.
17 THE COURT: Any objection?
18 MR. SCHWARTZ: No, Your Honor.
19 THE COURT: State's Exhibit 26 is admitted into
20 evidence.
21 MR. HICKS: I have one more. State's
22 Exhibit 34.
23 (State's Exhibit Number 34 marked for
24 identification.)
25 Q. (By Mr. Hicks) I'm going to ask to you look in
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607
1 State's Exhibit 34 and ask if you recognize what's in there?
2 A. This was a tube of blood that was handed over
3 as well.
4 Q. Whose blood is this?
5 A. This is Elizabeth Faria's blood.
6 Q. And that's standard procedure so that you have
7 a sample of her DNA, correct?
8 A. Yes. We either hand over a tube of blood or
9 blood on a preservation card.
10 Q Either one. Also, for toxicology?
11 A. Correct. We send different specimens -- we
12 send her specimens but they are in different containers. We
13 send those to toxicology.
14 Q. This one was sent to what?
15 A. This one is just turned over in case they ever
16 needed to do any DNA testing.
17 Q. Got you. All right.
18 MR. HICKS: State would move to admit into
19 evidence State's Exhibit 34.
20 THE COURT: Is there any objection?
21 MR. SCHWARTZ: No, ma'am.
22 THE COURT: State's 34 is admitted.
23 Q. (By Mr. Hicks) Two more questions and I'm
24 finished, all right? I'd like to go to State's Exhibit 10.
25 Doctor, you may need to get down to see this.
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608
1 I don't know.
2 This photograph was previously admitted into
3 evidence and it shows Betsy Faria as she was found on the
4 27th, and I'm just drawing your attention to her right wrist,
5 which we've already established that was a deep incised wound
6 or the -- yes, I think you called it an incised wound that
7 damaged the tendons, correct?
8 A. Yes. Yes.
9 Q. All right. Let me ask you this. Based upon
10 your training and experience, if that had been done to her as
11 she laid there, would you expect to see more blood than you
12 are seeing in that picture?
13 A. If that was done after she was already dead, I
14 would expect to see, if it was done before she died, I would
15 expect to see more blood.
16 Q. That's my question, then. So if those wounds
17 were inflicted prior to her death, you would expect to see
18 much more blood, correct?
19 A. Yes.
20 Q. Okay. But because you are not seeing much
21 blood, is it your opinion that these wounds were most likely
22 inflicted after her heart stopped beating, after she had
23 died?
24 A. Typically, with injuries that occur after
25 death, they have less blood or they're bloodless.
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609
1 Q. Okay. Thank you. And finally, Doctor, are you
2 familiar with the term known as cadaveric spasms?
3 A. Yes.
4 Q. Okay. Tell the jury what is a cadaveric
5 spasm.
6 A. Well, after death, the person's muscles, they
7 undergo rigor mortis. That's when the arms, the muscles in
8 the arms, legs, the jaw, basically the entire body stiffens
9 up. That's what rigor mortis is.
10 Typically, rigor mortis will start setting in
11 within two to four hours after death and then it will become
12 fixed or firm approximately 6 to 12 hours after death. So it
13 takes some time for rigor mortis to develop. Within the two
14 to four hours range is when it typically starts to set in.
15 Now cadaveric spasm is when that rigor mortis
16 occurs very quickly or almost immediately. And with
17 cadaveric spasm, the reason that happens is when there's a
18 lot of exertion or a lot of physical activity, it will
19 deplete the ATP, which is what the muscles use to contract.
20 And when there's extreme physical activity, if that ATP is
21 depleted quickly, the muscles can go into spasm or go into
22 rigor mortis quicker.
23 Q. Okay. And so in all fairness, that's something
24 that's rarely seen, correct?
25 A. That's correct. It's rare.
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610
1 Q. Okay. But it can happen in certain situations?
2 A. There's reports of it happening.
3 Q. Okay. And you've done, based upon your
4 training, experience and the literature you read, are you of
5 the opinion that cadaveric spasms could actually occur in a
6 person in the right circumstances?
7 A. Under the right circumstances, it could rarely
8 occur.
9 Q. Okay. Thank you.
10 MR. HICKS: I don't have any further questions.
11 THE COURT: Mr. Schwartz?
12 CROSS-EXAMINATION
13 BY MR. SCHWARTZ:
14 Q. Dr. Sabharwal, those circumstances -- first of
15 all, cadaveric spasm is something that's not generally
16 accepted in the medical community, is it?
17 A. Yes.
18 Q. There's some accept it. Some don't. Some say
19 it doesn't exist?
20 A. That's correct.
21 Q. You happen to believe it does exist?
22 A. Yes.
23 Q. But there is no physiological reason for its
24 explanation, is there?
25 A. Well, there's the rapid depletion of the ATP.
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611
1 Q. There is no test to determine whether or not it
2 exists?
3 A. That's correct.
4 Q. Generally, when it has been at least alleged,
5 it's come in the form of, you said, some sort of violent
6 struggle, correct?
7 A. Some extreme physical exertion.
8 Q. Extreme physical exertion. Generally, as far
9 as the literature I've read, would you agree it is found
10 when, for instance, when someone drowns and they're grabbing
11 boats or a tree limb or maybe grass or something like that,
12 their wrist locks up?
13 A. Yes.
14 Q. Sometimes it's been alleged to have been found
15 in suicidal individuals when they are still holding the
16 weapon. That's what accounts for them holding the weapon is
17 that potential for cadaveric spasms?
18 A. Yes.
19 Q. Cadaveric spasm would not account for cooling
20 of the body or drying of blood, would it?
21 A. That's correct.
22 Q. And in this particular case, you have no basis
23 of any kind to say that a cadaveric spasm occurred?
24 A. In this case, I can't tell.
25 Q. Nothing whatsoever?
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612
1 A. I can't tell you.
2 Q. You said rigor mortis -- first of all, after
3 somebody dies, it's followed by an immediate total relaxation
4 of the muscles?
5 A. Yes.
6 Q. And a cadaveric spasm you talked about is --
7 you don't know if you've ever seen it?
8 A. That's correct.
9 Q. And it's generally in the literature, maybe
10 someone in your shoes might see it once in a career. Fair
11 enough?
12 A. Fair enough.
13 Q. It's that rare?
14 A. Yes.
15 Q. Here you have no basis to say that it did
16 happen?
17 A. In this case, no.
18 Q. So after that total relaxation of the muscle
19 upon dying, rigor mortis then starts to set in with the ATP
20 being depleted?
21 A. That's correct.
22 Q. And you said that generally starts in the
23 neighborhood of two hours?
24 A. Roughly.
25 Q. So in this particular case, do you know when
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613
1 Elizabeth Faria's body was discovered?
2 A. No.
3 Q. All right. So you have no basis to determine
4 when it may or may not have started?
5 A. No.
6 MR. SCHWARTZ: Judge, can I see my
7 Exhibits?
8 Q. (By Mr. Schwartz) Dr. Sabharwal, let's talk
9 about these wounds that you've covered rather thoroughly.
10 MR. SCHWARTZ: May I approach and grab those
11 pictures?
12 THE COURT: Yes.
13 Q. (By Mr. Schwartz) When you do autopsies, you
14 measure the wounds carefully?
15 A. Yes.
16 Q. And you photograph the wounds?
17 A. Yes.
18 Q. Why?
19 A. To document the injuries as best as we can for
20 when if somebody is trying to make interpretations on how the
21 injuries occurred.
22 Q. And you measured the length, width and depth of
23 the wounds?
24 A. Yes.
25 Q. And you did that in this case?
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614
1 A. Yes.
2 Q. And with that there is, and in every instance
3 of a stab wound in this particular case, when a knife goes in
4 and a knife comes out, if there's a struggle going on at the
5 time, you'll generally see some lateral or upward and
6 downward movement of that knife that opens the actual cut,
7 won't you?
8 A. It can.
9 Q. In this particular case, there's not any of the
10 cuts that have, most of them have approximately a 0.2 to 0.4
11 centimeters, less than 1 centimeter, less than half of a
12 centimeter of lateral up and down movement, correct?
13 A. Except for what was on the neck.
14 Q. Except for the major gash on the neck?
15 A. Yes.
16 Q. So that would indicate to you as a medical
17 examiner that as these wounds are being made, the individual,
18 the victim is either not struggling or not moving?
19 A. It also depends on the tissues in that area.
20 If the tissue is pliable and there's give in the tissue in
21 that area, you may not have as big of an irregularity in the
22 wound or --
23 Q. But you didn't see, other than that big neck
24 wound, you didn't see any irregularities. We're talking
25 fifty-five of them?
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615
1 A. You're correct.
2 Q. No irregularities, which would indicate the
3 person is not moving. Okay. Well, let's move forward.
4 You also indicated the tracking of the wounds?
5 A. Yes.
6 Q. And in the neck, there's seven stab wounds,
7 correct?
8 A. Yes.
9 Q. They all track, according to your report, the
10 same direction?
11 A. Yes.
12 Q. And they are all in the same side?
13 A. Yes.
14 Q. Which would indicate the victim in this case,
15 Betsy Faria, was not rolling around or moving or doing
16 anything when those stab wounds were made, most likely?
17 A. Most likely.
18 Q. Now the wounds of the left, and I may butcher
19 the name, postauricular, two stab wounds that are relatively
20 deep, they both track the same direction as one another?
21 A. Yes.
22 Q. Which would indicate the same thing. The
23 person is most likely not moving when those are made?
24 A. Or they could have occurred in rapid
25 succession.
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616
1 Q. They could have and they could have occurred in
2 rapid succession with the neck, but they all go the same,
3 right?
4 A. Yes.
5 Q. The two wounds of the abdomen are both 15
6 centimeters in length?
7 A. Yes.
8 Q. As long as we're talking centimeters, a
9 centimeter is approximately half an inch?
10 A. Yes.
11 Q. So 15 centimeters would be half a foot or
12 almost seven and a half inches?
13 A. Yes.
14 Q. That's a relatively deep wound. Both of those
15 wounds of the abdomen track the same?
16 A. Yes.
17 Q. So either they are all made in rapid succession
18 or the person is not moving at the time?
19 A. Correct.
20 Q. Both of the wounds back track the same as one
21 another?
22 A. Yes.
23 Q. So the same conclusion would be that person is
24 either not moving or each of those wounds, all of the two
25 wounds are in rapid succession each time?
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617
1 A. Yes.
2 Q. Yet there is, to get something in seven and a
3 half or 15 centimeters, seven and a half inches, that's
4 pretty deep if the, if there was some movement on the part of
5 the individual being stabbed. You would expect some form of
6 regularity in those wounds, wouldn't you?
7 A. Yes.
8 Q. You didn't find any irregularity in the wounds?
9 A. Right.
10 Q. You talked with Mr. Hicks about the stab wounds
11 being made postmortem, and you looked at this particular
12 picture which is State's Exhibit 10?
13 A. Yes.
14 Q. And when you look at that, you are able to see
15 that one, the wrist, and I think your medical opinion that
16 was most likely made -- I think he characterized it as she
17 wouldn't be laying there. She would be laying there, you
18 would just expect to see more blood?
19 A. Yes.
20 Q. With a seven and a half inch, 15 centimeter
21 stab wound while the person is still alive and the heart is
22 pumping, would you expect to see a significant amount of
23 blood?
24 A. Yes.
25 Q. And your wounds to the abdomen are how deep?
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618
1 A. Fifteen centimeters, I believe, was the two on
2 the right.
3 Q. I'm going to show you what's been marked and
4 admitted as Defendant's Exhibit J. Those were taken not at
5 the autopsy but at the scene. If Betsy Faria were alive when
6 those stab wounds were inflicted, would you expect to see
7 more blood? Would you expect to see blood?
8 A. Well, in this case she's wearing a black shirt
9 and I don't know how much blood is soaked into that shirt. I
10 can't tell.
11 Q. But you would agree with me there is no blood
12 on the wounds when they are picked up?
13 A. In this picture, no.
14 Q. So if those stab wounds are made postmortem,
15 the bleeding -- well, let's just make it clear. When the
16 heart stops, you are not pumping so blood is not produced,
17 generally?
18 A. You are not pumping blood out anymore, but
19 depending on how the body is laying, depending on gravity,
20 blood can still leak out.
21 Q. It can still leak out. And she was laying,
22 based on State's Exhibit 10, on her front?
23 A. Yes.
24 Q. Yet you still see no blood in those pictures?
25 A. Right.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
619
1 Q. Let me show you what's been marked and entered
2 as Defendant's Exhibit I, and those are the wounds of the
3 back. Those wounds are each 7 centimeters?
4 A. Yes.
5 Q. Approximately three and a half inches, correct?
6 A. Yes.
7 Q. And again, if she were alive and her heart were
8 pumping when those two stab wounds were made, you would
9 expect to see blood, correct?
10 A. Yes. But in this picture, since she's wearing
11 the black shirt, I don't know how much is soaked into the
12 black shirt.
13 Q. All right.
14 A. If there is any.
15 Q. Nevertheless, okay. Well, let's do it this
16 way. If she were wearing nothing when those stab wounds were
17 made, you would expect to see a significant amount more
18 blood, correct?
19 A. I would expect to see blood.
20 Q. Because it's a black shirt, you can't tell how
21 much blood, if any, was on the black shirt?
22 A. That's correct.
23 Q. But given that there is no blood, is it
24 certainly medically possible, based upon what I'm asking you,
25 not just medically possible but likely if there is no blood,
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
620
1 that those wounds were made postmortem or after she was dead?
2 A. That's a possibility.
3 Q. And you also believe that wrist wound was made
4 postmortem, potentially?
5 A. I would expect to see more blood if it wasn't.
6 Q. As with those wounds, you would expect to see
7 more blood?
8 A. Yes.
9 Q. And you understand in doing this, somebody who
10 comes in, CSI people, they don't wipe away blood. They try
11 to keep the scene as accurate as possible, right?
12 A. Yes.
13 Q. Now when the, when Mrs. Faria was brought in to
14 you, the knife was still in her neck?
15 A. Yes.
16 Q. Logically, if this knife was used would dictate
17 that this neck wound was the last wound made, correct?
18 A. Yes.
19 Q. And put in there and it was a very large wound,
20 correct?
21 A. Yes.
22 Q. Yet what you're telling us is that wrist wound,
23 if it was postmortem by logic, would have had to have been
24 made prior to the knife going into her neck, right?
25 A. It could have gotten into the neck after the
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
621
1 wrist wound.
2 Q. Well, obviously, it had to have gone into her
3 neck after the wrist wound?
4 A. Yes.
5 Q. And if I'm correct that those were made
6 postmortem and based on your experience, it's certainly a
7 possibility in this instance the back wounds and the
8 abdomen wounds would also have had to have been made
9 postmortem?
10 A. It's possible.
11 Q. Logically? Well, assuming that those photos
12 are accurate and all of the blood didn't just dissipate onto
13 her shirt, then that would be a very realistic possibility,
14 correct?
15 A. It's possible.
16 Q. Yet the knife that you found that allegedly
17 made these wounds would have been put into her neck after she
18 was dead?
19 A. It's possible.
20 Q. So in your experience, would you say that this
21 scene has been staged?
22 MR. HICKS: I'm going to object. That's
23 calling for him to speculate at this point about whether it's
24 been staged.
25 THE COURT: Sustained.
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622
1 Q. (By Mr. Schwartz) Would you expect with 56
2 stab wounds, and you said, I think your term was she
3 "bled out", and you said based upon Mr. Hicks that there are
4 some defensive-type of wounds, that whoever inflicted these
5 56 stab wounds would have some form of blood on them
6 somewhere?
7 A. I would think so.
8 Q. And just to finish up, you talked again about
9 cadaveric spasms and you said you do believe it exists but it
10 exists after a violent struggle?
11 A. Extreme physical exertion.
12 Q. Extreme physical exertion?
13 A. Yes.
14 Q. You haven't seen the scene pictures in this to
15 determine if there's evidence of some sort of violent
16 struggle or extreme physical exertion?
17 A. I don't know if there was or not.
18 Q. You have no way of saying that and there's been
19 nothing indicated to you other than, of course, I don't mean
20 to discount the number of stabbings, but there's nothing to
21 indicate an unusual, extreme physical exertion?
22 A. I haven't been made aware of that.
23 MR. SCHWARTZ: I have nothing further.
24 THE COURT: State?
25 MR. HICKS: Brief Redirect.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
623
1 REDIRECT EXAMINATION
2 BY MR. HICKS:
3 Q. Doctor, you weren't there, correct?
4 A. That's correct.
5 Q. So you don't have any idea what occurred before
6 Betsy Faria was stabbed 55 times?
7 A. I don't know that.
8 Q. You don't know if there was some sort of
9 argument, physical exertion going on before then, do you?
10 A. I don't know that.
11 Q. Okay. And it's fair to say that some of these
12 wounds could be pre-death, some could be post-death? There's
13 just no way of telling?
14 A. That's correct.
15 Q. You would expect to see some more blood than
16 you did from some of these wounds, which makes you suspect
17 that, correct?
18 A. Correct.
19 Q. Other than that, all you can tell us is that
20 there were 55 stab wounds?
21 A. Yes.
22 Q. She died from being stabbed to death?
23 A. Yes.
24 Q. Now on this bleeding that goes on, particularly
25 in the stomach area --
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624
1 MR. SCHWARTZ: At this point, I'm going to
2 object to the continued leading questions.
3 THE COURT: Mr. Hicks?
4 MR. HICKS: I'm moving him on a different
5 area.
6 MR. SCHWARTZ: It's been leading.
7 MR. HICKS: Got you.
8 Q. (By Mr. Hicks) Is there -- when a person is
9 stabbed in the stomach, do they always bleed out?
10 A. Not always.
11 Q. What happens to the blood then?
12 A. They can bleed internally.
13 Q. Okay. And in your internal examination, did
14 you see any internal bleeding, hemorrhaging?
15 A. Yes.
16 Q. Quite a bit?
17 A. Yes.
18 Q. Okay. Now one other thing I want to talk to
19 you about on Redirect here is this rigor mortis stuff, okay?
20 You said that it takes how long?
21 A. Usually you see rigor mortis setting in within
22 two to four hours after death.
23 Q. Okay. But to determine, can you determine
24 whether, if it's been two to four hours since the death, can
25 you determine rigor mortis simply by looking at a person?
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
625
1 A. Meaning, how long it took to set in or if they
2 are --
3 Q. No. Whether they actually have rigor mortis?
4 A. Oh, if the body has been moved after death and
5 they were already in rigor mortis, their extremities would
6 stay in that position. In that case, then you could tell,
7 yes, that person is in rigor mortis.
8 Q. Because you would see blood, I mean, you would
9 see discoloration in the skin and there would be --
10 A. Well, that's livor mortis. That's pooling of
11 the blood after death. With rigor mortis, --
12 Q. I understand what you are saying. So rigor
13 mortis had already been set in and they moved this person --
14 for instance, their feet could be up in the air?
15 A. That's correct.
16 Q. I got you. You saw the picture there. There
17 was nothing by looking at that photograph that would cause
18 you to say, oh, definitely rigor set in just by looking at
19 that photograph?
20 A. That's correct.
21 Q. In order to figure out whether rigor mortis had
22 possibly set in, you would need to do what?
23 A. Move the body.
24 Q. Move the body. What if you simply went up and
25 touched it for a second? Is that, can you determine whether
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626
1 a person has rigor mortis from that?
2 A. No.
3 Q. Okay. So you actually need to move the body to
4 determine whether rigor mortis has been set in?
5 A. That's correct.
6 Q. Okay. And as far as blood and how quickly it
7 dries, there's been terms used like blood matting and
8 stickiness. How long does it take for blood to become sticky
9 or matted?
10 A. It depends on the amount of blood. A very
11 small amount or a very thin layer of blood will dry quicker
12 than a large amount of blood.
13 Q. So if you have some pooling of blood, is it
14 fair to say that the blood on the outside is going to begin
15 to dry or become sticky quicker than -- or maybe it's deeper
16 where it's pooled in the middle?
17 A. Yes.
18 Q. You have seen that sort of thing before,
19 haven't you?
20 A. Yes.
21 Q. How long does it take for it to become sticky
22 and matted?
23 A. It depends on how much blood is there.
24 Q. Let's say there's a thin layer of blood?
25 A. A thin layer of blood, you can start to see
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627
1 drying within minutes.
2 MR. HICKS: I don't have any further questions.
3 THE COURT: Mr. Schwartz?
4 RECROSS-EXAMINATION
5 BY MR. SCHWARTZ:
6 Q. How about a thicker pool of blood that we saw
7 in this particular case, like you see in State's Exhibit 10?
8 A. Can I see that one again?
9 Q. I don't know where it is.
10 A. This is 10?
11 Q. Yes.
12 A. The area where there is a lot of blood, that
13 would take longer than minutes. That would take some time to
14 dry up or coagulate.
15 Q. Okay. Thank you very much, Dr. Sabharwal.
16 MR. SCHWARTZ: I have nothing further.
17 THE COURT: State?
18 MR. HICKS: I have nothing further.
19 THE COURT: May this witness be released?
20 MR. SCHWARTZ: Yes, Your Honor.
21 MS. ASKEY: Yes, ma'am.
22 THE COURT: Thank you for coming. You are free
23 to go.
24 I'll ask Counsel to approach.
25 (Discussion off the record.)
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1 THE COURT: Ladies and gentlemen of the jury,
2 at this time we are going to break for lunch. And if you
3 could please be back here at 1:40, then we will try to resume
4 promptly at 1:45.
5 The Court again reminds you of what you were
6 told at the first recess of the Court. Until you retire to
7 consider your verdict, you must not discuss this case among
8 yourselves or with others or permit anyone to discuss it in
9 your hearing.
10 You should not form or express any opinion
11 about the case until it is finally given to you to decide.
12 Do not do any research or investigation on your own about any
13 matter regarding this case or anyone involved in the trial.
14 Do not communicate with others about the case
15 by any means. Do not read, listen -- I'm sorry. Do not
16 read, view or listen to any newspaper, radio, electronic
17 communication from the Internet or television report of the
18 trial.
19 We will be adjourned, then, for lunch until --
20 again, if you could be back about 1:40, we'll try to
21 reconvene at 1:45.
22 (The jury left the Courtroom.)
23 (Recess.)
24 THE COURT: Are you ready to bring the jurors
25 in?
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629
1 MS. ASKEY: Yes, Judge.
2 (The jury entered the Courtroom.)
3 THE COURT: Thank you. You may be seated. A
4 show of hands one more time for the record. Juror Number 2,
5 3, 4, 11, 12, 15, 27, 29, 35, 38, 39, 44, 51, 58 and 61. For
6 the record, all jurors are present.
7 Further evidence on behalf of the State?
8 MS. ASKEY: Yes, Your Honor. State would call
9 Tiffany Fischer.
10 TIFFANY FISCHER,
11 a witness, having been duly sworn by the Circuit Clerk to
12 tell the truth, the whole truth and nothing but the truth, so
13 help you God, under the pain and penalty of the Perjury Laws
14 of Missouri, testifies as follows:
15 THE COURT: You may inquire when you are ready.
16 DIRECT EXAMINATION
17 BY MS. ASKEY:
18 Q. Ms. Fischer, please state your name for the
19 record.
20 A. Tiffany Fischer.
21 Q. Where are you employed?
22 A. St. Charles County Sheriff's Office.
23 Q. What do you do for St. Charles County?
24 A. Crime scene investigator.
25 Q. How long have you been employed in that
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630
1 capacity?
2 A. Fifteen years.
3 Q. What do you do as a crime scene investigator?
4 A. We respond to scenes and we collect evidence,
5 document the scene, write reports, collect the evidence and
6 we bring them back to the station where we process it.
7 Q. Are you a member of the Major Case Squad?
8 A. No, I'm not.
9 Q. So do you respond, how do you get the direction
10 to respond, I guess?
11 A. The reason we're not is our division is
12 civilian and you have to be a commissioned police officer to
13 be a member of the Major Case Squad, but we can process the
14 crime scenes for Lincoln, Warren, and St. Charles County.
15 Q. Were you working in that capacity as a crime
16 scene investigator on December 27, 2011?
17 A. Yes, I was.
18 Q. Do you recall being called out to 130 Sumac in
19 Troy, Missouri?
20 A. Yes.
21 Q. And who did you respond there with?
22 A. I responded in my own vehicle. I met CSI Amy
23 Pratt.
24 Q. And so was she already on scene?
25 A. Yes, she was.
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631
1 Q. And at that point in time, what happens when
2 you get there? Do you follow each other around or kind of
3 describe to the jury what occurs?
4 A. When I arrived that day, she met me outside and
5 gave me a brief description of why we were called there and
6 from there, I went and did an exterior canvas of the area and
7 she continued inside.
8 Q. And what's the purpose of doing an exterior
9 canvas?
10 A. The sun was starting to come up and so we were
11 trying to prevent the loss of possible transient evidence.
12 There was frost on the ground, so we were looking for
13 disturbances and, at that time, they weren't sure about a
14 suspect, so we were looking for any possible evidence that
15 might have been outside of the area.
16 Q. Did you find any evidence indicating there was
17 something outside of the area?
18 A. No.
19 Q. Did you find any evidence of a forced entry?
20 A. No.
21 Q. Now at some point, you came inside the
22 residence; is that right?
23 A. Yes.
24 Q. And were you the investigator charged with
25 taking latent prints off of surfaces?
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632
1 A. Yes.
2 Q. And can you describe to the jury -- they have
3 heard a little bit through Amy about what a latent print is,
4 but can you describe to them how that happens?
5 A. A latent print is the deposits of the friction
6 ridges from your skin on to a surface. It's latent because
7 you can't see them, so you have to use such things such as
8 fingerprint powder, which is the most basic. Sometimes you
9 can side light it with a flashlight or there are other types
10 of chemical processes to try to enhance them to develop them
11 to seize them.
12 Q. Specifically, did you find any prints on the
13 door?
14 A. Which door?
15 Q. The back door?
16 A. I enhanced prints on the back sliding glass
17 door from the kitchen area to the deck.
18 (State's Exhibit Number 22 marked for
19 identification.)
20 Q. (By Ms. Askey) Ms. Fischer, I'm going to show
21 you what's been marked as State's Exhibit 22. If you can
22 open those up. Do you recognize those?
23 A. I do.
24 Q. And what are they?
25 A. These are latent fingerprints that I enhanced
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633
1 and seized from the sliding glass door.
2 Q. And were they fingerprints or are they palm
3 prints?
4 A. I am not a latent examiner, so.
5 Q. Okay. Withdraw that question.
6 So in fairness, those are prints that you
7 retrieved from the sliding door in the back of the house?
8 A. Correct. Latent prints don't have to be just
9 the fingertips. It can be -- this is a writer's palm. It
10 can be the palm. It can be the soles of your feet. Anywhere
11 you have friction ridges, so it doesn't just have to be your
12 fingertips.
13 Q. And those were the ones that you took?
14 A. Yes. Yes, ma'am.
15 MS. ASKEY: I would ask for State's Exhibit 22
16 to be admitted.
17 THE COURT: Any objection to State's 22?
18 MR. SWANSON: No objection, Your Honor.
19 THE COURT: State's 22 is admitted into
20 evidence.
21 Q. (By Ms. Askey) Ms. Fischer, there's been some
22 talk about a report that you authored.
23 (State's Exhibit Number 40 marked for
24 identification.)
25 Q. (By Ms. Askey) I'm going to show you what's
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634
1 been marked as State's Exhibit 40. Do you recognize that?
2 A. Yes.
3 Q. And what is that?
4 A. This is a supplemental report that I generated
5 in reference to this case. It's an Evidence Processing
6 Report.
7 Q. And specifically, there are certain items
8 listed there; is that correct?
9 A. Yes, items of evidence.
10 Q. And what, you made specific findings with
11 regard to those items; is that correct?
12 A. I listed the items that I processed on this
13 particular date and then after I listed them, I described
14 what I did to them.
15 Q. Okay.
16 A. Yes.
17 Q. There's been some talk when you weren't in the
18 room, but some talk about a, the back of Betsy Faria's
19 sweatpants. Do you recall the back of her sweatpants and an
20 indication that there may be a paw print on the sweatpants?
21 A. I do.
22 Q. And your report says something, there's one
23 line with regard to "met with negative results".
24 A. The last sentence?
25 Q. Yes.
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635
1 A. Okay.
2 Q. That's the last sentence that the defense
3 counsel brought Ms. Pratt's attention to. She wasn't the
4 author of this report; is that right?
5 A. That is correct.
6 Q. What were you attempting to do with the paw
7 print in that supplemental report?
8 I should say -- that was a bad question. What
9 does the supplemental report reflect that you were trying to
10 do with the paw print?
11 MR. SCHWARTZ: Your Honor, I'm going to object
12 to this conversation about the paw print. Nobody has ever
13 testified that it is a paw print. I would argue it's
14 assuming facts not in evidence.
15 MS. ASKEY: That's fine.
16 THE COURT: Please rephrase the question.
17 Q. (By Ms. Askey): What does that supplemental
18 report indicate you were attempting to do with the pattern on
19 the back of Betsy Faria's pants?
20 A. We were attempting to use a chemical
21 enhancement called Blue Star which reacts with blood to
22 enhance the pattern that we had visualized on the pants.
23 Q. And when it says "met with negative results",
24 what does that mean?
25 A. Enhancing it further. There was no more
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636
1 enhancement. What we saw is all that we could see.
2 Q. So you were attempting to make it more visible?
3 A. More brilliant, yes.
4 Q. So you weren't testing to see if it was blood?
5 A. No.
6 Q. You were simply trying to make it more visible?
7 A. Correct. Trying to enhance the pattern to make
8 the pattern more defined.
9 Q. And was the pattern on the hip of Betsy Faria's
10 pants, was that color consistent with the other patterns that
11 were on the front side and the legs of her pants?
12 A. Yes. The pants exhibited red, blood-like
13 stains throughout.
14 Q. And so that pattern wasn't any different. You
15 were just trying to make it more vibrant?
16 A. That's correct.
17 MS. ASKEY: I don't have anything further.
18 THE COURT: Mr. Swanson or Mr. Schwartz?
19 MR. SWANSON: Thank you, Your Honor.
20 CROSS-EXAMINATION
21 BY MR. SWANSON:
22 Q. Ms. Fischer, you were trying to enhance the
23 pattern that resembled a paw print?
24 A. I was.
25 Q. And you applied Blue Star to that pattern,
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637
1 stain, whatever it was?
2 A. Yes, I did.
3 Q. And Blue Star is a chemical. You said it
4 reacts to blood?
5 A. Correct.
6 Q. It reacts to other things as well?
7 A. Yes, it does.
8 Q. Common cleaning products?
9 A. It does. However, it reacts more brilliantly
10 and defined with blood but, yes, it does.
11 Q. According to your report, you applied the Blue
12 Star all over the pants, to multiple locations on the pants?
13 A. We focused on the buttocks area, the back part
14 of the pants. That was the only source of evidentiary value
15 that we were going for.
16 Q. And it says areas of the, your report reads (as
17 read), "Areas of observed reactions, blue chemiluminescent,
18 were marked with black permanent marker for possible further
19 testing/sampling by lab." That's what the report reads?
20 A. That's correct.
21 Q. So you marked the areas that reacted to Blue
22 Star with a black permanent marker?
23 A. When I processed these items of evidence, we
24 were looking for latent blood, blood that you couldn't see.
25 So blood that we could see, there was no reason to mark it
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638
1 because the lab could have already tested it because they
2 could visualize it.
3 What we were trying to do was to make visible
4 blood that you could not see. We were searching for the
5 latent blood.
6 Q. But you marked the areas that reacted, correct?
7 A. If it was not already visible.
8 Q. I want to show you what we have marked as
9 State's Exhibit -- what is this? Ten.
10 MR. SCHWARTZ: Ten. I believe.
11 MS. ASKEY: Twelve.
12 MR. SWANSON: Exhibit 12.
13 Q. (By Mr. Swanson) Are these the pants that you
14 tested?
15 A. Let me see the back, please. Yes, those are.
16 Q. And where that ruler marking is, that's where
17 the paw print-like stain was or marked pattern?
18 A. It's not very visible right now but, yes, it
19 would have been in that area.
20 Q. Do you see any, I don't see any black marker
21 there?
22 A. No, there's not.
23 Q. So when you applied the Blue Star, there was no
24 chemical reaction?
25 A. No. There was no further enhancement there to
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639
1 make the pattern.
2 Q. So there was a chemical reaction to Blue Star?
3 A. Yes, there was.
4 Q. You marked it?
5 A. No. There was no further enhancement made. We
6 developed no further evidence because the pattern remained
7 what we could see visually. We were trying to make the
8 pattern become more prominent.
9 Q. But you didn't mark anything?
10 A. No.
11 Q. So when you applied the blood there, you didn't
12 see any chemical reaction?
13 A. I did not apply blood there.
14 Q. When you applied the Blue Star, you did not see
15 any more chemical reaction?
16 A. It reacted with the blood that was present but
17 it was visible blood. We were looking for latent blood.
18 Q. Now your report says areas of chemical
19 reaction, areas of observed reactions were marked with a
20 permanent marker. It doesn't say "otherwise invisible", does
21 it?
22 A. In an attempt to reveal possible latent blood
23 stains.
24 Q. Areas of observed reactions were marked with
25 black permanent marker for possible further testing/sampling
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640
1 by the lab?
2 A. Correct. Of latent blood stains, not invisible
3 blood stains.
4 Q. It says latent blood stains in that report?
5 A. Yes.
6 Q. It says that?
7 A. Yes.
8 Q. In that sentence?
9 A. No. I read the end of the sentence.
10 Q. You read two sentences. (As read) "A mist of
11 Blue Star solution was applied to the evidence". You tell me
12 where I go wrong reading this.
13 "A mist of the Blue Star solution was applied
14 to the evidence items." You wrote that?
15 A. I did.
16 Q. (As read) "Areas of observed reactions were
17 marked with black permanent marker for possible further
18 testing/sampling by the lab." It didn't say anything about
19 latent in those two sentences, does it?
20 A. No, but it said it during the earlier sentence.
21 I wouldn't have had to enhance the visual blood for them to
22 see because they could see that and test that on their own.
23 Q. Fair enough. The visual blood, the places you
24 didn't mark and you don't reference in that, you sent those
25 on for further lab testing, correct?
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641
1 A. I believe they had been sent prior to our
2 testing.
3 Q. So the paw print was tested further by the lab?
4 A. I don't work for the lab.
5 Q. You have no idea?
6 A. No. I have no idea.
7 Q. So you just thought, oh, maybe it's blood.
8 That's good. We're done?
9 A. At what point would I have thought that?
10 Q. You didn't do anything further after you did
11 this test?
12 A. No.
13 Q. Do you know if those samples were sent on for
14 further testing?
15 MS. ASKEY: I'm going to object as asked and
16 answered.
17 THE COURT: Sustained.
18 Q. (By Mr. Swanson) Do you know if the brown bath
19 towel was sent off for further testing?
20 A. If I'm not mistaken. I'd have to refer to my
21 lab request report. I believe the items that she and I
22 processed that day had already been sent to the lab and were
23 returned to us and that's when we processed them.
24 Q. It's your belief all of those items had been
25 tested?
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1 A. It's my belief they were sent to the lab. What
2 they did when they arrived at the lab, I do not know.
3 Q. You also processed Russell Faria's Explorer
4 that was found at the scene; is that correct?
5 A. Yes, I did.
6 Q. And you documented that process using your
7 camera, took pictures of the car?
8 A. Yes.
9 Q. Did you do that at the scene?
10 A. Pictures were taken at the scene and at my
11 station.
12 Q. Had anyone been in the car prior to you
13 processing it?
14 A. I don't know.
15 Q. It would be important that no one go in the car
16 prior to you processing it, correct?
17 A. I don't know.
18 Q. You don't know if it's important?
19 A. No.
20 Q. It's standard practice to make sure the scene
21 is not disturbed before you arrive to process it?
22 A. That's how we would like a scene, yes, most of
23 the time.
24 Q. Okay. Did anyone tell you that someone had
25 been in the car prior to your arrival?
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643
1 A. No.
2 Q. So it would be a fair assumption that no one
3 had been in the car between the time the officers arrived --
4 MS. ASKEY: Object as asked and answered.
5 MR. SWANSON: She said she didn't know. I'm
6 now asking --
7 A. I can't make that assumption.
8 Q. (By Mr. Swanson) No one told you?
9 A. It was not advised that anyone was in the car.
10 Q. And it's important?
11 (Defendant's Exhibit Number K marked for
12 identification.)
13 MR. SWANSON: May I approach, Your Honor?
14 THE COURT: Yes.
15 Q. (By Mr. Swanson) I'm handing you Defendant's
16 Exhibit K, three pictures. Do you recall taking those
17 pictures?
18 A. Yes.
19 Q. And those pictures are of the front passenger
20 seat of the Explorer, a bag on that seat, a receipt and the
21 interior of that bag; is that correct?
22 A. That's correct.
23 MR. SWANSON: At this time, I would ask that
24 those be admitted as Defendant's Exhibit K.
25 THE COURT: Any objection?
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644
1 MS. ASKEY: No, Your Honor.
2 THE COURT: Defendant's Exhibit K is admitted
3 into evidence.
4 Q. (By Mr. Swanson) Looking at the first picture,
5 what do you see?
6 A. Which picture?
7 Q. That would be one of the seats. Yes. What you
8 do you see in that picture?
9 A. Just like you said, the seat, the bag, the box
10 of cigarettes and two bottles of tea.
11 Q. Does one of the bottles of tea appear to be
12 drank or drunk?
13 A. It's partially empty.
14 Q. The bag, can you tell where that bag is from?
15 A. The Arby's bag or the white bag?
16 Q. The Arby's bag?
17 A. Arby's.
18 Q. The Arby's bag is from Arby's?
19 A. Yes.
20 Q. Good. Did you -- look at the second picture
21 now?
22 A. This one?
23 Q. It's double sided.
24 A. Okay. This one?
25 Q. Yes. Can you describe what that is?
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645
1 A. An Arby's receipt.
2 Q. And I know it might be hard for you to see. If
3 you look in the upper corner, is that -- can you see where
4 that receipt might be? Does it appear to be stapled to the
5 bag?
6 A. Yes.
7 Q. What does that receipt say?
8 A. Arby's roast beef, Number 8323, 909 Robert
9 Raymond Drive, Lake St. Louis, Missouri, 63376. Phone number
10 (636) 625-0836.
11 Q. I'll speed you along a little bit. Does it
12 show a time for the receipt?
13 A. Okay. 9:09 p.m.
14 Q. And does it show what was ordered?
15 A. Two junior cheddar melts.
16 Q. Does it show if it was paid cash? I'm sorry.
17 Does it say what date?
18 A. 12/27/2011.
19 Q. Does it show what form of payment was used?
20 A. I don't believe so.
21 Q. Then the next picture is a picture inside the
22 bag. What's inside the bag?
23 A. Bunched up wrappers and a box, flip top box of
24 Edgefield cigarettes.
25 Q. How many crime scenes do you think you have
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646
1 processed over your career?
2 A. Thousands.
3 Q. Anything strange to you about that bag?
4 A. No.
5 Q. Nothing at all?
6 A. No.
7 MR. SWANSON: No further questions.
8 THE COURT: State?
9 (State's Exhibit 24 marked for
10 identification.)
11 REDIRECT EXAMINATION
12 BY MS. ASKEY:
13 Q. I'm going to open this first. Ms. Fischer, I'm
14 going to show you what's been marked as State's Exhibit 24.
15 Do you recognize this envelope?
16 A. I do.
17 Q. And what does the envelope contain?
18 A. Bottles of tea. One opened and one new from
19 the SUV.
20 Q. And as you look into the bag, can you determine
21 if those are the same bottles of tea that you seized?
22 A. Yes, they were.
23 Q. Did you locate a receipt in the vehicle
24 indicating the purchase of the tea?
25 A. I don't recall.
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647
1 Q. Okay. I didn't know if you did that or not.
2 MS. ASKEY: State's Exhibit 24 to be admitted.
3 THE COURT: Any objection?
4 MR. SWANSON: No, ma'am.
5 THE COURT: State's Exhibit 24 is admitted into
6 evidence.
7 Q. (By Ms. Askey) Just to reiterate on the whole
8 testing, the latent testing, the purpose of doing that test
9 was to reveal blood that wasn't visible to the naked eye; is
10 that right?
11 A. Yes.
12 Q. And that's for all of those things listed on
13 State's Exhibit 40; is that correct?
14 A. Yes.
15 Q. And so when you summarize it in a paragraph
16 below, you are referencing all of those items?
17 A. I was.
18 Q. So the only place that you would have indicated
19 a black mark are those areas that weren't already present to
20 your eye?
21 A. That's correct.
22 Q. And to be clear, when you applied the Blue Star
23 to the pattern that appeared to be a dog print on the hip of
24 Betsy Faria's pants, did it react positively to the Blue
25 Star?
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648
1 A. It did.
2 Q. And is that an indication of blood?
3 MR. SWANSON: Objection, Your Honor.
4 A. It's presumptive.
5 MR. SCHWARTZ: May we approach?
6 MS. ASKEY: I'll withdraw and re-ask it.
7 MR. SCHWARTZ: All right.
8 Q. (By Ms. Askey) Is the application of Blue Star
9 a presumptive test?
10 A. It is.
11 Q. And what does, while I understand that a
12 positive could be a positive from other things, and I think
13 Mr. Swanson asked this question earlier, a positive result
14 could also indicate that it's blood?
15 A. There was a chemical reaction that caused the
16 chemiluminescence, which would indicate the possible presence
17 of blood.
18 Q. Thank you.
19 MS. ASKEY: I don't have any further questions.
20 THE COURT: Mr. Swanson?
21 RECROSS-EXAMINATION
22 BY MR. SWANSON:
23 Q. When you say "possible", you don't know if it's
24 blood?
25 A. I do not know if it's blood.
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649
1 Q. You don't know what it is?
2 A. Correct.
3 Q. And you don't know how long it's been there?
4 A. I don't.
5 Q. You have no way of knowing that?
6 A. No.
7 Q. You don't know how it got there?
8 A. No.
9 MR. SWANSON: Nothing further.
10 THE COURT: State?
11 MS. ASKEY: Nothing further, Judge.
12 THE COURT: May this witness be released?
13 MS. ASKEY: I'm sorry. Yes.
14 THE COURT: May this witness be released?
15 MS. ASKEY: Yes, Your Honor.
16 THE COURT: Thank you. You may be
17 released.
18 THE WITNESS: Thank you.
19 THE COURT: Further evidence on behalf of the
20 State?
21 MS. ASKEY: Yes, Your Honor. State would call
22 Meghan Hall.
23 THE COURT: Meghan Hall. Ms. Hall, if you
24 would please come forward and raise your right hand to the
25 Clerk to be sworn.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
650
1 MEGHAN HALL,
2 a witness, having been duly sworn by the Circuit Clerk to
3 tell the truth, the whole truth and nothing but the truth, so
4 help you God, under the pain and penalty of the Perjury Laws
5 of Missouri, testifies as follows:
6 MS. ASKEY: May it please the Court?
7 THE COURT: Yes.
8 DIRECT EXAMINATION
9 BY MS. ASKEY:
10 Q. Please state your name for the record.
11 A. My name is Meghan Hall.
12 Q. Meghan, where do you work?
13 A. I currently work at the St. Louis Metropolitan
14 Police Department.
15 Q. And how long have you worked there?
16 A. A year and a half or so.
17 Q. Where were you working in December of 2011?
18 A. At that time, I was at the St. Charles County
19 Sheriff's Department.
20 Q. And what were you doing with them?
21 A. I was a crime scene investigator and a latent
22 print examiner.
23 Q. And the jury's heard a lot about latent prints
24 here in the last few hours. Can you explain to them what a
25 latent print examiner does?
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651
1 A. Okay. I analyze and compare latent
2 fingerprints as well as process evidence for the presence of
3 latent fingerprints.
4 Q. In addition -- strike that.
5 When you say you "analyze and compare", where
6 are you analyzing and comparing? Is there a system that you
7 use or are you, how does that work?
8 A. We take -- there's anything from a -- we take a
9 latent print or a crime scene print and a known print and we
10 can compare those. If there isn't anything to compare, we
11 can put it into a database, which is called the AFIS
12 database, which is the Missouri Automated Fingerprint
13 Identification System.
14 Q. And in the AFIS system, is that only
15 fingerprints?
16 A. That's fingerprints and palm prints.
17 Q. Okay.
18 A. For the State of Missouri.
19 Q. Did you have the opportunity to do any analysis
20 on any prints submitted subject to the case wherein Elizabeth
21 Faria was the victim?
22 A. I did.
23 Q. And what analysis did you do?
24 A. There were four lift backs submitted and I
25 analyzed those lifts.
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652
1 Q. And can you tell the jury what a "lift back"
2 is?
3 A. A lift back or "lift" is basically the transfer
4 medium that you use when you are taking a latent from one
5 surface and putting it on to a card so that you can see it
6 and actually to hold it.
7 Q. Meghan, I'm going to show you what's been
8 marked as State's Exhibit 22. If you want to take those out
9 of there. Are those the lift backs you are referring to?
10 A. Yes, they are.
11 Q. And when did you compare those lift backs the
12 first time?
13 A May I refer to my report?
14 Q. If that will refresh your recollection.
15 A. Yes. I received them on December 28th of 2011,
16 and I concluded in my report and I just finished with my
17 examination, the first examination, on January 5th of 2012.
18 Q. And what were your findings on January 5th?
19 A. I was not able to identify them to the victim,
20 so I put those, all of them into the AFIS system.
21 Q. And so what were your findings then through
22 AFIS?
23 A. I did not receive a match that came back on
24 that, so there was no hit from AFIS.
25 Q. Okay. At some time later, did you receive palm
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
653
1 prints to your office from the defendant in this case?
2 A. I did.
3 (State's Exhibit Number 23 marked for
4 identification.)
5 Q. (By Ms. Askey) I'm going to show you what's
6 been marked as State's Exhibit 23. Do you recognize that?
7 A. Yes, I do.
8 Q. And what is that?
9 A. That is an inked known exemplar print from
10 Russell Faria.
11 Q. And what is a "known exemplar print"?
12 A. A known exemplar is a deliberate recording or a
13 friction ridge either by ink or some other type of electronic
14 form.
15 Q. And when did you receive those?
16 A. Those were received on April 10 of 2012.
17 Q. And did you have the opportunity then to
18 analyze those, the known exemplar with the latent prints that
19 you had received?
20 A. Yes, I did.
21 Q. And what were your findings?
22 A. All four of these latent prints matched the
23 known exemplar.
24 Q. Thank you. And after making a finding like
25 that, is there any other step that's required through that
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
654
1 office before you memorialize it to writing to say, yes, in
2 fact, these match?
3 A. Yes. In the latent print community throughout
4 the world, we are required by standards to have and complete
5 another examiner start from scratch and look at the entire
6 case alone and do it all by themselves and that's what
7 happened in this case. And another examiner looked at this,
8 and got the exact same conclusions, came to the same
9 conclusion I did.
10 Q. And who is that examiner?
11 A. That was Don Smallwood.
12 Q. Okay.
13 MS. ASKEY: I'd ask for State's Exhibit 23 to
14 be admitted into evidence.
15 THE COURT: Any objection to State's 23?
16 MR. SWANSON: No objection.
17 THE COURT: State's 23 is admitted into
18 evidence.
19 Q. (By Ms. Askey) Are you a commissioned officer?
20 A. I am not.
21 Q. Did you have an opportunity, then, as a crime
22 scene person, to be present at the autopsy of Betsy Faria?
23 A. Yes, I was.
24 Q. And why would you have been at that?
25 A. The St. Charles County Crime Scene Unit assists
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
655
1 with Major Case Squad to attend anything that they need us to
2 help with, and I was chosen to go to the autopsy that day.
3 And I was, I took some photos.
4 Q. Okay. Did you also seize evidence there?
5 A. Yes.
6 Q. Meghan, I'm going to show you what's been
7 marked State's Exhibit 14. This is the bag. Do you
8 recognize this with regard to the packaging?
9 A. That is not my handwriting, no.
10 Q. As far as seizing the items from the autopsy,
11 were you there with Detective Merkel, as well?
12 A. I don't recall.
13 Q. Was there anyone there from Lincoln County
14 Sheriff's Office?
15 A. There was people there, yes.
16 Q. And do you know if they brought the evidence
17 back to Lincoln County?
18 A. There were pieces of evidence that I took from
19 the autopsy back to the Sheriff's Department and entered them
20 into evidence, and I'm not sure what happened to them there.
21 Q. Okay. So they would have been packaged
22 separately?
23 A. Yes.
24 Q. Okay. I'm going to ask you, I'm going to get a
25 glove first. I'm going to show you, is this the knife that
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
656
1 you seized from the victim's neck at the autopsy?
2 A. I did not seize the knife.
3 Q. Who seized the knife?
4 A. I don't know.
5 Q. Okay. Were you present when a knife was seized
6 from the victim's neck at the autopsy?
7 A. I didn't. All I know is that as far as what I
8 collected and I did not collect that.
9 Q. What items did you collect? Do you have your
10 report there?
11 A. Yes. Do you want me to list them?
12 Q. No.
13 MS. ASKEY: I don't have anything further.
14 THE COURT: Mr. Schwartz or Mr. Swanson?
15 CROSS-EXAMINATION
16 BY MR. SWANSON:
17 Q. You were provided four lift backs?
18 A. Correct.
19 Q. Correct me if I am wrong, but items 1
20 And 2 are the same latent that you were provided; is that
21 correct?
22 A. I believe so. Let me make sure. Yes, it is.
23 Q. And Item 3 and 4 are the same latent?
24 A. Correct.
25 Q. So those are basically one palm print, just two
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
657
1 copies?
2 A. Basically, what she labeled it as is a relift,
3 which just means it's the same area. It's just maybe she
4 wanted to get a better contrast.
5 Q. It's not like four separate?
6 A. No.
7 Q. It's two?
8 A. Correct.
9 Q. And you compared those to Russell Faria's palm
10 print?
11 A. Correct.
12 Q. And it was a match?
13 A. Correct.
14 Q. How long do palm prints, can palm prints linger
15 on something?
16 A. It depends on multiple factors.
17 Q. Days?
18 A. Sure.
19 Q. Weeks?
20 A. It depends on the environment. It depends on a
21 lot of things, yes.
22 Q. Is weeks unreasonable?
23 A. No.
24 Q. Months?
25 A. Not necessarily.
Electronically Filed - EASTERN DISTRICT CT OF APPEALS - July 23, 2014 - 07:34 PM
658
1 Q. Years?
2 A. It depends on the factors.
3 Q. So basically, you can't tell how long a palm
4 print has been somewhere?
5 A. No.
6 Q. Those lifts, the four lifts, two palm prints,
7 those were all from Mr. Faria's home?
8 A. Correct.
9 Q. So basically, I don't want to rephrase your
10 testimony but what you found was that Mr. Faria left palm
11 prints in his house?
12 A. Yes.
13 MR. SWANSON: Nothing further.
14 THE COURT: State?
15 MS. ASKEY: Nothing further, Judge.
16 THE COURT: May this witness be released?
17 MS. ASKEY: Yes, Your Honor.
18 THE COURT: Thank you, ma'am. You may be
19 released.
20 Further evidence on behalf of the State?
21 MS. ASKEY: Yes, Your Honor. The State would
22 call Don Smallwood to the stand.
23 THE COURT: Don Smallwood. Sir, if you would
24 please step forward and raise your right hand for the Clerk
25 to be sworn.
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