1
1 UNITED STATES DISTRICT COURT
2 FOR THE WESTERN DISTRICT OF NORTH CAROLINA
3 CHARLOTTE DIVISION
4
UNITED STATES OF AMERICA, )
5 )
)
6 vs. ) File No. 3:97CR23-P
)
7 AQUILIA MARCIVICCI BARNETTE, )
)
8 Defendant. )
)
9
10
11 Daily Transcript of proceedings before the
12 Honorable ROBERT D. POTTER, United States District Court Judge,
13 before Scott A. Huseby, Official Court Reporter and Notary
14 Public, on the 21st day of January, 1998.
15 APPEARANCES:
16 For the United States:
17 ROBERT J. CONRAD, JR.
THOMAS G. WALKER
18 Assistant United States Attorneys
227 West Trade Street, Suite 1700
19 Charlotte, North Carolina 28204
20 On Behalf of the Defendant:
21 GEORGE V. LAUGHRUN, Esq.
Suite 602
22 301 South McDowell Street
Charlotte, North Carolina 28204
23
24
25
2
1 APPEARANCES: (Continued)
PAUL J. WILLIAMS, Esq.
2 Suite 801
301 South McDowell Street
3 Charlotte, North Carolina 28204
4
5 ---
6
7 THE COURT: Good morning, everyone. Now, members of the
8 jury, you all know what the case is and what the name of the
9 defendant is.
10 MR. CONRAD: Your Honor?
11 THE COURT: Oh, I'm sorry.
12 (Defendant enters the courtroom.)
13 THE COURT: As I said, you all know the name of the
14 defendant by now, you all know generally what is charged by the
15 government in this case, and we are ready to start the trial.
16 First thing, I'll ask the Clerk if she will impanel the jury.
17 (Jury impaneled.)
18 THE COURT: Members of the jury, before I forget it, I
19 want to tell you that we've made arrangements for your parking
20 so you don't have to go look around for parking spaces in the
21 morning. We don't want y'all circling the block. It's very
22 difficult to find a place down here. The Clerk will tell you
23 about that back in the jury room at some later time today.
24 Arrangements have been made about you going in there and all
25 that sort of thing, so you don't have to worry about change and
3
1 whatever is necessary.
2 Members of the jury, as you know, this is a criminal
3 case in which the government has charged the defendant with
4 various crimes. You are to listen to the evidence in the case
5 and render a verdict based on the evidence and nothing else. I
6 will try to remember, in fact, it's sort of routine with me,
7 every time you take a recess, do not discuss the case among
8 yourselves back in the jury room, do not discuss the case when
9 you go out to lunch among yourselves, and do not talk to anybody
10 else about it obviously, don't do that.
11 When you go home tonight or over the weekend, there are
12 going to be some people asking you what you are doing. You are
13 sitting on a criminal case. Do not even mention the name of the
14 case. Now, I don't want you to stand there if somebody says,
15 are you on such and such a case, and say, well, we've been told
16 not to talk about it. Just tell them I said do not talk about
17 it, because if you do, somebody is going to have an opinion that
18 you are talking to, whether it's your wife, or your husband,
19 brother, sister, neighbor, whatever. Somebody will have an
20 opinion, and they will express that opinion to you, and no
21 matter how hard you try, when you get back in the jury room in
22 your deliberations, what they said to you is going to be in your
23 mind. You can't unring the bell. It may have an influence on
24 your deliberations, and we do not want that to happen. We want
25 you to base your verdict purely on the evidence in this case,
4
1 which will consist of the testimony of the witnesses and the
2 exhibits, as I have told you before, which will be admitted into
3 evidence.
4 So do not during the trial discuss the case. Do not,
5 obviously, in case anything appears in the media about it,
6 whether it's on TV, radio, newspaper, whatever, do not listen to
7 it, do not look at it and do not read it. Again, because of the
8 fact that reporters report only what they are interested in,
9 they don't report -- you will be here several days listening to
10 testimony. They don't report all of the evidence. If they did,
11 they'd take up every newspaper they had, because it goes on page
12 after page after page. So do not read anything about the case,
13 and do not look at anything on TV, and do not listen to anything
14 on the radio.
15 Now, you are going to have times when you walk into --
16 I've had trials where people walk into a convenience store or
17 some other place which has a TV on. They see that; you can't
18 help that, obviously. If you do see anything about it, though,
19 I want you to report it. I will ask you each morning, have you
20 seen, heard or read anything about the case. Fortunately, there
21 hasn't been too much publicity about this case, and I hope it
22 stays that way until we get through with it. After that, I
23 don't care. But every morning, I'll ask you, have you seen,
24 heard or read anything about this or had anybody try to discuss
25 it with you. If you have, then I will take you over here to the
5
1 side-bar and ask you what it was and whether or not you feel
2 that it would influence your decision in this case in any way.
3 We are not trying to hide anything from the other jurors, but
4 just as we had each of you examined separately, we don't want to
5 influence any of the other jurors by what you did see or hear.
6 So please understand that.
7 Now, as to the procedure of the trial, first of all
8 there will be opening statements by the government. Then there
9 will be opening statements by the defendant's attorneys. Now,
10 opening statements are what the government will say is what the
11 evidence will show. The defendant's attorneys will tell you
12 what they believe the evidence will not show or will show. The
13 opening statements are just that, they are statements. Listen
14 closely to the statements because they may help you during the
15 trial as to what to expect. But they are not evidence; I can't
16 impress that on you too much. Everybody looks at evidence a
17 little differently. So just listen closely to the statements,
18 pay attention to them, and, of course, I hope it will help you
19 in your listening to the trial as it goes along. At the end of
20 the government's statements, and as I say, there will be
21 defendant's statements, but listen to the statements but do not
22 consider the statements as evidence.
23 The opening statements, when they are concluded, will be
24 succeeded by the testimony of various witnesses. The government
25 having the burden of proof goes first. They will put on the
6
1 testimony or evidence which they believe is essential to their
2 proof of their case. At the conclusion of the government's
3 case, the defendant will put on any testimony that he wishes.
4 Listen closely to all of these witnesses. You are the sole
5 judges of the credibility of the witnesses, I'm not, the
6 attorneys are not. You are the only ones who will decide
7 whether or not certain or all of the witnesses are telling the
8 truth, not only the truth, but whether or not they had the
9 opportunity to see and hear what they are talking about.
10 Now, during those -- during the testimony, there are
11 going to be objections. There can't be a trial without
12 objections; that's the attorneys' job. The job of the attorney
13 for the defendant and for the government is to object to what
14 they believe is not proper evidence to be admitted into the
15 record and to be heard by you, the jury. They're not trying to
16 hide anything from you. There are rules of evidence which have
17 been enacted by Congress, and we try to follow those rules and
18 that's all they are doing is asking the Court to follow the
19 rules of evidence. Hopefully, I can rule on the objection
20 instantaneously.
21 Obviously, there are some times something will come up
22 that I may not know about that I may have to have a short
23 conference with the attorneys. I can assure you this is not
24 going to be an O.J. Simpson trial. I hold that up because so
25 many jurors feel like that's the way court cases are conducted.
7
1 Hopefully, this court case will not be conducted or this
2 courtroom will never be used in that manner.
3 So don't feel we are trying to hide anything from you.
4 If I sustain the objection, it's only because the attorneys have
5 objected to something. We're merely trying to follow the rules
6 of evidence, because we have to get before you the facts which
7 the Congress has said with the assistance, of course, of several
8 people in the legal profession are essential facts which should
9 be admitted in a trial.
10 The bench conferences, as I say, are not going to last
11 long. If it's more than a minute or so, I will let you go back
12 to the jury room where you will be more comfortable. We can
13 then discuss it out here on the record and not influence you
14 any. These arguments are legal arguments, they are not fact
15 arguments. Your job is to determine the facts and not whether
16 or not a matter should or should not be admitted into evidence.
17 Now, at the conclusion of all of the evidence, there
18 will be arguments by the jury -- I mean by the attorneys, to sum
19 up to you what they believe the evidence has shown in the case.
20 It's your recollection of the evidence that counts. If one of
21 the attorneys says something is black and your recollection is
22 it's white, or something did happen but your recollection is it
23 did not happen, it's your recollection that counts, not the
24 attorneys's recollection. Again, though, listen very closely to
25 these closing statements, because they will tie together for you
8
1 the bits and pieces of evidence as it comes in.
2 I dare say that like most trials, no witness knows
3 everything about the case, they know only the part that they
4 heard or saw or smelled or touched or felt in any way. So
5 that's all they can testify about, is what they know about. And
6 those pieces of what each witness will tell you about has to be
7 fitted together by you the jury, but the attorneys' arguments
8 may help you in doing that whenever you get down to your
9 deliberations.
10 And then at the conclusion of the closing statements by
11 the attorneys, the Court will give you its instructions. You
12 are going to hear several terms used during the trial by the
13 attorneys and perhaps by some of the witnesses, and those
14 hopefully will be defined to you by the Court at the conclusion
15 of all of the evidence. So don't concern yourself too much
16 about certain statutes or anything of that nature, we will try
17 to explain all of that to you. Just listen to the evidence and
18 determine what the facts are, because that's what you are here
19 to do and I'm sure you will all do a good job of that.
20 We are going to start. Right now, I'm going to try
21 9:30. I see we have one, two, three, four, I think four jurors
22 from Gastonia, one from Cramerton, one from Monroe, and, of
23 course, down in Matthews. The traffic in Charlotte is such that
24 if you hit the bubble as I call it coming in Independence
25 Boulevard or 85, you are going to be delayed to a certain
9
1 extent. I just saw in the paper this morning they had a van out
2 here on 77 that was crushed between two trucks and, of course,
3 traffic was backed up, I guess, all the way to Rock Hill. And
4 that's going to happen, and it could happen later on. But I
5 just feel like it's easier for you to get here on time if you
6 come in a little bit later.
7 We are going to try the stop every day somewhere around
8 4:30, again, to try to help you to avoid the traffic. I have
9 gone to trials in my younger days a lot longer, 6:00, 7:00, 8:00
10 o'clock at night. Nobody likes it, I don't like it, but we had
11 to get through. I remember one time I was really pushed. So
12 we're going to try to quit at about 4:30 to give you a chance to
13 get on your way before the bubble starts back the other way.
14 Now, don't think that when that clock gets to 4:30, I'm going to
15 cut off a witness in midsentence. I just have to gauge these
16 things as close as I can. If the attorneys inform me or if they
17 know that a witness who is called at 4:00 o'clock is going to
18 run until 5:00 or 5:30, then there's no point in starting and
19 that witness. I don't like to stop him right in the middle of
20 the testimony. And if the direct examination will finish up
21 about 4:15 or so or 4:00 o'clock, 4:15 say, there is no point in
22 trying to go ahead with the cross-examination at that point
23 unless they tell me it will only take a few minutes. We are
24 going to try to be very cognizant of your time and not waste any
25 of your time, and get you home at a decent hour and have you
10
1 come in at a decent hour. If you decide, and you can talk about
2 this among yourselves, that you'd rather start earlier, that
3 suits me fine. I get up every morning at 5:30. If you want to
4 be here at 6:00 o'clock, that would suit me fine. In any event,
5 I don't want you to feel like that you have to come in at any
6 particular time after 9:00 o'clock in the morning. We can start
7 at 9:00 if you want to, but y'all talk about that and let me
8 know if that's what you would rather do.
9 We will have a break in the morning, sometime around
10 11:00, 10:30, 11:00 o'clock, 11:15, again depending on who is on
11 the stand or what is going on. We will take about an hour for
12 lunch, maybe a little bit more, because some of you have never
13 been to downtown in many, many months and you don't know where
14 to go. I like to start lunch about 1:00 o'clock, again, because
15 of the crowds. If you go down there at 12:00, you are going to
16 run into a big long line of people. If you go down at maybe
17 1:00 or a little after 1:00, you can usually walk right in.
18 So those things will all try to be taken into
19 consideration. Afternoon, of course, we will also have a
20 break. Also, if there is any matters that the attorneys have to
21 discuss with me or I have to discuss with them, that will be a
22 break for you. So we are not going to have too many of those, I
23 hope, but we may have some.
24 I believe I have covered about everything as to how we
25 are going to proceed. Are we ready for opening statements?
11
1 Let's see -- oh, it says the jury would like to know the
2 following, bad weather due predicted tomorrow morning. The only
3 bad weather I know of, and I try to keep up with these things,
4 is rain. I don't think we can just push things off because of
5 rain. Obviously, if we are going to have sleet and snow, that's
6 something different. So far, the temperature tomorrow is
7 supposed to be about 40 something, I think, not even down to
8 freezing, I don't think, tonight, very fortunate on that.
9 Keeping notes, keeping notes, any objection by anybody
10 if they do keep notes?
11 MR. CONRAD: No, sir.
12 MR. LAUGHRUN: No.
13 THE COURT: No objection to notes. Only thing I want to
14 advise you about notes is if you take notes, they are your
15 notes. Don't be showing them to the other fellow next to you or
16 the other woman next to you. They are your notes, and you
17 may -- I don't know whether you have all had experience, but
18 sometimes when you are taking notes, you're not listening to
19 what is on the stand now, you're taking notes on what somebody
20 said two or three minutes before that. So that may be a danger
21 to you there. If you can take notes and listen to the testimony
22 going on at the same time, that's fine. But if you are going to
23 be taking notes and not listening to the testimony, it might be
24 better if you didn't take notes.
25 And again, when you get back into deliberations,
12
1 obviously if you have the notes, somebody is going to think,
2 well, he must be right because he took notes, and that's not
3 necessarily so either. It's each individual's recollection of
4 the evidence. If the other juror took notes, that doesn't mean
5 that that testimony is what happened. It's your recollection
6 that counts. I think that covers everything, doesn't it?
7 Members of the jury, at this time we will have opening
8 statements. As I told you, the government has the first go
9 around, they'll have the opening statement. And then after
10 that, the defendants will put on their opening statement. And
11 after that, we will begin with the testimony in the trial.
12 All right, Mr. Walker.
13 MR. CONRAD: Thank you, Your Honor.
14 Ladies and gentlemen of the jury, let me turn your
15 attention to June 21st of 1996, the first day of summer and the
16 last day of 22-year-old Donnie Lee Allen's life. It began like
17 any other day in his life. He went to work at Jacobsen Division
18 of Textron, where he was a service technician for that company.
19 After work, he came back to his parents' house, rested and
20 visited with his parents. After he took a shower, he got his
21 second wind and went out for the evening. That was the last
22 time his family would ever see him alive.
23 He came to Charlotte and went to Coyote Joe's, which is
24 a country and western bar on Wilkinson Boulevard. There he
25 drank some beer, talked to some girls and played some pool. You
13
1 will hear from one of the people he talked to. She will
2 describe him as a quiet person. He was a quiet person, and it
3 was an ordinary night. He had to get up early to work, so he
4 left around midnight. He had no way of knowing when he left
5 that he had only minutes to live. He turned right out of the
6 parking lot and right again at the first light, which is Morris
7 Field Drive. He was on his way back home to McConnells, which
8 is near Rock Hill in South Carolina. It was hot and he had the
9 window down as he pulled up to Billy Graham Parkway.
10 Now, the intersection of Morris Field Drive and Billy
11 Graham Parkway is a remote intersection out near the airport.
12 And on that night, it was pitch dark. Donnie had pulled up to
13 the wrong intersection on the wrong night. A killer waited for
14 him there crouched behind a tree dressed in black armed with a
15 sawed-off semiautomatic shotgun with a flashlight taped to the
16 bottom of the shotgun with a lens colored red, carrying a bag
17 with a crow bar and some bolt cutters. He lurked in the woods,
18 intent on killing someone, anyone, so that he could obtain a
19 car. He had just walked from his house about a mile away. That
20 killer is in the courtroom today, and he is seated over here in
21 a suit and tie between these two lawyers.
22 But that night, he was dressed in black with a black
23 hat, black shirt, black pants. And the evidence will show that
24 he snuck up on Donnie Lee Allen's car at the intersection,
25 Donnie was stopped at a red light, and he snuck up on that car
14
1 with a sawed-off shotgun and he put the sawed-off shotgun
2 through the window and ordered Donnie out of the car. And he
3 walked Donnie over to the side of the road and demanded his
4 wallet, and Donnie obeyed, took out his wallet, threw it at his
5 foot. The killer then took him by gunpoint and marched him from
6 the side of the road down a drainage ditch away from the road.
7 The evidence will show that Donnie was begging for his
8 life at this time, begging him not to kill him. Barnette
9 pointed the gun at him, told him to turn around and shot three
10 times into his back, execution style, very close range. You
11 will hear from a medical examiner in this case, and he will tell
12 that you shotgun wadding was found inside the body.
13 The killing took place near the road, so the defendant
14 dragged the body away from the road after the shooting. Donnie
15 lay there dying from the three bullet wounds to his back as the
16 defendant picked up his wallet from the road, got in the car,
17 made a U-turn and sped away. Again, you will hear from the
18 medical examiner in this case. He will tell you that Donnie did
19 not die right away. At the next intersection, the killer took
20 Donnie's wallet out and counted his money as Donnie lay bleeding
21 to death.
22 What led up to this murderous assault? The evidence
23 will show that two years prior, this defendant had gone up to
24 Roanoke, Virginia with a friend and he met a woman there, Robin
25 Williams, met her at a downtown club, and Robin fell in love
15
1 with this defendant. And being from two different cities, they
2 dated for a while from long distance, and from time to time
3 Robin would send him love letters. And after a time, the
4 defendant persuaded her to let him move in with her when she got
5 a new apartment, and in March of 1995, that's exactly what
6 happened.
7 Sometime thereafter, the relationship turned sour. The
8 evidence will show that the defendant became demanding, became
9 violent. On occasion he beat her, chased her out of the
10 apartment, and on occasion police were called, and in April of
11 1996, Robin Williams had had enough and she asked the defendant
12 to leave. In April of 1996, the defendant had had enough of
13 Robin Williams. He returned to Charlotte, but he called her
14 constantly. After he moved out, Robin moved out of her
15 apartment and moved back in with her mother. The evidence will
16 show that her mother lived on 911 Loudon Avenue in Roanoke,
17 Virginia. Although her relationship with the defendant had
18 deteriorated, her desire to live on her own had not. And so on
19 the night of April 29th, 1996, she returned to her apartment at
20 1616 Keswick Avenue in Roanoke, Virginia. But she was somewhat
21 scared and she asked a friend of hers, Benny Green, to go with
22 her.
23 Around 7:00 o'clock or 8:00 o'clock that night, this
24 defendant called Robin Williams at her mother's house. He
25 called again later that night after Robin and Benny Green had
16
1 gotten to the apartment at 1616 Keswick Avenue, and he was mad.
2 And he got in his brother Mario Vonkeith Barnette's car in
3 Charlotte, and he stopped at a gas station and he bought some
4 gas in a container and made some homemade fire bombs and he
5 drove from Charlotte to Roanoke, Virginia.
6 Not knowing any of this, Robin watched some TV and went
7 to bed, and on the night of April 29th -- actually, it was in
8 the early morning hours of April 30th, around 3:30 in the
9 morning or thereafter, Robin was awakened by loud bangs at her
10 front door. She went to the front of the house, she raised the
11 blinds, and she stared right into the face of this defendant.
12 And you will see pictures of her apartment, and Roanoke is a
13 very hilly community. In the front of her apartment is a
14 ground-level window both in the kitchen and in the living room.
15 But the hill slopes, and in the back of the apartment, the
16 bedroom window is a second-story window with an apartment
17 underneath that apartment.
18 But as she stared out the living room window right into
19 the face of the defendant, she heard him screaming obscenities.
20 She saw him carrying a baseball bat, she observed him go to the
21 car parked right in front of the apartment, pulling right up to
22 the apartment, Benny Green's car, and she watched the defendant
23 use that baseball bat to smash in the windows of the car. And
24 she went to call 911, but her phone lines had been cut. And she
25 ran back to the window and she heard this defendant yelling at
17
1 her, die, bitch, die, and she saw him throw a fire bomb at the
2 house. She heard a whoosh and ran to the front door to get out,
3 but the fire had started there and she could not get out. She
4 ran to the living room window, but the fire beat her there as
5 well. In desperation, she and Benny Green went to the back of
6 the apartment and jumped out a second-story window. She
7 survived but she was badly burned and disfigured, and you will
8 see the extent of those injuries in this trial.
9 How do we know all of this? We know this because Robin
10 spent a couple of weeks at the UVA burn center. And after she
11 was released from the burn center, she came back to Roanoke and
12 she made an appointment with Detective Rick Hall of the Roanoke
13 Police Department. And Detective Hall came to her house and
14 interviewed her, and he taped that interview and you will hear
15 it, And you will hear the voice of the murdered victim
16 identifying this man as the person who fire bombed her house in
17 the morning hours of April 30th.
18 And you will hear from Benny Green who was with her that
19 night, and he will tell you that he was there for protection for
20 Robin and that he had brought a 9 millimeter weapon with him for
21 that purpose. And he will tell you that he looked out the
22 window as well and was within feet of this defendant when he was
23 fire bombing the apartment, and he went and got his 9 millimeter
24 weapon and fired at the defendant or attempted to. But his
25 safety catch was on, and though he pulled the trigger, no shot
18
1 was fired. And he took the safety off and shot a few more
2 times, but by that time the defendant had fled. And as he fled,
3 Green observed him throw one last fire bomb at Green's car.
4 You will hear that as Robin underwent painful skin
5 grafts at UVA burn center in Charlottesville, Virginia, the
6 defendant having come back to Charlotte returned to Roanoke and
7 there left old cards that Robin had sent him, love notes from a
8 happier day, left them on her car which was parked at her
9 brother's house. And on those cards, he had written notes to
10 her that she was a liar and a cheat. And you will hear from
11 Robin's uncle. Robin's uncle will tell that you a few days
12 after the fire bombing, the defendant called her and asked how
13 she was doing and where she was, and the uncle hung up on him
14 and punched the caller I.D. and got a Charlotte, North Carolina
15 phone number.
16 You will see the defendant was not done with Robin
17 Williams. On May 20th, he bought a shotgun at Quik Pawn Shop in
18 Charlotte, North Carolina. He didn't like it, so he went in the
19 next day, traded it in and bought a second gun. And you will
20 hear evidence that he used an alias, a fictitious name, and he
21 indicated that he was not a convicted felon on the form he has
22 to sign to purchase a weapon, and you will hear other evidence
23 that, in fact, this defendant is a convicted felon. On
24 September 20th of 1994, he was convicted of felonious restraint
25 in Mecklenburg County, and it's important because convicted
19
1 felons cannot purchase and possess weapons. So he used his
2 brother's name, just like he used his brother's car to do the
3 fire bombing.
4 And 20 days after the fire bombing and 30 days before he
5 would return to kill Robin Williams, he bought a shotgun, said
6 he was Mario and he had not been convicted of a felony. The
7 form that he signed warned him that an untruthful answer may
8 subject you to criminal prosecution, and any false or
9 misrepresented identification with respect to the transaction is
10 a crime punishable as a felony. So he lied to get a shotgun to
11 kill Donnie and to kill Robin, and you will see that shotgun.
12 After he bought it, he sawed off the barrel, he taped a
13 flashlight to the underside of the gun, and he colored the lens
14 on the flashlight red, and it became in his hands a weapon of
15 destruction and now he was almost ready.
16 A few more things were needed. He got a pair of bolt
17 cutters, because on his first trip to Roanoke, he left his wire
18 cutters outside the apartment after he cut the phone lines. And
19 he got a crow bar and he got dark clothing. And, of course, he
20 needed a car. So on June 21st, dressed in black, carrying the
21 shotgun, he walked from his house, the approximate mile distance
22 to Billy Graham and Morris Field Drive and waited for Donnie Lee
23 Allen and killed Donnie Lee Allen, a young man he never had met,
24 a young man who was in his way. And he got in Donnie's car and
25 he drove to Roanoke, and he spent Donnie's money and disposed of
20
1 his golf clubs and contemplated killing Robin. And he got to
2 Roanoke early in the morning, and again he waited.
3 He waited until there were signs of life in Bertha
4 Williams' house at 911 Loudon Avenue. But Bertha got up around
5 6:00 o'clock in the morning, lights came on in the house and it
6 was going to be a good day for Bertha. Her Robin was home
7 living with her, her grandbaby was due at 6:30, and so Bertha
8 went on the porch to read a paper and wait for her grandbaby.
9 And when her grandbaby came, she went inside to the kitchen and
10 started baking brownies for the church bake sale. And all of
11 that time, a killer was waiting outside her house at 7:05 that
12 morning.
13 She looked up and noticed the time, and she heard a
14 bang. She thought it was the stove blowing up. But it was not
15 the oven. The defendant, having cut her phone lines and
16 reloaded his shotgun, stood waiting at the back door. And the
17 noise that Bertha heard at 7:05 that morning was the first of
18 three shotgun blasts into her back door. Shotgun pellets spread
19 through the kitchen, causing damage to the walls and the
20 furniture, still visible today. And at the sound of the blast,
21 Robin Williams came downstairs and said to her mother, Mama,
22 what is it, and both Bertha and Robin went to the front door and
23 looked outside. And after a while, Bertha said, it must be
24 Mark.
25 Robin began to turn around and around in panic and in
21
1 terror, and she said, what should I do? And Bertha answered, I
2 don't know, baby, just run, just run, baby. And that's what
3 Robin did, she ran out the front door. And Bertha turned
4 around, and standing in the hallway of her house was this
5 defendant, having reloaded yet again, and pointing a gun at
6 her. Bertha picked up her grandchild and said to him, Mark,
7 don't shoot my grandbaby, and the defendant answered her, I'm
8 going to kill everybody.
9 He then ran out the back door and ran after Robin.
10 Robin had run across the street, passed a house across the
11 street. But unfortunately she had fallen a couple of times, and
12 the defendant caught up to her. And he grabbed her by the hair
13 and pulled her back towards her mother's house and he said to
14 her, I have one for you and one for me, and again he lied. He
15 had two shots, and she got both of them. He shot her in the
16 back as she stood next to her mother and fell at the feet of her
17 mother. And Bertha held her dying daughter briefly, left for a
18 second to call her pastor on a cell phone to beg for prayer, and
19 before she got back, Robin had passed on. And this defendant
20 trotted to his car, to the stolen car, to Donnie's car and drove
21 away.
22 He didn't drive back down 77 to Charlotte where pursuit
23 might follow. He went west on Interstate 81, more than 250
24 miles to Knoxville, Tennessee, and there he stole a license
25 plate and replaced the South Carolina plate with a Tennessee
22
1 license plate, and he scraped off the South Carolina inspection
2 sticker from Donnie's car. And eventually he drove Donnie's car
3 back to Charlotte with the stolen Tennessee plates and hid it
4 behind a shopping center on East Independence Boulevard and took
5 the shotgun and clothing and other evidence and hid it in a
6 dumpster behind that shopping center.
7 You will hear that the police found Donnie's car, that
8 FBI agents convinced this defendant's mother to get him to turn
9 himself in, that an FBI agent told him that they had evidence
10 linking him to the murder scene in Roanoke, and that they had
11 found the car they believed he had driven to Roanoke. And four
12 days after the murders occurred, you will hear evidence that he
13 admitted to killing both Donnie and Robin, and he led them to
14 Donnie's body and admitted shooting him and pulling the body
15 into the drainage ditch.
16 And that, ladies and gentlemen, in summary is the case
17 the government intends to offer you today. We will present it
18 to you as best we can and in the order in which the events
19 occurred, starting with the fire bombing, then the steps the
20 defendant took to get ready for the murders, then the
21 premeditated murders of Donnie and Robin. We will present
22 evidence to you to meet all of the statutory elements that we
23 have to meet in this case. We will present to you what we call
24 relationship witnesses, who will testify as to the relationship
25 between the defendant and Robin Williams, because proving that
23
1 they were former intimate partners is part of the burden of
2 proof in this case. We will show you the judgment and
3 conviction order that sets forth his felony status. We will
4 show you experts who will testify that the shotgun used in both
5 murders was one in the same, fingerprint experts to show
6 Donnie's fingerprints -- or the defendant's fingerprints on
7 Donnie's car, and other evidence.
8 At the end of all of the evidence, one of us will stand
9 before you again and we will ask you for one thing and that is
10 do your duty as jurors, and we will ask you to return a verdict
11 of guilty based upon the evidence and upon proof beyond a
12 reasonable doubt on all 11 counts of the bill of indictment that
13 His Honor has read to you. Thank you.
14 MR. WILLIAMS: Good morning. This is a domestic
15 tragedy, an ex-girlfriend killed by a depressed, anguished
16 ex-boyfriend. This became a triangle of tragedy, involving the
17 killing of Donald Lee Allen. These tragedies involve not only
18 the murders of two young people, but the anguish and pain of
19 their families.
20 A defense lawyer's job is to defend, but Mark Barnette
21 has made the government's job easy in this case and our job
22 difficult. Mark confessed three times to shooting Donald Allen
23 and Robin Williams. The confessions were tearful and
24 remorseful. They were recorded on audiotape and videotape. The
25 police never questioned Mark about the fire incident that
24
1 occurred in April of 1996, but you will hear Robin Williams
2 herself in a taped interview with the Virginia police that Mark
3 was the one who set fire to her apartment while her friend
4 Benjamin Green was there.
5 Although we will not contest much or most of the
6 government's case, our system of justice in this country
7 requires you and us to go through this process. Our system
8 requires the government to prove beyond a reasonable doubt each
9 and every element of the 11 charges. All we can ask you to do
10 is be fair, keep an open mind and not prejudge or consider the
11 punishment during this part of the case. Part of your job in
12 this process of listening to the government's evidence will be
13 to go further than the acts themselves, to understand Mark
14 Barnette's thoughts, emotions and the intent, were these acts of
15 premeditation and well thought-out plan, or were they emotional
16 acts without much plan or design, it is for you to say.
17 The evidence will show this was a depressed, anguished
18 young man who could not accept the breakup of his relationship
19 with Robin Williams. Mark Barnette's world collapsed. His
20 anguish and passion for Robin lost its way, and Mark Barnette
21 lost his way. Robin and Mark argued and he was very jealous of
22 her, but there were many cards back and forth in which Robin
23 expressed her deep love for Mark and he for Robin. The
24 relationship deteriorated when Mark thought that Robin was
25 ending their relationship because there was another man in her
25
1 life, and that man was Benjamin Green.
2 You need to listen carefully to Mark's confessions.
3 They contain remorse and thoughts of suicide and regret for what
4 he had done. He tells the police about shooting Donald Allen
5 and Robin Williams, then going to Knoxville, Tennessee where he
6 twice attempts to commit suicide by putting a garden hose on his
7 tail pipe and putting the other end inside the car. He tells of
8 following an elderly black couple to church on Sunday morning so
9 that he could pray for Donald Allen and Robin Williams and ask
10 Jesus to forgive him for what he had done. He then turns
11 himself in and cooperates with the police. The evidence will
12 show these are some of Mark's words from his confessions.
13 When investigator Tony Rice asked him on June 25 during
14 the confession at that time, what do you feel your main reason
15 was for shooting her, referring to Robin Williams, Mark Barnette
16 answered, I'm still trying to find that out, I wanted to die, I
17 wanted to kill myself and I wanted her with me, just one part of
18 me, another is that I was mad that she had threw our
19 relationship out the window for somebody who I didn't know
20 existed, and another part was that I was just so upset, that I
21 was depressed, I didn't know what I was going to do about the
22 relationship we had because it was over in like one night, and
23 we had been together for two years and it was still so many
24 unanswered questions, that's why it was hard to, because I
25 wanted to know, I had a lot of questions I had to ask, right,
26
1 and we didn't, I went, I just went ahead and shot her and I was
2 going to ask myself that, so I didn't and I don't know why.
3 On June 28th when investigator Officer Hall from the
4 Charlotte city police department, during his confession to
5 Mr. Hall, investigator Hall asked this question of Mark
6 Barnette, Mark, why did you shoot him, referring to Donald
7 Allen. Mark Barnette said, I don't know, I still don't know,
8 and he began to cry.
9 And finally in the June 25 or June 28 confession with
10 investigator Bob Hall, the evidence will show that Bob Hall
11 asked Mark Barnette this question: Why did you go to church?
12 Mark Barnette said, because I knew I was wrong, I shouldn't have
13 done that stuff and I -- I felt like that I needed to ask the
14 Lord to forgive me for what I had did, and I wanted him to take
15 care of Donald and Robin and make sure that they were okay and
16 pray and ask them to forgive me, because I don't know what had
17 happened to me, why I did that, to where I let my anger and hurt
18 feelings and all of that stuff build up inside me to where I
19 would hurt anybody like that, and I wanted Jesus to forgive me
20 and to take care of them because I was wrong and I know better.
21 And he began to cry. I wasn't raised like that, something was
22 wrong with me, I didn't know what, but it cost them their lives
23 and it shouldn't have.
24 This part of the case, ladies and gentlemen, is about
25 the what, what happened. There is another story to be told
27
1 involving the why, why this happened, but we cannot tell that
2 now, that's for the penalty phase if you take us there.
3 THE COURT: Government call it's first witness.
4 MR. WALKER: Your Honor, the government calls Officer
5 Hubbard.
6 K.O. HUBBARD,
7 being first duly sworn, was examined and testified as follows:
8 DIRECT EXAMINATION
9 BY MR. WALKER:
10 Q. Good morning, sir.
11 A. Good morning.
12 Q. Would you state your full name for us, please?
13 A. Officer K.O. Hubbard, Roanoke city police department.
14 Q. Officer Hubbard, are you a patrol officer, a patrol
15 police officer with the City of Roanoke police department in
16 Roanoke, Virginia?
17 A. Yes, I am.
18 Q. And Roanoke, Virginia is located in Roanoke County, is
19 that correct?
20 A. Yes.
21 Q. How long have you been a police officer, Officer
22 Hubbard?
23 A. Almost seven and a half years.
24 Q. Were you employed and on duty as a Roanoke city police
25 officer during the early morning hours of April 30th of 1996?
28
1 A. Yes, I did.
2 Q. And did you at that time and on that date respond to a
3 call at an apartment complex located at 1616 Keswick Avenue in
4 Roanoke, Virginia?
5 A. Yes.
6 Q. Were you working alone that morning?
7 A. Yes, I was.
8 Q. Were you in a marked police car?
9 A. Yes.
10 Q. What time did you receive that call concerning the
11 Keswick apartment?
12 A. Approximately 4:00 a.m.
13 Q. Did you respond after you received that call at 4:00
14 o'clock in the morning?
15 A. Yes.
16 Q. Did you go to that location?
17 A. Yes, I did.
18 Q. When you arrived at 1616 Keswick Avenue, what did you
19 notice about the apartment complex?
20 A. The apartment was fully involved with flames. There was
21 also a vehicle in the front, a red Honda, also on fire.
22 Q. When you say a vehicle was in front, the red Honda, was
23 it on fire when you arrived at the scene?
24 A. Yes, it was.
25 Q. Where was the red Honda parked in relation to the front
29
1 door of 1616 Keswick Avenue?
2 A. It was parked directly in front of the apartment.
3 Q. What did you do once you -- did you park your police
4 car?
5 A. Yes, I did.
6 Q. Where did you park your car?
7 A. I parked on the side street.
8 Q. And then what did you do once you parked your car in
9 that manner?
10 A. I approached Robin Williams and Benjamin Green.
11 Q. Where was it when you -- where were you when you first
12 saw Robin Williams and Benjamin Green?
13 A. Towards the rear of the apartment complex.
14 Q. Did they come towards you or did you go towards them?
15 A. I walked towards them, and as soon as they saw me
16 approach them, they turned to walk towards me.
17 Q. Did have you a conversation with those two people?
18 A. Yes, I did.
19 Q. Did you notice anything about Robin Williams that got
20 your attention?
21 A. She had a towel wrapped around one of her arms.
22 Q. Did you notice anything else about her other than the
23 towel?
24 A. She was real nervous and jittery, she talked real
25 nervous.
30
1 Q. Did you speak with Benjamin Green at that point?
2 A. Yes, I did.
3 Q. What, if anything, did Benjamin Green tell you about
4 what had happened?
5 MR. LAUGHRUN: Objection.
6 THE COURT: Sustained -- overruled, excuse me,
7 overruled.
8 MR. WALKER: You may answer the question.
9 THE WITNESS: Talked to Green, he said he heard a
10 knocking, he looked outside and he saw Robin Williams's
11 ex-boyfriend beating his vehicle with a baseball bat. At this
12 point, he stopped beating the vehicle and started lighting
13 what's known as Molotov cocktails and throwing them at the
14 apartment complex. He threw -- one went through the window of
15 the apartment, one bounced off. At this point, he picked it up
16 and threw it back at the apartment complex.
17 BY MR. WALKER:
18 Q. What else did he tell you, if anything?
19 A. He said he fired shots out the window at Barnette. He
20 voluntarily handed me the weapon, which I secured.
21 Q. When you were there, were emergency personnel folks
22 there or were you the first officer to respond?
23 A. I was the first officer on the scene.
24 Q. Did emergency personnel arrive soon after you arrived?
25 A. About a minute or so after I arrived at the apartment.
31
1 Q. And how about fire engines?
2 A. Yes, they arrived, too.
3 Q. Did you pursuant to your investigation of this incident
4 go to the hospital in Roanoke to speak with Robin Williams?
5 A. Yes, I did.
6 Q. When did you do that?
7 A. It was a few minutes after I arrived on Keswick.
8 Q. She had already been escorted to the hospital at that
9 time?
10 A. Yes.
11 Q. And then you went to interview her at the hospital?
12 A. Yes, I did.
13 Q. Why did you go interview Robin Williams?
14 A. I wanted to get more information about the suspect and
15 the address and stuff like that.
16 Q. What condition was Robin Williams in when you spoke with
17 her at the hospital?
18 A. She had calmed down a lot. I guess she was on
19 medication for the pain in the arm. At that point, they took
20 the towel off her arm and you could see some of the skin had
21 bubbled up and the other skin was peeling off the arm, hanging
22 off.
23 Q. Did you talk with her about the incident?
24 A. Yes.
25 Q. Did you get suspect information from her?
32
1 A. Yes, I did.
2 Q. What did you ask her and what did she say?
3 A. I asked her Barnette's full name, birthday, address,
4 which was 3413 West Boulevard here in Charlotte, North Carolina.
5 Q. What did you do with that suspect information after
6 Robin Williams gave you that information?
7 A. Went to the magistrate and obtained warrants, two for
8 arson, two for attempted homicide and one for manufacturing a
9 fire bomb.
10 Q. And were those two attempted homicide counts one for
11 Robin Williams and one for Benjamin Green?
12 A. Yes.
13 MR. WALKER: May I approach the witness, Your Honor?
14 THE COURT: Yes.
15 BY MR. WALKER:
16 Q. Officer Hubbard, I'm going to show you what have already
17 been marked as Government's Exhibits 1A, 1B, 1C, 1D and 1E. I
18 will ask you to take a look at those items, and tell me if you
19 recognize them, and if so, what are they?
20 A. Yes. One is the apartment after the fire bomb had put
21 the fire out, and 1B is the same, different angle. 1C and 1D
22 and 1E is Green's vehicle showing the busted windows and after
23 the vehicle fire was put out.
24 Q. And do all of those photographs fairly and accurately
25 show the apartment and the red Honda as you saw them after the
33
1 fire was put out there at the Keswick address?
2 A. Yes, they do.
3 MR. WALKER: Your Honor, I would move those into
4 evidence for illustrative purposes.
5 THE COURT: That's 1A, B, C and D?
6 MR. WALKER: And E.
7 THE COURT: Thank you. They will be admitted.
8 BY MR. WALKER:
9 Q. Officer Hubbard had you ever been to Robin Williams'
10 apartment before?
11 A. Yes, I had on two occasions.
12 Q. On two occasions?
13 A. Yes, before this event.
14 Q. Would you relate to the members of the jury the two
15 times that you had been to that apartment before and what
16 those -- what that concerned?
17 A. Okay. The first time was in June of '95. I responded
18 to the address, and it was reference to an attempted suicide. I
19 got there, I spoke to Barnette and Williams. They had been into
20 an argument, and during the argument Barnette threatened to kill
21 himself.
22 Q. Did you speak to Mark Barnette about that threat to kill
23 himself?
24 A. Yes, I did.
25 Q. And where were you, were you inside the apartment when
34
1 you had the conversation?
2 A. Inside the apartment, yes.
3 Q. What, if anything, did he say to you on that occasion?
4 A. I asked him did he threaten to kill himself. He told me
5 he lied because he was mad that Williams was threatening to
6 break up with him.
7 Q. And then you said that you had been there on other
8 occasion other than the arson incident, when was that?
9 A. This was April 10th, before the arson. Williams was
10 outside her apartment. She just went to a neighbor and called.
11 She said her and Barnette had gotten into an argument and he
12 left with her car and keys. Since it was cold outside, she was
13 locked out, I let her sit in my vehicle until the mother
14 responded and arrived at the mother's place.
15 Q. What was the date of that incident?
16 A. It was April 10th.
17 Q. Of?
18 A. '96.
19 Q. And you say she stayed in your police car until her
20 mother, Bertha Williams, arrived?
21 A. Yes, I did.
22 MR. WALKER: Your Honor, I don't have any other
23 witnesses for Officer Hubbard.
24 THE COURT: Cross, Mr. Williams or Mr. Laughrun?
25 MR. LAUGHRUN: May it please the Court.
35
1 CROSS-EXAMINATION
2 BY MR. LAUGHRUN:
3 Q. Officer Hubbard, when you went down -- when you went to
4 the incident and Mark threatened suicide?
5 A. Yes.
6 Q. That was '95, wasn't it?
7 A. Yes, sir.
8 Q. I believe you told this jury that he told you he lied,
9 right?
10 A. Yes.
11 Q. Do you have your report there with you?
12 A. Yes.
13 Q. And Roanoke does its incident reports, the offense
14 report would be 95-32082, is that correct?
15 A. Yes.
16 Q. And that's your internal code for these documents and
17 police reports, incident reports, is that correct?
18 A. That's how we keep track of them, yes.
19 Q. And in that narrative, you told -- you wrote what
20 happened that night, right?
21 A. Yes.
22 Q. And it was about 1:38 a.m., I take it?
23 A. Yes.
24 Q. Early morning hours of June 14th, '95, is that right?
25 A. Correct.
36
1 Q. And you went on in that report and you wrote what Mark
2 told you, right?
3 A. Right.
4 Q. He was distraught about the relationship?
5 A. Yes.
6 Q. Or upset about it?
7 A. Yes.
8 Q. And threatened to commit suicide?
9 A. Yes.
10 Q. And, in fact, you wrote down, quote, he stated, you
11 won't see me anymore, close quote?
12 A. Yes.
13 Q. And then you told the jury a few minutes ago that he
14 told you he lied about that, is that right?
15 A. Yes.
16 Q. That's not in your report, is it?
17 A. No.
18 Q. Not anywhere in there, there or a supplement or
19 anything, is that right?
20 A. Right.
21 Q. Now, you went out there also on, I believe
22 April 10th, '96, is that right?
23 A. Yes.
24 Q. About 1:35 a.m.?
25 A. Yes.
37
1 Q. And again for the record, you have your incident report
2 there with you?
3 A. Yes, I do.
4 Q. 96-018730, is that right?
5 A. Yes.
6 Q. Now, you told the jury that incident that Robin locked
7 herself out of the apartment, or the defendant locked her out,
8 is that right?
9 A. Yes.
10 Q. That the defendant locked her out, is that right?
11 A. No, let's see here, I put Williams locked herself out of
12 her apartment.
13 Q. So he didn't lock her out, did he?
14 A. No.
15 Q. According to this, she locked herself out, is that
16 correct?
17 A. Correct.
18 Q. And no action was taken on that incident, is that right?
19 A. Right.
20 Q. Now, after the fire bombing incident, you went down to
21 the Roanoke city magistrate office, is that right?
22 A. Yes.
23 Q. And were sworn under oath and took out warrants, is that
24 right?
25 A. Yes.
38
1 Q. In fact, you took out warrants for, and correct me if
2 I'm wrong, for two counts of attempted capital murder and arson,
3 is that right?
4 A. Correct.
5 Q. And you had an address for the defendant, didn't you?
6 A. Yes.
7 Q. Somebody found a driver's license at the scene, too, had
8 they not?
9 A. I don't -- not when I was there.
10 Q. Okay. You knew his address was 3413 West Boulevard,
11 Charlotte, North Carolina?
12 A. Yes.
13 Q. I take it you did what I call a BOLO, be on the lookout
14 for, is that right?
15 A. Yes.
16 Q. You had the car information that he was in, you had a
17 description of the car, did you not?
18 A. Yes, best we could.
19 Q. And you alerted the Highway Patrol?
20 A. Yes.
21 Q. And you also notified the Charlotte city police, is that
22 right?
23 A. Yes.
24 Q. To come pick him up, is that right?
25 A. Right.
39
1 Q. Do you recall a telex being sent to the Charlotte police
2 on April 30th, '96 about the warrants being outstanding for
3 Mr. Barnette?
4 A. Do I exactly recall?
5 Q. Right, did you ever see that document or anything?
6 A. No.
7 Q. Do you know if one was sent?
8 A. Well, I told dispatch, notified dispatch, and they
9 usually take care of that.
10 Q. And --
11 MR. LAUGHRUN: May I approach the witness, Your Honor?
12 THE COURT: Yes, sir.
13 BY MR. LAUGHRUN:
14 Q. I'm going to show you what I have marked for
15 identification as Defendant's Exhibit 1. Do you recognize that
16 as the telex that was sent by the dispatcher at your request?
17 A. Do I recognize this?
18 Q. Yes, sir.
19 A. No.
20 Q. Did you ever see that before?
21 A. No, sir.
22 Q. Are you familiar with how the telex works from Roanoke?
23 A. Yes.
24 Q. Does that appear to be a telex for be on the lookout for
25 the defendant, two counts of capital murder, et cetera?
40
1 A. Yes.
2 Q. Okay. And the date on that is April 30th, '96, is that
3 right?
4 A. Yes.
5 Q. Okay. And you don't know what happened with that or
6 anything, do you?
7 A. No.
8 Q. Okay. In your two incident reports that you and I went
9 over, the '95 and '96 incident reports, there were no statements
10 in there about any domestic abuse, was there?
11 A. No.
12 MR. LAUGHRUN: Thank you, Judge Potter.
13 THE COURT: Redirect?
14 MR. WALKER: Briefly.
15 REDIRECT EXAMINATION
16 BY MR. WALKER:
17 Q. You also indicated some information in your report
18 concerning the incident back in June of '95, I believe you said.
19 Can you tell us whether you indicated in your report whether
20 emergency personnel responded to the call concerning an
21 attempted suicide?
22 A. Yes, they responded.
23 Q. And were they there when you were there?
24 A. Yes.
25 Q. Did you see whether or not they checked the defendant's
41
1 vital signs?
2 A. Yes.
3 Q. What did you report in your report concerning that?
4 A. His vital signs were normal.
5 Q. And you also indicated that Barnette went back to work
6 and no further action was needed?
7 A. Yes, right.
8 Q. Also on Defendant's Exhibit Number 1, does it indicate
9 the suspect vehicle that was involved, getaway vehicle that was
10 involved?
11 A. Yes.
12 Q. In the arson incident?
13 A. Yes.
14 Q. What information is on there about that?
15 A. It says brown 210 or 280 with North Carolina tags, dark
16 tinted windows, primer spots on driver quarter panel.
17 Q. Primer spots?
18 A. Yes.
19 MR. WALKER: Your Honor, I don't have any other
20 questions.
21 THE COURT: Thank you, sir, appreciate you coming. Call
22 your next witness.
23 MR. WALKER: Your Honor, may I pass these photographs to
24 the jury? I didn't know if Your Honor wanted me to do that now
25 or wait.
42
1 THE COURT: Is that your exhibit?
2 MR. WALKER: Yes, Your Honor.
3 THE COURT: Yes, sir. Okay, next witness.
4 MR. WALKER: Your Honor, the government calls Lieutenant
5 Drewery.
6 JOHN H. DREWERY, JR.,
7 being first duly sworn, was examined and testified as follows:
8 DIRECT EXAMINATION
9 BY MR. WALKER:
10 Q. Sir, would you state your full name for us, please?
11 A. Lieutenant John H. Drewery, Jr.
12 Q. And Lieutenant Drewery, what do you do for a living?
13 A. Firefighter for City of Roanoke.
14 Q. And what is your rank with the fire department of the
15 Roanoke City, Roanoke Virginia fire department?
16 A. Lieutenant.
17 Q. How long have you been in that line of work?
18 A. 33 years.
19 Q. I want to turn your attention to the early morning hours
20 of April 30th of 1996. Were you on duty with the Roanoke fire
21 department on that occasion?
22 A. Yes, sir.
23 Q. And pursuant to your duties on that date, did you
24 receive a call concerning a fire at an apartment located at 1616
25 Keswick Avenue in Roanoke Virginia?
43
1 A. Yes, sir.
2 Q. Did you go to that location?
3 A. Yes, sir.
4 Q. And were you on a fire truck, or tell the jury --
5 A. I was on a fire truck. I was -- my captain was off, but
6 I was riding the seat.
7 Q. Were you the acting captain on that particular occasion?
8 A. Yes, sir.
9 Q. When you arrived at the Keswick apartment complex, what
10 did you see?
11 A. Smoke and flames.
12 Q. And what did you do, did you see anything else that
13 caught your attention other than the apartment and smoke and
14 flames?
15 A. Well, when we pulled up, there was something burning in
16 the middle of the street.
17 Q. Describe what you saw.
18 A. I think it was an oil can, a Havoline oil can.
19 Q. And where did you see that object?
20 A. Right down -- well, it was in the middle of the street
21 about 30 feet from the house.
22 Q. From the front door of Keswick?
23 A. Yes, sir.
24 Q. What did you notice about that item when you saw it?
25 A. Well, I didn't pay too much attention to it until we put
44
1 the fire out, and then I went and looked at it.
2 Q. And what did you see?
3 A. It had been on fire and it finally went -- burned itself
4 out.
5 Q. Was it on fire when you first arrived?
6 A. Yes, sir.
7 Q. And then after the fire was extinguished in the
8 apartment complex, you went back and looked at that object?
9 A. I brought that to the attention of the fire inspector
10 there.
11 Q. I want to turn your attention to something else. When
12 you first arrived, did you see a vehicle there on the scene that
13 got your attention?
14 A. Yes, sir.
15 Q. Describe that vehicle, if you would.
16 A. It was a red, I think a red four-door. I don't know
17 what make it was, model. The windows had been busted out of it,
18 and it had been on fire.
19 Q. And that fire was extinguished on the red vehicle when
20 you got there?
21 A. Yes, sir.
22 Q. How many firemen in your estimation responded to that
23 fire?
24 A. Estimate about 15, about 15.
25 Q. Okay. Now, you mentioned assistant fire marshal David
45
1 Deck. When did you see Marshal Deck arrive on the scene?
2 A. Maybe 25 minutes later, something like that.
3 Q. Was the fire already extinguished at the apartment
4 complex when he arrived?
5 A. Yes, sir.
6 Q. Did you have a conversation with him concerning the item
7 that you had seen in the street?
8 A. Yes, sir, I did.
9 Q. What conversation did you have?
10 A. I told him it looked suspicious, so we walked out there
11 and he took a pencil, put it in a plastic bag.
12 Q. He collected it as evidence?
13 A. Yes, sir. I did not touch it.
14 Q. Did you, when you first arrived at Keswick, did you ever
15 go inside the apartment when it was on fire?
16 A. Oh, yes, sir.
17 Q. Describe for the members of the jury what happened.
18 A. Well, we pulled up. Like I say, I was acting captain.
19 I jumped out of the truck, didn't even take time to put my
20 turnout gear on. The other boy pulled the line up the hill, I
21 helped him pull the line up the hill, I told my driver to charge
22 it before we started in. I tried the door and it was locked, so
23 the third kick I give it, I busted it in. And we hit the fire
24 and knocked it out just like that -- well, not just like that,
25 but we knocked the fire out. And it was burning outside on the
46
1 eaves, so I told Scott to come out here and put that out, and I
2 started jerking them aluminum panels down to make sure it
3 wouldn't get under the -- run back up the roof. And then Deck
4 showed up, and we started collecting evidence.
5 Q. Is that when you collected, went with Marshal Deck and
6 collected the item you saw out in front of the apartment?
7 A. Yes, sir, I showed him that. I didn't want nothing to
8 happen to it.
9 Q. Were you with him when he collected that?
10 A. Yes, sir.
11 Q. Did you also go through the apartment once the apartment
12 was -- the fire was extinguished from in the apartment?
13 A. Yeah. As soon as we knocked the fire down, I went
14 through the house to make sure that nobody was in there. I
15 checked the closets, under the bed and everywhere.
16 Q. And did you go through there with Assistant Marshal
17 Deck?
18 A. Yes, sir.
19 Q. Did you see Assistant Marshal Deck do anything, collect
20 any evidence while you were inside the apartment?
21 A. Yes, sir.
22 Q. And where was that collected?
23 A. On the floor, on the wall, I don't know. I was just
24 holding the bag for him, he was scraping it off of the floor for
25 evidence.
47
1 MR. WALKER: I don't have any other questions of this
2 witness, Your Honor.
3 THE COURT: Cross?
4 CROSS-EXAMINATION
5 BY MR. WILLIAMS:
6 Q. Lieutenant Drewery, just a few questions. Did you do a
7 diagram of the inside of this apartment, sir?
8 A. No, but I got one right here.
9 Q. Do you?
10 A. Yes, sir. I think it's the inside of the apartment.
11 Q. All right. Would you look at what you think is the
12 diagram there as part of your reports and see if you can find
13 it?
14 A. I can tell you what the apartment looked like.
15 THE COURT: Be careful with the microphone?
16 THE WITNESS: Oh, here we go.
17 MR. WILLIAMS: May I approach the witness, Your Honor?
18 THE COURT: Yes, sir.
19 THE WITNESS: Oh, I'm sorry. That thing is sensitive,
20 I'm sorry.
21 MR. WILLIAMS: May I approach the witness, Your Honor?
22 THE COURT: Yes, sir.
23 THE WITNESS: I'm sorry, didn't realize I was doing it --
24 I done it again.
25 BY MR. WILLIAMS:
48
1 Q. Yes, sir. And the diagram that you are referring to,
2 did you draw that diagram or did someone else draw it?
3 A. No, sir, David Deck did.
4 Q. Was that part of the official report?
5 A. Yes, sir.
6 Q. And does it show one bedroom?
7 A. Well, it shows one bedroom here, but I believe it's two
8 bedrooms.
9 Q. Was there a room there -- you have on the diagram a room
10 that's marked bedroom?
11 A. Yes, sir.
12 Q. And then another room that's marked living room?
13 A. Yes, sir.
14 Q. And another room that is marked kitchen?
15 A. Yes, sir.
16 Q. And then there is a third room next to the bedroom that
17 has nothing in it, it's just blank, is that correct?
18 A. I presume that's another bedroom, that's -- you are
19 right, though.
20 Q. Is it blank in your diagram?
21 A. Yes, sir.
22 Q. Do you recall whether there was any furniture in that
23 room?
24 A. I can't recall if it was or not. Wasn't no fire back
25 there.
49
1 Q. All right, sir.
2 MR. WILLIAMS: That's all, Your Honor, thank you.
3 THE COURT: Redirect?
4 REDIRECT EXAMINATION
5 BY MR. WALKER:
6 Q. On the diagram that counsel just showed you, there is no
7 furniture drawn in any of those rooms, is there?
8 A. No, sir, there is not.
9 Q. Did you see furniture in the apartment, though?
10 A. Yes, sir, there was furniture in the apartment. In
11 fact, there was furniture in the living room, but it was burnt.
12 MR. WALKER: I don't have any other questions, Your
13 Honor.
14 THE COURT: Thank you, sir, appreciate you coming. Call
15 your next witness.
16 MR. WALKER: Your Honor we would call Fire Marshal
17 Deck.
18 DAVID L. DECK,
19 being first duly sworn, was examined and testified as follows:
20 DIRECT EXAMINATION
21 BY MR. WALKER:
22 Q. Sir, would you state your full name and tell us what you
23 do for a living?
24 A. David L. Deck, Assistant Fire Marshal for City of
25 Roanoke.
50
1 Q. Marshal Deck, how long have you been a firefighter with
2 the City of Roanoke, Virginia?
3 A. 25 years.
4 Q. Can you tell us your general responsibilities and duties
5 as the Assistant Fire Marshal?
6 A. To determine cause and origin.
7 Q. Of fires?
8 A. Yes, sir.
9 Q. Did you receive a call concerning a fire at an apartment
10 complex located at 1616 Keswick Avenue in Roanoke, Virginia on
11 April 30th of 1996?
12 A. Yes, I did.
13 Q. Did you go to that location?
14 A. Yes, sir.
15 Q. Pursuant to your duties as an assistant fire marshal, do
16 you respond as the fire engines go out to extinguish the fire,
17 or how does that work?
18 A. No, sir, it's after the fire is extinguished. We are
19 called by the in charge person at the fire scene once they
20 extinguish a fire when we can get in.
21 Q. And so did you go to that location?
22 A. Yes, sir.
23 Q. And was the fire extinguished when you arrived?
24 A. Yes, it was.
25 Q. Did you see Lieutenant Drewery with the Roanoke city
51
1 fire department when you got to that location?
2 A. I did.
3 Q. Did you have a conversation with him?
4 A. I did. He pointed out an article in the street that he
5 said was burning when he arrived. Of course, it was
6 extinguished. I did retrieve it and put it in a can, is our
7 normal procedure in collecting evidence.
8 Q. I want to also ask you, at some point when you were at
9 that location, did you have a conversation with a person you
10 identified as Benjamin Green?
11 A. Actually I talked to Lieutenant Drewery about Mr. Green.
12 Q. So you didn't actually talk --
13 A. I really didn't talk directly to Mr. Green.
14 Q. Once the fire was extinguished, did you go inside with
15 Lieutenant Drewery to look at the contents of the apartment?
16 A. Yes, I did.
17 Q. And describe what you saw when you went inside the
18 apartment.
19 A. The living room area was overall burn patterns. It was
20 a definite V pattern, which we -- terminology we use as the
21 configuration of the fire, the way it travels up and out on the
22 wall. It leaves a pattern that very much resembles a V.
23 Q. Did you see a V pattern on one of the walls?
24 A. Yes, I did.
25 Q. And what does that indicate to you?
52
1 A. It normally indicates that the fire started in that
2 area, which as I say we can visualize what a V looks like and it
3 makes a points, and that is normally your point of origin.
4 Q. Did you collect any evidence when you were inside of the
5 apartment there at Keswick?
6 A. Yes, sir, I did.
7 Q. Where did you collect that evidence?
8 A. Right at that V.
9 Q. And was that in the living room area?
10 A. Living room area yes, sir.
11 Q. Was that below a window there in the --
12 A. Yes, it was.
13 MR. WALKER: May I approach the witness, Your Honor?
14 THE COURT: Yes, sir.
15 BY MR. WALKER:
16 Q. Sir, I'm going to show you what has already been marked
17 as Government's Exhibits 2A, 2B, 2C, 2D, 2E and 2F. I will ask
18 you to take a look at those, as well as 2G, if you will take a
19 look at those photographs, along with 2H, and tell me if you
20 recognize what is shown on those photographs, and if so, what is
21 it?
22 A. You want to go one by one?
23 Q. Yes, if you would.
24 A. 2A would be the exterior front door of the apartment.
25 Q. At Keswick?
53
1 A. Yes, sir, and to the right would be the living room
2 window where would have been right above the point of origin.
3 Q. Okay.
4 A. 2B would be just kind of a corner view of the same area
5 of side and front. 2C would be the rear of the apartment. The
6 top left-hand window would be the window that they had to make
7 exit out of. 2D would be your living room. This would be after
8 I had moved the couch out from the wall to get my samples
9 underneath and behind. 2E would be basically the same thing,
10 just a different angle, same thing with 2F, just a little
11 different angle, and 2G, same photo. 2H would be the window
12 where they made the exit, and there is some interesting facts on
13 this photograph.
14 Q. Before I ask you about that, do all of those
15 photographs, those being 2A through 2H, do they fairly and
16 accurately show the apartment, the outside and the inside as you
17 saw it once the fire was extinguished there at Keswick?
18 A. Yes, sir.
19 MR. WALKER: Your Honor, I would move those into
20 evidence.
21 MR. LAUGHRUN: No objection, Your Honor.
22 THE COURT: You may, overruled.
23 MR. LAUGHRUN: I said no objection, Your Honor.
24 THE COURT: Pardon?
25 MR. LAUGHRUN: No objection.
54
1 THE COURT: Oh, I thought you said objection.
2 MR. LAUGHRUN: No, sir.
3 THE COURT: 2A, 2B, 2C, 2D, 2E, 2F, 2G, 2H, they will be
4 admitted.
5 BY MR. WALKER:
6 Q. I want to ask you, Marshal Deck, if you went back to
7 that location next day?
8 A. Yes, I did.
9 Q. And tell the members of the jury why you went back the
10 next day.
11 A. Just to get an overall view. In other words, we're
12 there at night. You can't see anything other than what you put
13 a flashlight on basically. So I did go back to get an overall
14 view of the apartment and anything else I could see.
15 Q. Is that when you took the photograph that you indicated,
16 2H?
17 A. Yes.
18 Q. Okay. And you indicated -- why did you take a
19 photograph of the back window?
20 A. It showed some evidence of what I thought at the time
21 was tennis shoe scuffs on the wall, and actually underneath that
22 window was another window that showed some smudges on it.
23 Q. And why was that significant to you?
24 A. Showed that they had to go out that back way, it was the
25 only way out.
55
1 Q. And that's the second-story window, is that correct?
2 A. Yes, it is.
3 MR. WALKER: May I approach the witness, Your Honor?
4 THE COURT: Yes, sir.
5 MR. WALKER: Your Honor, may Marshal Deck come before
6 the jury and point a few things out on these photographs?
7 THE COURT: Yes, sir.
8 BY MR. WALKER:
9 Q. If you'd come down, sir, and we will start at this end
10 of the jury and we'll do the same thing on that end. Using
11 Government's Exhibit 2G, you indicated that there was a V shape
12 that was significant in your determining the cause of this
13 fire. Will you use that photograph and point to the jury on
14 this side and the other side?
15 A. Okay, this right here (indicating) where it comes up
16 both ways, we call that a V pattern.
17 Q. If you will go down to that side of jury.
18 A. Same thing, right above the window, right below the
19 window, excuse me, going up and out, forming a V.
20 Q. Lastly, I want to show you Government's Exhibit 2H. If
21 you would indicate on that photograph, starting with this end of
22 the jury and then go down and do the same.
23 A. This, you can see close, look dead center about 2 feet
24 down, you see a white mark going down the wall.
25 Q. If you will give the explanation again.
56
1 A. A tennis shoe or something with a white sole left that
2 scuff on there.
3 Q. Will you point to that as you show the photograph to the
4 jury?
5 A. Right about there (indicating), just about down that
6 mortar joint.
7 Q. Okay, you can return to your seat.
8 Now, you indicated that you collected two items of
9 evidence there at the Keswick apartment, is that correct?
10 A. Yes, sir.
11 Q. That's the item that Lieutenant Drewery brought to your
12 attention outside the apartment?
13 A. That's correct.
14 Q. And the other one being some --
15 A. Debris.
16 Q. -- debris from inside. What did you do with that
17 evidence?
18 A. We placed those in cans, tin cans, mark them with my
19 initials, the date of the fire, the fire number, and then submit
20 it to the laboratory for analyzation.
21 Q. Let me show you Government's Exhibit 2I, is that a
22 laboratory request?
23 A. Yes, it is.
24 Q. Concerning the two items that you collected at Keswick?
25 A. Yes, sir.
57
1 Q. Is that part of your report in this case?
2 A. Yes, it is.
3 MR. WALKER: Your Honor, I would move that into
4 evidence.
5 THE COURT: It will be admitted, 2I.
6 MR. WALKER: And I do not have -- if I may have just a
7 moment.
8 BY MR. WALKER:
9 Q. Lastly, Marshal, I'm going to show you two cans, and I'm
10 not going to get these too close to you, but the first being
11 Government's Exhibit 3A. I will remove the top of 3A and I will
12 ask you just to look down in at the contents of that. Is that
13 one of the items that you removed from the Keswick apartment and
14 submitted for laboratory analysis?
15 A. Right, yes, sir.
16 Q. And also the same on 3B, I will remove the top of that
17 and ask you just to look down in there.
18 A. Yes, sir.
19 Q. And those are both marked, is that correct?
20 A. Yes, sir, my name is written in red on the top of both
21 cans.
22 Q. Okay.
23 MR. WALKER: Your Honor, I don't have any other
24 questions.
25 THE COURT: All right, sir, Mr. Williams.
58
1 MR. WILLIAMS: May I approach the witness, Your Honor,
2 very briefly?
3 THE COURT: Yes, sir.
4 CROSS-EXAMINATION
5 BY MR. WILLIAMS:
6 Q. Marshal, if I may show you what has been marked as
7 Defendant's Exhibit 2, and ask you if you have seen that, sir?
8 A. Yes, sir, I drew this.
9 Q. And when you drew that diagram, you wrote in -- did you
10 do the writing also?
11 A. Yes, I did.
12 Q. And in one area, there's written in bedroom, is that
13 correct?
14 A. Yes, sir.
15 Q. And exit out the window?
16 A. Yes, sir.
17 Q. That's in the same room marked bedroom?
18 A. Yes, sir.
19 Q. And then you marked the living room?
20 A. Yes, sir.
21 Q. You also put a box where you marked point of origin?
22 A. Right, indicating the couch.
23 Q. And what did you mean by point of origin?
24 A. Well, I was again repeating myself on that V pattern.
25 Q. And then you marked another room kitchen?
59
1 A. Right.
2 Q. And you marked shot from -- somebody wrote in, shot from
3 this window?
4 A. Right.
5 Q. Did you write that in?
6 A. Yes, I did.
7 Q. What does that indicate?
8 A. Well, at the time, I heard talk at the fire scene that
9 there was a gunshot fired, that it was fired from that window.
10 Q. And then there is a back room with nothing in it, is
11 that correct?
12 A. That's right.
13 Q. And why did you not put anything in that room?
14 A. It had nothing to do with the fire scene.
15 Q. Was there anything in that room that you recall?
16 A. I don't recall.
17 Q. Thank you.
18 MR. WILLIAMS: That's all. If I may retrieve the
19 exhibit, Your Honor.
20 THE COURT: Yes.
21 MR. WILLIAMS: That's all, Your Honor.
22 THE COURT: Any redirect?
23 MR. WALKER: Your Honor, I don't have any redirect. May
24 I pass the photographs that we introduced through this witness
25 to the jury?
60
1 THE COURT: Yes, sir. Thank you very much, you may come
2 down. Call your next witness.
3 MR. CONRAD: United States would call Thomas Simpson.
4 THOMAS P. SIMPSON,
5 being first duly sworn, was examined and testified as follows:
6 MR. LAUGHRUN: Judge, we will be happy to stipulate to
7 the qualifications as a forensic chemist or scientist, whatever
8 his full title is.
9 THE COURT: Thank you, sir.
10 DIRECT EXAMINATION
11 BY MR. CONRAD:
12 Q. Would you please state your name and spell your last
13 name for the court reporter?
14 A. My name is Thomas Simpson, and that's S-I-M-P-S-O-N.
15 Q. Mr. Simpson, how are you employed?
16 A. I'm employed as a forensic scientist with the Western
17 Forensic Laboratory in Roanoke, Virginia.
18 Q. And how long have you been so employed?
19 A. I've been employed there for approximately seven and a
20 half years.
21 Q. And what are your duties as a forensic scientist?
22 A. I'm employed in the trace evidence section. My primary
23 duties are I'm the primary arson resource person, which means I
24 answer any law enforcement questions and evidentiary matters
25 dealing with the evidence. I also am the primary examiner for
61
1 accelerants examinations, and I also do paints, plastics and
2 general chemical exams.
3 Q. Now, the defendant has indicated he'll stipulate to your
4 qualifications, but will you briefly relate to the jury your
5 education and your training?
6 A. I have a Bachelor's Degree in chemistry and a Master's
7 Degree in forensic science. I was employed as a forensic
8 chemist with the Drug Enforcement Administration following
9 graduate school.
10 Q. Are you also an adjunct faculty member?
11 A. Yes, sir, I'm an adjunct faculty member presently with
12 the community college in Roanoke, and I was also an adjunct
13 faculty member with another community college in Dublin,
14 Virginia in 1993, I believe.
15 Q. Now, turning to your -- turning your attention to your
16 duties as a forensic chemist, you indicated that you were an
17 expert in the area of accelerant analysis. Can you relate to
18 the jury what that means?
19 A. Well, if a law enforcement agency has a potential arson
20 examination or investigation and they need evidence examined for
21 the presence of possible petroleum products or possible
22 accelerants, they submit evidence to the laboratory and request
23 an accelerant exam. And my job is to analyze the evidence and
24 determine if any petroleum products or potential accelerants are
25 present.
62
1 Q. What kind of tests do you perform to make that
2 determination?
3 A. It's an inventory test and then also a chemical test to
4 determine if petroleum products are present in the debris.
5 Q. And when you say inventory test and chemical test --
6 A. Generally when I receive an item of evidence for
7 examination, I inventory the evidence to see if it's exactly how
8 the officer submitted it. I open the can, and the first test I
9 do is an odor test. Do I smell a petroleum product, do I smell
10 gasoline, do I smell kerosene. It doesn't determine what I do,
11 but it's a good start. And then I do, basically you start
12 general and you get more specific. I do an extraction test.
13 And that's basically my job is to, if there is an accelerant
14 present, I need to get it out of the sample and I need to
15 analyze it. So I conduct an extraction technique to extract any
16 possible accelerant which might be present, and then I analyze
17 that to see if any petroleum products are present.
18 Q. And how many times have you done that in the course of
19 your career as a forensic scientist since 1990?
20 A. I've analyzed thousands of samples.
21 Q. Now, turning your attention to May of 1996, did you --
22 MR. CONRAD: May I approach the witness, Your Honor?
23 THE COURT: Yes, sir.
24 BY MR. CONRAD:
25 Q. Mr. Simpson, let me approach and hand to you what has
63
1 been marked for identification and introduced into evidence in
2 this case as Government's Exhibits 3A and 3B, and ask you if you
3 can identify those exhibits?
4 A. May I stand?
5 Q. Sure.
6 A. The outer cans that this is, these are not my cans, but
7 the inner cans are in a heavy ziplock plastic bag, and on the
8 ziplock plastic bag is a lab number that we assign to each case
9 and my initials. And this bag is sealed and initialed, and this
10 is tamper resistant tape. And then inside the bag, we do this
11 because water will rust these cans out, and on the can are again
12 that lab number, my initials and that tamper resistant tape.
13 Q. Now, I take it from your testimony that you have seen
14 those exhibits before?
15 A. Yes, sir, I have.
16 Q. If you would describe the cans --
17 THE COURT: Mr. Simpson, is that 3A or 3B?
18 THE WITNESS: Oh, I'm sorry, sir. Item 3B has my
19 initials on it, and Exhibit 3A also has the lab number, my
20 initials and then on the can and the tape, and that's item 3A.
21 BY MR. CONRAD:
22 Q. Now, I take it you have examined those before. Would
23 you tell the jury under what circumstances and where you did
24 that?
25 A. Yeah. Assistant Fire Marshal Deck submitted the two
64
1 small cans to the laboratory and requested an accelerants
2 examination.
3 Q. And did you perform such an examination?
4 A. Yes, sir, I did.
5 Q. What did -- you tested for accelerants?
6 A. Yes, all possible accelerants. The most common
7 accelerants that we analyze for are petroleum based products.
8 Q. And what did your test consist of?
9 A. As I said before, the first step is you open the can and
10 you see if it matches what the investigator identified it as.
11 Item one says a container with liquid, and item two says fire
12 debris. Debris is a nice term which means -- for him it means
13 it's a fire and what is left over, and for me it means I have
14 absolutely no idea what it is other than it's burned up.
15 So the first step is an inventory to see if actually
16 what I have in these cans matches what the investigator
17 submitted. In this case, it did. I refer to item one, which is
18 Government's Exhibit 3A as plastic. That's just a general term
19 that the standard policy in our laboratory is just to identify
20 it as plastic.
21 The first step is to notice if there is any odor
22 present, and in these cases there wasn't any identifiable odor
23 present in either can. And what that does then is I do an
24 extraction technique to see if there's any -- if there are any
25 accelerants present, I will extract them out of the sample. And
65
1 then I analyze that extract on a gas chromatograph and compare
2 it with known standards.
3 Q. And after you did that with item number one,
4 Government's Exhibit 3A, did you make any conclusions?
5 A. Yes. The extract from the item one which was the
6 plastic contained a gasoline petroleum product. And on item
7 two, no petroleum products were identified.
8 Q. And with respect to item one, do you have any more
9 descriptive indication of what that is other than plastic?
10 A. Yes. In my notes, I have that it's the back portion of
11 a plastic container with the partial label, quality engineered
12 ATF, which is probably automatic transmission fluid, and it has
13 some part numbers.
14 Q. Now, you indicated on item number two, Government's
15 Exhibit 3B, that your testing did not indicate the presence of
16 any petroleum?
17 A. That is correct.
18 Q. Can you explain that, is it unusual for there to be
19 debris collected from point of origin in a fire that doesn't
20 leave petroleum products?
21 A. Well, a negative result can mean a lot of things. The
22 first thing it can mean is that there was no petroleum product
23 at that particular spot that the sample was taken. It also
24 could be that the fire, if there was an accelerant present, that
25 the fire burned it all up, and either it completely burned it
66
1 away or burned it below our detection limits. And also it could
2 be that the sample itself interfered with an analysis.
3 Therefore, the material, carpet sometimes can interfere with an
4 identification, and if there is interferences, I will not make
5 an identification.
6 Q. Now, what, if anything, did you do after you completed
7 your tests?
8 A. As pursuant to standard policy, I issue a report or a
9 certificate of analysis which gives the conclusions for my
10 analysis.
11 MR. CONRAD: Your Honor, may I approach?
12 THE COURT: Yes.
13 BY MR. CONRAD:
14 Q. Mr. Simpson, let me approach and hand you what has been
15 marked for identification as Government's Exhibit 4, and ask you
16 if you can identify those exhibits?
17 A. Yes, sir. Government Exhibit 4 looks like the original
18 for the certificate of analysis in this case.
19 Q. And what does the certificate of analysis say?
20 A. It says who submitted it, when they submitted it, who
21 was it submitted by so we have all that in the certificate, also
22 my description of the evidence and my results.
23 Q. And your results being?
24 A. The item one extract contained a gasoline petroleum
25 product, and no petroleum products were identified in the item
67
1 two extract.
2 MR. CONRAD: Your Honor, I'd move admission of
3 Government's Exhibits 3A, 3B and 4.
4 THE COURT: They will be admitted.
5 BY MR. CONRAD:
6 Q. Mr. Simpson, is the term Molotov cocktail familiar to
7 you as a forensic scientist?
8 A. Yes, sir.
9 Q. And when I use that term, what does it mean to you?
10 A. Well, a Molotov cocktail is basically a container which
11 holds an ignitable liquid, an accelerant. The container's use
12 is to just carry the liquid to where it plans to be thrown. A
13 wick is usually put in the opening of the container and lit, and
14 when the Molotov cocktail is thrown and strikes a surface,
15 either the container ruptures or the wick can pop out, spreading
16 the accelerant over the area, and then the flame on the wick
17 will ignite the accelerant.
18 Q. Turning your attention to the definition of destructive
19 device contained in 18 United States Code, Section 921(a)(3), a
20 destructive device is defined as any explosive, incendiary or
21 poison gas, bomb, grenade, rocket, missile, mine or device
22 similar to any of the devices described in the preceding
23 clauses. Do you agree with that definition?
24 A. It sounds like a reasonable definition for destructive
25 device, yes, sir.
68
1 Q. Do you agree that the definition of incendiary device
2 includes any homemade incendiary product or components thereof,
3 the function of which is to ignite and destroy property, and any
4 device composed of a combustible material capable of producing
5 sufficient heat to destroy property of any kind having
6 components designed to ignite that combustible material?
7 A. That sounds like a reasonable definition, yes, sir.
8 Q. Given those definitions, do you have an opinion
9 satisfactory to yourself as to whether Molotov cocktail meets
10 the definition of destructive device?
11 A. A Molotov cocktail is a very destructive device.
12 MR. CONRAD: That's all I have, Your Honor.
13 THE COURT: Thank you, sir.
14 MR. WILLIAMS: No questions, Your Honor.
15 THE COURT: Okay, call your next witness.
16 MR. CONRAD: United States would call Kent McIlhany.
17 Your Honor, may I pass Government's Exhibit 4 to the
18 jury at this time?
19 THE COURT: Yes, sir.
20 KENT MCILHANY,
21 being first duly sworn, was examined and testified as follows:
22 DIRECT EXAMINATION
23 BY MR. CONRAD:
24 Q. State your name for the jury, and if you would, spell
25 your last name for the court reporter.
69
1 A. My name is Kent McIlhany, M-C-I-L-H-A-N-Y.
2 Q. Mr. McIlhany, how are you employed?
3 A. I am a firefighter paramedic with the Roanoke city fire
4 and EMS department.
5 Q. And how long have you been so employed?
6 A. Five and a half years.
7 Q. So on April 30th of 1996, that was your job?
8 A. Yes, sir.
9 Q. And what are your duties?
10 A. I respond to any 911 call involving emergency medical
11 care or fire-related vehicle accidents or police type incidents.
12 Q. In the early morning hours of April 30th, did you
13 respond to such a call?
14 A. Yes, sir.
15 Q. Relate to the jury what call you received and what
16 response you made.
17 A. We received a call for a possible house fire on Keswick
18 Boulevard in northeast Roanoke. We responded. Upon my arrival,
19 I found fire department already on the scene, a house that was
20 apparently on fire. And as we arrived, I exited my ambulance,
21 started walking towards the residence, and Ms. Williams was
22 walking towards me up the block. I found her, she was visibly
23 shaken by the incident, upset and nervous, and also obviously in
24 some pain.
25 Q. Mr. McIlhany, that mike is very sensitive, but if you'd
70
1 carefully pull it closer to you and speak up a little louder.
2 A. Okay. She was obviously in pain. I moved her directly
3 to the ambulance out of the weather, it was kind of a cool
4 night, put her in my ambulance and immediately started assessing
5 her injuries.
6 Q. When you say assessing her injuries, what did you do?
7 A. I visibly checked her body for any injuries that she
8 had. I quickly scanned basically her entire body surface
9 looking for anything that I saw that was obvious injuries.
10 Q. And as you did that, what did you observe?
11 A. I noticed immediately that she had burns to her right
12 and left lower arm. Her right lower arm, she had what is
13 classified as second degree burns, which are kind of moderate
14 burns, causes blisters and reddening of the skin. It was mostly
15 around the wrist and hand area, covered about half of the lower
16 arm on the right side. The left arm had more severe injuries.
17 It was second and third degree burns, which basically are red
18 and blistered, also a blanched appearance. It burns directly
19 through all of the issues of the arm. She had that on the lower
20 left part of the arm about halfway up. It also was
21 circumferential, which basically means it completely wrapped
22 around the arm and wrist area and the hand area. This was
23 probably the most severe of the injuries that she had. I also
24 noticed she had some abrasions to her knees and also to the
25 lower right half of her chest and abdomen area, just some small
71
1 abrasions. And that's most of the injuries that I found.
2 Q. Did you notice anything with respect to the skin on the
3 left arm?
4 A. Yes, the flesh itself was actually peeling off of her
5 arm from her burns.
6 Q. Was there anything with respect to the smell of the
7 wounds that came to your attention?
8 A. Yes, sir. Flesh has a very distinctive smell. It's a
9 sickening smell. It's a smell that you won't forget.
10 MR. LAUGHRUN: Objection to sickening smell.
11 THE COURT: Overruled.
12 THE WITNESS: It's very -- it's a smell you just won't
13 ever forget.
14 MR. LAUGHRUN: Objection.
15 BY MR. CONRAD:
16 Q. Did it have a nauseating effect on you?
17 A. Yes, sir, it sure did.
18 Q. Did you question Ms. Williams in any way?
19 A. Yes, sir. As part of our standard care that we give, we
20 ask pertinent medical history questions relating to her medical
21 history that might be pertinent to her care, and also asked her
22 questions about the events of that evening, because that is also
23 pertinent to the care of how I would treat her. I would have to
24 know what happened to her so that I know basically what to
25 expect as far as injuries would go.
72
1 Q. Describe her demeanor when you began that questioning.
2 A. Very nervous, very upset, she was scared. She even made
3 statements to me to the effect that she was -- could not believe
4 that this had happened to her, and she was --
5 MR. WILLIAMS: Objection.
6 THE COURT: Overruled.
7 THE WITNESS: -- still very afraid of what might still
8 happen to her from that point.
9 BY MR. CONRAD:
10 Q. Did you question her concerning her pain level?
11 A. Yes, sir. As a standard, anybody in pain, we have a
12 little question that we ask to rate the pain on a scale of 1 to
13 10. One is the least pain that you could incur and 10 being the
14 worst pain that you could ever imagine incurring. She rated her
15 pain on a 7 on a scale of 1 to 10, which is rated pretty high.
16 Q. Now, when you asked her about the incident itself, what,
17 if anything, did she tell you?
18 A. She told me that she was asleep.
19 MR. WILLIAMS: Objection.
20 THE COURT: Overruled.
21 THE WITNESS: Was awoken by a disturbance outside, a
22 large commotion outside, some screaming and yelling. She heard
23 her name being yelled, and she said that she recognized the
24 voice as her former boyfriend, Mark. And she told me that she
25 then heard a second loud noise at the front door. When she went
73
1 to see what that was, she thought maybe someone was coming
2 through the door, she noticed obviously a fire at the front
3 door. Her first thought was to get out of the house.
4 She said she yelled to a friend that was staying in her
5 home with her that evening. She called him Ben. She yelled to
6 him that there was a fire and they needed to get out of the
7 house. She said that she tried to go out the front and that's
8 where she received the burns that she got on her arms. And when
9 she realized she couldn't go out that way, she turned and went
10 to the back of the house to a bedroom in the rear of the house
11 and both of them exited through a second-story window, which is
12 approximately a 15-foot drop from the second-story window. At
13 that point, they exited the property, and the fire department
14 arrived and she met me about halfway up the block from there.
15 BY MR. CONRAD:
16 Q. When she met you, did she have anything on her arm?
17 A. I believe she had some towels on her arm, kind of
18 wrapped around her arm, that just helped cover the burn.
19 Q. After inquiring about her medical history and the
20 incident itself, what, if any, treatment did you provide to her?
21 A. As a standard for any patient that has received an
22 injury such as this and been in an incident of this nature, it's
23 standard for us to provide oxygen therapy for them, for any
24 possible inhalation injury that she might have incurred. So I
25 gave her oxygen, I placed her on a heart monitor to monitor her
74
1 heart and I started an intravenous line for fluid replacement.
2 Burns have a tendency to cause you to lose a lot of fluids, so
3 she needed fluid replacement.
4 We began transport to the hospital. I called the
5 hospital primarily to advise them of our transport and what we
6 had coming their way. A few minutes later, I called back
7 because her pain seemed to be increasing, she was complaining
8 more about the pain. Typically when you are injured, your
9 adrenaline level is up a little bit, particularly this kind of
10 incident, and I believe at this point, maybe her adrenaline was
11 starting to come down, her levels were starting to come down so
12 the pain was actually increasing. So I called back to the
13 hospital and requested orders for a narcotic analgesic,
14 morphine, and they gave me orders to give her morphine, which I
15 did, basically just gave supportive care from there, reassessing
16 the vital signs and continue transport to the hospital.
17 Q. Once you arrived at the hospital, did she say anything
18 to you?
19 A. Yes, sir, she was very concerned as to what her future
20 was going to be. She was very concerned about the scarring,
21 very concerned about if she was going to lose any function of
22 her hands, you know, how long she was going to have to be in the
23 hospital. I related to her that that was something the doctors
24 would have to work with her on, but more than likely she would
25 have to receive further care in a burn center for the injuries.
75
1 And she also expressed a lot of concern about just being afraid
2 of what her future held with this incident. She knew that --
3 MR. LAUGHRUN: Objection to what she knew, Judge.
4 BY MR. CONRAD:
5 Q. Did she tell you what she knew?
6 A. Yes, sir. She said that she was afraid of what was
7 going to happen, and that she --
8 MR. WILLIAMS: Objection, Your Honor.
9 THE COURT: Overruled.
10 THE WITNESS: That she was afraid of him coming back to
11 hurt her again.
12 BY MR. CONRAD:
13 Q. Mr. McIlhany, let me approach and hand to you what has
14 been marked for identification as Government's Exhibit 23I, 23J
15 and 23K, and ask you if you can recognize what is contained in
16 each of those pictures?
17 A. Yes, sir. In 23I, it shows burns around the left hand
18 and lower arm that were consistent with injuries that I found
19 with her on the night of the 30th.
20 Q. Not only is there an arm in the picture, but there is
21 also a facial shot. Do you recognize the person in that
22 picture?
23 A. Yes, sir.
24 Q. Was that the person that you treated on April 30th,
25 1996?
76
1 A. Yes, sir, sure is.
2 Q. Okay.
3 A. 23J shows the top of the hand which also --
4 Q. Speak up.
5 A. It shows the top of the hand which also is consistent
6 with the injuries that I found that night of the left lower
7 arm. You can see the scarring from the third degree, second and
8 third degree burns. This was the most severe of the injuries.
9 And again, in 23K, shows the injuries that were consistent with
10 what I found on her arm, on her left lower arm, burns to the top
11 side of the arm and lower side.
12 Q. Mr. McIlhany, you indicated that when you visually
13 inspected Ms. Williams, you observed abrasions and contusions on
14 the leg, is that correct?
15 A. Yes, sir.
16 Q. Let me hand you what has been marked for identification
17 as Government's Exhibits G and H, and ask you if you can
18 identify those photographs?
19 A. Yes, sir. 23GH is, I believe, her right knee, and it
20 shows some abrasions to her right knee area.
21 Q. Are those abrasions consistent with the abrasions that
22 you saw on April 30th?
23 A. Yes, sir.
24 Q. And 23H?
25 A. 23H is her left foot, and it shows some old injuries,
77
1 contusions, possibly abrasions to the ankle area.
2 Q. Consistent with what you saw on that evening?
3 A. Yes, sir.
4 MR. CONRAD: That's all I have, Your Honor.
5 THE COURT: Defense, Mr. Laughrun?
6 CROSS-EXAMINATION
7 BY MR. LAUGHRUN:
8 Q. Mr. McIlhany, did you do a formal report about what you
9 just testified to about what was said?
10 A. Yes, sir.
11 Q. Other than the one page that Mr. Conrad gave us this
12 morning, have you got anything in addition to that?
13 A. No, sir.
14 Q. Now --
15 THE COURT: I'm sorry, I thought you were through,
16 Mr. Laughrun.
17 MR. LAUGHRUN: I'm sorry, Judge.
18 BY MR. LAUGHRUN:
19 Q. Now, she wasn't placed in the hospital under an alias or
20 anything like that, was she?
21 A. I would not have any information on that, sir.
22 Q. Did you ever talk to a Mr. Benny Green out there on the
23 scene?
24 A. No, sir.
25 MR. LAUGHRUN: Thank you, Judge Potter.
78
1 REDIRECT EXAMINATION
2 BY MR. CONRAD:
3 Q. With respect to the question on an alias, when you
4 informed her that she would likely get care at a burn center,
5 was there a burn care facility that you were taking her to?
6 A. The facility we took her to is a level one trauma center
7 for our region. It is the best care that we can provide in our
8 region. However, there is an actual burn center at the
9 University of Virginia about two and a half hours away, and I
10 expressed to her that that is probably where she was going to be
11 transferred to after her initial care.
12 Q. And, in fact, was she transferred there?
13 A. Yes, sir.
14 MR. CONRAD: That's all I have.
15 THE COURT: Thank you, sir, you may step down.
16 Members of the jury, we will take a recess at this
17 time. Please do not discuss the case among yourselves while you
18 are out.
19 (The jury left the courtroom.)
20 (Brief recess.)
21 THE COURT: Mr. Williams, I tried to cool it down a
22 little bit, the fellow that handles this is from Gastonia, you
23 know how the government is.
24 MR. WILLIAMS: Thank you for your consideration.
25 THE COURT: All right. Call the jury.
79
1 (The jury returned to the courtroom.)
2 THE COURT: Mr. Conrad, Mr. Walker.
3 MR. CONRAD: The United States would call Benjamin
4 Greene.
5 BENJAMIN SPENCER GREENE,
6 being first duly sworn, was examined and testified as follows:
7 DIRECT EXAMINATION
8 BY MR. CONRAD:
9 Q. Would you state your name and spell your last name for
10 the court reporter, please.
11 A. Benjamin Spencer Greene, G R E E N E.
12 Q. Mr. Greene, how old are you?
13 A. 25.
14 Q. How are you employed? How are you employed? What job
15 do you have?
16 A. What job -- I'm a truck driver.
17 Q. And who are you a truck driver for?
18 A. Nabisco.
19 Q. Where are they located?
20 A. They're located on Liberty in Roanoke.
21 Q. The northeast side of town?
22 A. Northeast.
23 Q. Did you know Robin Williams?
24 A. Yes, I did.
25 Q. How did you know Robin?
80
1 A. I knew her since high school.
2 Q. Tell the jury how you came to know her in high school.
3 A. Our first jobs was right beside each other and every day
4 when I would catch the bus to go home, I got to know her as a
5 friend. After we graduated we had a -- our jobs was together,
6 that's after we graduated, and then we got to know each other
7 and we went out as friends.
8 Q. Was your relationship with Robin romantic or just
9 friends?
10 A. Just friends.
11 Q. And so -- did you say you were 25?
12 A. Yes.
13 Q. So you have been -- you have known her since high
14 school, so at least seven years?
15 A. Or more.
16 Q. Or more, okay. Did you ever become aware that she was
17 involved with Aquilia Marcivicci Barnette?
18 A. I knew that she was involved, but I didn't know who she
19 was involved with.
20 Q. Okay. And how were you aware of that?
21 A. Through her mother, through her.
22 Q. Are you friends with the family?
23 A. Yes, I am.
24 Q. Who do you know in the Williams family?
25 A. I know her brothers, her mother, uncle.
81
1 Q. And how long have you known them?
2 A. I would say at least six or seven years.
3 Q. Okay. Did there come a time in 1996 when Robin talked
4 to you about her relationship with someone else?
5 A. 1996, yes.
6 Q. And tell the jury about that.
7 A. She said that she was --
8 MR. LAUGHRUN: Objection.
9 THE COURT: Overruled. Overruled. Go ahead.
10 BY MR. CONRAD:
11 Q. Go ahead.
12 A. She said that she was in an ongoing relationship that
13 she was trying to get rid of and couldn't get out of.
14 Q. And did she tell you why she was trying to get out of
15 the relationship?
16 A. At the time, no.
17 Q. Sometime later she told you?
18 A. Yes, later on.
19 Q. What did she tell you later on?
20 MR. LAUGHRUN: Objection. Could we have a continuing
21 objection to that, if Your Honor please.
22 THE COURT: Overruled.
23 MR. LAUGHRUN: Judge, could we have a continuing
24 objection to that?
25 THE COURT: Yes, sir, you can have a continuing
82
1 objection. Thank you, sir.
2 BY MR. CONRAD:
3 Q. What did he tell you later on?
4 A. That made her want to get out?
5 Q. Yes.
6 A. She said that she was in an abusive relationship, she
7 said that plenty of nights she came home she was beaten up, had
8 unwilling sex, things like that.
9 Q. Okay. Did she tell you whether or not she had been
10 accused of cheating on her intimate other?
11 A. No.
12 Q. Did she tell you anything with respect to her panties?
13 A. Yes.
14 Q. What did she tell you?
15 A. She said that some days she come home and he would smell
16 her panties to make sure that no one was messing with her, she
17 was cheating with somebody.
18 Q. Did you know where she lived at that time?
19 A. No, I didn't.
20 Q. Did you have any conversation with her about living with
21 her -- living on her own as opposed to living with her mother?
22 A. Afterwards?
23 Q. Yes.
24 A. Yes.
25 Q. What did she tell you?
83
1 A. She told me that she was afraid to stay at her mother's
2 house after he left.
3 Q. Well, let me turn your attention to the weeks before --
4 are you familiar with the firebombing incident?
5 A. Yes, I am.
6 Q. Let me turn your attention to the weeks leading up to
7 that. Do you know where Robin was living at that time?
8 A. No, I didn't.
9 Q. Did there come a time when she asked you if you would
10 stay with her at her apartment?
11 A. Beforehand?
12 Q. Yes.
13 A. No.
14 Q. On April 29th of 1996, did you have occasion to stay
15 with her at her apartment?
16 A. I asked her. She didn't come to me, I asked her.
17 Q. Go ahead and tell the jury about that.
18 A. Okay. She was afraid to stay home. She was staying at
19 her mother's house. And I told her she shouldn't be afraid to
20 stay at her house, she was paying rent. I said I'd stay there.
21 Since my job was a couple of blocks away, I said that I didn't
22 mind staying with her. And that's basically it.
23 Q. And what was her response?
24 A. She said okay.
25 Q. So what happened on that day?
84
1 A. On that night?
2 Q. Yes.
3 A. I got there before she did that night, and I had to wait
4 for her to come from her mother's house.
5 Q. Did you see anybody when you got to her apartment that
6 night?
7 A. Yes, I did.
8 Q. Who did you see?
9 A. The next door neighbor was outside.
10 Q. Is she an elder lady?
11 A. Yes, she is.
12 Q. And at some point did Robin come to the apartment?
13 A. Yes, within --
14 Q. When did that happen?
15 A. She came within five, ten minutes after I was waiting.
16 Q. And what happened next?
17 A. We went inside and were watching a little bit of a
18 movie, the phone continued to ring, she was talking to someone.
19 Q. What, if anything, do you recall about those phone
20 conversations?
21 A. She was hanging up, the phone kept ringing back. I
22 didn't really listen to the conversation. She was still talking
23 on the phone, we was watching a movie, I went to bed earlier.
24 Q. How many times did the phone -- did she hang up the
25 phone that evening, best you can recall?
85
1 A. At least twice, that I recall.
2 Q. Did she say anything to you with respect to those phone
3 calls?
4 A. No, she didn't.
5 Q. Did you hear her side of any one of those phone
6 conversations?
7 A. No, I didn't.
8 Q. Now, you indicated that you went to bed early. Can you
9 tell the jury why?
10 A. Yes, I went to bed early because I had to be at work
11 early. And she was still up in her room.
12 Q. Okay. And what happened next, as best you can recall?
13 A. She woke me up. Apparently she woke up before I did.
14 She woke me up and said that he was here.
15 Q. All right. What happened next?
16 A. I went to the window, told her to call the police, she
17 picked the phone up, the phone was dead, went to the window, he
18 was smashing my windows out of my car.
19 Q. You went to what window?
20 A. My kitchen window.
21 Q. And what did you see?
22 A. I seen someone with a bat in their hand.
23 Q. And what were they doing with that bat?
24 A. Smashing my windows out.
25 Q. Did she go to a window?
86
1 A. Yes.
2 Q. Where did she go?
3 A. She went to the living room window.
4 Q. And where is the living room window?
5 A. It's right across from the kitchen window.
6 Q. Okay. And what, if anything, did you see or hear when
7 she went to the living room window?
8 A. She was conversating, asking --
9 Q. When you say she was conversating, tell this jury
10 exactly what you saw that night and what you heard.
11 A. She was conversating outside the window, asking why are
12 you doing this.
13 Q. And now you were at the kitchen window --
14 A. Yes.
15 Q. -- am I correct?
16 A. Uh-huh.
17 Q. Could you see out?
18 A. Yes.
19 Q. And what did you see when you looked out the kitchen
20 window?
21 A. I seen him hit the living room window with the bat.
22 Q. Okay. And how close was he to the living room window
23 when he hit the window with the bat?
24 A. Very close, a few steps.
25 Q. How close?
87
1 A. Three steps.
2 Q. Three steps. And Robin was on the other side of the
3 window?
4 A. Yes, she was.
5 Q. And what, if anything, did you hear?
6 A. I heard him say, you are going to die tonight, and I'm
7 going to kill you, things like that.
8 Q. And who was he saying that to?
9 A. He was saying it to Robin.
10 Q. And how far was Robin to him when those things were
11 being said?
12 A. Three feet.
13 Q. And what was the tone of voice that the person with the
14 bat was using?
15 A. Screaming.
16 Q. What happened next?
17 A. What happened next was I went back into the bedroom and
18 got my handgun out of the bag.
19 Q. Why did you have your handgun with you?
20 A. For protection.
21 Q. What do you mean, for protection?
22 A. I keep it with me for protection.
23 Q. And what kind of gun is it?
24 A. It's a 9 millimeter Ruger.
25 Q. Is it registered to you?
88
1 A. Yes, it is.
2 Q. Is it legal for you to possess that gun?
3 A. Yes, it is.
4 Q. After you got the gun, what did you do?
5 A. I went to the window.
6 Q. And what did you see out the window?
7 A. He was standing at the bottom of the steps, real close.
8 Q. Okay. Go ahead and relate to the jury step by step what
9 happened.
10 A. He was standing at the bottom of the steps and I cocked
11 the gun and I aimed it and pulled it, but I had my safety on the
12 trigger so it didn't go off. I shot once or twice over his head
13 and he ran.
14 Q. Now, when you aimed it and pulled the trigger but the
15 safety was on, were you aiming right at him?
16 A. Yes, I was.
17 Q. Now, you said that you shot over his head. Why the
18 first time were you shooting right at him and the second time
19 you were shooting over his head?
20 A. The first time I felt like he was dangerous of bodily
21 harm to both of us. The second time, I felt like he wasn't a
22 danger to us.
23 Q. So you shot over his head?
24 A. So I shot over his head.
25 Q. And why did you think the second time that he was no
89
1 longer a danger to you?
2 A. He was running and had his back to us.
3 Q. Now, prior to that did there come a time that night when
4 you saw anything to do with a fire?
5 A. Yes.
6 Q. Relate that to the jury.
7 A. Before the shooting, before the shooting he stuck his
8 hand in the front door and threw a firebomb in the front living
9 room.
10 Q. How did he stick his hand in through the front door?
11 A. It was about that much space (indicating), he stuck his
12 hand.
13 Q. And how did that space get there?
14 A. From him kicking the door.
15 Q. And he stuck his hand in. Then what did he do?
16 A. He threw a firebomb in the living room.
17 Q. And what happened?
18 A. It caught fire to the curtain first. It spread pretty
19 fast.
20 Q. What was Robin doing during this time?
21 A. During this time she was trying to put it out.
22 Q. After he threw the firebomb in the house, did you hear
23 him say anything?
24 A. No, I didn't.
25 Q. After you fired at him and he was running away, what, if
90
1 anything, did he do?
2 A. He ran, and at the last moment he threw a firebomb at my
3 car.
4 Q. Did you see that?
5 A. No, I didn't see that.
6 MR. LAUGHRUN: Objection, move to strike, if Your Honor
7 please.
8 THE COURT: What was your objection?
9 MR. LAUGHRUN: He said that he didn't see it, Judge, and
10 I move to strike that.
11 BY MR. CONRAD:
12 Q. What did you see?
13 A. His car was --
14 THE COURT: I'll sustain his objection. Go ahead.
15 MR. CONRAD: Thank you, Your Honor, pardon me.
16 THE WITNESS: The car was on fire.
17 BY MR. CONRAD:
18 Q. You saw your car on fire?
19 A. Yes.
20 Q. You saw the windows bashed in?
21 A. Yes.
22 Q. Do you drive that car now?
23 A. Yes, I do.
24 Q. Did you have it repaired?
25 A. Yes, I did.
91
1 Q. Did you have it estimated as to the damage amount to
2 your car?
3 MR. WILLIAMS: Objection, relevance.
4 THE COURT: Overruled.
5 THE WITNESS: It was a couple thousand.
6 BY MR. CONRAD:
7 Q. Now, turning your attention back to Robin again, you
8 indicated the fire started in the living room?
9 A. Yes, I did.
10 Q. And it spread through the curtains?
11 A. Uh-huh.
12 Q. What kind of fire was it?
13 A. What kind of fire was it?
14 Q. Yes. Were you able to get out the front in any way?
15 A. No.
16 Q. All right. So what did you do?
17 A. We tried to go out the front door, the door was jammed,
18 and we ended up jumping out of the bedroom window.
19 Q. How did that happen? Go ahead and tell the jury about
20 that.
21 A. It spread so fast we didn't have time -- that was the
22 only way out, was jumping out of the second story.
23 Q. I'm actually getting a little ahead of myself. Let me
24 take you back to right after you shot over his head, and I want
25 you to tell this jury everything that you saw at that time.
92
1 A. After I shot?
2 Q. Yes.
3 A. Okay. After I shot a car came down the hill, cut its
4 headlights on, picked this person up, they drove off and took a
5 right at the next block.
6 Q. And what did you see with respect to the defendant?
7 When you say the car drove down the hill and picked him up, what
8 did you see?
9 A. I seen the headlights come on.
10 Q. And what side of the car did he get in on?
11 A. The passenger side.
12 Q. And what did the car do after he got in?
13 A. Sped off.
14 Q. Had you seen that car before you saw the headlights come
15 on and the car come down the hill?
16 A. No, I didn't.
17 MR. CONRAD: May I approach, Your Honor?
18 THE COURT: Yes, sir.
19 BY MR. CONRAD:
20 Q. I'm going to hand you what has been marked for
21 identification as Government's Exhibits 7F, 7G, 7H and 7I and
22 ask you if you can recognize those photographs?
23 A. Yes, I can.
24 Q. All right. Starting with 7F, what do you see depicted
25 in that picture?
93
1 A. 7F, this --
2 Q. Speak up, if you can.
3 A. Okay. This is back of our house.
4 Q. That's 1616 Keswick?
5 A. Yes, it is.
6 Q. And 7G?
7 A. This is the street our house is on.
8 Q. At 1616 Keswick?
9 A. Uh-huh.
10 Q. Okay. 7H?
11 A. This looks like the side view of it.
12 Q. Same house, different view?
13 A. Yes.
14 Q. And 7I?
15 A. This is the front of it.
16 Q. 7I is an aerial photograph showing the apartment at 1616
17 Keswick as well as the streets surrounding it?
18 A. Yes, uh-huh.
19 Q. Do those pictures accurately reflect 1616 Keswick?
20 A. Yes, it does.
21 MR. CONRAD: Can I ask the witness to come off of the
22 witness stand and --
23 THE COURT: Yes. Mr. -- I think I'm going to get
24 y'all -- I'm going to open this back door, it's getting awfully
25 warm in here, see if we can't get you a little air in here.
94
1 Mike, would you go back and open that door? The hall is cool.
2 MR. CONRAD: Your Honor, may I have the witness come off
3 the witness stand and stand in front of the jury?
4 THE COURT: Yes, sir.
5 BY MR. CONRAD:
6 Q. Mr. Greene, using Government's Exhibit 7G, would you
7 show the jury where the front of Robin's apartment is?
8 A. (Indicating).
9 Q. Is that at ground level?
10 A. Yes.
11 Q. Now, using this exhibit would you show where your car
12 was parked on the morning hours of April 30th?
13 A. I was parked in the grass.
14 Q. How close to the front door?
15 A. Within a couple of feet.
16 Q. Let's go down to this end of the jury and show this end
17 of the jury where her apartment is and where your car was
18 parked.
19 A. This here is the apartment and I was parked in the front
20 in the grass right here (indicating).
21 Q. Within how many feet of the front door?
22 A. A very few feet.
23 Q. Let me ask you with reference to --
24 MR. CONRAD: Your Honor, may I move to have admission of
25 Government's Exhibits 7F, 7G, 7H and 7I?
95
1 MR. WILLIAMS: No objection.
2 THE COURT: Let's see, 7F, 7G, 7H and 7I, let them be
3 admitted.
4 MR. CONRAD: Thank you, sir.
5 BY MR. CONRAD:
6 Q. Turning your attention to Government's Exhibit 7F, you
7 previously have said that's a picture of -- step back, if you
8 can -- that's a picture of the back of the apartment?
9 A. Yes, it is.
10 Q. Would you show the jury where the window is that you
11 jumped out of.
12 A. (Indicating) right there.
13 Q. On the second level?
14 A. Uh-huh.
15 Q. And again down here as well?
16 A. Right here (indicating).
17 Q. Okay. Now, with respect to Government's Exhibit 7H, can
18 you describe for the jury where the car was when you first saw
19 it?
20 A. The car was on top of the hill.
21 Q. Where is Robin's apartment?
22 A. Right here (indicating).
23 Q. And when the lights came on, where was the car?
24 A. Still right there (indicating).
25 Q. What happened at that point?
96
1 A. He drove down.
2 Q. Yes.
3 A. And he ran and jumped in the passenger side.
4 Q. Okay. And then what did the car do after that?
5 A. Took a right.
6 Q. Okay. Let's go down here and show the jury down here as
7 well. Show the jury where the car was when you first saw it and
8 what it did after you saw it.
9 A. It was on top of the hill, it came down and took a
10 right.
11 Q. Where did it pick up the defendant?
12 A. Right here (indicating).
13 Q. Okay. Now, with respect to Government's Exhibit 7I, can
14 you trace for the jury the path of the car until you didn't see
15 it anymore?
16 A. Took a right, took another right.
17 Q. Right there?
18 A. Right there.
19 Q. And at that point what did you do?
20 A. That's when we went out the window in the back.
21 Q. Okay. You can go have a seat.
22 After you jumped out of the window, Mr. Greene, what
23 happened?
24 A. We came beside some cars, I told her to get behind me
25 because I still had my gun drawn, the neighbors came out.
97
1 Q. Did Robin do anything with respect to her neighbors?
2 A. Yes.
3 Q. What did she do?
4 A. She was running door to door knocking on doors.
5 Q. And why was she doing that?
6 A. Because the house was on fire and she was asking them to
7 call the police.
8 Q. And describe her -- how she appeared to you on that
9 day. After you jumped out of the window, what was she like?
10 A. What was she like after we jumped out of the window?
11 Q. Yes.
12 A. First of all, her skin was hanging off of her arm and
13 she was asking for a towel. Before the police came she asked
14 for a towel and to call the police. The neighbors came out and
15 they said did we need any help and they called the police.
16 Q. Did the police come?
17 A. Yes, they did.
18 Q. And did you talk with them at the scene?
19 A. Yes, I did.
20 Q. What did you do with your weapon?
21 A. I stuck it back in my bag.
22 Q. Why did you do that?
23 A. Because I didn't want to have it drawn with the police
24 coming.
25 Q. Did you tell the police about your weapon?
98
1 A. Yes, I did.
2 Q. Did you tell them about firing a shot?
3 A. Yes, I did.
4 Q. And what happened when did you that?
5 A. They took my handgun and investigated it and gave it
6 back to me.
7 Q. Okay. Investigated the legality of your possession?
8 A. Yes.
9 Q. And then gave it back to you?
10 A. Yes.
11 Q. Did you go to Detective Kahl's office the next day to be
12 interviewed?
13 A. Yes, I did.
14 Q. And did you give a statement on that day?
15 A. Yes, I did.
16 Q. What happened to Robin after that firebombing?
17 A. What happened after the firebomb? They split us up and
18 then she was burnt, but I didn't know she was burnt that bad, I
19 went to work that day, that morning.
20 Q. Did you later learn she had been taken to UVA in
21 Charlottesville?
22 A. Yes.
23 Q. Did you visit her there?
24 A. Yes. I visited her a couple of times.
25 Q. Did you have any occasion to describe the vehicle that
99
1 you saw on that night to her?
2 A. Yes, I did.
3 Q. And what, if anything, did she say to you?
4 A. She said that it was his brother's car.
5 Q. Based on your description?
6 A. (Nods head.)
7 Q. Let me just ask you one question that I forgot to ask
8 you earlier: What time did you go to bed that night?
9 A. It was around 10:00 or 11:00, it was pretty early.
10 Q. You described your relationship with Robin as one of,
11 quote, just friends. On April 30th how would you describe your
12 relationship with Robin?
13 A. Still friends.
14 Q. Was there a romantic aspect of that?
15 A. No.
16 MR. CONRAD: That's all I have, Judge.
17 MR. WILLIAMS: Mr. Greene, just a few questions.
18 CROSS-EXAMINATION
19 BY MR. WILLIAMS:
20 Q. And I'd appreciate you answering these, if you don't
21 mind.
22 Did you tell any of the police officers who came to the
23 scene that you were Robin Williams' boyfriend?
24 A. No, I didn't.
25 Q. If that was in a police report --
100
1 MR. CONRAD: Objection.
2 THE COURT: Wait a minute. What is the question?
3 MR. WILLIAMS: I haven't gotten it out yet, Your Honor.
4 BY MR. WILLIAMS:
5 Q. If there was a statement in a police officer's report
6 about -- referring to you as her boyfriend, do you have any idea
7 why that would be in there?
8 MR. CONRAD: Objection.
9 THE COURT: Overruled.
10 THE WITNESS: I have no idea.
11 BY MR. WILLIAMS:
12 Q. You said that she told you some things about very
13 personal matters about Mark Barnette, you referred to an
14 incident about panties. Did you consider that something of a
15 very personal nature, very close to her?
16 A. Yes, I would.
17 Q. And is that something that you and she would talk about
18 as very close friends, things of a very personal nature like
19 that?
20 A. Well, at first we wasn't that type of friends; but after
21 the incident happened, we became closer and things started
22 coming out.
23 Q. So did she tell you these things after the fire
24 incident?
25 A. Yes, she did.
101
1 Q. In your -- you gave a statement to the police about what
2 happened with the fire incident, is that correct, Mr. Greene?
3 A. Yes, I did.
4 Q. And they -- that was a recorded statement, is that
5 correct?
6 A. Uh-huh.
7 Q. And it was typed up, it was typed up in writing?
8 A. I don't know if it was typed up in writing.
9 Q. Have you ever read your statement before coming to
10 court?
11 A. No, I haven't.
12 Q. Do you know -- you said something about somebody getting
13 in the car or somebody else being out there?
14 A. Yeah, they were.
15 MR. WILLIAMS: May I approach the witness, Your Honor?
16 THE COURT: Yes.
17 BY MR. WILLIAMS:
18 Q. Referring to Page 5 of the statement, Question 41. Do
19 you remember a question being asked of you by the investigator,
20 back up a little bit, Question number -- let's back up to 36.
21 Okay, and do you know what kind of car that parked up on the
22 hill, do you remember that question?
23 A. Yes, sir, I do.
24 Q. And do you remember -- do you remember your answer
25 being, yes, it was a brown dark color, it was either a Datsun or
102
1 Nissan 240 or old 210 or something like that?
2 A. Yes, sir.
3 Q. Do you remember the next question, okay, so it was
4 several years old, the answer was yes. Do you remember that?
5 A. Yes, I do.
6 Q. And do you remember the next question being, was it in
7 good condition, and you answered, I couldn't really tell. And
8 then down, do you remember the officer asking a question, what
9 was the lights on, but was the lights on or -- off or on, do you
10 remember that question?
11 A. Yes.
12 Q. And you said that it was off. The next question, 41,
13 did you ever see anyone else approach the property other than
14 Mr. Barnette, and you answered no, is that correct?
15 A. That's correct.
16 Q. When you gave the officer a statement about anyone else
17 approaching the property shortly after it happened, you told the
18 officer that there wasn't anybody else that you saw, isn't that
19 correct?
20 A. I told them somebody was on the street, not the
21 property, there wasn't nobody else on the property.
22 Q. Do you know anywhere, and I will be glad to show you
23 your statement and allow you to read your statement, if you
24 would like to, do you recall anywhere in your statement saying
25 anything to the police about another person being involved in
103
1 this?
2 A. Yes, I told them when it happened.
3 Q. Did you put it in your recorded statement?
4 A. I can't recall that.
5 Q. You can't recall that. Who was the officer who recorded
6 your statement?
7 A. Detective Kahl.
8 Q. And that's K A H L. Detective Kahl from Roanoke,
9 Virginia police?
10 A. Yes, it is.
11 Q. Could you very briefly tell me how many bedrooms were in
12 that apartment on April the 30th?
13 A. She has two.
14 Q. Two. How long had you been staying there, one night,
15 two nights, three nights?
16 A. That was my second time only coming over there, it was
17 my first night over there.
18 Q. Had you stayed over there before overnight?
19 A. Yes, I have.
20 MR. WILLIAMS: No further questions, thank you.
21 THE COURT: Redirect?
22 REDIRECT EXAMINATION
23 BY MR. CONRAD:
24 Q. Mr. Greene, Mr. Williams asked you about Question 41,
25 but he did not ask you about Question number 33. Let me ask you
104
1 if you remember being asked, okay, was he by himself, and you
2 answering he was by hisself when he was bashing my windows in,
3 but the drive-away car was on top of the hill, do you remember
4 answering like that?
5 A. Yes, I do.
6 MR. CONRAD: Your Honor, if I could be heard at a
7 side-bar.
8 THE COURT: Yes, sir.
9 (Bench conference not recorded.)
10 THE COURT: Anything else from this witness right now?
11 MR. CONRAD: Yes, sir, just briefly, Judge.
12 BY MR. CONRAD:
13 Q. Mr. Greene, Question number 33 that I asked you about,
14 was that what you were referring to when you said that you told
15 Detective Kahl about somebody else?
16 MR. LAUGHRUN: Objection, leading.
17 THE COURT: Repeat the question.
18 BY MR. CONRAD:
19 Q. Question number 33, is that what you are referring to in
20 answer to cross-examination when you told Detective Kahl that
21 you -- or you told Mr. Williams that you told Mr. Kahl,
22 Detective Kahl about another person?
23 MR. LAUGHRUN: Objection, leading.
24 THE COURT: Overruled.
25 THE WITNESS: Yes, it was.
105
1 BY MR. CONRAD:
2 Q. And did you tell anybody else that night?
3 A. That night?
4 Q. Yes.
5 A. No.
6 MR. CONRAD: Your Honor, subject to playing the tape
7 recorded interview, I have no further questions.
8 THE COURT: Mr. Greene, don't leave. We need to call
9 you back a little bit later for something else. Do you
10 understand?
11 THE WITNESS: Yes, sir.
12 THE COURT: Have a seat in the back there.
13 Call your next witness.
14 MR. LAUGHRUN: Could we ask one question, Judge?
15 THE COURT: Yes, I'm sorry.
16 BY MR. WILLIAMS:
17 Q. Mr. Greene, did you talk to anyone else besides Mr.
18 Kahl, or Detective Kahl, about what you saw out there that
19 night?
20 A. No, I didn't.
21 THE COURT: Thank you, sir. Call your next witness.
22 MR. CONRAD: Your Honor, I would ask that you consider
23 giving us a lunch break at this time and then coming back with
24 the tape recording.
25 THE COURT: It's a little bit too early. I will have to
106
1 give you a little extra time because you are going to run into
2 some people down there.
3 Members of the jury, I'll ask you to be back at 1:30.
4 Do not discuss the case among yourselves, do not discuss it with
5 anyone outside of the courtroom. We'll see you back at 1:30.
6 Do y'all know anything about where to go? There is a lot of you
7 that are not even from around here. Tryon Street has -- most of
8 the places are in the Overstreet Mall. There is a hot dog stand
9 right across the street over there, Green's, world famous hot
10 dogs, they say. There is a restaurant in the First Citizens
11 Bank Building, which is up on the corner of Fourth and Tryon.
12 It's really a cafeteria in the back part of it, if you want to
13 go there. There is a restaurant down on Tryon Street on the
14 other side of Third Street, the other side of Third and Tryon,
15 the First Union Bank is on the other side of the street, On the
16 opposite side of the street from First Union Bank, that's
17 Jake's. There's a restaurant further down beyond that, Gus' Sir
18 Beef, they've got good vegetables, it is usually very crowded.
19 I think you can find enough places around here. There is
20 another one in the Northwestern Bank Building. What is that one
21 called? In any event, the Northwestern Bank Building had a
22 restaurant in the back of it, the white building on the corner
23 of Third and Tryon. If you need any help, Tommy here can tell
24 you about where to go.
25 See you back at 1:30. Do not discuss the case among
107
1 yourselves or with anyone outside the courtroom.
2 (The jury left the courtroom.)
3 THE COURT: Recess until 1:30.
4 (Lunch recess.)
5 THE COURT: Call the jury.
6 (The jury returned to the courtroom.)
7 THE COURT: All right, I trust everyone had a nice
8 lunch.
9 (Jurors nod heads.)
10 THE COURT: Mr. Conrad, you want to call --
11 MR. CONRAD: Your Honor, at this time we would request
12 permission to play a tape of the Bennie Greene interview which
13 occurred on May 1st, 1996, and for that purpose I have Special
14 Agent Jim Modzelewski of the Bureau of Alcohol, Tobacco &
15 Firearms who will operate the equipment.
16 THE COURT: All right. Do you want to call Mr. Greene
17 to the stand so he can hear this?
18 MR. CONRAD: Yes, sir.
19 THE COURT: I think he went back in the witness room.
20 THE CLERK: He just walked out the door.
21 MR. LAUGHRUN: Judge, we don't object to the chain of
22 custody or whatever of the tape. I guess Mr. Conrad --
23 MR. CONRAD: I guess we don't need a witness.
24 MR. LAUGHRUN: We don't object to it.
25 THE COURT: Okay, fine. Are you satisfied with all of
108
1 the requirements having been met for the tape, Mr. Laughrun?
2 MR. LAUGHRUN: I'm sorry, Your Honor?
3 THE COURT: Are you satisfied that all of the electronic
4 monitoring of the tape has been satisfied, the requirements for
5 the tape?
6 MR. LAUGHRUN: We don't have a problem with that.
7 THE COURT: Okay, no problem.
8 MR. LAUGHRUN: I thought you were talking about this,
9 Judge, and I don't know the first thing about --
10 THE COURT: Okay, thank you.
11 MR. CONRAD: Your Honor, can Agent Modzelewski inform
12 the Court and jury on how to operate this equipment?
13 THE COURT: Yes, sir.
14 AGENT MODZELEWSKI: This is an infrared court playback
15 system. Now on your armchairs have you a set of headphones.
16 Will you pick those up now. First of all, with your headphones,
17 the little blue bulb on the top is a receiver. That has to be
18 aligned with the antenna right here at all times, especially
19 with the ladies, if you don't want to mess up your hairdo, if
20 you pick it up behind your head, you may have a problem with
21 receiving the signal. If that is the case, you need to put it
22 in the front, as long as that bulb is in line with this antenna,
23 okay?
24 Now, on one of your earphones you will see two yellow
25 volume controls, probably the optimum for this is putting each
109
1 about halfway up (indicating). You will see an L, an ST, and an
2 R on the switch right above that. That is for ear controls.
3 Please place that on ST if it isn't already, right in the
4 middle. On the other earphone is a power switch. If you turn
5 it on, a green light should come on. Does anyone not have a
6 green light? Go ahead and put on the headphones.
7 MR. CONRAD: Your Honor, at this time I would move into
8 evidence Government's Exhibits 58, 51A, which is a tape of the
9 May 1st interview with Benjamin Spencer Greene, and Government's
10 Exhibit 51B, which is a transcript of that tape recording.
11 THE COURT: Assuming there is no objection by the
12 defendant --
13 MR. LAUGHRUN: No, sir.
14 THE COURT: -- 50 --
15 MR. CONRAD: 51A and 51B.
16 THE COURT: 51A and 51B. Can the members of the jury
17 hear me? You have a transcript, but it's the tape itself which
18 is the evidence. You can, of course, follow -- are you going to
19 give them transcripts?
20 MR. CONRAD: Yes, sir.
21 THE COURT: You can follow along with the transcript;
22 but if there is any difference in the transcript and in the
23 tape, it's the tape that counts. Anything you hear on the tape
24 is the evidence and not this transcript. It's just for your
25 convenience to have the transcript.
110
1 All right, are we ready?
2 AGENT MODZELEWSKI: All of the headphones were
3 pretested. Should you have a problem hearing anything, please
4 raise your hand and we will get you another set.
5 (Taped played for the jury, transcript provided to the jury. )
6 THE COURT: For the record, let me -- 51A and 51B will
7 be admitted, in case I didn't.
8 AGENT MODZELEWSKI: Please turn the headphones off and
9 put them back on the armchairs.
10 THE COURT: Either side which to call Mr. Greene back
11 for any purpose.
12 MR. CONRAD: No, sir.
13 MR. WILLIAMS: No, Your Honor.
14 THE COURT: Thank you, call your next witness.
15 MR. WALKER: The government calls John Grub.
16 JOHN GRUB,
17 being first duly sworn, was examined and testified as follows:
18 DIRECT EXAMINATION.
19 BY MR. WALKER:
20 Q. Sir would you it state your full name please?
21 A. John Edwards Grub.
22 Q. And Mr. Grub, where do you live?
23 A. At this time?
24 Q. Yes, you live in Roanoke, Virginia?
25 A. Yes.
111
1 Q. How long have you lived in Roanoke, Virginia?
2 A. For the last four or five years.
3 Q. I want to take you back, turn your attention to April of
4 1996, and in specific, April the 30th of 1996. Were you living
5 in an apartment located at 1616 Keswick Avenue in Roanoke,
6 Virginia on that particular day?
7 A. 1618 Keswick.
8 Q. Okay. That's a part of the Keswick apartment complex,
9 is that correct?
10 A. Yes, sir.
11 Q. Who was living in that particular apartment with you on
12 that day?
13 A. My three children.
14 Q. And what were their ages at that point?
15 A. I think 8, 13 and 15.
16 Q. How many units are in the Keswick apartment complex?
17 A. In the particular villa I lived in there was four.
18 Q. Did you know Robin Williams?
19 A. I didn't know her, I just seen her around there.
20 Q. Did she live in the same apartment building as you?
21 A. Yes.
22 Q. Do you remember the events of the early morning hours of
23 April 30th of 1996?
24 A. Yes.
25 Q. And drawing your attention to about 4:00 that morning,
112
1 did anything happen that awakened you when you were inside of
2 your apartment at 1618 Keswick?
3 A. Yes.
4 Q. Describe to the members of the jury what happened.
5 A. I was woken up from sleep to what I first thought was
6 gunfire, sounded like shotgun fire hitting glass. I immediately
7 hit the floor and then I proceeded to call 911 because I heard
8 screams afterwards.
9 Q. When you heard screams, would you describe the screams
10 that you heard?
11 A. Just a loud curdling scream, and, oh, my God, I don't
12 believe he has done this.
13 Q. What happened, did you call 911?
14 A. Yes.
15 Q. And what happened next?
16 A. I was on the phone with 911, a lady was pounding on my
17 door, help me, help me. But I was still on the phone with 911.
18 After I hung up the phone with 911, I went to the door and no
19 one was at the door at that time, so I proceeded around the
20 apartment to the front of the apartment, and there was flames
21 shooting out of the window of the apartment. So then I
22 proceeded back into my apartment to get my kids out of the
23 apartment.
24 Q. And were you able to do that?
25 A. Yeah.
113
1 Q. At some point did you see Robin Williams during all of
2 those events?
3 A. Later on, after the police and fire department were
4 there.
5 Q. Would you describe what condition she was in when you
6 saw her?
7 A. I seen her, she was sitting in the grass with a towel
8 wrapped around her arm, but it was fairly dark where she was.
9 Q. Do you recall the name of some of your neighbors that
10 lived there in the Keswick complex with you back in April of 96?
11 A. The lady that lived directly above me, we referred to
12 her as Granny, my kids call her Granny. And people live next
13 door to me, his name was Tony, and I don't recall what her name
14 was.
15 Q. After the fire was extinguished on that particular
16 occasion, did you and your family go back into your apartment
17 and stay the rest of that night and the rest of that morning?
18 A. Yes.
19 Q. And then did you go to work then the next morning?
20 A. Later on in the evening, yes.
21 Q. When you were at work that next day, did you receive a
22 call from your son J.T.?
23 A. Yes, I did.
24 Q. Would you indicate to the members of the jury what
25 happened when you received that call, what he said to you?
114
1 A. My son called me and said they were around the apartment
2 and it was him, and my daughter and they had found someone's
3 driver's license beside the apartment and some pliers.
4 Q. When he told you that, what did you tell him to do if
5 anything?
6 A. I asked him were the items -- where the items were, and
7 he said they left the pliers there and the driver's license he
8 had. I said take it and leave it in the house until I got
9 there.
10 Q. Did you go home or what did you do?
11 A. Yes, I went home and looked at the -- there was a
12 driver's license, and then I called the police department.
13 Q. Did the police come to your -- after you called the
14 police did they come to your residence?
15 A. Yes.
16 MR. WALKER: May I approach the witness, Your Honor?
17 THE COURT: Yes, sir.
18 BY MR. WALKER:
19 Q. Mr. Grub I have removed from this envelope, or the bag
20 rather, what is labeled 7 A, I removed from that two items, one
21 of which is Government Exhibit 7 C, and the other item is
22 Government Exhibit 7 B. Will you take a look at those two items
23 and tell me if you recognize them, and if so, what are they?
24 A. This one here appears to be the driver's license that my
25 son had found and showed me and I gave this to the police
115
1 department.
2 Q. And referring your attention to the other item there,
3 that being 7 C, do you recognize that as well?
4 A. Yes, it's the pliers that my son found also laying in
5 the grass.
6 MR. WALKER: Your Honor. I would move both of those
7 into evidence, that being 7 B and 7 C.
8 THE COURT: 7 B and 7 C will be admitted.
9 BY MR. WALKER:
10 Q. Let me also show you Government Exhibit 7 A -- excuse
11 me, 6 A, 6 C and 6 D, referring your attention first to
12 Government's Exhibit 6 A, if you would take a look at that
13 photograph and can you -- do you recognize what that shows and
14 if so, what is it?
15 A. It shows -- it's a picture of the pliers laying in the
16 grass.
17 Q. Is that where your son indicated that he had found those
18 pliers?
19 A. Yes.
20 Q. And referring your attention then to Government's
21 Exhibit 6 C, and before I ask you that I want to ask you one
22 other thing, did you become aware at some point during this
23 incident, was your phone working on that occasion or did you
24 become aware that the phones were not working?
25 A. My phone was working.
116
1 Q. Did you ever become aware through your neighbors of
2 something wrong with the phones there at Keswick?
3 MR. LAUGHRUN: Objection.
4 THE WITNESS: Yes, sir.
5 THE COURT: Overruled.
6 BY MR. WALKER:
7 Q. What was it that you learned?
8 MR. LAUGHRUN: Objection.
9 THE COURT: Overruled.
10 THE WITNESS: The lady above me that we referred to as
11 Granny told me that her phone line was not working.
12 BY MR. WALKER:
13 Q. When was it that you had that conversation with Granny?
14 A. That was later in the day after I came home from work.
15 Q. Did you go -- what did you do once you had that
16 conversation, what did you do?
17 A. I went and checked the phone lines.
18 Q. And what did you discover when you checked the phone
19 lines?
20 A. They had been cut.
21 Q. Referring your attention now to the other two items I
22 placed in front of you, that being Government's Exhibits 6 D and
23 then 6 -- well, 6 C and 6 D, if you will take a look at those
24 two photographs and tell me if you recognize what is shown in
25 those photographs and if so what is shown?
117
1 A. 6 C shows what is called a telephone interface for phone
2 lines.
3 Q. Does that show the phone lines that you looked at on
4 Keswick when you discovered that they had been severed?
5 A. Yes.
6 Q. And it also looks like in that particular photograph
7 that some -- describe what is shown in that photograph if you
8 can?
9 A. Shows the repairs that I made to the phone line.
10 Q. So you repaired the phone line yourself?
11 A. Yes.
12 Q. Referring your attention to Government Exhibit 6 D, does
13 that show the phone line before you made the repair?
14 A. I couldn't really say if this was the phone line, it
15 might be one that was still laying on the ground, because there
16 was several lines that were cut.
17 Q. And lastly, Mr. Grub, I want to show you what has
18 already been admitted into evidence as Government's Exhibit 7 F,
19 and I'm going to bring that around to you, and I will show it to
20 you. And I'm going to ask you to step in front of the jury, if
21 I may do that. Looking at 7 F, do you see where your apartment
22 was back in April of 1996?
23 A. Yes.
24 MR. WALKER: Your Honor, may he approach the jury with
25 me briefly.
118
1 THE COURT: (Nods head.)
2 BY MR. WALKER:
3 Q. Mr. Grub, if you will come down in front of the jury,
4 and if you would, beginning on this side of the jury using
5 Government's Exhibit 7 F, will you indicate where your apartment
6 was back in April of 1996 during this fire incident?
7 A. Right here (indicating).
8 Q. And if you would go down to this end of the jury and
9 also indicate on 7 F by pointing your finger to where your
10 apartment was?
11 A. (indicating).
12 Q. You may return to your seat.
13 MR. WALKER: Your Honor I don't have any other questions
14 of Mr. Grub.
15 THE COURT: All right, Mr. Laughrun.
16 MR. WILLIAMS: Just one question.
17 CROSS-EXAMINATION
18 BY MR. WILLIAMS.
19 Q. Mr. Grub, is it at 3:00 or 4:00 in the morning out there
20 in front of the apartment back in April of 1996, would you
21 describe it as being very dark out there?
22 A. Yes, behind my apartment it was, yes.
23 MR. WILLIAMS: Thank you, no further questions.
24 THE COURT: Thank you, sir, you are all through, you can
25 go home, I guess. Call your next witness.
119
1 MR. WALKER: Before calling the next witness we would
2 move into evidence two of the photographs that he identified, 6
3 A and 6 C, if I may pass those to the jury.
4 THE COURT: 6 A and 6 B?
5 MR. WALKER: 6 A and 6 C, Your Honor.
6 THE COURT: C, they will be admitted.
7 MR. CONRAD: United States would call detective Kahl, K
8 A H L.
9 RICK S. KAHL,
10 being first duly sworn, was examined and testified as follows:
11 DIRECT EXAMINATION
12 BY MR. CONRAD:
13 Q. Sir, would you state your name for the jury and spell
14 your last name for the court reporter?
15 A. My name is Rick S Kahl, K A H L.
16 Q. How are you employed?
17 A. Detective with the Roanoke City Police Department.
18 Q. How long you been with the Roanoke City Police
19 Department?
20 A. 15 years.
21 Q. And what were your duties in April of 1996?
22 A. Assigned to fire investigation.
23 Q. And in the course of performing your duties at the
24 Roanoke Police Department, did you receive information
25 concerning an arson which occurred at 1616 Keswick Avenue in
120
1 Roanoke?
2 A. Yes, I did.
3 Q. When did you receive that information?
4 A. Received it in the morning of that day, on the 30th of
5 April, 1996 by Fire Marshal David Deck.
6 Q. And what if anything did Fire Marshal Deck tell you?
7 A. He went over the circumstances of the offense, he
8 determined the fire to be deliberately set or intentional set
9 fire.
10 Q. And as a result of talking to him, what if anything did
11 you do?
12 A. I went out to the area, inspected the apartment, I also
13 interviewed several neighbors in that area.
14 MR. CONRAD: May I approach, Your Honor.
15 THE COURT: Yes, sir.
16 BY MR. CONRAD:
17 Q. Let me approach and hand you what has been admitted into
18 evidence as Government's Exhibits 7 F, G, H and I, and ask you
19 if you can identify those photographs?
20 A. This apartment in the building is 1616 Keswick, that's
21 where the fire occurred. There is three adjoining apartments in
22 this same building, which was occupied at the time as well.
23 This is the same building, this is the front, 1616 Keswick, and
24 again there is three other addresses and occupants at the time.
25 This is the back of the same building, 1620 and 1618 Keswick is
121
1 behind this front right here. And again from this shot here,
2 here is the same building which is the front of 1616 and 1614.
3 Q. So 1616 is in front of that quadraplex and 1618 is
4 behind?
5 A. That's correct, on the Keswick Avenue, northeast side.
6 THE COURT: I don't believe you are talking to the
7 jurors and the other jurors behind you could not see you, maybe
8 you ought to ask him to step down.
9 MR. CONRAD: If you can step down and summarize what you
10 just testified to for the benefit of the two alternates jurors.
11 THE WITNESS: This first photo is the apartment that was
12 on fire, that caught fire. And here's -- this building or this
13 door, two doors on the back bottom, three additional apartments
14 in that quadraplex that was occupied at the time. This photo
15 just shows this same building with the rear shot, 1618 and
16 1620. This photo is the same building, just a different angle,
17 and again this is where the fire occurred. This is Keswick
18 Avenue northeast. Again here's the back of the building, and
19 again here is the same building, 1616, 1614 Keswick Avenue.
20 BY MR. CONRAD:
21 Q. Sitting here today, do you recall which residents lived
22 in which apartment buildings in that quadraplex?
23 A. Yes, 1616 is Robin Williams's apartment, 1614 was Maude
24 Hubbard, 1618 was the Grub family, and 1620 was Mr. St. Claire
25 and Wanda Gazman, I believe was her name that resided at that
122
1 address.
2 Q. Are those people that you indicated that you interviewed
3 after you had received a call from Fire Marshal Deck?
4 A. Yes. I also interviewed some other neighbors, but
5 primarily folks that I interviewed was in that building.
6 Q. As a result of those interviews, what did you learn?
7 MR. LAUGHRUN: Objection, Judge.
8 THE COURT: Overruled.
9 THE WITNESS: What I was able to gather is that there
10 were ongoing domestic problems at the location 1616 Keswick
11 Avenue Northeast after speaking with the neighbors in that same
12 building.
13 BY MR. CONRAD:
14 Q. Did you have opportunities to speak with John Grub?
15 A. I spoke with him or to him by phone.
16 Q. And what if anything did you learn from him?
17 A. Mr. Grub found the phone wires that had been cut, and he
18 temporarily secured them so the phone lines would work. I also
19 spoke with his son in person when I went up to the location. As
20 I was going out there that I day on the 30th of April 96, I
21 received a call from dispatch that I need to speak with some
22 people out there as well. When I arrived I spoke with, I
23 believe the name was Jacob Grub, and he showed me some evidence
24 that he had found.
25 Q. And what evidence was that?
123
1 A. It was a driver's license belonging to an Aquilia
2 Marcivicci Barnette. He also showed me a pair of pliers that
3 was found alongside his residence next to the phone wires. I
4 asked him to show me where he found the driver's license, and he
5 pointed out a spot next to the pair of pliers on the ground. He
6 did not move the pliers from that location but did pick up the
7 driver's license. I later found a blue -- what appeared to be a
8 Bick lighter on the driveway of Maude Hubbard's residence. I
9 also found after inspecting the fire scene was some shell casing
10 in the front of 1616 Keswick Avenue Northeast belonging to Robin
11 Williams.
12 Q. And again, Maude Hubbard's apartment, where is that in
13 relation to Robin Williams?
14 A. Her apartment is next door to Robin Williams.
15 Q. Let me approach and hand you what has been marked as
16 Government Exhibit 6 A, 6 B and 6 C and ask you if you can
17 identify those photographs?
18 A. Exhibit 6 A is the pair of pliers that was found next to
19 the Grub residence which is 1618 Keswick Avenue.
20 Q. Can you hold that photograph up for the jury's benefit
21 and show it where J.T. Grub showed you the driver's license was
22 found?
23 A. In this area (indicating) here where the pliers were
24 found.
25 Q. Okay.
124
1 A. Exhibit 6 B were the blue -- where the blue Bick lighter
2 was found next door to Maude Hubbard's residence. Exhibit 6 C
3 is the phone lines that had been cut, I guess, attached by
4 Mr. Grub, which is on that same side where the pliers were
5 found.
6 MR. CONRAD: Your Honor, move admission of Government's
7 Exhibit 6 A.
8 THE COURT: 6 --
9 MR. CONRAD: I move admission of Government Exhibit 6 B.
10 THE COURT: Let it be admitted.
11 BY MR. CONRAD:
12 Q. Would you come off of the witness stand and using
13 Government's Exhibit 7 G, would you show the jurors where it was
14 that the Bick lighter was found?
15 A. (indicating) it would be in this area right here.
16 Q. Point it out for the benefit of the jurors?
17 A. Top of this area here (indicating).
18 Q. Thank you. Let me approach and hand you what has been
19 marked as Government Exhibit 7 A and ask you if you can examine
20 the contents of Government Exhibit 7 A and identify that?
21 A. Exhibit 7 A contained the bag contained the lighter, and
22 the shell casings that were found -- shell casing that was found
23 at 1616.
24 Q. And for the record, the lighter is marked for
25 identification as Government Exhibit 7 D, and the shell casing
125
1 is marked for identification as Government Exhibit 7 E. Let me
2 also hand to you, Detective Kahl, Government Exhibit 7 B and 7 C
3 and ask you if you can identify those exhibits?
4 A. 7 C is the pliers that were found next to the Grub's
5 residence, and 7 B is the operator's license belonging to
6 Aquilia Marcivicci Barnette.
7 Q. With respect to Government Exhibit 7 B, is there an
8 address listed for Aquilia Marcivicci Barnette?
9 A. It says 1616 Keswick Avenue Northeast, Roanoke, Virginia
10 24012.
11 Q. And again, that's the license that you found or that --
12 A. That's the license that was given to me by Jacob Grub.
13 MR. CONRAD: Move admission of Government Exhibit 7 A
14 through 7 E.
15 THE COURT: 7 A will be admitted, 7 C has been admitted,
16 did you say D, 7 D as in dog?
17 MR. CONRAD: Yes, sir.
18 THE COURT: 7 E.
19 MR. CONRAD: Yes, sir.
20 THE COURT: Let it be admitted.
21 BY MR. CONRAD:
22 Q. What did you do next in your investigation, Detective
23 Kahl?
24 A. I verified that the warrants were outstanding for
25 Mr. Barnette, they had obtained by the uniformed officers,
126
1 verified that these warrant were entered into the NCIC
2 computer. I also reviewed a teletype that had been sent to the
3 joint jurisdiction to be aware of a vehicle that was described
4 at the scene as the vehicle that left the area, and also the
5 information concerning Mr. Barnette.
6 Q. Did you make any contact with any members of the
7 Williams family?
8 A. I spoke with a Ray Williams, 5-1-96 to check on the
9 condition of Robin Williams. He advised me at that time that
10 she was in the burn center at UVA Hospital, Charlottesville,
11 Virginia. I asked him when she was returned back home to have
12 her contact me.
13 Q. At some point did you get a phone message from any of
14 the Williams family members?
15 A. A phone message was given to me on the 7th of May by
16 another detective that had taken the call. It was from a
17 Kenneth Williams. He left a message of a possible phone number
18 that Mr. Barnette was calling from was left for me.
19 Q. And what number was that?
20 A. (704) 568-9286.
21 Q. Did there come a time when Robin Williams called you?
22 A. Yes.
23 Q. When was that?
24 A. She called me on May 13th, 1996. She advised she had
25 just been released from THE hospital. The doctors instructed
127
1 her to rest. At that time, I talked to her a little bit about
2 what happened, briefly, we set up an appointment to meet in
3 person on May 30th, 1996. During that time I was scheduled for
4 a two-week vacation when she was released, and the fact that she
5 needed to rest was the time that we set up, and we agreed to
6 meet at her residence at 911 Loudon on 5-30-96.
7 Q. Did Robin Williams provide you with any phone numbers at
8 this time?
9 A. Yes, she provided me four phone numbers at that time,
10 and I have them here.
11 Q. Will you please list them for the jury?
12 MR. LAUGHRUN: Objection.
13 THE COURT: Overruled.
14 THE WITNESS: First phone number she gave me was (704)
15 399-5479, (704) 377-6664 and (704) 568-5820 and (704) 568-9286.
16 BY MR. CONRAD:
17 Q. Did she indicate to you any information about who those
18 numbers belonged to?
19 A. She was unsure on a few of those. There was one that
20 she gave, the first one, (704) 399-5479, she thought that was
21 his home number, Mr. Barnette's number. And the others she
22 speculated the next number 377-6664 to be the Omni Hotel. The
23 third number, 568-5820, she did not know what that number
24 was -- who was associated with that number. And the last one,
25 568-9286 could have been a Sandra Nero.
128
1 Q. Sandra Nero?
2 A. That's what I have.
3 Q. Is that the last number, 568-9286, that was provided to
4 you by Mr. Ray Williams on May 7th?
5 A. Yes. That would have been provided to Kenneth Williams.
6 Q. I apologize, that phone message from Kenneth Williams.
7 Turning your attention to May 30th of 1996, did you have
8 an opportunity to interview Ms. Williams?
9 A. Yes, I did.
10 Q. Would you relate to the jury how that occurred?
11 A. On the 13th of May, 1996 we agreed that I would meet her
12 at her residence on the 30th, at that set time. I met her at
13 her residence at 911 Loudon Avenue Northwest, Roanoke,
14 Virginia. When I arrived at her residence, she had a gentleman
15 by the name of Ray Williams was the one that let me in. I met
16 Robin Williams there and we were escorted to the living room
17 where I conducted an interview with her.
18 Q. Describe Robin's demeanor at that time?
19 A. Appeared to be very up-beat even though she had suffered
20 some serious burns, she felt pretty confident in getting on with
21 life.
22 Q. Was she cooperative with you?
23 A. Very.
24 Q. Was she willing to be interviewed?
25 A. Yes.
129
1 Q. Would you describe her physical condition?
2 A. Other than the noticeable burns that she had suffered on
3 her arms, she appeared to be healthy, and like I said, upbeat
4 and very cordial, and willing to speak with me.
5 Q. Was she wearing anything on her arms at the time you
6 interviewed her on the 30th?
7 A. I want to say some sort of gauze stocking or something
8 that covered her burns that she had to keep on the moisture for
9 the skin.
10 Q. Did she appear to understand your questions when you
11 asked her questions?
12 A. Yes.
13 Q. Did she appear to have a recall of the events that you
14 were asking about?
15 A. Yes.
16 Q. Did she appear in any way under the influence of any
17 medication?
18 A. No.
19 Q. Did you record that interview?
20 A. Yes.
21 Q. How did you record that interview?
22 A. I brought along a portable tape recorder that I carry in
23 the field and conducted the taped interview with her at her home
24 concerning the events that occurred on that night, early morning
25 hours of the morning of the 6th.
130
1 Q. Had you used that tape recorder before?
2 A. Many times.
3 Q. Approximately how many times?
4 A. I would say at least 200 times.
5 Q. Had that tape recorder functioned in the past?
6 A. Yes.
7 Q. Was it functioning May 30th, 1996 when you interviewed
8 Ms. Williams?
9 A. Yes.
10 Q. Let me approach and hand to you what has been marked for
11 identification as Government's Exhibits 10 A and 10 B and ask if
12 you can identify those for the jury?
13 MR. LAUGHRUN: Judge, we object based on the previous
14 motion.
15 THE COURT: Thank you, sir, objection is overruled.
16 THE WITNESS: Exhibit 10 B is the transcript of the
17 taped interview that I conducted with Robin Williams on the date
18 of 5-30-96. Exhibit 10 A is the tape of the interview that had
19 I taken with Robin Williams.
20 BY MR. CONRAD:
21 Q. At my request, did you listen to the tape and the
22 transcript to ascertain whether they were accurate recordings
23 and transcriptions of your interview?
24 A. Yes.
25 Q. And what was your conclusion?
131
1 A. That the transcript reflects what the tape has said of
2 the interview.
3 Q. Does the tape accurately record the interview as it
4 occurred?
5 A. Yes.
6 MR. CONRAD: At this time, we ask permission to play the
7 tape and distribute transcripts to the members of the jury.
8 THE COURT: Did you state whether there had been any
9 changes or additions or deletions to the tape?
10 THE WITNESS: The original copy that I reviewed had
11 minor changes, but they were noted.
12 MR. CONRAD: Are you talking about the transcript or the
13 tape.
14 THE WITNESS: The transcript.
15 MR. CONRAD: The court is asking if there was any
16 changes, deletions or additions to the tape.
17 THE WITNESS: No, none whatsoever.
18 THE COURT: The conversation was elicited voluntarily,
19 is that correct?
20 THE WITNESS: Yes, sir.
21 THE COURT: All right, sir, it will be admitted.
22 Once again, members of the jury, I remind you that the
23 transcript is not evidence, what you hear on the tape is the
24 evidence, any inflections of voice or anything different on the
25 tape, that's what you should consider.
132
1 MR. CONRAD: Move admission of Government's Exhibit 10 A
2 and 10 B.
3 MR. WILLIAMS: Objection for the record.
4 THE COURT: Thank you, they are admitted. Is it cool
5 enough to close the back doors? Let's try it and see.
6 (Tape played for the jury. Transcript provided to the jury. )
7 AGENT MODZELEWSKI: Please turn the power button off and
8 the green light goes off.
9 MR. CONRAD: Your Honor, no further questions. May I
10 pass the exhibits to the jury at this time?
11 THE COURT: Yes.
12 MR. WILLIAMS: Your Honor, should I ask the questions
13 while the jury is looking at the exhibits or may I wait?
14 THE COURT: Well, are they just looking at pictures?
15 MR. CONRAD: Pictures and also the Bick lighter, the
16 shell casing, the driver's license and the wire cutters.
17 THE COURT: Give them a few minutes and pass them
18 around.
19 MR. LAUGHRUN: We would request any Jencks material for
20 this detective.
21 THE COURT: Mr. Conrad.
22 MR. CONRAD: We provided all of the Jencks material we
23 are aware of at this time.
24 MR. WILLIAMS: I will go ahead if the Court please. I
25 think the jury has looked at most of the exhibits if Your Honor
133
1 please.
2 THE COURT: Proceed then.
3 CROSS-EXAMINATION.
4 BY MR. WILLIAMS:
5 Q. Detective Kahl?
6 A. Correct.
7 Q. Do you have your report in front of you, sir?
8 A. Yes.
9 Q. I just want to clarify a few things from your report,
10 and I will be brief. You contacted Robert Williams who was
11 Robin's uncle, and he verified to you on page two of your
12 supplemental report, Robin had broken off the relationship with
13 Mark Barnette?
14 A. That was on the --
15 Q. On page two of your report, second from the last
16 paragraph?
17 A. Yes.
18 Q. Is that correct?
19 A. Mr. Williams verified Robin had broken off the
20 relationship, correct.
21 Q. Okay. And then also Robin told you on page 3 of your
22 report at the top of page 3 of your report, that first
23 paragraph, she told you that Mark could not accept the break up
24 of the relationship, is that accurate?
25 A. Correct.
134
1 Q. You also have on your report that you -- strike that
2 question.
3 Did you review any of the other reports from the other
4 officers or detectives in the Roanoke City Department such as
5 Officer Oates, T. L. Oates's report?
6 A. Would that be an evidence technician report?
7 Q. Is it Officer T.L. Oates, did you review that report, he
8 may be a crime scene search technician, I'm asking you if you
9 reviewed that report?
10 A. Yes, sir.
11 Q. You did? I'm sorry, did you say you did?
12 A. Yes, sir.
13 Q. Do you know where the information came from on Oates's
14 report that Bennie Greene was the current boyfriend, do you see
15 that in the report?
16 A. That might have been obtained through the fire marshal,
17 I was not there when the original offense occurred. I attempted
18 to verify this one with the other one, interviewed Bennie Greene
19 and Robin Williams, concerning her status.
20 Q. Now, according to your report when you learned of these
21 incidents, you teletyped, you sent teletypes to the North
22 Carolina police, according to page 3 of your supplement, is that
23 correct?
24 A. Yes.
25 Q. And you had information, did you not, that Mark Barnette
135
1 lived in Charlotte?
2 A. Initially on the time of the offense I had a single
3 address that was given to me of a possible location where he may
4 be staying, and a teletype was sent requesting assistance
5 explaining the charges, who we were looking for and to see if
6 someone could check that address for this person.
7 Q. Did you have an address when this short -- shortly after
8 this incident occurred, did you have an address for Mark
9 Barnette in Charlotte, North Carolina?
10 A. Yes.
11 Q. And that address was 3413 West Boulevard?
12 A. Correct.
13 Q. Did you put that into your teletype?
14 A. Yes.
15 MR. WILLIAMS: May I approach the witness Your Honor.
16 THE COURT: Yes.
17 BY MR. WILLIAMS:
18 Q. I would like to show you, Detective Kahl, if I may do it
19 this way so I don't block anybody, Defendant's Exhibit 1, and
20 ask you if that is a teletype sent from your police department
21 from Charlotte for the purpose of arresting Mark Barnette?
22 A. This teletype was not sent by me, this was the teletype
23 that was sent the morning of the offense by Officer Forbes
24 containing the information about Mr. Barnette and the possible
25 address that he would be in route to be would be 3413 West
136
1 Boulevard, Charlotte, North Carolina. It states the charges are
2 pending including possible charges of attempted homicide with
3 subsequent arsons to cover the crimes, and it describes the
4 vehicle, possible vehicle, along with his information, date of
5 birth.
6 Q. And was that, when I say a teletype, will you tell the
7 jury what that is?
8 A. It's a teletype system that's used by law enforcement,,
9 called National Law Enforcement Teletype System. It's a
10 communications system that is used strictly for law enforcement
11 personnel to send teletype messages, be on the look out, those
12 kind of things. These teletypes are used to hold folks and
13 warrants and to pick up people on warrants as well.
14 This teletype after verifying it, it says, special
15 attention, Franklin County, Roanoke County Police, there is some
16 indication that maybe it did not get to North Carolina, may have
17 been more of a regional teletype as opposed to an expanded area
18 including North Carolina, and on the second of May, after
19 reviewing this, I entered an -- or sent out another teletype to
20 Charlotte PD.
21 Q. Let me hand you Defendant's Exhibit 3 and ask you if
22 that is another teletype that you sent to the Charlotte Police
23 Department?
24 A. This is a teletype that's an amendment or attachment to
25 the original one on 4-30-96 by Officer Forbes as well stating
137
1 that there's two warrants that had been obtained for Aquilia
2 Marcivicci Barnette for arson.
3 Q. Okay. And was that sent to the Charlotte City Police
4 Department for the purpose of them going out to his address in
5 Charlotte and arresting him?
6 A. Not at that time, no.
7 Q. Why not?
8 A. Well, after reviewing this, like I said this is an
9 amendment to the original that was sent out, there was some
10 question maybe that this teletype did not get to that location.
11 I followed that up on 5-2-96 with a another teletype to their
12 location.
13 Q. Let me show you Defendant's Exhibit 4, is that the 5-02
14 teletype that you are referring to?
15 A. Yes.
16 Q. Would you tell the jury what that is, please?
17 A. This was a teletype, be on the look out for the
18 following subject by this jurisdiction, reference arson of
19 occupied dwelling. This offense occurred at 1616 Keswick Avenue
20 northeast at approximately 4:00 hours 4-30-96. There are
21 numerous felony charges outstanding, manufacturing and use of
22 bomb, attempted murder, two counts arson be on the look out for
23 210, 280, North Carolina tags, dark tinted windows, primer spots
24 on the driver quarter panel, the primary suspect has been
25 tentatively identified as Aquilia Marcivicci Barnette, black
138
1 male, 777256140, light complexion, short hair, caution should be
2 used, subject may still be armed, Barnette at this time, another
3 subject in company, check the jail to see if subject has been
4 picked up for some other reason, advice back.
5 Q. Was the purpose of this teletype to advise the Charlotte
6 Police Department where he was and arrest him?
7 A. No, that was part of the teletype, there was another one
8 that was sent, that one was sent on 521213 in the afternoon, I
9 followed that out two at 521451 hours which is 2:51 p.m. with an
10 amendment number on that, which states that reference Aquilia
11 Marcivicci Barnette black male 77772, earlier teletype 96266
12 arson subject on 4-30-96 aka Mark which was the original
13 teletype that I sent, which is this again was an amendment,
14 above named subject possibly lives at 3413 West Boulevard
15 Charlotte, North Carolina, could you please have one of your
16 officers go by this address to see subject can be located and
17 notify this agency. And my agency and name and phone number was
18 on this teletype, and it shows that they received both copies.
19 Q. So, is that Defendant's Exhibit -- excuse me I'm losing
20 my voice. Is that Defendant's Exhibit 5 which I now hand to
21 you, is that what you just read to the jury?
22 A. Correct.
23 Q. And that is in effect, if I'm correct, another teletype
24 where you actually sent to the Charlotte Police Department, gave
25 them the name and address and told them to send an officer by
139
1 for the purpose of arresting him for the charges as a result of
2 what occurred on April 30th, 1996 in Roanoke?
3 A. Correct.
4 Q. After you did that, did you also send out without
5 reading this and going all through it, just ask you if you can
6 identify Defendant's Exhibit 6, as being another teletype sent
7 from Roanoke Police to the Charlotte Police to arrest
8 Mr. Barnette?
9 A. This is the same -- this is the same one as this first
10 one that I just read.
11 Q. Okay. That's the same one as --
12 A. Correct.
13 Q. Okay, how about Defendant's Exhibit 7 and Number 8, were
14 those also teletypes sent to the Charlotte Police to arrest
15 Mr. Barnette?
16 A. Yes, but before I sent 5-31-96 I did receive a response
17 back from Charlotte PD which I have right here, that -- to my
18 attention, in reference to Mr. Barnette, at 3413 West Boulevard
19 Charlotte, North Carolina is not a valid address. Yes, and
20 these are two follow-up -- one on 5-31 and one on 6-20 again
21 stating the charges.
22 Q. Thank you. Detective Kahl, as a result of all of these
23 teletypes from the Roanoke Police to the Charlotte Police asking
24 them for their assistance in arresting Mark Barnette, was he
25 arrested for these charges?
140
1 A. He was arrested on June the 26th, I believe, '96 on
2 those charges and others.
3 Q. After Donald Allen, after Robin Williams were shot?
4 A. Correct.
5 Q. Would you show me again the exhibit that you said --
6 MR. WILLIAMS: If I may approach.
7 THE COURT: Yes, sir.
8 BY MR. WILLIAMS:
9 Q. Let me show you a document that said something about the
10 address being a bad address, is that correct, can you show me
11 that document?
12 A. Right here (indicating).
13 Q. Let me mark that as Defendant's Exhibit number 8 -- 10,
14 excuse me, Defendant's Exhibit 10?
15 THE COURT: 10.
16 BY MR. WILLIAMS:
17 Q. Is that the exhibit?
18 A. Correct.
19 MR. WILLIAMS: May I approach again for the last time
20 Your Honor.
21 BY MR. WILLIAMS:
22 Q. Let me show you Defendants Exhibit 9 and ask you if
23 that's -- I'm sorry, I did not show it to the government, I
24 apologize. (pause).
25 With regard to Exhibit Number 9 which I'm now showing,
141
1 can you identify that first as a report from T.L. Oates in the
2 Virginia police?
3 A. Yes, that's his evidence technician report that he
4 files.
5 Q. Have you reviewed that report?
6 A. Yes.
7 Q. Thank you.
8 MR. WILLIAMS: That's all Your Honor.
9 MR. CONRAD: Brief follow-up, judge.
10 REDIRECT EXAMINATION
11 BY MR. CONRAD:
12 Q. Detective Kahl, your attention was directed towards your
13 supplemental report, do you have that in front of you?
14 A. Yes, sir.
15 Q. Would you please turn your attention to page 3, and I
16 will ask you if you indicated in that report that Robin Williams
17 verified to you that what happened at Keswick Avenue Northeast
18 at the time of the fire she advised that they witnessed
19 Mr. Barnette throw a Maltoff cocktail inside the residence?
20 A. Correct.
21 Q. He also made threats to her at time he conducted this
22 offense?
23 A. Correct.
24 MR. CONRAD: That's all I have judge.
25 MR. WILLIAMS: Nothing further Your Honor.
142
1 THE COURT: Thank you, you may come down, appreciate
2 it. Members of the jury we will take our short afternoon recess
3 at this time, please do not discuss the case among yourselves
4 while you are out, please.
5 (The jury left the courtroom.)
6 THE COURT: Recess until 3:15.
7 (Brief recess.)
8 THE COURT: Ready for the jury, call the jury.
9 (The jury returned to the courtroom.)
10 THE COURT: Call your next witness.
11 MR. CONRAD: United States would call Steve Austin.
12 STEVE AUSTIN,
13 being first duly sworn, was examined and testified as follows:
14 DIRECT EXAMINATION
15 BY MR. CONRAD:
16 Q. Would you please state your name?
17 A. Steven Austin.
18 Q. Mr. Austin, that microphone is very sensitive. Can you
19 pull it towards you and speak up if you can.
20 How old are you?
21 A. 27.
22 Q. Do you know Aquilia Marcivicci Barnette?
23 A. Do I what?
24 Q. Do you know him?
25 A. Yes.
143
1 Q. How do you know him?
2 A. He is my best friend.
3 Q. Do you see him in the courtroom?
4 A. Yes, I do.
5 Q. Will you point him out and describe what he is wearing
6 for the jury?
7 A. Excuse me.
8 Q. Describe what he is wearing?
9 A. Black jacket, tie.
10 Q. At the table to my right between the two gentlemen?
11 A. Yes.
12 Q. You described him as your best friend?
13 A. Yes.
14 Q. Since -- are you familiar with the murder of Donald Lee
15 Allen and Robin Williams?
16 A. Yes.
17 Q. Since that time have you been to visit your best friend?
18 A. Yes, I have.
19 Q. How many times?
20 A. A number of times.
21 MR. CONRAD: Your Honor permission to pursuant to Rule
22 611 C permission to ask leading question of the witness
23 otherwise --
24 MR. LAUGHRUN: Objection.
25 THE COURT: Overruled.
144
1 BY MR. CONRAD:
2 Q. Do you know Greg Austin?
3 A. Yes.
4 Q. Who is Greg Austin?
5 A. He is my brother.
6 Q. Where does he live?
7 A. Alta Vista, Virginia.
8 Q. In 1996, where did he live?
9 A. Roanoke, Virginia.
10 Q. And did he live there for the couple of years prior to
11 1996 as well?
12 A. Yes.
13 Q. Did he live there from 1994 to 1996?
14 A. Yes.
15 Q. Did there come a time when you and the defendant went to
16 visit your brother in Roanoke, Virginia in 1994?
17 A. Yes.
18 Q. Tell the jury about that.
19 A. It was -- well, Vicci, how it started by I used to go
20 back and forth to Virginia because my brother throw parties.
21 And one day I asked Aquilia if he would like to go with me and
22 he said yes, so we rode up there.
23 Q. Now, you also said Vicci, do you know him by Vicci?
24 A. Yeah, I call him Vicci.
25 Q. So when was this in 1994 that you first rode up to
145
1 Roanoke, Virginia with the person you call Vicci?
2 A. I can't remember.
3 Q. What was the purpose for going to Roanoke with him?
4 A. Just to get away, weekend visit.
5 Q. To your brother?
6 A. Yes.
7 Q. What happened when you got there?
8 A. We went to a club, and that's where me and Vicci and my
9 brother had met Robin and some of her friends. And that's about
10 all. We just had a good time.
11 Q. Was it that night forward that Robin and the defendant
12 started dating?
13 A. That's -- that night they got to know each other, and I
14 can't -- I don't exactly know when they started dating.
15 Q. Are you aware that at some point the defendant moved in
16 with Robin in Roanoke, Virginia?
17 A. Yes.
18 Q. How long after that first meeting?
19 A. I would say probably a couple of months, I'm not exactly
20 sure.
21 Q. Do you know where they lived together in Roanoke?
22 A. I know where the apartment was, I don't know the name of
23 it though.
24 Q. Where was the apartment?
25 A. I don't know, I'm not that familiar with Virginia.
146
1 Q. Would you recognize it if you saw it?
2 A. It would help.
3 Q. Let me show you Government Exhibit 7 F, G, H and I, and
4 ask you if you recognize that apartment complex. You can stand
5 up and look at it if you need to?
6 A. Yeah.
7 THE COURT: Did the witness respond yes.
8 COURT REPORTER: Yes.
9 BY MR. CONRAD:
10 Q. What do you recognize by those pictures?
11 A. The apartment.
12 Q. Is that the apartment that the defendant and Robin
13 Williams lived together at?
14 A. Yes.
15 Q. Did you ever visit them there?
16 A. Yes.
17 Q. How many times did you visit?
18 A. Several.
19 Q. Did there come a time when they broke up?
20 A. Yes.
21 Q. And what do you know about that?
22 A. Well, they -- Vicci said that he found a phone number
23 and a condom in her pocket.
24 Q. A phone number and a condom?
25 A. Yes.
147
1 Q. That's what he told you?
2 A. Yes, and that's -- I guess that was when they started
3 having the troubles because she denied that she was doing
4 anything wrong, so --
5 Q. He told you that she denied doing anything wrong, is
6 that correct?
7 A. Yeah.
8 Q. Did he ever tell you about any physical abuse?
9 A. No.
10 Q. When did you become aware that they had broken up?
11 A. After he moved back to Charlotte.
12 Q. And when was that?
13 A. I can't remember.
14 Q. Are you familiar with fire bombing incident that
15 occurred at that apartment that you just pointed out?
16 A. Yes.
17 Q. How long before that occurred did he move back to
18 Charlotte?
19 A. Maybe a month, month and a half.
20 Q. Now, you indicated that you were aware that that
21 apartment had been fire bombed, how did you become aware of
22 that?
23 A. I have another brother name Daryl, and his girlfriend
24 lives in Virginia. She called me on that morning that it
25 happened asking had I seen Vicci, and I told her no. And I
148
1 asked her why, and she said that she was watching the news and
2 Robin's picture came up and saying that the fire, you know, the
3 house was set on fire.
4 Q. And so why did she ask you if you had seen Vicci?
5 A. She said I guess because the police were looking for
6 him.
7 Q. Okay, and what did you tell her?
8 A. I hadn't seen him.
9 Q. And what did you do after you got that call?
10 A. I called his mother.
11 Q. And why did you call his mother?
12 A. To ask if she had seen him.
13 Q. And what did she tell you?
14 A. She said that she hadn't seen him.
15 Q. She told you she had not seen him?
16 A. Yes.
17 Q. When is the next contact you had after you called his
18 mother, when is the next contact you had with anybody in the
19 Barnette family?
20 A. I would say about three or four days later Vicci called
21 me.
22 Q. Vicci meaning this person sitting at the table over
23 here?
24 A. Yes.
25 Q. What did he say?
149
1 A. Saying he wanted to talk to me, so I went.
2 Q. Where did he call you from?
3 A. I don't know where he called me from.
4 Q. Okay.
5 A. But he was somewhere off Independence.
6 Q. Off Independence?
7 A. Yes. So I went and picked him up.
8 Q. Where did you pick him up?
9 A. McDonalds parking lot.
10 Q. On Independence Boulevard?
11 A. Yeah.
12 Q. Where did Mr. Barnette live at that time?
13 A. He lived off of West Boulevard.
14 Q. And where is West Boulevard compared to Independence
15 Boulevard?
16 A. It's like across town or almost.
17 Q. Independence Boulevard is on the east side, is that
18 correct?
19 A. Yeah.
20 Q. And West Boulevard is on the west side, is that correct?
21 A. Yes.
22 Q. But you picked him up off of Independence Boulevard?
23 A. Correct.
24 Q. At a McDonalds. What happened next?
25 A. I took him over to my mother's house.
150
1 Q. Where does your mother live?
2 A. Clanton Park.
3 Q. You took him to the west side?
4 A. Yeah.
5 Q. What is your mother's name?
6 A. Anne Austin.
7 Q. Why did you take him over to your mother's?
8 A. For privacy, I guess.
9 Q. Who was with you at that time?
10 A. I had a young lady with me.
11 Q. So it was you, the young ladies and Mr. Barnette?
12 A. Yes.
13 Q. What happened when you got to your mother's house?
14 A. I told my mom to entertain my company while we went on
15 the back porch and talked.
16 Q. And when you say we, you are referring to yourself and
17 Mr. Barnette?
18 A. Yes.
19 Q. And did you go on the back porch and talk?
20 A. Yes.
21 Q. What if anything did he tell you?
22 A. He told me what happened with the fire bomb.
23 Q. And what did he tell you about that?
24 A. He said that after they had broken up, he tried numerous
25 of times to get back together with Robin, but it was like she
151
1 was playing games. You know, like one minute she would act like
2 they could get back together but then the next minute
3 she -- it's totally opposite. And one particular night he said
4 that he was talking to her on the phone and --
5 Q. Where did he say he was when he was talking to her on
6 the phone?
7 A. He didn't say.
8 Q. What did he say they talked about?
9 A. Talking about getting back together. And --
10 Q. He said that night in that conversation, that particular
11 night that they were talking about getting back together?
12 A. He was trying to get back together with her.
13 Q. Okay.
14 A. And he was saying -- he said that she -- he heard her
15 voice in the background, a male voice in the background but he
16 really wasn't concerned with that because he was trying to get
17 back with Robin. And so they are talking and this guy kept
18 messing with Robin like maybe tickling her, making her giggle a
19 little.
20 Q. That's what the defendant is telling you?
21 A. Yes.
22 Q. All right.
23 A. And so he is really not -- he said that he is really not
24 worried about that, he was just trying to get back with her. So
25 he is continuing to talk to her and, you know, this guy is still
152
1 doing whatever, whatever. But eventually they got off the
2 phone, and he said that -- I can't remember what he said after
3 he got off the phone, but he said -- he had a couple of drinks
4 and I guess he was sitting around thinking about --
5 Q. I don't want you tell me what you guess he was doing,
6 but I want you to tell me what he told you.
7 A. All right. He said he got his brother's car and drove
8 to Virginia from Charlotte, and he said he stopped at a gas
9 station to get some gas, and he said he had a bat, baseball bat,
10 some gloves, and filled a container up. And he went with gas, I
11 guess, and he went on to Virginia, got to the apartment and he
12 said he brought the car around the corner, and he went up to the
13 house to the apartment and he said that he saw a car in the
14 driveway he had been seeing around before they had even broken
15 up.
16 He said every time him and Robin were together and they
17 saw that car or the person she would tend to act funny,
18 strange. So that particular day or night, he saw the same car
19 in the parking lot, so he says that he took the bat -- well,
20 first of all he said that he was telling them to come out to the
21 house or whatever, and he took the bat and he beat up the guy's
22 car, said this guy had a gun but he wouldn't come out of the
23 house. He took the gun and like stuck his arm out the door, but
24 not his body, and shooting it all around, I guess. And Vicci
25 was like come on outside, and he never would come outside. He
153
1 said that he stopped beating up the car, and he got the
2 container and set it on fire and threw it through the kitchen
3 window.
4 And he went back around and got in the car, he said that
5 he heard the screams, he said -- he said that the guy or
6 whatever -- yeah, the guy had pushed Robin out of the second
7 story window from the bedroom while he ran out the front door
8 because the apartment was high on the back side but low in the
9 front. He said he loved her.
10 Q. Did he tell you whether or not he and Robin talked about
11 what they would do if the apartment ever caught on fire?
12 A. Yes, he did.
13 Q. What did he tell you about that?
14 A. He said that she said she wouldn't jump from that back
15 window, and that was about it.
16 Q. Did he tell you whether he was yelling obscenities or
17 telling her "Die, bitch, die" when he did that?
18 A. No.
19 Q. Did he tell you whether or not he had called her house
20 after he had fire bombed the apartment?
21 A. No.
22 Q. Did he tell you he had gone up to Roanoke to put cards
23 on her windshield?
24 A. Put what?
25 Q. Cards on the windshield of her car?
154
1 A. No.
2 Q. Did he tell you he was by himself?
3 A. Yes.
4 Q. What did you do after you had this conversation with
5 Mr. Barnette at your mother's house?
6 A. I took him back to where I got him from and took my date
7 back to my house.
8 Q. You took him from the west side to the east side?
9 A. Yes.
10 Q. How far is it from Clanton Park to 3413 West Boulevard?
11 A. 5 or 10 minutes.
12 Q. How far is it from Clanton Park to Independence
13 Boulevard?
14 A. 15, 20.
15 Q. When is the next time you saw the defendant?
16 A. Couple of weeks later, a week and a half.
17 Q. When and where did you see him?
18 A. At my house.
19 Q. How did he get to your house?
20 A. I can't remember.
21 Q. Did you pick him up?
22 A. I can't remember.
23 Q. What happened at your house?
24 A. Nothing much, we had a couple of drinks and decided to
25 go to a club.
155
1 Q. And where did you -- what club did you go to?
2 A. To the Arena.
3 Q. And where is the Arena?
4 A. It used to be on Freedom Drive, I don't know if it's
5 still there.
6 Q. And what did you do that night?
7 A. Just had a good time, met a few ladies.
8 Q. When is the next time you saw the defendant?
9 A. Maybe a few days after that.
10 Q. And what did you do on that day?
11 A. We went over to a couple girl's house that we met at the
12 club.
13 Q. And tell me about that.
14 A. Well, we went over there, we got over there and we sat
15 around and played cards and laughed and joked, couple of
16 drinks. That was about it.
17 Q. Did the defendant meet someone that night?
18 A. Which night?
19 Q. The night you are taking about.
20 A. Which one?
21 Q. Where you were sitting around playing cards?
22 A. Did he meet someone -- no, he met her at the club that
23 night.
24 Q. Who did he meet?
25 A. I forgot her name.
156
1 Q. Someone he showed interest in?
2 A. Uh-huh, yeah, after he got to know her a little better,
3 yes.
4 Q. Tell the jury about that.
5 A. Well, we were over there, over at this girl's house and
6 like I say laughing having a good time, and I don't know, I
7 guess they just bonded or got, felt some kind of connection
8 between each other or something. And you know, they called on
9 the phone and told me they had had lunch one time, but after
10 that I don't know what happened between them.
11 MR. CONRAD: That's all I have, Judge.
12 THE COURT: Cross.
13 CROSS-EXAMINATION
14 BY MR. WILLIAMS:
15 Q. Mr. Austin, you and I talked about this case, haven't
16 we?
17 A. Yes.
18 Q. When he broke up with Robin, didn't you tell me --
19 MR. CONRAD: Object to leading.
20 MR. WILLIAMS: Cross-examination.
21 MR. CONRAD: You gave me permission to treat him as a
22 witness identified with the adverse party.
23 THE COURT: Well, I will let him go ahead with cross,
24 overruled.
25 BY MR. WILLIAMS:
157
1 Q. Didn't you tell me, Mr. Austin, that after Robin and
2 Mark broke up that you tried to get him to date some other girls
3 and get his mind off of the relationship?
4 A. Yes, I did.
5 Q. And when you did that, did you try and take him out to
6 different places for that purpose?
7 A. Yes.
8 Q. And did he show much interest in that, or did he keep
9 talking about Robin?
10 A. He kept talking about Robin saying that he misses her.
11 Q. Was Robin on his mind most of the time that he was
12 around you during your conversations with him?
13 A. Yes, I would say so, yes. But he -- I mean, he would
14 talk about her until, I don't know, I guess he felt like I just
15 didn't want to hear it any more, so he would keep it to himself,
16 which I would say that she was always on his mind. He said that
17 Robin was the only girl that just made him so happy, he had his
18 head on straight.
19 Q. Would you say that he was very -- that he could not
20 handle the break up in this relationship?
21 A. I would say he could handle it, but he just didn't want
22 it to be the way that it was.
23 Q. He wanted to get back with her?
24 A. Yes.
25 Q. Do you know where -- back in April, May and June of '96
158
1 you know where Mark lived, didn't you?
2 A. Yes.
3 Q. He lived on West Boulevard at 3413 West Boulevard,
4 didn't he?
5 A. Yes.
6 Q. And you knew where that address was, didn't you?
7 A. Yes.
8 Q. And you knew what it looked like when you got there,
9 didn't you?
10 A. Yes.
11 MR. WILLIAMS: If I may approach the witness Your Honor.
12 THE COURT: Yes.
13 BY MR. WILLIAMS:
14 Q. Let me show you what is marked for purposes of
15 identification as Exhibit 11 and ask you if you recognize those
16 photographs?
17 A. Yes.
18 Q. What are they?
19 A. That's his house, that's West Boulevard.
20 Q. And what is this right here?
21 A. That's the mailbox.
22 Q. What is on the mailbox?
23 A. 3413.
24 Q. As long as you have known him has that number 3413
25 always been on his mailbox?
159
1 A. Yes.
2 Q. On West Boulevard?
3 A. Yes.
4 Q. And in Defendant's Exhibit 12, what is that, what are
5 those photographs, if you know?
6 A. That's across the street from where he lived, and that's
7 West Boulevard and Billy Graham going across.
8 Q. What is this in the photograph at the bottom of
9 Defendant's Exhibit 12?
10 A. Address, 3413.
11 Q. How long has that -- strike that. As far as you -- as
12 long as you have known him, has that mailbox always been there
13 with that number?
14 A. Yes.
15 Q. Isn't it true that you told me that the times that you
16 and Mark went out to clubs together or went out together and as
17 you have described in trying to get him out was before the fire
18 incident on April 30th of 1996?
19 A. Could you repeat that.
20 MR. CONRAD: Your Honor, I'm going to object to what he
21 said out of court, it's hearsay. He can ask the witness --
22 THE COURT: Restate your question.
23 BY MR. WILLIAMS:
24 Q. Isn't it true that when you tried to get Mark to go out
25 with you and go to clubs, that that was after he came back to
160
1 Charlotte after breaking up with Robin but before the fire
2 incident on April 30th 1996?
3 THE COURT: Objection is overruled.
4 MR. CONRAD: I don't object to that, Judge.
5 THE WITNESS: Yes.
6 MR. WILLIAMS: I believe that's all.
7 THE COURT: Redirect.
8 REDIRECT EXAMINATION
9 BY MR. CONRAD:
10 Q. Mr. Austin, the night that the defendant met a girl that
11 he showed interest in, that happened after the fire bombing, did
12 it not?
13 A. Yes, you are right.
14 Q. And in fact, it happened pretty close to the time of the
15 murder, didn't it?
16 A. No, it did not.
17 Q. How long before the murder?
18 A. I don't know. It wasn't close to it though.
19 Q. Well, it was after the fire bombing but before the
20 murder. How long after the fire bombing and how long before the
21 murder?
22 A. I can't really say because I don't know the span in, I
23 don't know.
24 Q. If the fire bombing occurred on April 30th and the
25 murder occurred on June 22nd, does that refresh your
161
1 recollection?
2 A. I still don't know the date that we went to the club,
3 the date that he met that other girl.
4 Q. And describe his mood after he met that girl?
5 A. He was happy, because I guess they really got along with
6 each other, but he was still talking about Robin.
7 Q. Do you know Shawn Granearo?
8 A. No.
9 MR. CONRAD: That's all I have.
10 MR. WILLIAMS: One last question.
11 RE-CROSS EXAMINATION.
12 BY MR. WILLIAMS:
13 Q. Why didn't you call the police and turn him in, turn
14 your best friend, call the police and tell them that you knew
15 about this fire incident?
16 A. I didn't want anything to do with it, so I just backed
17 away from it. And after that night we talked, it never came up
18 again.
19 Q. Did your best friend according to what you learned from
20 him stay there at 3413 West Boulevard and wait for the police to
21 come and arrest him?
22 A. Yes, he did.
23 MR. WILLIAMS: No further questions.
24 REDIRECT EXAMINATION.
25 BY MR. CONRAD:
162
1 Q. Mr. Austin, how do you know that?
2 A. Because I talked to him a couple of times. Every time
3 he called, he would say, well, nobody came by or picked me up or
4 nothing like that --
5 Q. Now --
6 MR. WILLIAMS: Objection, let him finish answering the
7 question.
8 THE COURT: Wait just a minute. What is your
9 objection?
10 MR. WILLIAMS: He was interrupting the witness, Your
11 Honor.
12 THE COURT: Had you finished your answer before the U.S.
13 Attorney spoke?
14 THE WITNESS: No, sir.
15 THE COURT: Go ahead, sir.
16 THE WITNESS: I forgot what I was going to say now.
17 BY MR. CONRAD:
18 Q. When you talked to him four days after the fire bombing
19 he was not at West Boulevard, was he?
20 A. I don't know where he was.
21 Q. Well you picked him up on Independence Boulevard, didn't
22 you?
23 A. No, he was not at West Boulevard.
24 Q. And you took him to Clanton Park, not West Boulevard,
25 correct?
163
1 A. Correct. I'm talking after we talked about the fire
2 bombing he went back home soon after.
3 MR. CONRAD: That's all I have.
4 THE COURT: Thank you sir, come down, call your next
5 witness.
6 MR. CONRAD: United States would call Anne Clyburn
7 Austin.
8 ANNE CLYBURN AUSTIN,
9 being first duly sworn, was examined and testified as follows:
10 DIRECT EXAMINATION
11 BY MR. CONRAD:
12 Q. Would you please state your name for the jury?
13 A. My name is Anne Austin.
14 Q. Ms. Austin, do you know Greg and Steve Austin?
15 A. Yes.
16 Q. How do you know them?
17 A. They are my sons.
18 Q. Are you familiar with Aquilia Marcivicci Barnette?
19 A. Yes, I am.
20 Q. How do you know him?
21 A. He was raised across the street from where I lived.
22 Q. And where was that?
23 A. In a neighborhood called Clanton Park, 1150 Common Stock
24 Drive.
25 Q. So you know his family as well?
164
1 A. Yes.
2 Q. What do you do for a living?
3 A. I do income taxes.
4 Q. Have you ever done the defendant's taxes?
5 A. Yes, I have.
6 Q. And as a result have you talked to him from time to
7 time?
8 A. Yes.
9 Q. Are you familiar with the fire bombing of the
10 defendant's girlfriend's house -- apartment in Virginia?
11 A. Yes.
12 Q. How did you become aware of that?
13 A. My sons called and told me.
14 Q. And which sons?
15 A. Greg called me.
16 Q. And what did Greg tell you?
17 A. He asked me if I had heard the news. I was in Florida.
18 And I told him no, and he said you are not going to believe
19 this, but they are an accusing -- we call him Vicci -- they are
20 accusing Vicci of fire bombing his girlfriend's apartment.
21 Q. Did your son tell you whether or not the police and the
22 FBI were questioning him?
23 A. Yes.
24 Q. What did you do as a result of that phone conversation?
25 A. That was on a Wednesday, I came back to Charlotte on
165
1 that Friday.
2 Q. Okay. And what happened after that?
3 A. I got home, I drove home from Florida, and I got home
4 about 10:00. I took my bags out of the car, and as I was
5 sitting down, my son Steven came in the house with Aquilia
6 Marcivicci.
7 Q. And did he have anybody else with him?
8 A. He had a young lady who was a date.
9 Q. At that time did you have a conversation with the
10 defendant?
11 A. Yes, I did.
12 Q. And would you tell the jury what was said?
13 A. I said Vicci, I was surprised to hear that you were
14 accused of fire bombing a house, did you do that? And he said
15 yes, I did some of it. I said, what part did you not do, they
16 are accusing you of fire bombing a house. He said, well, I
17 can't talk about it because my attorney is checking on some
18 things. And I asked him if Robin was out of the hospital --
19 that was the girlfriend -- and he said yes. And I said well,
20 did you do this, because I'm real disappointed in you if you
21 did. And he said I did part of it. And he went on outside with
22 Steven, he went into the other room.
23 Q. Did you ask whether he was going to turn himself in?
24 A. Yes, I did. And I said when are you going to turn
25 yourself in, and he said as soon as my attorney gets through
166
1 checking some things out then I am going to turn myself in.
2 MR. CONRAD: That's all I have.
3 THE COURT: Cross.
4 CROSS-EXAMINATION.
5 BY MR. WILLIAMS:
6 Q. Who was the attorney that he was referring to? It's not
7 one of us?
8 A. He never gave a name, no.
9 Q. Did this information shock you?
10 A. Yes, it did.
11 Q. Why?
12 A. Because I have always thought of Vicci as one of my
13 children because in my neighborhood, my three sons would have --
14 all of the kids in the neighborhood were friends with my kids,
15 and I felt that he was one of my children, and it surprised me
16 because I had never known him to be violent.
17 MR. WILLIAMS: No further questions.
18 RE-DIRECT EXAMINATION.
19 BY MR. CONRAD:
20 Q. Did you ever notice -- know of any psychiatric problems
21 he had ever had?
22 A. I don't know of any psychiatric problems. I know he has
23 had some problems, I don't know if they were psychiatric or not.
24 Q. Did he ever seem depressed around you?
25 A. No.
167
1 MR. CONRAD: That's all I have.
2 MR. WILLIAMS: No further questions.
3 THE COURT: Pardon?
4 MR. WILLIAMS: No, sir.
5 THE COURT: Thank you come down, call your next
6 witness.
7 MR. CONRAD: Your Honor, could we take a break?
8 THE COURT: Take a break?
9 MR. CONRAD: Yes, sir.
10 THE COURT: We haven't been here very long.
11 MR. CONRAD: May I be heard on the schedule?
12 THE COURT: Yes.
13 (Bench conference not recorded. ).
14 THE COURT: Members of the jury, I told you 4:30 but we
15 will let you out a little early today because there is some
16 witness problems, I told you this morning that we arranged
17 parking for you, I believe Ms. Grier has coupons to give you to
18 take care of that for you, is that right?
19 THE CLERK: I've already done that.
20 THE COURT: She is on the ball. Do y'all know how to
21 get to this place?
22 (Jurors nod heads.)
23 THE COURT: I'm not going to name it, I just want to
24 know if you know how to get there. I hope you can find it.
25 Thank you for your time today, and I instruct you again, do not
168
1 talk about this case among yourselves or anyone outside of the
2 courtroom, do not look at any television programs about this
3 case. If anything comes on, turn it off, change stations or do
4 something. Do not read anything in the newspaper about it in
5 case anything is in the newspaper. Don't let anybody tell you
6 what was in the newspaper or on TV. In other words, keep your
7 mind open and do not discuss the case with anyone in any way.
8 Thank you very much, see you at 9:30, have a nice
9 evening.
10 (The jury left the courtroom.)
11 THE COURT: Recess --
12 MR. LAUGHRUN: Before the recess, one thing I would like
13 to ask, and I asked this, we filed a motion previously and the
14 government responded to the Jencks motion, and we're obviously
15 not entitled to that until a witness testifies at some point,
16 based on the 90 plus witnesses that the government has. I know
17 some of those testified before the Grand Jury, and we would ask
18 if we could have early production of Jencks material so we don't
19 have to stop and review transcript of the Grand Jury testimony
20 after the witness testified --
21 THE COURT: I'm not going to force the government. Are
22 you willing to do that?
23 MR. CONRAD: Your Honor, I'm not aware of any
24 information in our possession that fits that description. I'm
25 not aware of any federal Grand Jury testimony that would
169
1 constitute Jencks material, and I'm not in possession of any
2 statement of --
3 MR. LAUGHRUN: I believe Mr. Conrad. The problem is
4 somebody had to testify before the Grand Jury, you had to indict
5 him, obviously, and if that witness testified, no matter what he
6 said, we are entitled to that after he testifies.
7 MR. CONRAD: And I'm aware of that law judge.
8 MR. LAUGHRUN: I'm not saying he is not, I'm just saying
9 at some point I'm going to ask all of the officers when they
10 testify did you testify before the Grand Jury, and if they said
11 yes, then we are entitled to that.
12 THE COURT: Then we will have to wait for you to look at
13 it.
14 MR. LAUGHRUN: All right, sir.
15 THE COURT: See you tomorrow morning at 9:30.
16 (Court in recess.)
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