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1 UNITED STATES DISTRICT COURT
2 FOR THE WESTERN DISTRICT OF NORTH CAROLINA
3 CHARLOTTE DIVISION
4
UNITED STATES OF AMERICA )
5 )
vs. ) File No. 3:97CR23-P
6 )
AQUILIA MARCIVICCI BARNETTE, )
7 )
Defendant. )
8 )
9
10 Transcript of proceedings before the Honorable
11 ROBERT D. POTTER, Senior United States District Court Judge,
12 before Scott A. Huseby, Official Court Reporter and Notary
13 Public, on the 23rd day of January, 1998.
14 APPEARANCES:
15 For the United States:
16 ROBERT J. CONRAD, JR.
THOMAS G. WALKER
17 Assistant United States Attorneys
227 West Trade Street, Suite 1700
18 Charlotte, North Carolina 28204
19 On Behalf of the Defendant:
20 GEORGE V. LAUGHRUN, Esq.
Suite 602
21 301 South McDowell Street
Charlotte, North Carolina 28204
22
PAUL J. WILLIAMS, Esq.
23 Suite 801
301 South McDowell Street
24 Charlotte, North Carolina 28204
25 (Bench conference. Sealed.)
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1 THE COURT: Okay, call the jury.
2 MR. LAUGHRUN: One other thing, Judge. Thank you for
3 hearing us. It appears, Judge, in looking at the jury box this
4 morning that some of the jurors have some of the exhibits still
5 in their chairs. I would ask since that part of the evidence is
6 over if we could collect those or whatever, they are there with
7 the note pads, and that way they may instead of picking and
8 choosing or having more access to some exhibits there with them
9 the whole time, if we could collect those.
10 THE COURT: What are they, pictures or something?
11 MR. LAUGHRUN: No, sir, they're the transcripts of the
12 911 tape that was played yesterday. That what it appears to be.
13 THE COURT: Oh, okay, just go ahead and collect those.
14 They don't need those anymore, thank you.
15 MR. LAUGHRUN: Thank you, Judge.
16 THE COURT: Call the jury.
17 (The jury returned to the courtroom.)
18 THE COURT: Good morning, ladies and gentlemen. All
19 right, government call it's next witness.
20 MR. WALKER: Your Honor, the government would call
21 Dr. Oxley. Dr. Oxley, if you would come up and be sworn.
22 DAVID W. OXLEY,
23 being first duly sworn, was examined and testified as follow:
24 DIRECT EXAMINATION
25 BY MR. WALKER:
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1 Q. Doctor, would you state your full name, sir?
2 A. I'm Dr. David W. Oxley.
3 Q. And Dr. Oxley, what do you do for a living, sir?
4 A. I'm a forensic pathologist and deputy chief medical
5 examiner for western Virginia.
6 MR. WILLIAMS: If Your Honor please, excuse me for
7 interrupting, the defense will stipulate to the qualifications
8 that he is an expert in forensic pathology and able to testify
9 as such.
10 THE COURT: Thank you, sir.
11 BY MR. WALKER:
12 Q. Dr. Oxley, with that stipulation, how many times have
13 you in your estimation testified before in court as an expert in
14 forensic pathology?
15 A. Over 1,000 times.
16 Q. And have you given your opinions concerning causes of
17 death to various persons that you have autopsied?
18 A. Yes, sir.
19 Q. Your office, is it not, is located in Roanoke, Virginia,
20 is that correct?
21 A. My office, yes, it is in Roanoke.
22 Q. And you also hold an M.D. Degree, is that also true?
23 A. I do, yes, sir.
24 Q. If you would tell the members of the jury, what exactly
25 does a forensic pathologist do?
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1 A. I perform autopsies in those cases of death by any type
2 of violence, or death by undetermined or unknown means or
3 manner, death without medical attendants.
4 Q. Tell the jury if you would, in general, what is done
5 during the autopsy procedure?
6 A. The body is examined externally. The clothing or any
7 associated material with the body is described and noted. The
8 body is photographed, following which the body is opened and the
9 internal organs and organ systems are examined.
10 Q. Pursuant to your duties as the assistant chief medical
11 examiner for the Western District of Virginia, did you not do an
12 autopsy on the body of Robin Williams?
13 A. Yes, sir, I did.
14 Q. And as a result of that, did you complete an autopsy
15 report?
16 A. Yes, I did.
17 MR. WALKER: May I approach the witness, Your Honor?
18 THE COURT: Yes.
19 BY MR. WALKER:
20 Q. Dr. Oxley, I'm going to show you Government's Exhibit
21 24A. It consists of five pages. If you would, take a look at
22 that and tell me if that is the autopsy report that you
23 generated after you completed your autopsy of the body of Robin
24 Williams.
25 A. That's a certified copy of my autopsy report and receipt
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1 for evidence.
2 MR. WALKER: Your Honor, I would move admission of his
3 autopsy report, that being Government's Exhibit -- that being
4 Government's Exhibit 24A.
5 THE COURT: All right, sir, it will be admitted.
6 BY MR. WALKER:
7 Q. I'll put that in front of you. Actually, do you have a
8 copy of that exhibit with you?
9 A. I have a copy, yes, sir.
10 THE COURT: Did somebody say something?
11 MR. WILLIAMS: No, Your Honor.
12 BY MR. WALKER:
13 Q. On what date did you do the autopsy of Robin Williams?
14 A. On the 22nd of June, 1996.
15 Q. And did you do that at your facility there in Roanoke,
16 Virginia?
17 A. Yes.
18 Q. Would you indicate to the members of the jury what in
19 general you observed about her body as you began that procedure?
20 A. Sir?
21 Q. Would you indicate to the members of the jury what you
22 did, what you first observed about Robin Williams' body as you
23 began that procedure?
24 A. I observed a well-developed, well-nourished black
25 female, 65 inches long, that's 5 feet, 5 inches tall, and
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1 weighing 121 pounds. The body at the time I received it was
2 clothed in purple shorts and a blue top which had been partially
3 cut from the body. Examination of the body revealed two shotgun
4 wounds, which I have arbitrarily designated number one and
5 number two, not to indicate sequence of firing but for
6 description. In addition to the wounds, there was evidence of
7 old burning and scarring of the left hand, a rather severe burn
8 involving the left hand and wrist, and there were areas on the
9 thighs from which skin had been taken for skin grafting.
10 To describe the wounds, wound number one was located in
11 the armpit region on the left in this area of the chest. This
12 wound was large and ragged. The wound passed backward and
13 toward the left. Shot pellets did not enter the chest cavity
14 but stripped away the soft tissue from the inside of the arm.
15 The shot pellets damaged the brachial artery, which is an artery
16 about the size of my little finger that runs down the arm, also
17 the plexus of nerves that runs down the arm. This wound is
18 potentially lethal due to the bleeding, and if the person had
19 survived, she would have had a paralyzed arm.
20 The second wound was located on the left midback, 19
21 inches from the top of the head and 4 inches to the left of the
22 midline. I can't contort myself to point to that wound, but you
23 will see it shortly. This wound was an inch and a half in
24 diameter, showed quite sharp margins. The wound path was
25 forward and slightly toward the right with many shot pellets in
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1 the chest, perforating the heart, the lungs, the aorta and also
2 perforating the liver. There was extensive bleeding into the
3 chest and the abdominal cavities. This wound was, of course,
4 lethal.
5 Q. Does your autopsy report, does it indicate those
6 findings that you just testified concerning?
7 A. Sir?
8 Q. Does your autopsy report indicate the findings that you
9 just related to the jury?
10 A. Yes, it does.
11 Q. Did you also take photographs during the autopsy
12 procedure?
13 A. Yes, I did.
14 Q. And did you also draw a diagram of her body indicating
15 the things that you noticed about her body?
16 A. Yes, I did.
17 MR. WALKER: If I may have just a moment, Your Honor, to
18 retrieve an exhibit.
19 THE COURT: Yes, sir.
20 BY MR. WALKER:
21 Q. Referring your attention first, Dr. Oxley, to Page 4 of
22 your autopsy report, is that the page that contains the diagram
23 that you drew of the body of Robin Williams?
24 A. Yes, sir, it is.
25 Q. And then I want to show you --
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1 THE COURT: I assume defense counsel has seen that, I'm
2 sure they have, but --
3 MR. WALKER: They have, Your Honor.
4 THE COURT: -- just for the record. Thank you.
5 MR. WILLIAMS: Thank you, Your Honor.
6 BY MR. WALKER:
7 Q. I also want to show you Government's Exhibit 24B. Does
8 that appear to just be an enlarged copy --
9 A. It's a blowup of my body diagram, yes, sir.
10 Q. Would this diagram help you illustrate what you noticed
11 about her body to the jury?
12 A. Yes, sir, it would.
13 MR. WALKER: Your Honor, I would move admission of
14 Government's Exhibit 24B.
15 THE COURT: Let it be admitted.
16 MR. WALKER: Your Honor, may Dr. Oxley join me with the
17 exhibit?
18 THE COURT: Yes, sir.
19 BY MR. WALKER:
20 Q. Dr. Oxley, if you would come down, and using this
21 pointer and making sure that all of the members of the jury can
22 see what you are referring to, if you would indicate on your
23 diagram what you saw concerning her body as you performed the
24 autopsy.
25 A. The body shows the -- these wounds, this is the area,
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1 the areas of old burning and the areas of skin grafting that I
2 mentioned before. This wound in the left chest is an incision
3 in the chest that was made in the emergency room to massage her
4 heart, and this had nothing to do with the cause of death.
5 Wound number one is this wound here in the axial. And
6 at the top of this entry wound, this wound is scalloped, it has
7 a scalloped appearance. This means the shot charge had almost
8 begun to separate at the time it struck the skin. It hadn't
9 separated, but it was beginning to. As I say, this wound did
10 not enter the chest cavity. The area that tore up the upper arm
11 and the soft issue tissue of the lateral chest.
12 This wound is the wound in the left back. This wound is
13 an inch and a half in diameter. The margins are very sharp, and
14 this wound was fired from a closer range than this wound. The
15 shot charge here had not even begun to separate. It entered the
16 body as a solid cylinder of shot pellets. Also a wad and shot
17 pellets were recovered from inside the wound, which places the
18 range of fire from the wad inside the wound at less than 10
19 feet. There was no gunshot residue on the wound or the
20 clothing, which would make the range of fire 4 to 5 feet in all
21 probability.
22 Q. And you are referring from the weapon used to inflict
23 that wound, when you say the distance from that weapon to the --
24 A. From the muzzle to the target.
25 Q. And that was referring to the wound that she suffered to
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1 her back?
2 A. Yes.
3 Q. Did you make an estimation or in your opinion as to the
4 distance --
5 A. This wound, probably 10 to 12 feet.
6 Q. And you are referring, then, to shotgun wound number
7 one?
8 A. To wound one.
9 Q. And that wound in your opinion entered her body from,
10 she was facing the person who shot her at that wound?
11 A. From in front.
12 Q. And shotgun wound number two, in your opinion, was she
13 not facing, was shot in the back?
14 A. She was facing away from the shooter.
15 Q. You may return to your seat, thank you.
16 You determined, did you not, that she died as a result
17 of these shotgun wounds?
18 A. That's correct.
19 Q. I want to also refer your attention now -- let me show
20 this to counsel.
21 MR. WILLIAMS: Your Honor, we would respectfully object
22 to these photographs based on our prior stipulation.
23 THE COURT: Thank you, sir, overruled.
24 BY MR. WALKER:
25 Q. Dr. Oxley, I'm going to show you this black binder,
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1 which contains Government's Exhibits 23A, 23B, 23C, 23D, 23E and
2 F, 23G, 23H, 23I, 23J, 23K, and 23L and M. I will ask you to
3 take a look at those photographs, and indicate if those are the
4 photographs that you took of Robin Williams' body when you
5 formed her autopsy?
6 A. Yes, these are the photographs that I took at the time
7 of autopsy.
8 Q. And would those photographs help you illustrate the
9 wounds that you indicated you observed on her body?
10 A. Yes, sir.
11 MR. WALKER: Your Honor, I would move admission of all
12 of those photographs, those being Government's Exhibit 23A
13 through 23M. And Your Honor, those are placed inside of a black
14 notebook.
15 MR. WILLIAMS: Your Honor, defense objects on the
16 previous grounds and also that the photographs are cumulative in
17 nature and redundant.
18 THE COURT: Thank you, sir, objection is overruled, 23A,
19 B, C, D, E, F, G, H, I, J, K, L, M --
20 MR. WALKER: That's the last one, Your Honor.
21 THE COURT: Okay.
22 MR. WALKER: Your Honor, may Dr. Oxley join me in front
23 of the jury?
24 THE COURT: Let them be admitted, yes, sir.
25 BY MR. WALKER:
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1 Q. If you'd come down, Dr. Oxley, and if you would, come
2 down to this side of the jury. And what I'm going to ask you to
3 do is refer to each of these photographs and explain what the
4 photograph illustrates. And you can begin with this side of the
5 jury, and I would ask you then to go down to that side of the
6 jury and show the same photographs, making sure that all of the
7 members of the jury can see an understand you. If you could
8 just turn to those if you would, and you can just hold that up
9 to them.
10 A. Government's Exhibit -- I'm sorry, State's Exhibit 23A
11 shows the face of the victim and it also shows the shotgun wound
12 in the armpit area. If you notice, the top of this wound right
13 here, this is the entrance area and there is scalloping of this
14 wound.
15 Q. What do you mean by scalloping?
16 A. I'm trying to think of a good way to describe it. Have
17 you ever seen a piece of paper cut with pinking shears? Looks
18 like that, scalloped on the edges.
19 Q. And if you would go down to that end of the jury and
20 explain -- give that explanation as well, making sure that they
21 were able to hear and understand you.
22 A. (Witness complies.)
23 Q. If you would, then, turn the page and referring your
24 attention now to the second photograph, Government's Exhibit
25 23B, and you can just begin with this side of the jury this
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1 time, indicate what that photograph illustrates.
2 A. 23B shows the same wound with the arm raised, and you
3 are looking at the under side of the arm and the armpit area now
4 showing extensive tissue damage that this wound caused.
5 Q. And if you would, come down to this side of the jury,
6 Dr. Oxley, and if you would give the same explanation that you
7 just gave to this side of the jury.
8 A. This is the wound of the armpit with the arm raised
9 showing the under side of the arm and the armpit area, the
10 enormous amount of soft tissue damage in this region.
11 Q. And is that the wound that you described was from a
12 distance of, did you say 10 or 12 feet?
13 A. 10 to 12 feet.
14 Q. If you would turn the page, then, looking at
15 Government's Exhibit 23C and begin with this side of the jury
16 and use that photograph, please.
17 A. This is a closeup of the same wound, the wound in the
18 armpit, showing more clearly the scalloping of the upper margin
19 of the wound. Here's an individual shot pellet hole right
20 here. The shot charge had begun to separate.
21 Q. And turning to the next photograph, 23D, if you would
22 begin with this side of the jury and explain that photograph,
23 sir.
24 A. 23D shows the shotgun wound in the left midback. Now,
25 you will notice this wound has very sharp, very clean margins.
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1 There is no gunshot residue or stippling on the skin around the
2 wound.
3 Q. And then if you will turn the page, and I will do that
4 for you, to 23E, beginning with this side of the jury, if you
5 would use that photograph.
6 A. 23E shows the incision in the left side of the chest
7 that was made in the emergency room. That's an incision made to
8 massage the heart in an effort to save her life.
9 Q. If you will turn, then, to Government's Exhibit 23F,
10 start with this side of the jury and indicate what 23F shows.
11 A. 23F is a photograph of the inside of the right thigh.
12 This shows an area from which skin has been taken for skin
13 grafts at the time she suffered the old burns to her hand.
14 Q. Turn to 23G, and using that photograph, would you
15 explain what that photograph illustrates?
16 A. 23G is a small laceration of the knee which I neglected
17 to mention. This she probably received when she fell.
18 Q. And looking now at 23H?
19 A. 23H is an old abrasion of the inside of the left ankle.
20 That's this area right here (indicating). That's not a recent
21 injury.
22 Q. You are looking now at 23I?
23 A. 23I is a photograph of the left hand, the palm side of
24 the left hand. The palm was spared in this burning. You can
25 see the wrist and the scarring on the wrist and the inside of
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1 the forearm from the burns.
2 23J, again shows the left hand, the back side of the
3 hand, showing the scarring from the old burns. This was a
4 severe third degree, full thickness burn.
5 Q. 23K?
6 A. K is a photograph again of the forearm showing the
7 scarring, essentially the same photograph that we just looked
8 at.
9 Q. And that is 23L?
10 A. 22L is a photograph of the left thigh, again showing a
11 skin graft donor site from where skin was removed to graft on
12 the burns.
13 Q. And lastly, 23M?
14 A. 23M shows old scars on the right side of the chest.
15 These were probably incurred at the same time as the burn on the
16 left hand.
17 MR. WALKER: You may return to your seat, sir.
18 (Witness complies.)
19 BY MR. WALKER:
20 Q. Dr. Oxley, the wadding that you removed, did you put
21 that in an evidence envelope and give that to a member of the
22 Roanoke Police Department?
23 A. Yes, sir, I placed that in an envelope and turned it
24 over to Detective C.B. Tinsley of the Roanoke Police Department.
25 MR. WALKER: I don't have any other questions, Your
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1 Honor.
2 THE COURT: All right, sir. Cross?
3 MR. WILLIAMS: Just one brief or two brief questions,
4 Dr. Oxley.
5 CROSS-EXAMINATION
6 BY MR. WILLIAMS:
7 Q. You were kind enough, do you remember I met you up in
8 Roanoke, Virginia, we came up there to talk to you, you were
9 kind enough to discuss the case with us?
10 A. Yes, sir.
11 Q. We appreciate that. You told -- is it not true that the
12 wound have you marked number two, which was the chest, heart
13 wound, that that would have been such a wound that she would
14 have died within seconds?
15 A. She would have died very rapidly, yes, sir.
16 Q. And is within seconds an accurate statement?
17 A. Within seconds.
18 Q. Thank you.
19 MR. WILLIAMS: No further questions.
20 THE COURT: Redirect?
21 MR. WALKER: (Shakes head.)
22 THE COURT: Thank you, sir, you may step down. You are
23 excused, Doctor. Thank you, sir, you're excused.
24 THE WITNESS: Thank you, Your Honor.
25 THE COURT: Call your next witness.
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1 MR. CONRAD: The United States would call Mr. Bob
2 Allen.
3 BOBBY GENE ALLEN,
4 being first duly sworn, was examined and testified as follows:
5 DIRECT EXAMINATION
6 BY MR. CONRAD:
7 Q. Sir, would you state your name for the jury?
8 A. My full name is Bobby Gene Allen.
9 Q. Where do you live?
10 A. I live at 2075 West McConnells Highway, McConnells,
11 South Carolina.
12 Q. And how long have you lived there?
13 A. We moved there, we built a home in '89 and moved in '89.
14 Q. And where did you move to McConnells from?
15 A. From Mt. Holly, North Carolina.
16 Q. Now, are you married?
17 A. Yes, I am.
18 Q. Who are you married to?
19 A. Married to Shirley Foster Allen.
20 Q. And how long have you been married?
21 A. We've been married for 43 years.
22 Q. Do you have any children?
23 A. Yes, we do.
24 Q. How many children do you have?
25 A. We had five children at one time.
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1 Q. What are their names and ages, if you can recall the
2 ages?
3 A. The oldest one is David, David is 41. Dennis, Dennis is
4 39. Then there is Denise, Denise is 36. And then there is
5 Dean, who is 34. And Donnie was 22 when he was killed.
6 Q. Now, you mentioned Donnie, he is the baby in your
7 family?
8 A. Pardon?
9 Q. Donnie is the baby in your family?
10 A. Yes.
11 Q. Let me hand you what has been marked for identification
12 as Government's Exhibit 26, and ask if you can identify that for
13 the jury?
14 A. Yes, sir, that was my youngest son.
15 Q. Is that a photograph of your son Donnie Lee Allen?
16 A. That was taken Christmas, prior to his death in June.
17 MR. CONRAD: Your Honor, I would move admission of
18 Government's Exhibit 26.
19 THE COURT: Let it be admitted.
20 MR. CONRAD: Request permission to pass that item to the
21 jury.
22 THE COURT: Yes, sir.
23 BY MR. CONRAD:
24 Q. Mr. Allen, can I turn your attention to Friday,
25 June 21st, is that the last day of your son's life?
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1 A. I came home from work. I work for Comer Oil, a company
2 there in York, temporary help. And Shirley was there, Dean and
3 Donnie were there, and I came in and supper was ready, so I
4 ate. And after I ate supper, I got up and started outside. I
5 was going to go out and tie up some tomato plants. And Donnie
6 was laying on the love seat and resting and Shirley was there,
7 they was watching TV. And Dean's friend came up about that
8 time, so Dean and I both went out together, and I tied up these
9 tomato plants and I came back in. And Donnie during that time
10 had taken a shower, and I was in the laundry room washing my
11 hands and he came by and he said, dad, mom had a headache and
12 she laid down a little while, he said, I'm going off for a
13 little while, but I will be back. And that's the last time I
14 saw Donnie.
15 Q. Did there come a time when you became concerned that
16 Donnie --
17 A. Yes, we were disturbed when he didn't come back in
18 Friday night, and -- but, you know, we gave him the benefit of
19 the doubt.
20 Q. Was it his custom to stay out?
21 A. No. He had stayed out one night prior to this, six
22 months or so prior to this, and we had scolded him about it, not
23 letting us know. And every time after that that he was going to
24 be late or have dinner with somebody else, he would call and let
25 us know.
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1 Q. Did you get a call that Friday night?
2 A. No.
3 Q. Did he come in on Saturday?
4 A. No, sir. He was supposed to have gone to a wedding
5 Saturday afternoon and he was supposed to have gone to a party
6 for one of his friends Saturday night, and he didn't show up for
7 either of those.
8 Q. Was he working Saturday morning?
9 A. No, sir.
10 Q. Now, did you go to the wedding that he was supposed to
11 go to?
12 A. Yes, we did.
13 Q. Where was that?
14 A. That was in Mt. Holly.
15 Q. Was that of someone acquainted with Donnie?
16 A. One of the young ladies that grew up with him.
17 Q. And he didn't show up?
18 A. He didn't show up.
19 Q. What did you do that night, Mr. Allen?
20 A. Well, we worried about him, you know, about him not
21 showing up and wondered what the reason was. But we got up
22 Sunday morning and he still wasn't there, and Shirley and myself
23 got ready and went to church Sunday morning. And Donnie always
24 went to church with us Sunday mornings, Sunday nights and
25 Wednesday nights. And after church service, we had a meal, I
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1 don't recall exactly what it was, but anyway, Shirley and I were
2 on the hospitality committee and we served that meal. And
3 people came by and asked us what the problem was, and, of
4 course, we didn't reveal to them that Donnie was missing or
5 anything.
6 Q. What did you do that afternoon?
7 A. That afternoon, we couldn't --
8 Q. Take your time.
9 A. We couldn't stand it any longer. We had to get out and
10 hunt for him. We rode through countryside trying to see if we
11 could see his car, and I saw two highway patrolmen pull into the
12 York Seafood parking lot and I pulled in beside them and
13 explained to them that Donnie was missing. And they advised us
14 or advised me for us to go down to the Moss Justice Center and
15 file a missing person's report, so this I did. And when I got
16 down there to file that report, I gave them a description of
17 Donnie and his vehicle, and they could not put it on the wire
18 because their computer was down. And we went on home and we
19 didn't go to church that night, we were so upset. But they
20 called me about 3:00 o'clock in the morning from Moss Justice
21 Center and asked me if Donnie had come home and I said no, he
22 hadn't. And they said, well, we have got the information on the
23 wire now and it's being broadcast.
24 Q. What efforts did you make on Monday to try to find your
25 son?
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1 A. On Monday, I told the family, I said, I just feel like
2 I've got to hunt him. So I went Highway 322, I travelled it. I
3 was looking in gullies, thinking maybe that he may have fallen
4 asleep coming home that night and run off into a gully or
5 something. One gentleman came by and stopped and asked me what
6 I was hunting for, and I said, I'm hunting for my son, I said I
7 hadn't seen him since Friday. And Denise took flyers with
8 Donnie's picture and description of the car and she began to put
9 those flyers out.
10 Q. Did you get a call from the state patrol on Monday?
11 A. Yes, I did. The state patrol from Chester called us and
12 told us that Donnie's car had been found behind Sports Authority
13 on East Independence Boulevard.
14 Q. And what did you do at that point?
15 A. They was three carloads of us, friends and some of the
16 children, loaded up and went to the shopping center behind
17 Sports Authority, and I verified that that was Donnie's car.
18 And I had a key that I gave to the police in order for them to
19 get into the car, because they didn't have any keys and it was
20 locked up.
21 Q. Did one of your friends find something at that scene?
22 A. Pardon me?
23 Q. Did one of the people who came with you or went in the
24 three carloads find something?
25 A. Yes, sir. Ben, I can't recall his last name, but he's
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1 Kenny's friend, Kenny is my son-in-law, and Ben had walked over
2 and opened the dumpster and there he found a bag, a shotgun,
3 water hose and duct tape in that dumpster.
4 Q. And did y'all tell the police about that?
5 A. Yes, they told the police what was in there. And about
6 that time, they began to tape off the area and wouldn't let us
7 even get close to the car.
8 Q. Okay. Did you go home that night?
9 A. Yes, sir. Dennis, my next to oldest son, came by and
10 said, Dad, you need to go on home, he said, we will stay here
11 and see what happens. So a friend of mine, Sonny Davis, and
12 myself and I think one other was with us that drove back home,
13 and Dennis and the rest of them stayed up there that night to
14 see what they took out of that dumpster.
15 Q. The next morning, did you make any efforts to find your
16 son?
17 A. Yes, sir, I did. I got up. Dean had told us the night
18 before that Donnie had met a girl at Coyote Joe's on Wilkinson
19 Boulevard the weekend prior to this. And I said, well, I feel
20 like I have got to hunt him. So I got two thermos bottles and I
21 filled them with water.
22 Q. Why did you do that?
23 A. Well, I thought maybe that by some slim chance that
24 Donnie may be tied up somewhere, and this was the hottest
25 weather that we had had and I knew that if he was still alive,
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1 that he would need water. We got in the car. I called Richard
2 Eldridge in Mount Holly. He and I were supposed to have golfed
3 together, and I told him that we wouldn't golf because I said,
4 Donnie's been missing since Friday. And Richard said, well,
5 what can we do? I said, well, I'm going to hunt him, and
6 Richard said, well, I want to help. And Stanley Chambers, a
7 good friend of mine and Donnie's, said he wanted to help also.
8 So the plans were for us to meet at a restaurant on
9 Wilkinson Boulevard for lunch. So we went down, we came up 77,
10 went down Billy Graham parkway, just feet from the body and
11 didn't know it, and went down and turned up Wilkinson to Coyote
12 Joe's. And we got out and we searched the parking lots and the
13 fields around there, the bushes, to see if we could see
14 anything, and we didn't. So we got in our vehicle and went back
15 up Morris Field Road, went back up Wilkinson Boulevard and
16 turned right on Morris Field Road and came to the light at Billy
17 Graham and Morris Field where Donnie was found. We came back to
18 River Hills, we put out flyers in the NationsBank, in the
19 hardware stores, in the Harris Teeter stores and different
20 areas, and then we went on home. And when we got back home,
21 then, it was on the TV about there being a body located at
22 Morris Field and Billy Graham intersection, and I knew in my
23 heart it had to be Donnie.
24 Q. Did there come a time that afternoon when investigators
25 met with you and your son?
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1 A. Yes, sir.
2 Q. And what did they tell you at that time?
3 A. Well, they came to the house and they was just more or
4 less trying to console us. I think the investigators really
5 knew more than what he let us know, but --
6 Q. Did they ask you for dental records?
7 A. They asked us about Donnie's dental report. And, of
8 course, Dennis didn't want to let his mother know they was
9 searching for Donnie's dental record, and he told her that his
10 son Caleb had to have some work done on his teeth and asked her
11 who the doctor was that did Donnie's work, so she told him it's
12 a doctor over in Gastonia. And they also, the son-in-law called
13 and asked if Donnie had a necklace on with a cross on it, and I
14 verified that he did have.
15 Q. And did you describe that necklace and cross?
16 A. That necklace was kind of a rope necklace with a cross
17 and it had a dent in the cross.
18 Q. Is that when you found out your son had been killed?
19 A. Yes.
20 MR. CONRAD: That's all I have, Judge.
21 MR. WILLIAMS: No questions, Your Honor.
22 THE COURT: Thank you, sir. Call your next witness.
23 MR. WALKER: Your Honor, the government calls Elaine
24 Edwards.
25 ELAINE EDWARDS,
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1 being first duly sworn, was examined and testified as follows:
2 DIRECT EXAMINATION
3 BY MR. WALKER:
4 Q. Ma'am, would you state your full name for the members of
5 the jury?
6 A. Elaine Ann Ricky Edwards.
7 Q. And Ms. Edwards, you are going to have to keep your
8 voice up so that all of the members of the jury can hear what
9 you say.
10 How old are you, Ms. Edwards?
11 A. 23.
12 Q. Do you live here in the Charlotte area?
13 A. No, in Gastonia.
14 Q. I want to turn your attention back to the events of
15 June 21st of 1996, and in particular, during the night hours of
16 June 21st of 1996, do you remember that particular night?
17 A. Yes.
18 Q. And lean up in your chair just a little bit and speak
19 into that microphone. Did you have an occasion on that night to
20 be at Coyote Joe's off of Wilkinson Boulevard here in Charlotte?
21 A. Yes.
22 Q. What time did you arrive at Coyote Joe's on that
23 particular night?
24 A. It was about 10:30.
25 Q. And did go there with some friends or did you go there
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1 alone?
2 A. I was with some friends.
3 Q. At some point on that night while you were at Coyote
4 Joe's with your friends, did you see a person there named Donald
5 or Donnie Allen?
6 A. Yes.
7 Q. Would you please tell the members of the jury how it was
8 that you saw Donnie Allen there and what happened, if anything?
9 A. We were, my friends Wendy and Kim, we were playing pool
10 and we needed another partner, and we saw him there, and I asked
11 him if he wanted to play. And --
12 Q. Were you upstairs on the second floor or where were you
13 inside Coyote Joe's?
14 A. We were upstairs right besides the pinball machine
15 playing. It was the pool table nearest to the banister.
16 Q. Okay. Now, did you recognize Donnie Allen when you
17 first saw him? Tell the jury what you thought at that point.
18 A. When I saw him, he looked familiar, he looked like
19 someone from school. So I went up to him and I said, did you go
20 to York, and he said yes. And that's when I started asking
21 questions, did he know this person and did he know this other
22 guy. And he said he did know one particular person, and I said,
23 oh, my gosh, you know this person. So I got really exited and
24 he started laughing, and that's when we started playing.
25 Q. Okay. And did you yourself go to York High School?
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1 A. Yes.
2 Q. So that's where you recognized Donnie from?
3 A. Yes.
4 Q. How long did you speak with him that night?
5 A. Once we started playing pool, it was me and Wendy and
6 Kim and Donnie were playing, and we didn't speak much after
7 that. And after we played, we just said thank you and that was
8 it.
9 Q. You didn't see him anymore that night?
10 A. No.
11 Q. I want to turn your attention to a couple days after
12 that date. Did you see something when you were about town that
13 got your attention?
14 A. I have asthma, so I had to go to Eckerd's to get my
15 medication in York. And I saw a sign that looked -- I saw his
16 face, so afterwards, that's when I said, what's going on? So
17 then I went to the Food Lion and I saw it again, and I asked
18 somebody about it and they said, well, they can't find him. And
19 that's when I went to my mom and dad's and I called, I think it
20 was Monday I called, and the following day someone came by and
21 seen me at work.
22 Q. Who did you call, did you call the York Sheriff's
23 Department?
24 A. Yes.
25 Q. And the thing that you saw, you saw a flyer, is that
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1 correct?
2 A. Yes.
3 MR. WALKER: May I approach the witness, Your Honor?
4 THE COURT: Yes, sir.
5 BY MR. WALKER:
6 Q. Ms. Edwards, I want to show you Government's Exhibit 26A
7 and ask you to take a look at that. Is that the missing person
8 flyer that you saw when you went to pick up your asthma
9 medication?
10 A. Yes.
11 Q. And did you read that?
12 A. Uh-huh.
13 Q. And then based on that, you called the York County
14 Police, is that correct?
15 A. Yes.
16 MR. WALKER: Your Honor, I would move admission of
17 Government's Exhibit 26A.
18 THE COURT: It will be admitted.
19 MR. WALKER: May I pass that to the jury, Your Honor?
20 THE COURT: Yes, sir.
21 MR. WALKER: I don't have any other questions, Your
22 Honor.
23 THE COURT: Any cross?
24 MR. WILLIAMS: No questions, Your Honor.
25 THE COURT: Thank you, you may step down. Call your
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1 next witness.
2 MR. WALKER: Your Honor, the government would call
3 Detective Tracey Strickland.
4 TRACEY LEE STRICKLAND,
5 being first duly sworn, was examined and testified as follows:
6 DIRECT EXAMINATION
7 BY MR. WALKER:
8 Q. Sir, would you state your full name and tell the members
9 of the jury what you do for a living?
10 A. My name is Tracey Lee Strickland. I'm an investigator
11 with the York County Sheriff's Department in South Carolina.
12 Q. And were you employed in that capacity back in June of
13 1996?
14 A. Yes, sir.
15 Q. Turning your attention, then, to the days June 23rd and
16 June 24th of 1996, were you on duty at around 6:00 o'clock in
17 the afternoon on that particular day?
18 A. Yes, sir, June 23rd.
19 Q. Did you receive a call from a Mr. Bob Allen concerning a
20 particular concern that he had?
21 A. Yes, sir.
22 Q. Would you indicate to the members of the jury what the
23 nature of that call was?
24 A. Mr. Allen came up to the York County Sheriff's
25 Department in York and filed an incident report with our
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1 department.
2 Q. And did you take that incident report?
3 A. Yes, sir.
4 Q. What was the subject matter of the incident report?
5 A. He was wanting to file a report in reference to his son,
6 Donald Lee Allen, who he was reporting missing.
7 Q. Did you take down the information from Mr. Allen?
8 A. Yes, sir, I did.
9 Q. And did you generate a report concerning what he told
10 you?
11 A. Yes, sir.
12 MR. WALKER: May I approach the witness, Your Honor?
13 THE COURT: Yes, sir.
14 BY MR. WALKER:
15 Q. Detective, I'm going to show you Government's Exhibit
16 29. I will ask you to take a look at that, and tell me if you
17 have seen that before, and if so, how you know you have seen
18 that?
19 A. This is the -- a copy of the report that I filed with
20 the York County Sheriff's Department.
21 Q. And that was based on the information that Mr. Bob Allen
22 gave you, is that correct?
23 A. That's correct.
24 Q. And that indicated that his son Donnie was missing, is
25 that right?
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1 A. That's correct.
2 MR. WALKER: Your Honor, I would move admission of
3 Government's Exhibit 29.
4 THE COURT: Let it be admitted.
5 MR. WALKER: May I pass that to the jury?
6 THE COURT: Yes, sir.
7 MR. WALKER: I don't have any other questions.
8 MR. WILLIAMS: No questions, Your Honor.
9 THE COURT: Thank you, sir, you may step down. Call
10 your next witness.
11 MR. CONRAD: United States would call David Nelson.
12 (Pause.)
13 MR. CONRAD: Your Honor, I apologize for the delay, but
14 there is a room here and then there is a room down the hall.
15 THE COURT: Okay.
16 DAVID NELSON,
17 being first duly sworn, was examined and testified as follows:
18 DIRECT EXAMINATION
19 BY MR. CONRAD:
20 Q. Would you state your name for the jury?
21 A. David M. Nelson.
22 Q. Mr. Nelson, where do you live?
23 A. In Nashville, Tennessee.
24 Q. And what is your occupation?
25 A. I'm self-employed.
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1 Q. Turning your attention to June 22nd of 1996, where were
2 you on that day?
3 A. I was in the Super 8 on my way to Asheville, North
4 Carolina.
5 Q. From Nashville?
6 A. Yes, from Nashville.
7 Q. And the Super 8 where, sir?
8 A. Strawberry Fields in of Knoxville.
9 Q. Strawberry Fields right outside of Knoxville?
10 A. Yeah, there are a series of hotels there.
11 Q. And is that on Interstate 81?
12 A. Yes, I believe so, off of 40, sir.
13 Q. The evening of June 22nd, were you spending the night
14 at --
15 A. Yes, that's correct.
16 Q. -- the Super 8?
17 A. That's correct.
18 Q. Where did you park your -- were you driving?
19 A. Yes, sir.
20 Q. Where did you park your car?
21 A. I had to put my vehicle in the back lot because the
22 parking lot right in front of my room was already being
23 occupied, so we ended up putting it right behind the Super 8 in
24 their parking lot behind the hotel.
25 Q. And did you notice anything next morning?
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1 A. Absolutely.
2 Q. What, if anything, did you know?
3 A. My license plate had been stolen. I am a former
4 intelligence officer, so I always check my car before I actually
5 walk out and get in it, looking for anything unusual, and that
6 was definitely unusual.
7 Q. And what time of the morning did you notice that?
8 A. Like about maybe 8:30, 9:00 o'clock in the morning.
9 Q. What, if anything, did you do at that point?
10 A. After that, I went in immediately and called the
11 Knoxville Sheriff's Department to report the tag missing.
12 Q. Did there come a time when you learned what happened to
13 your license?
14 A. I learned about what happened to it probably about three
15 months ago when the district attorney called me.
16 Q. Let me --
17 MR. CONRAD: May I approach the witness, Your Honor?
18 THE COURT: Yes, sir.
19 BY MR. CONRAD:
20 Q. Let me approach and hand you what has been marked for
21 identification as Government's Exhibit 28A, and ask you if you
22 can open that up and whether you recognize the contents of
23 Government's Exhibit 28A?
24 A. That's it.
25 Q. You are looking at Government's Exhibit 28B, and do you
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1 recognize Government's Exhibit 28B?
2 A. Absolutely, that's my plate.
3 Q. Is that license -- read the license number to the jury
4 and show the license plate to the jury.
5 A. That would be 031RBT.
6 Q. With a Tennessee '96?
7 A. Davidson County, which is the Tennessee county that I
8 live in.
9 MR. CONRAD: Your Honor, I'd move admission of
10 Government's Exhibit 28A and B.
11 THE COURT: Let it be admitted.
12 MR. CONRAD: And I have no further questions of this
13 witness.
14 MR. WILLIAMS: No questions, Your Honor.
15 THE COURT: No cross? Call the next witness.
16 MR. WALKER: Your Honor, the government would call Carol
17 Phillips.
18 CAROLE PHILLIPS,
19 being first duly sworn, was examined and testified as follows:
20 DIRECT EXAMINATION
21 BY MR. WALKER:
22 Q. Ma'am, would you state your name, please?
23 A. Carole Phillips.
24 Q. And Ms. Phillips, where do you live?
25 A. In Knoxville, Tennessee.
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1 Q. What do you do for a living in Knoxville, Tennessee?
2 A. I work for Knox County Sheriff's Department, officer.
3 Q. How long have you worked at the Knox County Sheriff's
4 Department?
5 A. Seven years.
6 Q. I want to take your attention back to June 23rd of
7 1996. Were you working in that capacity and on duty on that
8 particular day?
9 A. Yes, sir.
10 Q. What was your responsibility that morning, what were you
11 doing that particular day?
12 A. Just normal routine.
13 Q. Well, did you work -- were you a patrol officer or did
14 you work in the office?
15 A. I was in the office that day.
16 Q. At approximately 11:09 in the morning on that date, that
17 being June 23rd of 1996, did you receive a call from a person
18 who identified himself as David Nelson?
19 A. Yes, sir.
20 Q. And what was the nature of Mr. Nelson's call?
21 A. He advised that he -- that someone had stolen his tag
22 off of his vehicle while he was at. I believe it was Super 8
23 motel on a business trip.
24 Q. Did you generate, based on what he told you, did you
25 generate a report concerning his complaint?
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1 A. Yes, sir.
2 MR. WALKER: May I approach the witness, Your Honor?
3 THE COURT: Yes, sir.
4 BY MR. WALKER:
5 Q. I want to show you, Officer, Government's Exhibit 28, it
6 consists of two pages. If you would take a look at that item,
7 and tell me if that's -- tell me if you have ever seen that
8 before, and if so, where you have seen it.
9 A. Yes, sir, this is the report that I took that day.
10 Q. Based on what David Nelson told you concerning his tag
11 being stolen?
12 A. Yes, sir.
13 MR. WALKER: Your Honor. I would move admission of
14 Government's Exhibit 28.
15 THE COURT: Let it be admitted.
16 MR. WALKER: May I pass that to the jury?
17 THE COURT: Yes, sir.
18 MR. WALKER: I don't have any other questions of this
19 witness.
20 THE COURT: Cross?
21 MR. WILLIAMS: No questions, Your Honor.
22 THE COURT: Thank you, ma'am, you can come down. Call
23 your next witness.
24 MR. WALKER: Your Honor, the government calls Officer
25 J.L. Krall.
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1 J.L. KRALL,
2 being first duly sworn, was examined and testified as follows:
3 DIRECT EXAMINATION
4 BY MR. WALKER:
5 Q. Officer, would you state your full name, please?
6 A. Officer J.L. Krall.
7 Q. And Officer J.L. Krall, you work for the
8 Charlotte-Mecklenburg Police Department, is that correct?
9 A. Yes, I do.
10 Q. And what do you do for the Charlotte-Mecklenburg Police
11 Department?
12 A. Patrol officer.
13 Q. How long have you been a police officer?
14 A. Five years.
15 Q. I want to turn your attention back to June 24th of
16 1996. On that particular day, were you working as a Charlotte
17 police officer and on duty?
18 A. Yes, I was.
19 Q. Were you assigned back in June and particularly on
20 June 24th of 1996, were you assigned to a particular area of the
21 city limits of Charlotte in which you were supposed to patrol?
22 A. Sure, the Baker Three district.
23 Q. I'm sorry, would you repeat that?
24 A. Baker Three district.
25 Q. And if you would, keep your voice up like that so that
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1 all of the members of the jury can hear what you say. Tell the
2 members of the jury what in general the Baker Three district
3 covers here in the City of Charlotte.
4 A. It's Independence, Sharon Amity, all the way out to the
5 county line.
6 Q. And as a patrol officer, what is your general primary
7 responsibility and duty within that particular district of
8 Charlotte?
9 A. I patrol Independence, Sharon Amity, all the way down to
10 Independence, Village Lake, patrol and answering calls.
11 Q. Back on that particular date at around 9:00 o'clock at
12 night, were you on duty and in your patrol car?
13 A. Yes, sir, I was.
14 Q. Did you happen to be patrolling the parking lot behind
15 the 5600 block of Independence Avenue in Charlotte?
16 A. Yes, I was.
17 Q. What businesses are located at that address?
18 A. It's Harris Teeter, T J Maxx, Sports Authority, whole
19 bunch of little strip mall stores.
20 Q. Those strip mall stores and the parking lots which
21 adjoin those stores, is that an area that you had patrolled
22 before that particular date?
23 A. Yes, it is.
24 Q. How often would you patrol those particular parking lots
25 both in front of and behind those businesses?
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1 A. That's my assigned area, every day that I work.
2 Q. So would it be fair to say that on a daily basis, you
3 would patrol that area?
4 A. Yes, I do.
5 Q. When you were -- did you patrol that area on June 24th
6 at about 9:00 o'clock at night?
7 A. Yes, I did.
8 Q. Did you see a vehicle parked behind one of the
9 businesses there at that location?
10 A. Yes, I did.
11 Q. What about the vehicle got your attention, if you would
12 relay that to the members of the jury?
13 A. It was a dark blue Honda. I usually know the cars that
14 always park behind that building. It's 9:00 o'clock at night,
15 the shops are closing, and I've never seen that vehicle back
16 there before.
17 Q. And was that in a lot behind 5610 East Independence
18 Boulevard?
19 A. Yes, sir.
20 Q. What did you do when you noticed that vehicle that got
21 your attention?
22 A. Pulled in behind it and ran the tag through our
23 terminal.
24 Q. Tell the members of the jury what you mean by running
25 the tag, if you would.
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1 A. We have a computer in our car where we can run vehicle
2 information, check to see if the car is stolen or who the owner
3 of the car is.
4 Q. What tag was on the Honda Prelude when you ran the tag?
5 A. It was a Tennessee tag, 031RBT.
6 MR. WALKER: May I approach the witness. Your Honor?
7 THE COURT: Yes, sir.
8 BY MR. WALKER:
9 Q. I'm going to show you, Officer, Government's Exhibit
10 28B. Is that the tag that you saw on the back of the Honda
11 Prelude that you saw in that parking lot?
12 A. Yes, it is.
13 Q. When you ran that particular tag, that being the
14 Tennessee tag 031RBT, what, if anything, did you learn?
15 A. I learned that it was stolen from a David Nelson in
16 Tennessee.
17 Q. And when you say that it was stolen, you're referring to
18 the tag being stolen?
19 A. Yes.
20 Q. Once you learned that information, what did you do?
21 A. The tag wasn't coming back to that particular car, so I
22 checked the VIN number on the Honda.
23 Q. And when you say VIN number, you are referring to the
24 vehicle identification number?
25 A. Yes, sir.
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1 Q. Is that number a unique number to each individual car?
2 A. Yes, it is.
3 Q. And what was the vehicle identification number on the
4 Honda Prelude that you inspected?
5 A. It was JHMBA8142RC004261.
6 Q. When you ran -- well, did you run that VIN number?
7 A. Yes, I did.
8 Q. When you ran the VIN number through your computer, did
9 you learn who that car belonged to?
10 A. Yes, I did, it belonged to a Donald Allen of 2075
11 McConnells Road, South Carolina.
12 Q. Once you learned that that Honda Prelude belonged to
13 Donald Allen from McConnells, South Carolina, what did you do
14 next?
15 A. Asked my dispatcher to send a message down to the
16 sheriff's department in South Carolina to see if they could
17 locate the owner of the vehicle.
18 Q. See if they could find Mr. Allen?
19 A. Yes, sir.
20 Q. Did you -- once you made that request of dispatch, what
21 happened next?
22 A. She came back and she told me that they were unable to
23 locate Mr. Allen, so I contacted my sergeant and he told me to
24 leave the vehicle where it was.
25 Q. Did you then leave the scene?
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1 A. Yes, I did.
2 Q. At some point after you left the scene, did you get
3 another -- did you get a call concerning Mr. Allen's Honda
4 Prelude?
5 A. Yes, I did. The communications supervisor contacted me
6 and advised me that Mr. Allen was now being reported as a
7 missing person.
8 Q. When you were first at the location with the Honda
9 Prelude, did you know at that point that Mr. Donald Allen had
10 been reported missing?
11 A. I did not.
12 Q. When you learned of that information from the dispatcher
13 over your radio, what did you do?
14 A. I went back to the Honda.
15 Q. After you were there with the Honda the second time, did
16 any other officer arrive there on the scene?
17 A. Yes, sir, Officer T.C. Lontz.
18 Q. Shortly after Officer Lontz arrived, did anybody else
19 arrive there on the scene?
20 A. Yes, sir, Mr. Allen's brother-in-law, Kenny Hogue, and a
21 friend, Ben Kennedy, arrived.
22 Q. What, if anything, happened between you and Mr. Kennedy
23 and Mr. Hogue?
24 A. I was talking to Mr. Hogue, and he advised me that
25 Mr. Allen came up to Coyote Joe's to meet a girl.
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1 Q. And was missing since then?
2 A. Yes, sir.
3 Q. At some point, did Ben Kennedy, the gentleman that was
4 with Mr. Hogue, did he do something there near the Prelude that
5 got your attention?
6 A. Yes, he did, he yelled to us that he had found a gun.
7 Q. Did you turn towards him when he yelled that?
8 A. Yes, sir, I turned towards him and he was standing
9 behind us beside a blue dumpster.
10 Q. Did you go over to where he was standing?
11 A. Yes, I did.
12 Q. And did you look inside the dumpster?
13 A. Yes, I did.
14 Q. What, if anything, did you see?
15 A. There was a gym bag and inside the gym bag, there was a
16 sawed-off shotgun with pistol tape grip and a magazine,
17 flashlight taped to the magazine of the shotgun.
18 Q. Did you see anything else in the bag?
19 A. There was some black pants, black baseball cap, white
20 towel, garden hose, bolt cutters, crowbar.
21 Q. After you noticed those items in the dumpster, what did
22 you and Officer Lontz do at that point?
23 A. We called for another officer and we taped the area off.
24 Q. When you say taped the area off, are you referring to,
25 you secured the area?
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1 A. Yes, sir.
2 Q. Did you keep anyone, the people that were there, from
3 going near those items once you saw them?
4 A. Yes, we did.
5 Q. And did that also include the Honda Prelude?
6 A. Yes, I did.
7 Q. At some point, did Officer Fred Allen arrive there on
8 the scene?
9 A. Yes, he did.
10 Q. What, if anything, did you see officer Allen do?
11 A. He helped place the crime scene tape up around.
12 Q. Okay. Did you ever attempt to get inside of the Honda
13 Prelude?
14 A. Yes, I did, it was locked.
15 Q. Were you able -- were you ever able or any other officer
16 ever able to obtain a key to get inside the vehicle?
17 A. Yes, sir, Mr. Allen's brother gave me the key, which I
18 gave to my sergeant and he opened up the trunk of the car.
19 Q. Were you with your sergeant when he opened up the trunk?
20 A. Yes.
21 Q. When he opened up the trunk of Donnie Allen's Prelude,
22 what, if anything, did you see in the trunk of the car?
23 A. There was a South Carolina tab, FBE685, along with some
24 dirt in the trunk.
25 Q. Now, that South Carolina tag that you observed in the
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1 trunk, FBE685, did you do any investigation to determine if that
2 was the legal tag for Donnie Allen's Honda Prelude?
3 A. Yes, sir, I checked the tag and it was the legal tag.
4 Q. So that was the tag that was supposed to be on there
5 instead of the Tennessee tag?
6 A. Yes, sir.
7 Q. Did you eventually see crime scene technicians respond
8 to that scene?
9 A. Yes, I did.
10 MR. WALKER: May I approach the witness, Your Honor?
11 THE COURT: Yes, sir.
12 BY MR. WALKER:
13 Q. Officer, I'm going to show you Government's Exhibits
14 30A, 30B, 30C, 30E and 30F, if you would take a look at each of
15 those items and tell me what those are, please.
16 A. This is from Mr. Allen's vehicle.
17 THE COURT: Which one is this, 29?
18 MR. WALKER: Your Honor, she is referring to
19 Government's Exhibit 30A.
20 BY MR. WALKER:
21 Q. That's a photograph of the front of the Honda Prelude,
22 is that correct?
23 A. Yes, it is. This is rear shot of his vehicle and our
24 patrol vehicles.
25 Q. And you're referring to 30B?
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1 A. Yes, sir.
2 Q. Looking now at 30C, is that a photograph of the tag as
3 you saw it when you opened the trunk of Donnie's car?
4 A. Yes, it is.
5 Q. Okay. 30E, would that be part of the items that you
6 noticed when you looked into the dumpster?
7 A. Yes, sir, it is.
8 Q. And lastly, looking at 30F, what is shown in that
9 photograph?
10 A. It's a gym bag, and there is a pistol grip shotgun
11 covered up by some black pants.
12 Q. Do all of those items fairly and accurately illustrate
13 the items that you saw in the dumpster and Donnie's Allen car
14 the night that you located it at that location?
15 A. Yes, it is.
16 MR. WALKER: Your Honor, I would move admission of these
17 photographs.
18 THE COURT: 30A, 30B, 30C, 30D, 30E and 30F will be
19 admitted.
20 MR. WALKER: Yes, Your Honor, it would be 30A, 30B, 30C.
21 THE COURT: D?
22 MR. WALKER: Not D just yet, Your Honor.
23 THE COURT: Okay.
24 MR. WALKER: 30E and 30F.
25 THE COURT: Thank you, sir, they will be admitted.
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1 MR. WALKER: Thank you.
2 BY MR. WALKER:
3 Q. Did you notice anything about the inspection sticker
4 that was on the Honda Prelude?
5 A. Yes, sir, there is little parts of a green sticker in
6 the bottom left-hand corner of the windshield.
7 Q. And what did that indicate to you when you made that
8 observation?
9 A. I knew that South Carolina had green inspection
10 stickers.
11 MR. WALKER: No further questions, Your Honor.
12 CROSS-EXAMINATION
13 BY MR. WILLIAMS:
14 Q. Officer Krall, when you were at the scene and examined
15 the contents of the dumpster, did you find or see a church
16 bulletin and make a note of that in your report?
17 A. Yes, sir, there was a church bulletin.
18 Q. And was there an address on the church bulletin?
19 A. I don't recall.
20 Q. Do you know if there was a reference in the church
21 bulletin to the State of Tennessee?
22 A. I don't recall.
23 Q. Did you also find two letters to a person named Vicki,
24 or Vicci, excuse me, from a person named Poo?
25 A. Yes, I did.
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1 Q. And did you make a note of that in your report?
2 A. Yes, I did.
3 Q. Did you also find some hose like a garden hose with some
4 tape taped around the end of the hose?
5 A. Yes, I did.
6 Q. And did you make a note of that in your report?
7 A. Yes, I did.
8 MR. WILLIAMS: May I approach the witness, Your Honor?
9 THE COURT: Yes, sir.
10 BY MR. WILLIAMS:
11 Q. Let me first show you a photograph marked for the
12 purposes of identification as Defendant's Exhibit Number 13, and
13 ask you to tell me if you recognize that photograph, and if so,
14 what it shows?
15 A. It appears to be an envelope, a church bulletin and part
16 of a garden hose wrapped with duct tape.
17 Q. And do you recall whether you saw those items at the
18 scene as you have previously testified to?
19 A. Yes, sir, I did.
20 Q. And I will hand you a photograph marked for the purposes
21 of identification as Defendant's Exhibit Number 14, and ask you
22 if you can identify that photograph?
23 A. Yes, sir, it's a garden hose in a Sears bag.
24 Q. And is that the garden hose or part of the garden hose
25 that you observed at the scene as you have previously testified
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1 to and noted in your report?
2 A. Yes, sir.
3 Q. Finally, I hand you Defendant's Exhibit Number marked
4 Defendant's Exhibit 15, and ask you if, before I show you the
5 photograph, you observed any box of Compoz sleeping pills?
6 A. I don't remember seeing any.
7 Q. You don't remember seeing that?
8 A. No, sir.
9 MR. WILLIAMS: No further questions.
10 MR. WALKER: Nothing, Your Honor.
11 THE COURT: Thank, you ma'am, you may come down. Call
12 your next witness.
13 MR. CONRAD: Your Honor, the next witness is a fairly
14 lengthy witness through whom a number of exhibits are going to
15 be introduced.
16 THE COURT: All right, sir, we will take a recess at
17 this time.
18 Members of the jury, first of all, I think I neglected
19 this morning to ask if anybody heard, seen or read anything
20 about this case overnight. If you did, just raise your hand.
21 (Jurors shake heads.)
22 THE COURT: I take it, then, you haven't talked to
23 anyone about it, haven't seen, heard or read anything?
24 (Jurors shake heads.)
25 THE COURT: Thank you very much, then, recess at this
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1 time. Do not discuss the case among yourselves while you are
2 out.
3 (The jury left the courtroom.)
4 THE COURT: Recess until 11:05.
5 (Brief recess.)
6 THE COURT: Call the jury.
7 (The jury returned to the courtroom.)
8 THE COURT: All right, call your next witness.
9 MR. CONRAD: The United States would call Amy Krise.
10 A.R. KRISE,
11 being first duly sworn, was examined and testified as follows:
12 DIRECT EXAMINATION
13 BY MR. CONRAD:
14 Q. Would you state your name for the jury and spell your
15 last name for the court reporter?
16 A. Amy Rea Krise, K-R-I-S-E.
17 Q. Ms. Krise, how are you employed?
18 A. With the Charlotte-Mecklenburg Police Department as a
19 crime scene search technician.
20 Q. And how long have you been employed in that capacity?
21 A. Three and a half years.
22 Q. What are your duties as a crime scene search
23 technicians?
24 A. My primary duties are to photograph, document, process
25 and collect all physical evidence on a crime scene.
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1 Q. And on Monday, June 24th, 1996, were you employed in
2 that capacity?
3 A. Yes, I was.
4 Q. At approximately 11:00 o'clock that evening, did you get
5 a call to respond to a crime scene?
6 A. Yes.
7 Q. And would you tell the jury what you did?
8 A. I responded to the crime scene and photographed the area
9 and documented or diagrammed the scene and collected evidence
10 from a dumpster and processed the car later on at the law
11 enforcement station.
12 Q. Where did you respond to?
13 A. The exact address was 5626 East Independence Boulevard
14 at the corner of Idlewild Road and Independence Boulevard behind
15 a shopping center.
16 Q. Would you describe that area for the jury?
17 A. It was a back parking lot, like an employee parking lot
18 behind the shopping center. It was paved and the doors to
19 the -- the back doors to the different stores were visible.
20 There were approximately -- well, there were four dumpsters in
21 the immediate area and lined parking spaces, and one Honda
22 Prelude and the back of a tractor-trailer were parked in that
23 area of the parking lot.
24 Q. Do you recall the shopping center itself, what stores
25 were out there?
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1 A. The Sports Authority, Systems Plus, Pic 'N Pay,
2 T J Maxx, and there was a Harris Teeter there as well.
3 Q. And the Honda Prelude that you testified about, was it
4 in the front of the parking area or behind the stores?
5 A. It was behind the stores.
6 Q. Was it visible from Independence Boulevard?
7 A. No, it was not.
8 Q. Was it visible from Idlewild Road?
9 A. No, it was not.
10 Q. Behind the shopping center, what, if anything, did you
11 see?
12 A. Well, there was a paved parking lot and then there was
13 the back of an apartment complex, the name being Castlewood
14 Apartments, and they were visible from that area.
15 Q. And where was the car and the dumpsters and the
16 apartments geographically?
17 A. The dumpsters were immediately next to the building, the
18 car was approximately 58 feet away in a lined parking space, and
19 further south of the car was the back of the apartment complex.
20 Q. Now, when you observed the Honda, what did you do?
21 A. When I arrived on the scene, the first thing I did was
22 photograph the scene. And immediately thereafter, we -- I
23 collected the evidence and -- photographed and collected the
24 evidence from the dumpster. It started to rain and we ended up
25 towing the car to the law enforcement center, so nothing was
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1 done at the car other than I think we unlocked the doors and
2 opened the doors and just did a cursory search on the scene of
3 the car.
4 Q. Did you get a VIN number or license plate number on the
5 car?
6 A. Yes. No license plate was on the car when I arrived. I
7 did take the VIN number down.
8 Q. And did you write that in your report?
9 A. Yes, I did.
10 Q. And had you been informed at that time who the car
11 belonged to?
12 A. Yes, Officer Krall had advised me that it belonged to a
13 missing person.
14 Q. Describe the dumpsters if you will that you saw on that
15 evening for the jury.
16 A. There was a brown dumpster that was a waste management
17 dumpster, and next to it -- not immediately next to it, but near
18 it was a second dumpster that was a blue BFI dumpster that was
19 empty other than the items of evidence that we collected. And
20 then the other two dumpsters were also blue BFI dumpsters and
21 they were filled with trash. They were both overflowing with
22 trash bags of just all kinds of items.
23 Q. Now, did there come a time when you looked inside one of
24 the dumpsters?
25 A. Yes, I actually looked in all four of the dumpsters.
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1 Q. Did you see anything in any of the dumpsters which you
2 later collected as potential evidence?
3 A. Yes. In the first BFI dumpster, all of the
4 evidence -- or everything that was in there, I collected as
5 evidence.
6 Q. And nothing in any of the other dumpsters?
7 A. No.
8 Q. When you say you collected as evidence, explain that
9 process to the jury.
10 A. I pick up evidence and put it in an envelope or brown
11 bag a biohazard bag and seal it and label it. And once it's
12 turned into property control, the property control number is
13 assigned to it.
14 Q. And did you do all that with respect to the evidence at
15 the scene?
16 A. Yes, I did.
17 Q. And what else did you do out there that night?
18 A. I believe that was it.
19 Q. Did there come a time when you looked at the blue Honda
20 again at the law enforcement center?
21 A. Yes.
22 Q. When was that?
23 A. Later on that morning.
24 Q. And tell the jury about that.
25 A. Once again, I photographed the vehicle and I began
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1 documenting everything that was in the vehicle. I processed the
2 vehicle for fingerprints and started collecting evidence out of
3 the vehicle.
4 Q. And do you recall what evidence you collected out of the
5 vehicle later that morning?
6 A. Can I refer to my report?
7 Q. Sure. Would referring to your notes refresh your
8 recollection as to what you recovered on that morning?
9 A. Please.
10 Q. Then go ahead.
11 A. I collected fingerprints from the vehicle, methanol
12 tapings from throughout the inside of the vehicle, federal
13 12-gauge live shotgun shell from the console. There were
14 miscellaneous paper items inside of that console as well,
15 handcuffs from the rearview mirror, handcuff keys from the
16 console, a Wal-Mart bag, a Mary's Hospitality with receipts,
17 dirt from underneath the front of the vehicle, dirt from the
18 trunk, red paint chips from the trunk, the cigarette butts,
19 ashes and license plate screws from the ashtray, an 18-karat
20 gold diamond ring from the console. There was a Cinnamon Burst
21 wrapper from the inner left door light switch, I collected that,
22 a Minimag solitaire flashlight from under the front left seat.
23 I collected the front left door mat and the license plate.
24 There was a South Carolina license plate in the trunk that I
25 collected.
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1 Q. Now, among the miscellaneous papers, did you collect two
2 Knight ticket stubs?
3 A. Yes, I believe they were in there.
4 Q. And maps to various North Carolina and South Carolina
5 destinations?
6 A. Yes.
7 Q. Now, when you collected fingerprints, tell the jury
8 about that process.
9 A. I use fingerprint powder and I dust the powder on the
10 car or the item, and if a fingerprint is visible, I'll place
11 tape over it and I'll lift it with the tape and put it on a
12 fingerprint card. I will identify as to where it came from, put
13 it in an envelope and package it like I would any other type of
14 evidence.
15 Q. And were you able to do that in this case on that
16 vehicle?
17 A. Yes, I was.
18 Q. And how many latent fingerprints did you obtain from
19 that vehicle?
20 A. 23 from the vehicle and other items within the vehicle.
21 Q. And did you turn those fingerprints into property
22 control along with the other exhibits that you collected?
23 A. Yes.
24 MR. CONRAD: Your Honor, may I ask the witness to leave
25 the witness stand and join me at the evidence table?
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1 THE COURT: Yes, sir.
2 BY MR. CONRAD:
3 Q. Let me turn your attention to what has been marked for
4 identification as Government's Exhibit 31A, and ask you if you
5 recognize that tag?
6 A. Yes.
7 Q. How do you recognize it?
8 A. This is the tag that I wrote that identifies what is in
9 the bag and my initials on the bag.
10 Q. And would you have -- would property control have
11 assigned a property control number to this evidence bag?
12 A. Yes, and that's the property control number 14381.
13 Q. Would you also have the evidence sheet which would bear
14 that property control number and the description of the contents
15 that are in the bag?
16 A. Yes.
17 Q. May I ask you to cut open Government's Exhibit 31A and
18 remove from that any of the contents?
19 A. (Witness complies.)
20 Q. Now, turning your attention to what you have just
21 removed as Government's Exhibit 31A-1, do you recognize that
22 bag?
23 A. Yes, this is the bag that came from the dumpster, and it
24 looks like some contents in it.
25 Q. All right, and go ahead and remove the contents from
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1 Government's Exhibit 31A-1.
2 A. This is the initial bag that it was packaged in.
3 Q. Now, you have pulled out two items, one of which is
4 marked for identification as Government's Exhibit 31A-2, and
5 what is that?
6 A. The bolt cutters.
7 Q. And where did you see that on the night of --
8 A. They were in the bag.
9 Q. And Government's Exhibit 31A-3?
10 A. It's a crowbar and it was also in the bag.
11 Q. Would you put those back in the bag, please.
12 Let me turn your attention to Government's Exhibit 31B
13 and ask if you would, please, do you recognize that exhibit?
14 A. Yes, I do.
15 Q. And what is Government's Exhibit 31B?
16 A. It's a garden hose.
17 Q. Does it appear to be in a Charlotte-Mecklenburg police
18 property evidence envelope?
19 A. Yes, and it states that it's a garden hose.
20 Q. Does that piece of evidence bear your initials?
21 A. Yes, it does on the top.
22 Q. Would you go ahead and open that bag?
23 A. (Witness complies.) This is a description of the garden
24 hose, and this was in the dumpster as well.
25 Q. You are talking about Government's Exhibit 31B-1, do you
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1 recognize that exhibit?
2 A. Yes.
3 Q. And what is that?
4 A. That's the strips of the garden hose, the wrapper to the
5 garden hose.
6 Q. Now, as to each of these exhibits, would you pick it up
7 and speaking to the jury, would you say what Government Exhibit
8 label it bears, whether it bears your initials, and open it up
9 and describe the contents?
10 A. All of this?
11 Q. Yes.
12 A. This is Government's Exhibit 31C, it has my code number
13 there, my initials underneath. This is a white Sears bag that
14 came from the dumpster, and it states that it's Exhibit 31C-1.
15 Q. And you recognize that as the bag that you saw in the
16 dumpster on that evening?
17 A. Yes. This bag is Exhibit 31D, and it has my initials on
18 the back.
19 Q. With respect to each of the items that you pulled out of
20 Government's Exhibit 31D, if you recognize any of them, would
21 you describe the exhibit number and where you saw that
22 particular item?
23 A. This is a pair of black pants, Exhibit 31D-3, that were
24 in the dumpster. I believe they were on top of the bag.
25 Q. The gym bag?
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1 A. Uh-huh. This is a white towel, Exhibit 31D-5, that was
2 also in the dumpster. Exhibit 31D-4 is a pair of black shorts
3 that were in the dumpster. I believe they were right beside the
4 gym bag. Exhibit 31D-1, a white T-shirt that was also in the
5 same area of the gym bag inside the dumpster, and it has a dog
6 picture on it. Exhibit 31D-2 is a black Nike hat that was also
7 in the dumpster by the gym bag. This is Exhibit 31F with my
8 initials on it. This is Exhibit 31F-1 that was inside of the
9 dumpster that came from within the Sears bag that I showed you
10 earlier.
11 This is Exhibit 31G, and it has my initials on it. This
12 is Exhibit 31G-1, cut garden hose that came from the dumpster.
13 31G-4 is tape that was removed from the cut garden hose. It was
14 on one end of this. This is Exhibit 31G-2, a roll of duct tape
15 that is torn at one end and bent, that came from the dumpster.
16 And 31G-3 is also a second roll of duct tape that came from the
17 dumpster. This is Exhibit 31L, has my initials on the back.
18 31L-1 are listed as shot pellets removed from the live shell. I
19 believe they did that at ballistics.
20 Q. Okay.
21 A. Item 31L-2 is two federal 12-gauge live shotgun shells
22 that came from the magazine of the shotgun.
23 Q. With respect to Government's Exhibit 31L-2, if you would
24 open that box and identify the contents of the box.
25 A. Two 12-gauge shotgun shells. They are federal shotgun
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1 shells.
2 MR. CONRAD: For the record, Your Honor, I think they
3 could be identified as Government's Exhibit 31L-2(a) and
4 31L-2(b).
5 BY MR. CONRAD:
6 Q. And you indicated that you had removed those shotgun
7 shells from the magazine of the shotgun?
8 A. Yes, and they were both in this condition right here.
9 This had not been cut open at the time.
10 Q. Okay.
11 A. This is Exhibit 31K, and it has my initials and the date
12 on the back. This is a South Carolina license plate that was
13 taken from the trunk of the car.
14 Q. And it bears Government's Exhibit label?
15 A. 31K-1. This is Exhibit 31J, has my initials on the
16 back. It has Exhibit 31J-1 within it. This is the 12-gauge
17 live shotgun shell that came from the console of the Honda
18 Prelude. This is the same type of shotgun shell that I showed
19 you just before, and this was the condition that it was in when
20 I collected it.
21 Q. And you collected that from the console of the Honda, is
22 that right?
23 A. Uh-huh. This is Exhibit 31H. These are copies of the
24 letters and the church bulletin. I collected the originals.
25 Q. And where did you collect the originals of the letters
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1 and the church bulletin from?
2 A. The dumpster.
3 Q. Do you know whether those letters and church bulletin
4 were submitted to the fingerprint laboratory for fingerprint
5 examination?
6 A. I don't know that.
7 Q. Okay.
8 A. Exhibit 31H-1 is a copy of the First Calvary Baptist
9 Church bulletin from June 23rd, 1996 service. Exhibit 31H-2 is
10 a letter that begins with, Dear Vicci, and ends with, loving you
11 always, and it's typed. 31H-3 is a Sears receipt from
12 Knoxville, Tennessee on June 22nd, 1996, with which the vinyl
13 garden hose was purchased. This is a handwritten letter that
14 begins, this is Exhibit 31H-4, it's a handwritten letter that
15 begins with, Dear Vicci, and ends with, loving you always and
16 forever, Pooh.
17 Q. I'm going to hand to you what I'm going to mark right
18 now as Government's Exhibit 31H-5, and ask you if you would open
19 that exhibit. Do you recognize that exhibit?
20 A. Yes, this is the original evidence of letters and sales
21 slip from the dumpster, and it has my name at the top.
22 Q. Do you recognize its contents as the originals of the
23 copies that you just pulled out of Government's Exhibit 31H and
24 identified for the jury?
25 A. Yes, this is a sales receipt from Sears. This is a
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1 handwritten love letter.
2 MR. WILLIAMS: What exhibit number is that, please?
3 MR. CONRAD: 31H-5.
4 MR. WILLIAMS: Thank you.
5 THE WITNESS: There are also copies within the
6 envelope. This is the original envelope that the letters were
7 in. This is the second typed letter, and this is the church
8 bulletin.
9 BY MR. CONRAD:
10 Q. And do those exhibits appear to have been treated by any
11 chemical solution?
12 A. Yes.
13 Q. Are you familiar with the fingerprinting process of
14 documents at all?
15 A. Somewhat.
16 Q. And when documents are fingerprinted, do they
17 sometimes --
18 A. It distorts the color.
19 Q. Okay, let me hand what you has been marked for
20 identification as Government's Exhibits 30D, 32A, 32B, 32C, 32D,
21 32E and 32F, and ask you if you can identify those exhibits?
22 A. Yes. The first one is 30B. It's a photograph of the
23 BFI dumpster where all of these items were found. That was the
24 only dumpster out there that had the lid up when I arrived on
25 the scene.
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1 Q. Okay.
2 THE WITNESS: Can I approach them so that they can see
3 these better?
4 MR. CONRAD: Yes.
5 THE WITNESS: This is Exhibit 32A, and these the items
6 that you've just seen here within the dumpster. This shows the
7 gym bag, clothing and the hat and some bottles that were in the
8 area.
9 BY MR. CONRAD:
10 Q. Now, does that exhibit show those items in the condition
11 as they were when you first saw them?
12 A. Yes. This is Exhibit 32B. It's a photograph of the
13 church bulletin, the garden hose or the shorter piece of garden
14 hose in its original condition and the Nike ball cap once they
15 were pulled out of the dumpster and placed on the ground.
16 The next one is 32C. These are the black shorts, the
17 towel and one of the bottles that was in the dumpster, and this
18 is after they were pulled out of the dumpster. The next one is
19 Exhibit 32D, and it's the black pants, some of the bottles that
20 were in dumpster and the tan gym bag once they were pulled out
21 of the dumpster. The next one is Exhibit 32E, and it shows part
22 of the black pants, the gym bag and the contents of the gym bag
23 which were the bolt cutters and the crowbar. Exhibit 32F is a
24 shotgun that was taken from the gym bag, and it shows duct tape
25 on it and a flashlight attached to it, and this was after it was
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1 pulled out of the dumpster.
2 Q. Is that the same shotgun, the handle of which appears in
3 the gym bag in Government's Exhibit 31?
4 A. You can't see it in that.
5 Q. Strike that question.
6 MR. CONRAD: Your Honor, at this time, I probably should
7 have done it already, I move into evidence Government's Exhibit
8 30A, the photograph of a blue dumpster, Government's Exhibits
9 31A, 31A-1, 31A-2, 31A-3, 31B, 31B-1, 31C, 31C-1, 31D, 31D-1,
10 31D-2, 31D-3, 31D-4, 31D-5, 31F, 31F-1, 31G, 31G-1, 31G-2,
11 31G-3, 31G-4, 31H, 31H-1, 31H-2, 31H-3, 31H-4, 31H-5, 31I, 31J.
12 THE COURT: Wait a minute, 31H-4 and then what?
13 MR. CONRAD: 31H-5.
14 THE COURT: Go ahead, sir.
15 MR. CONRAD: 31J, 31J-1, 31J-2, 31K, 31K-1, 31L, 31L-1,
16 31L-2, 31L-2(a), 31L-2(b), and photographs 32A through F.
17 THE COURT: All right, let them be admitted.
18 BY MR. CONRAD:
19 Q. Finally, Ms. Krise, let me hand you what has been marked
20 as Government's Exhibit 31E, and ask you if you can identify
21 that?
22 A. This is not the original bag it was in.
23 Q. Go ahead if you would and open Government's Exhibit 31E
24 and tell me whether you recognize its contents.
25 THE COURT: 30D, is it, what's that a photo of, 30D as
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1 in dog?
2 MR. CONRAD: Pardon me, Your Honor?
3 THE COURT: 30D, what is 30D? On here, it says
4 dumpster.
5 MR. CONRAD: 31D is the evidence bag containing a
6 T-shirt, hat, pants, shirt and a towel.
7 THE COURT: D as in dog?
8 MR. CONRAD: Yes, sir.
9 THE COURT: It's a photo of a dumpster on here.
10 THE CLERK: 30D is the dumpster.
11 MR. CONRAD: Your Honor, when I moved admission of the
12 photograph of the dumpster, I believe I may have said 30A and I
13 meant to say 30D.
14 THE COURT: Thank you, sir.
15 THE WITNESS: This is the original bag that I initialed
16 with my property tag on it, evidence tag on it. It states that
17 it's a shotgun. This is Exhibit 31E-1. It's the shotgun I
18 showed you in the picture that came from the dumpster.
19 BY MR. CONRAD:
20 Q. Now, is that shotgun as you hold it today in the same
21 condition as it was when you retrieved itself from the dumpster?
22 A. No, it looks significantly cleaner.
23 Q. Now, there appears to be tape on the magazine portion of
24 the weapon with a flashlight taped to it?
25 A. Yes.
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1 Q. Was it taped in that fashion when you --
2 A. It was taped. The flashlight was attached to it and the
3 handle also had the tape to it.
4 Q. And the lens on the flashlight, if you will look at it.
5 A. Yes, it's cracked, and that's how it was when I found
6 it.
7 Q. And is it colored any particular color?
8 A. Red.
9 Q. And is that similar to the flashlight that you found in
10 the blue Honda that you testified about earlier?
11 A. I believe the one in the Honda was not -- this one is
12 plastic.
13 MR. CONRAD: Your Honor, I would move admission of
14 Government's Exhibit 31E and 31E-1.
15 THE COURT: Admitted.
16 THE WITNESS: It was also loaded at the time that I
17 collected it.
18 BY MR. CONRAD:
19 Q. What was lighted?
20 A. It was loaded.
21 Q. Okay, Government's Exhibit 31E-1 was loaded?
22 A. Yes, with the two shells.
23 Q. That are now contained in Government's Exhibit 31L-2?
24 A. Yes.
25 Q. Thank you.
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1 MR. CONRAD: That's all I have, Your Honor.
2 THE COURT: Cross?
3 CROSS-EXAMINATION
4 BY MR. WILLIAMS:
5 Q. Would you come up to the table with me, please, and with
6 regard to the letters, can you find the letters?
7 A. Yes, sir.
8 Q. And the church bulletin, are they in the same evidence
9 bag?
10 A. Yes, they are all in Exhibit --
11 Q. Can you pull out the items, please?
12 A. (Witness complies.)
13 Q. Does the church bulletin appear to be -- I believe you
14 read a date on it?
15 A. Yes, it's on the inside. These are the copies.
16 Q. So we don't confuse them, you want to put these back in
17 the original and use the copies?
18 A. Okay.
19 Q. And the church bulletin, does it appear to be a First
20 Calvary Baptist Church bulletin?
21 A. Yes.
22 Q. What was the date of it?
23 A. June 23rd, 1996.
24 Q. And where was this, in what city?
25 A. Knoxville, Tennessee.
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1 Q. And does there appear to have a signature of a name and
2 a date and a time on it?
3 A. Yes.
4 Q. Can you read that?
5 A. A Butler, 6-28-96 at 4:47 p.m.
6 Q. And the Sears receipt, does that appear to be a receipt
7 for a vinyl garden hose or hose of some kind?
8 A. Yes.
9 Q. And the letter or letters that you referred to, one was
10 typed?
11 A. Yes.
12 Q. And it began, Dear Vicci, V-I-C-C-I?
13 A. Yes.
14 Q. And it ended, loving you always, and can you read the
15 name?
16 A. No.
17 Q. Does it appear to be something like P-O-O-H?
18 A. Yes.
19 Q. And does the other letter begin, Dear Vicci, and end,
20 loving you always and forever, Pooh?
21 A. Yes.
22 Q. And the hose, do you want to put these where they should
23 be?
24 A. (Witness complies.)
25 Q. I want to make sure that I understand what you are
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1 saying. Is this short hose, 31G-1, the hose that you were
2 referring to that there was some tape attached to it, or was
3 that another hose?
4 A. Yes -- no, that was this piece of garden hose and it's
5 in one of the pictures we have taken on it.
6 Q. Was that duct tape attached to this hose?
7 A. Yes.
8 Q. Or to some part of it?
9 A. Yes, it was attached to the end of it. Looks like it
10 was this end.
11 Q. And do you remember taking a picture also of the tail
12 pipe of the automobile that you observed and photographed?
13 A. Yes, the exhaust pipe.
14 Q. And may I hand you, please, photograph marked as
15 Defendant's Exhibit, ask you -- hand you a photograph marked for
16 the purposes of identification as Defendant's Exhibit Number 16,
17 and ask you if you can identify that?
18 A. Yes, that appears to be the exhaust pipe from the Honda
19 Prelude.
20 Q. And did you take this photograph?
21 A. Yes.
22 Q. Did there appear to be any kind of substance on the tail
23 pipe itself?
24 A. There appeared to be a sticky residue.
25 Q. Would that have been consistent with the duct tape that
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1 you observed in your professional opinion?
2 A. It appeared to be sticky as in tape.
3 Q. Okay, thank you. And did you also -- let me hand you a
4 photograph marked for the purpose of identification as
5 Defendant's Exhibit Number 15, and ask you if you can identify
6 this photograph?
7 A. No, I cannot.
8 Q. You may go back to the stand.
9 A. (Witness complies.)
10 Q. Did you find any type of a Wal-Mart receipt in your
11 examination of the contents of the automobile?
12 A. I know there was a Wal-Mart bag in the back seat. Can I
13 refer to my report?
14 Q. Yes.
15 A. I don't believe there was a receipt within the bag.
16 MR. WILLIAMS: No further questions, Your Honor.
17 THE COURT: Redirect?
18 MR. CONRAD: No questions.
19 THE COURT: Thank you, ma'am, step down. Call your next
20 witness.
21 MR. CONRAD: Special Agent Richard Womble.
22 RICHARD WOMBLE,
23 being first duly sworn, was examined and testified as follows:
24 DIRECT EXAMINATION
25 BY MR. CONRAD:
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1 Q. Would you state your name and occupation for the jury?
2 A. Richard L. Womble. I'm a special agent with the FBI
3 assigned to the Charlotte, North Carolina office.
4 Q. Agent Womble, it appeared that it was harder for you to
5 raise your right hand than others. Have you recently have an
6 injury?
7 A. That was a basketball injury about a week ago.
8 Q. Doesn't affect your ability to testify here today, does
9 it?
10 A. No, sir, it does not.
11 Q. How are you employed, sir?
12 A. I'm a special agent with the FBI.
13 Q. And how long have you been a special agent with the FBI?
14 A. 25 years.
15 Q. And what are your current duties?
16 A. I'm assigned to a violent crime fugitives squad. We
17 investigate bank robberies, fugitives, kidnappings, extortions
18 and other violent crimes.
19 Q. And how long have you been employed in that capacity?
20 A. I've been in the Charlotte office for four years and
21 have been assigned to the squad the entire time.
22 Q. In June of 1996, as part of your violent crime fugitive
23 task force assignment, did you investigate an unlawful flight to
24 avoid prosecution investigation involving an Aquilia Marcivicci
25 Barnette?
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1 A. Yes, sir, I did.
2 Q. How did you become involved in that investigation?
3 A. We received a teletype from our Roanoke, Virginia office
4 requesting that we go out and interview Sonia Barnette, which is
5 Mr. Barnette's mother. They had an outstanding warrant for him
6 in Roanoke, Virginia charging him with murder, and they knew
7 that his mother worked and lived in the Charlotte area. We were
8 supposed to go by and talk to her and see if we could find out
9 his whereabouts.
10 Q. When did you receive that teletype?
11 A. It was on Saturday, June 22nd.
12 Q. And as a result of receiving that teletype, what did you
13 do?
14 A. Myself and special agent Mark Rozzi went out and spoke
15 with Mrs. Cooper at the Omni hotel in Charlotte where she was
16 employed as a bookkeeper accountant.
17 Q. Is Mrs. Cooper the same person as Mrs. Barnette?
18 A. Yes, sir, that's correct.
19 Q. And as a result of speaking with her at the Omni on that
20 Saturday, did you arrest Mr. Aquilia Marcivicci Barnette on that
21 day?
22 A. No, sir, we did not. She did not know where he was, had
23 no idea how to get in touch with him. She was cooperative,
24 provided some telephone numbers of friends of his. She said he
25 had been saying at the residence on West Boulevard, but that she
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1 did not know where he was at the time.
2 Q. What did you do next?
3 A. We talked with her for a pretty good period of time. We
4 left. We did go by the residence just to see if there was any
5 sign of any activity at the house. There was none.
6 Q. And where was the residence?
7 A. It was 3413 West Boulevard in Charlotte.
8 Q. And describe how you get there on West Boulevard.
9 A. You go out West Boulevard, and there is a mailbox right
10 at the driveway with the 3413 on it. And we made a left, went
11 up the driveway. It's an unpaved driveway with a number of ruts
12 in the driveway, and the house is back at the end of the
13 driveway.
14 Q. Does the house sit on the road?
15 A. No, sir, it's back off the road.
16 Q. Is it visible from the road?
17 A. No, sir, it is not.
18 Q. Did you do any license check?
19 A. There were no vehicles at the residence at the time,
20 and --
21 Q. What other efforts did you make to apprehend
22 Mr. Barnette on that warrant on that weekend?
23 A. That weekend we maintained contact with Mrs. Barnette.
24 However, most of our efforts were Monday when we were back in
25 the office. We tried to do a license plate check for the
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1 partial license number that was seen on the vehicle when it was
2 in Roanoke, Virginia. We also contacted the telephone company
3 and had them put a trap and trace device on the telephone at the
4 Cooper residence.
5 Q. Did you learn on Monday that there had been any contact
6 between the defendant Aquilia Marcivicci Barnette and his
7 mother?
8 A. Yes, sir, I did.
9 Q. What did you learn?
10 A. Talking to Mrs. Cooper, she said that she had heard from
11 her son late Sunday evening, that it was sometime between 6:00
12 and 7:00 o'clock, that he did not tell her where he was,
13 however, he said that -- he sounded upset, and he told her that
14 he was going to church that evening. And she was unable to
15 provide any additional information on his location or
16 whereabouts.
17 Q. Did you learn from her that he had a relative over on
18 Independence Boulevard near Idlewild Road?
19 A. Yes, sir. The following day, I learned that there is a
20 cousin that lives near East Meck High School off of -- near a
21 shopping center off of Monroe Road.
22 Q. Did you learn that cousin's name?
23 A. The last name, I believe, is Nero.
24 Q. What else did you learn Monday relative to this
25 investigation?
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1 A. There was a report of a missing person.
2 THE COURT: Mr. Womble, the microphone is very
3 sensitive, if you'd push it back a little bit, because every
4 time you use a P, it's going to pop on you.
5 THE WITNESS: Okay.
6 THE COURT: I believe that will help, thank you.
7 THE WITNESS: There was a report of a missing person.
8 THE COURT: Just stick it straight up, maybe that will
9 help. That will do, thank you. Some voices do that and some
10 don't.
11 BY MR. CONRAD:
12 Q. Something about a missing person?
13 A. Yes, sir, missing person in Charlotte and his vehicle
14 was missing. And his vehicle was a blue Honda Prelude, late
15 model. Gold trim. This is the same description that we had of
16 the vehicle that Mr. Barnette was using when he committed the
17 murder in Roanoke.
18 Q. And after learning that information, did you have any
19 conversation with Charlotte police officers?
20 A. Yes, sir, I went to the homicide squad and spoke with
21 Investigator Bob Holl. Bob took me down and showed me the
22 vehicle.
23 Q. Did he tell you where it had been recovered from?
24 A. Yes, sir, he did. He said it was a shopping center area
25 off of Monroe Road.
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1 Q. Okay.
2 A. He also said that there had been a shotgun, a sawed-off
3 shotgun had been recovered from the dumpster in the same
4 vicinity as the stolen vehicle. Bob and I looked at the
5 vehicle. It fit the description of the vehicle that
6 Mr. Barnette had supposed -- had used when he was up in
7 Roanoke. And we agreed to keep in touch and work together on
8 the investigation.
9 Q. At that time, you had not apprehended Mr. Barnette?
10 A. No, sir, I had not.
11 Q. Turning your attention to Tuesday, June 25th, what, if
12 anything, happened with respect to your continuing
13 investigation?
14 A. I called Mrs. Barnette to see if she heard anything
15 further from her son. She said that her son is at the residence
16 now, that he had been there for a little white, and that he
17 wants to turn himself in. And I said, well, let me have a few
18 minutes to get some people together and we will come up to your
19 residence and we will make the arrest.
20 Q. And so what did you do after that?
21 A. I got in touch with Mike Sanders with the Charlotte
22 Police Department, D.C. Laney with the Mecklenburg County
23 Sheriff's Department and Officer Rick Walton with the Charlotte
24 Police Department, and those three fellows are members of the
25 fugitive task force that we work with. We went up to the
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1 residence. Officer Sanders and myself went to the front door.
2 Beagle, or D.C. Laney, and Rick Walton went to the back of the
3 house. We knocked on the front door. Mrs. Barnette opened the
4 door for us. Standing in the living room area as you enter the
5 house was Mr. Barnette.
6 Q. Describe for the jury what he was wearing at that time
7 if you would.
8 A. Mr. Barnette was wearing a white shirt, he had dark
9 suspenders, he was wearing a necktie, he had dark pants, I
10 believe green in color, and dark shoes, and he was holding a
11 Bible.
12 Q. What, if anything, happened at that time?
13 A. I told Mr. Barnette that we had an arrest warrant for
14 him charging him with unlawful flight to avoid prosecution for
15 the murder of his girlfriend in Roanoke, Virginia. Mr. Barnette
16 said he understood. He requested that he have a few minutes to
17 meet with his mother and his aunt and other family members that
18 were in the house for a short period of time by themselves.
19 Q. Did you advise him of his rights?
20 A. Mr. Barnette was not advised of his rights in the house,
21 we advised him of his rights outside as we were putting him into
22 our vehicle for transport back to the FBI office.
23 Q. Once you got back to the FBI office, did you advise him
24 of his rights again?
25 A. Yes, sir I did.
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1 Q. And briefly tell the jury what that involves.
2 A. You tell the defendant that they are under arrest, they
3 have the right to remain silent, anything that they say can be
4 used against them, if they want an attorney, an attorney will be
5 provided for them if they can't afford one, and if they wish to
6 talk to us, they can stop talking to us at any time during the
7 interview process, anything that they say can be used against
8 them when they speak with us.
9 Q. Did you use a form to advise him of his rights?
10 A. Yes, sir, I did.
11 Q. Did you read from that form?
12 A. Yes, I did.
13 Q. Did he sign that form?
14 A. Mr. Barnette refused to sign the form. He stated that
15 he understood his rights, but he did not want to sign the form
16 at that time.
17 Q. Okay. After you advised him of his rights and he
18 indicated that he understood his rights, did you ask him
19 questions?
20 A. Yes, sir, I did. I asked him some personal history and
21 some background, his full name, his date of birth, Social
22 Security number, height, weight, color of eyes and hair, prior
23 employment, where he had been living and family relative
24 questions.
25 Q. Did you tell him anything with respect to the
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1 investigation that was ongoing?
2 A. I told Mr. Barnette that he didn't have to answer the
3 questions if he didn't want to, but that we were concerned about
4 the vehicle that had been recovered the previous day, the blue
5 Honda, we were concerned about the whereabouts of the individual
6 that the vehicle belonged to, we were concerned about his
7 safety, and if he had any idea where the person may be, if he
8 was in need of medical assistance or if he was bound and gagged
9 someplace, please let us know what the story was.
10 Q. Did you tell him anything about a murder that occurred
11 in Roanoke?
12 A. I told him that the UFAP process was obtained by the FBI
13 in the way of assisting the local police in locating fugitives
14 that flee from one area to the other. I told him that I thought
15 that the Roanoke authorities had a very sound case against him
16 and that there was really no purpose of me going into a lot of
17 details with respect to the Roanoke investigation. His response
18 was, I understand, and you are absolutely right, or, I'm sure
19 that's right.
20 Q. Okay. Now, did you indicate to him that you had reason
21 to believe that he had driven the blue Honda to Roanoke?
22 A. Yes, sir, I did.
23 Q. And what, if anything, did he tell you at that point?
24 A. Mr. Barnette asked for a piece of paper from the note
25 pad that I was writing my notes on. I gave him a piece of
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1 paper. Investigator Mike Sanders gave him a pen and he wrote,
2 corner of Billy Graham Parkway and Morris Field, left side
3 drainage ditch, on a piece of paper and slid it back on the
4 table to us.
5 Q. What happened at that point?
6 A. At that time, Investigator Sanders stepped out of the
7 office. He contacted the Charlotte Police Department homicide
8 squad and requested that a sergeant respond to our office to
9 assist us. I remained in the office and continued to ask some
10 background questions and other questions of Mr. Barnette.
11 Q. What happened next?
12 A. Sergeant Sanders, Rick Sanders with the Charlotte Police
13 Department homicide squad arrived. Investigator Mike Sanders
14 explained what we had to him. We asked Mr. Barnette if he would
15 be agreeable to showing us the location of the body. He said
16 yes. We offered him an opportunity to go to the rest room or
17 buy a soda and he declined. We placed him in the FBI vehicle,
18 put the handcuffs on him and transported him to the location.
19 Q. How did you get from the FBI -- who was in the vehicle
20 with the defendant when it left the FBI headquarters?
21 A. I drove the vehicle, Investigator Mike Sanders was in
22 the rear directly behind me, and sitting next to Investigator
23 Sanders was Mr. Barnette.
24 Q. Who gave directions to go from FBI headquarters to --
25 A. Mr. Barnette provided the directions.
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1 Q. Okay. And following his directions, where did you wind
2 up?
3 A. He said go out Wilkinson Boulevard to Morris Field Road,
4 and I didn't know exactly where Morris Field was. He said
5 you'll see a NAPA auto parts store on the left-hand side, just
6 past the auto store you'll make a left turn. He directed me to
7 get into the left lane when we were approaching Morris Field
8 Road, and he directed me to make the left turn when we reached
9 the intersection.
10 Q. Once you turned on Morris Field Road, where did you go
11 from there?
12 A. We made our left turn on Morris Field Road and we
13 continued to the intersection of Billy Graham Parkway, where we
14 pulled over to the right-hand side of the road onto the
15 shoulder.
16 Q. And why did you pull off there?
17 A. That's the area that Mr. Barnette told us to stop.
18 Q. Okay. And when you stopped on the right-hand side of
19 the road at the intersection of Billy Graham and Morris Field
20 Drive, what happened next?
21 A. Investigator Sanders got out of the vehicle. I remained
22 in the vehicle. There was two other people, Sergeant Rick
23 Sanders and Sheriff Deputy Laney walked across the road to the
24 left side of the road. It's an open area. There is a drainage
25 ditch there. They walked down into the open area near the area
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1 of the drainage ditch, looked around. And then Investigator
2 Sanders came back and asked me if -- you know, to ask
3 Mr. Barnette if there was anything else that he could help us
4 with. He says, go deeper into the woods. They went back, they
5 looked further, they found the body of the operator of the
6 vehicle, Mr. Allen, Donald Allen.
7 Q. Now, when Investigator Sanders came back to talk to you,
8 had they found the body?
9 A. No, sir, they had not.
10 Q. And did you say anything to the defendant?
11 A. I asked the defendant where the body was. He said that
12 he had pulled it back further off the road down towards the
13 drainage ditch.
14 Q. Now, after the body was found, what did you do next?
15 A. We remained at the scene for a short period of time,
16 maybe 15, 20 minutes. It was rush hour. News media was
17 arriving, and we decided it was probably better to take
18 Mr. Barnette back to the law enforcement center. The homicide
19 squad representatives had arrived, and they set up a crime
20 scene. They were doing their investigation, so we left and
21 headed back to the law enforcement center here in Charlotte.
22 Q. And did you actually come back to the law enforcement
23 center?
24 A. We came back to the law enforcement center. En route
25 back, we asked Mr. Barnette was there anything else he could
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1 tell us about the blue Honda Prelude. And he said, you know,
2 that it had gold trim. We asked him if he wanted to take a look
3 at it, that it was parked in the garage in the law enforcement
4 center where it had been impounded. He said yes. We drove by
5 it, and he said, that's the vehicle that I used to drive up to
6 Roanoke and the vehicle that I'd taken from Mr. Allen.
7 Q. Did he say anything with respect to the license plate?
8 A. He said at some point in time he had switched the
9 license plate. He took the license plate, the South Carolina
10 license plate off and had put it in the trunk of the vehicle.
11 Q. Did he have any trouble or any hesitation in identifying
12 that vehicle?
13 A. No, sir, none whatsoever.
14 MR. CONRAD: That's all I have, Your Honor.
15 THE COURT: Cross?
16 CROSS-EXAMINATION
17 BY MR. LAUGHRUN:
18 Q. Agent Womble, good morning.
19 A. Good morning.
20 Q. When you first got the telex at the FBI office here in
21 Charlotte, that came from FBI Agent Ron Butner, is that right?
22 A. Yes, sir, that's correct.
23 Q. He is your counterpart in Roanoke, is that a fair
24 statement?
25 A. Yes, sir.
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1 Q. Same violent crimes task force assignment, things like
2 that?
3 A. I don't know what his area of expertise is, but he is
4 assigned to the Roanoke office. It's a small RA, and he
5 probably has many duties there.
6 Q. Now, when you got the telex, he gave you an address, did
7 he not?
8 A. Yes, sir, he did.
9 Q. And you had no problem getting the telex from him, did
10 you?
11 A. No, sir.
12 Q. Gave you the address 3413 West Boulevard?
13 A. Yes, sir.
14 Q. And you had no problem finding it as far as looking at a
15 map and going out there and locating it, had you?
16 A. No, sir, I did not.
17 Q. Went out there and found it the first time, isn't that a
18 fair statement?
19 A. Yes, sir.
20 Q. Never been there before?
21 A. No, sir.
22 MR. LAUGHRUN: To approach the witness, Your Honor?
23 THE COURT: Yes, sir.
24 BY MR. LAUGHRUN:
25 Q. Agent Womble, I'm going to show you what has previously
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1 been identified as Defendant's Exhibits 11 and 12, and ask you
2 to take a look at Defendant's Exhibit 11, the top picture. Does
3 that appear to be the ruts you described in the road leading up
4 to Mrs. Barnette's house -- Mrs. Cooper's house, I'm sorry?
5 A. Yes, sir.
6 Q. And Defendant's Exhibit 11, that appears to show the
7 mailbox that you testified about with the numbers 3413 on the
8 same?
9 A. Yes, sir, that's correct.
10 Q. The same with Defendant's Exhibit Number 12?
11 A. I don't recognize the top. The bottom picture is the
12 same mailbox, yes, sir.
13 Q. 3413?
14 A. That's correct.
15 Q. Does that appear to be West Boulevard that it's facing?
16 A. Yes, sir.
17 Q. In Defendant's Exhibit 11, you can see the intersection
18 of Billy Graham, is that correct?
19 A. Yes, sir.
20 Q. Now, when you got out there the first time, you had
21 already talked to Mrs. Cooper, Mrs. Barnette?
22 A. Yes, I had.
23 Q. I believe you described her as being extremely
24 cooperative?
25 A. Yes, sir, I found her very cooperative.
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1 Q. In fact, she was concerned about getting her son to turn
2 himself in, is that a fair statement?
3 A. Yes, sir.
4 Q. And very cooperative with you?
5 A. Yes, sir.
6 Q. And she works at the Omni hotel just right downtown
7 here, is that correct?
8 A. That's correct.
9 Q. When you put, I believe you described it as a track and
10 trace device on the phone, is that like a pen register?
11 A. No, sir, not exactly.
12 Q. It's not a wire tap, is it?
13 A. No, sir, it is not.
14 Q. In fact, you had to have a court order to get it, didn't
15 you?
16 A. For the wire tap, that's correct.
17 Q. Right, you have to have a court order for a wire tap,
18 right?
19 A. Right.
20 Q. For a track and trace, you have to have the subscriber's
21 consent, is that correct?
22 A. Yes, sir, that's correct.
23 Q. And she freely gave you that consent?
24 A. Yes, she did.
25 Q. And is it a requirement you can't have call waiting on
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1 it or something like that, is that correct?
2 A. I'm sorry, I'm not sure.
3 Q. And that was hooked up?
4 A. Yes, sir, it was.
5 Q. Now, did she call you or did you call Mrs. Barnette
6 about the phone call she had with Mr. Barnette on Sunday about
7 going to church and things like that?
8 A. I called her on Monday afternoon, and that's when she
9 related the information about the phone call from her son.
10 Q. Said that he was going to church, didn't tell her where
11 he was, is that correct?
12 A. Yes, sir.
13 Q. Now, you later on got a call from her that Wednesday
14 morning that said he was here in Charlotte, is that correct?
15 A. Again, I called her that afternoon.
16 Q. And she said he was --
17 A. She said that he was at the house.
18 Q. And at that point, he had been -- the UFAP, that's the
19 unlawful flight to avoid prosecution, warrants had been
20 outstanding since Monday morning -- or I guess Sunday, is that a
21 fair -- Saturday --
22 A. Probably Saturday.
23 Q. And there wasn't any zone cars sent out there, no blue
24 and white Charlotte Police Department cars were sent to the West
25 Boulevard address, were they?
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1 A. Not that I'm aware of.
2 Q. And you called and told her, she said, he is here, and
3 you said, well, sit tight, we will be right over, right?
4 A. That's correct.
5 Q. And when you got there, he was still there?
6 A. Yes, he was.
7 Q. And the FBI office you were located at at the time you
8 called Mrs. Barnette, is that the one at the Wachovia Center?
9 A. Yes, sir, we're located at 400 South Tryon Street in
10 Wachovia Bank building.
11 Q. And you drove over there, it took you what, five or ten
12 minutes maybe?
13 A. Ten minutes probably.
14 Q. You don't have a blue light on your vehicle, do you?
15 A. We do, but it wasn't displayed, it wasn't used.
16 Q. Are they in the headlights?
17 A. Just the bubble gum.
18 Q. And it wasn't activated going over there?
19 A. No, sir.
20 Q. And when you got there, there wasn't another zone car or
21 a blue and white there, correct?
22 A. That's correct.
23 Q. And are you aware that Charlotte is divided into various
24 teams, Adam, Baker, David and Charlie?
25 A. Yes, sir.
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1 Q. And that's for the area of calls for service, is that
2 right, is that your understanding?
3 A. Yes, sir, uh-huh.
4 Q. Do you know whether that area was in the Baker Two
5 section?
6 A. I'm sorry, I don't know.
7 Q. Anyway, there was no blue and white or no zone car
8 dispatched to meet you there, secure the scene, a BOLO, be on
9 the lookout for, or whatever, is that right?
10 A. No, sir, that's correct.
11 Q. And when you got there, Mr. Barnette was dressed coat
12 and tie, suspenders, and I believe you said he had a Bible in
13 his hands, is that correct?
14 A. There was no coat, suspenders, white shirt, tie and the
15 Bible.
16 Q. And you asked, told him you had a warrant, and he said,
17 I understand, or was very cooperative and submitted to you, is
18 that correct?
19 A. Yes, sir, he did.
20 Q. And I believe there were some other family members
21 there, were there not?
22 A. Yes, there were.
23 Q. They weren't threatening to you folks or give you a
24 problem or a hard time, did they?
25 A. No, sir, they did not.
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1 Q. In fact, Mr. Barnette asked for some time with his
2 family, right?
3 A. Yes, sir, that's correct.
4 Q. And you let them go into a different room, did you not?
5 A. They walked into the bedroom, spent a few minutes in
6 there, but I could see them from the area where I was standing.
7 Q. Very emotional, tearful time for the family, was it not?
8 A. Yes, sir.
9 Q. Now, you were kind enough to not handcuff him until he
10 got outside, is that correct?
11 A. That's correct.
12 Q. And I believe you told us on a previous occasion you did
13 that to give him a little bit of dignity when he left or
14 something along those regards, is that correct?
15 A. Yes, sir.
16 Q. Didn't threaten you or give you any hard time in
17 submitting to the arrest, did he?
18 A. None whatsoever.
19 Q. Now, you went from there back to the Wachovia Center to
20 the FBI office, is that right?
21 A. Yes, sir.
22 Q. When you told him a little bit about the case in
23 Virginia, he told you that basically you are correct, agreeing
24 they had a strong case against him, is that a fair statement?
25 A. Yes, sir.
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1 Q. And at that point, you had read him his rights?
2 A. That's correct.
3 Q. And although he didn't sign the rights form, he told you
4 he understood them and would talk with you, didn't he?
5 A. Yes.
6 Q. And he appeared to understand those rights?
7 A. He did.
8 Q. He was not promised anything by you or anybody with the
9 police department?
10 A. No, sir, he was not.
11 Q. Not threatened in any way?
12 A. No, sir.
13 Q. He was told if he didn't want to talk to you, he didn't
14 have to?
15 A. That's correct.
16 Q. He didn't have a lawyer with him?
17 A. No, sir.
18 Q. Told him if he wanted a lawyer and he couldn't afford
19 one, one would be provided for him at no cost to him, is that
20 correct?
21 A. Yes, sir.
22 Q. And he didn't elect to have a lawyer?
23 A. No, sir.
24 Q. And he talked with you?
25 A. Yes.
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1 Q. General, pleasant conversation, nobody was raising their
2 voice at anybody, was there?
3 A. No, sir.
4 Q. And you expressed some concern, I believe you told us a
5 few moments ago, about the operator of the Honda Prelude that
6 was found on East Independence Boulevard, correct?
7 A. Yes, sir.
8 Q. At that point, the owner or the driver of that vehicle
9 was still considered a missing person, correct?
10 A. That was correct.
11 Q. And you gave him a piece of paper and he drew you a
12 diagram?
13 A. Yes, sir.
14 Q. And you have seen that diagram?
15 A. Yes, I have.
16 Q. And you turned it over, I take it, to Sergeant Sanders?
17 A. That's correct.
18 Q. Now, in addition to that, he took you out there, I
19 believe you told us, correct?
20 A. Yes, sir.
21 Q. You pulled out of the Wachovia Center and went down
22 Wilkinson and he told you when to turn, how far away from you,
23 basically you're almost there, something like that, is that
24 correct?
25 A. Yes, sir.
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1 Q. And originally Sergeant Sanders couldn't find the body,
2 is that right?
3 A. That's correct.
4 Q. He came back to the car and Mark said, go a little
5 deeper, it's there, I know, or something along those regards, is
6 that right?
7 A. Similar, yes, sir.
8 Q. And up until that point, there were no blue and whites
9 there that met you there, was there?
10 A. No, sir, it was just the two vehicles.
11 Q. And that would have been your FBI vehicle and Sergeant
12 Sanders' unmarked vehicle also, is that right?
13 A. That's correct.
14 Q. Now, when Sergeant Sanders went down to look for the
15 body of Mr. Allen, it was just the two of you in the vehicle?
16 A. Myself and Mr. Barnette remained in the vehicle, that's
17 correct.
18 Q. I take it Deputy Sheriff D.C. Laney went with Sergeant
19 Sanders, is that right?
20 A. That's correct.
21 Q. What was the conversation like between you and
22 Mr. Barnette at that time?
23 A. Mr. Barnette was upset. He had tears in his eyes, and
24 the conversation was very sparse, very little conversation.
25 Q. Crying most of the time?
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1 A. Crying off and on, yes, sir.
2 Q. In fact, you had been made aware, had you not, of some
3 suicide attempts he had committed, is that correct?
4 A. Yes, sir.
5 Q. And I believe you were also aware at some point, were
6 you not, that Roanoke had sent a telex to Charlotte to pick the
7 defendant up for the April 30th incident, 1996, is that right?
8 A. Yes, sir, that's correct.
9 Q. And he just hadn't been picked up for whatever reason,
10 that's not your agency's concern, is that a fair statement?
11 A. Yes, sir, I think so.
12 Q. Because your agency wasn't asked to do anything with
13 regard to the fire bombing, is that correct?
14 A. Yes, sir, that's correct.
15 Q. Even the fact that they were looking for Mr. Barnette
16 and you had information that there was a homicide that took
17 place in Roanoke, I take it you had enough confidence in
18 Ms. Cooper that when she said he was going to be there, he was
19 there without sending three zone cars or whatever to the
20 location, is that a fair statement?
21 A. Yes, sir, I mean, within reason. We weren't going to
22 give her a long period of time, but --
23 Q. Right, long enough to drive from Wachovia Center to 3413
24 West Boulevard, correct?
25 A. Right.
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1 Q. In fact, when you had your discussions with
2 Mr. Barnette, he told you he had been to church that Sunday
3 evening, had he not?
4 A. Yes, he did.
5 Q. I take it, Agent Womble, that based on our conversation
6 previously about this matter, there was no FBI 302 generated in
7 this case, is that right?
8 A. That's correct.
9 Q. An FBI 302 is just a typed report about your
10 conversation, is that correct?
11 A. Yes, sir.
12 Q. And it wasn't tape recorded in any way, was it?
13 A. No, sir, it was not.
14 Q. I believe you told us that although Mr. Barnette didn't
15 sign anything, he answered all of your questions and was
16 cooperative with you in that regard, is that right?
17 A. Yes, he was.
18 Q. Do you know who tipped off the press? You said there
19 were a lot of the press started to arrive at Morris Field and
20 Billy Graham. Any idea how they got notified?
21 A. No, sir, I do not.
22 Q. Obviously, you didn't -- nobody that you were with
23 called them, is that correct?
24 A. As far as I know, no, sir.
25 Q. And I believe you told us at that point, you wanted to
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1 get the defendant out of there, so you went back to the FBI
2 office or the police department?
3 A. Back to the law enforcement center to the police
4 department.
5 Q. And took him up to homicide?
6 A. Yes, sir, that's correct.
7 Q. And turned him over to Mike Sanders and Tony Rice?
8 A. That's -- yes, sir, Sergeant Sanders.
9 Q. And then you were out of the picture, is that correct?
10 A. Yes, sir.
11 MR. LAUGHRUN: I believe that's all, Judge Potter, thank
12 you.
13 MR. CONRAD: Brief follow-up, Your Honor.
14 REDIRECT EXAMINATION
15 BY MR. CONRAD:
16 Q. Agent Womble, Mr. Laughrun paraphrased your response
17 when you were talking with the defendant trying to find the body
18 and he told you to look further down in the drainage ditch, and
19 I don't believe you gave this answer to Mr. Laughrun, you
20 weren't asked, but why did he tell you to look further down into
21 the drainage ditch?
22 A. He said that he had pulled the body further down, around
23 the turn and deeper into the wooded area.
24 MR. CONRAD: Thank you, that's all I have.
25 THE COURT: Thank you, sir, come down.
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1 Do you want to take a lunch break at this time?
2 MR. WALKER: Very well, Your Honor.
3 THE COURT: Members of the jury, do not discuss the case
4 among yourselves while you are out. Do not discuss it with
5 anyone outside the courtroom. Do not read anything while you
6 are out, listen to anything, look at anything. Just be
7 completely blank about everything. Ask you to come back
8 at -- does 1:30 push you too much, is that all right? 1:30.
9 (The jury left the courtroom.)
10 THE COURT: Recess until 1:30.
11 (Lunch recess.)
12 THE COURT: Call the jury.
13 MR. WILLIAMS: Your Honor, just very briefly I would
14 like to ask to be heard without the jury being here. The
15 government has presented its exhibits and introduced them and
16 put most of them over here to the side but left the table in
17 front of the jury with that shotgun right in the front of the
18 jury, and I would respectfully request that that not be left
19 where it is, it's introduced into evidence and out of a fair
20 trial to both sides --
21 THE COURT: All right, are you going to use that for any
22 purpose?
23 MR. WALKER: We are, Your Honor. There will be -- Todd
24 Nordoff, who is the firearms expert from CPD will testify this
25 afternoon.
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1 THE COURT: Is he going to be in the next 30 minutes or
2 so, 15 minutes?
3 MR. WALKER: He is three or four down, Your Honor.
4 THE COURT: Put it over here so there won't be any
5 question about it.
6 MR. WILLIAMS: Thank you, Your Honor.
7 THE COURT: Put it behind the bench or somewhere over
8 here.
9 Call the jury.
10 Thank you, Mr. Williams.
11 (The jury returned to the courtroom.)
12 THE COURT: Wet day outside, is it, cold?
13 JUROR: Cold.
14 THE COURT: Not any colder than it is in here, is it.
15 JUROR: No.
16 THE COURT: I think they are going to warm it up in
17 here. I told them don't warm it up too much so that it's hot in
18 here. I would rather be cool myself, I don't know how y'all
19 feel.
20 Call your next witness.
21 MR. CONRAD: The United States would call Detective Mike
22 Sanders.
23 JAMES MICHAEL SANDERS, SR.,
24 being first duly sworn, was examined and testified as follows:.
25 Escape.
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1 BY MR. CONRAD:
2 Q. Would you please state your name and occupation for the
3 jury?
4 A. James Michael Sanders, Sr., and I'm a detective with the
5 Charlotte-Mecklenburg Police Department, assigned to the FBI's
6 violent crime task force.
7 Q. How long have you been a detective with the Charlotte
8 Police Department?
9 A. Five or six years.
10 Q. How long have you been a law enforcement officer?
11 A. 18 years.
12 Q. In June of 1996 what were your duties?
13 A. I was assigned to the violent crime task force with the
14 FBI.
15 Q. And did you become involved in the investigation of one
16 Aquilia Marcivicci Barnette?
17 A. Yes, sir, I did.
18 Q. Prior to lunch Agent Womble had indicated that after
19 returning from the crime scene at Billy Graham and Morris Field
20 Drive he turned the defendant over to your custody along with
21 Detective Rice, do you recall that?
22 A. That would have been myself originally, and Sergeant
23 Sanders from homicide.
24 Q. And would you relate to jury what happened next?
25 A. He was taken in an interview room there at the law
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1 enforcement center, and once inside he was advised that his
2 rights carried over that had been given to him at the FBI office
3 earlier through a Miranda form and also orally at the house
4 where we had picked him up originally, and then an interview was
5 started with him.
6 Q. And what time was that interview started?
7 A. At 6:15 p.m.
8 Q. And that be on what day, sir?
9 A. This would have been on June 25th.
10 Q. Okay. And go ahead and tell the jury how that interview
11 took place.
12 A. He was asked questions about what had taken place out on
13 the scene on Billy Graham, and he answered the questions that
14 was asked of him. As I stated, he was first advised that his
15 rights did carry over to that point that had been advised of him
16 earlier.
17 Q. Did you attempt to videotape that interview?
18 A. Yes, sir. Unfortunately, upon the completion of the
19 interview, we looked at the video, and the audio was just really
20 bad, it's just real low.
21 Q. Was it inaudible?
22 A. Some, but you can't tell most of it.
23 Q. Now, did you reduce whatever was said in that room to
24 writing as best you could?
25 A. Yes, sir, using my notes.
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1 Q. Using your notes, would you relate to the jury what, if
2 anything, the defendant told you about the incidents in
3 question.
4 A. The defendant stated that he had left his house on West
5 Boulevard that evening, or any time -- he felt it was after
6 12:00 o'clock midnight on Friday, or Saturday morning, he left
7 the residence at West Boulevard. Prior to leaving this
8 residence he had placed some shotgun shells and a shotgun that
9 he had purchased earlier inside a small zip-up type bag and he
10 proceeded to walk to Billy Graham and Morris Field Road.
11 Q. Did he tell you why he had gone to that intersection?
12 A. This was a dark intersection and he was going to sit
13 there and take a car so that he would have a -- or carjack
14 someone for their car so that he would have transportation to
15 Virginia.
16 Q. What else did he say?
17 A. He said that he waited anywhere from a half hour or more
18 before the first car came along, he knew that this intersection
19 was totally dark with the exception of the traffic signal light
20 so he knew that no one would see him there until he was ready
21 for them to see him.
22 He stated after a half hour or more a blue Honda pulled
23 up and stopped for the red light, he approached the Honda,
24 pointed a shotgun at the driver, and ordered him out of the
25 vehicle.
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1 He stated that the passenger of -- the driver of the
2 vehicle exited the vehicle upon him ordering him to do so at
3 gunpoint; at that time he realized he didn't have any money so
4 he ordered him to give him his wallet. He told me that the
5 driver of the vehicle gave him the wallet. At that point he
6 ordered him to turn around and walk across the street into a
7 drainage ditch. I asked him if the subject had resisted or
8 refused to do anything, and he stated, no, I just told him to
9 turn around; when he turned around, I shot him a couple of
10 times.
11 Q. Let me turn your attention to page two of your report.
12 Do you have it in front of you?
13 A. Yes, sir, I do.
14 Q. Were it indicates the defendant stated that he didn't
15 know how many times he had shot the victim and then you have
16 something in quotation marks, what do you have there?
17 A. When he was asked this -- I don't see it on here; but
18 when he was asked this question about that you just referred to,
19 he stated, I shot him real close, I know he was hurt real bad,
20 something to that extent.
21 Q. All right. What else did he tell you?
22 A. At that point he got into the blue Honda and drove to
23 Roanoke.
24 Q. Did he tell you what he had -- whether he had stopped
25 for gas on his way to Roanoke?
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1 A. He did. He advised he stopped for gas and paid cash for
2 the gas but he wasn't sure exactly where the gas station was.
3 Q. What did he tell you happened next?
4 A. He drove on in to Roanoke; upon arrival in Roanoke he
5 observed his girlfriend's vehicle parked in the driveway so he
6 had reason to believe that she was there, he said this was
7 around 5:00 in the morning, 5:00 to 5:30, so he stayed and
8 waited just watching the house across the street.
9 He said around 7:00, or somewhere in the vicinity of
10 7:00, Robin Williams exited her house to walk her dog and at
11 that point he drove around behind her house and exited the blue
12 Honda and walked through a gate that was in a fence in the back
13 yard, walked up to Ms. Williams' residence; he was afraid
14 someone might have opportunity to call the police, so he either
15 cut the phone wires or -- he damaged the phone wires where they
16 couldn't use the phone; he had the shotgun with him at this
17 time, tried to get in the kitchen door, which was the side or --
18 the rear side, I believe is the way he put it, of the
19 residence. The door appeared to be locked to him, so he shot
20 the look a couple of times and then kicked the door open;
21 entered the residence. He observed Robin Williams and her
22 mother in the residence. They appeared in his opinion to be
23 looking for wherever the noise of the shooting was at. The
24 mother turned around and hollered run, Robin, run, and he said
25 at that time Robin Williams ran out the front door, he turned
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1 and ran out the same door he entered through the kitchen, ran
2 around behind the house and pursued Robin Williams on foot with
3 the shotgun in hand. Robin Williams fell a couple of times so
4 he was able to catch up with her. He said at that time he
5 grabbed her by the arm to pull her and tell her to come with
6 him. I asked if she came with him. He said reluctantly and a
7 couple of times she pulled away, he grabbed her by the hair. He
8 was asked where the shotgun was; the whole time this was going
9 on he kept the shotgun in his right hand and he was pulling and
10 jerking her with the left hand.
11 This proceeded on to a point. She broke free and
12 started to run to her mother, and he shot her in the back. He
13 wasn't sure how many times he had shot at her.
14 Q. Do you recall him saying, don't worry, I've got one for
15 me and one for you?
16 A. Yes, sir, he did. When he was questioned about this, he
17 said shells or bullets, that's what I'm talking about when I say
18 I told her I had one for me and one for you.
19 Q. Did he indicate when he shot Robin where she was running
20 to?
21 A. He stated she had broke free from him and was running
22 toward her mother, toward her house.
23 Q. What did he do at that time?
24 A. He ran and got into the Honda and drove away from the
25 scene.
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1 Q. Did he tell you where he drove?
2 A. He did. It was in Tennessee to a church, I believe.
3 Q. Do you recall the defendant telling you that he drove on
4 581 and 81 into Tennessee?
5 A. Yes, sir, I believe that's correct. I've got that in
6 the notes. Right, 581 and 81 and drove into Tennessee.
7 Q. Okay. Now, did you ask him about the first victim,
8 Donnie Allen's wallet?
9 A. Yes, sir, he was asked about the wallet. The way it was
10 put to him was not so much the wallet. I believe we asked him
11 if he knew who the person was, and he stated yes. He gave us
12 Donnie Allen's name. And he was asked -- we asked him why he
13 knew the victim by name, and he said he had read it off of his
14 driver's license when he took his wallet. He couldn't recall
15 what he had did with the wallet when we asked him about the
16 wallet.
17 Q. Did you ask him about the license tag on the car?
18 A. Yes, sir, I did. He was in fear of law enforcement of
19 any kind knowing about the car having been stolen or reported
20 stolen or a missing person or whatever, so he took the tag off
21 of the vehicle, being a South Carolina tag, and placed it in the
22 trunk of the vehicle.
23 Q. Did he tell you what he did when he got to Tennessee?
24 A. He said that he stayed at a motel room there and
25 sometime during that period he took a tag off another vehicle.
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1 Q. Did he say anything about a garden hose or duct tape?
2 A. Yes, sir, he said he had purchased some duct tape from
3 one store and a garden hose.
4 Q. Now, did he say anything with respect to the weapon he
5 used to commit these two murders? Did he tell you how he had
6 come into possession of that weapon?
7 A. He was not sure, when he was questioned, as to exact
8 location of the store, but he had purchased this weapon at a
9 pawnshop on Freedom Drive, and he used his brother's driver's
10 license to purchase it.
11 Q. And did he give you the brother's name?
12 A. I'm sorry, it may not have been a driver's license, but
13 it was an identification of some sort that belonged to his
14 brother, and he did give his brother's name.
15 Q. When you were interviewing him, did you know he was a
16 convicted felon?
17 A. I don't believe I did at that time.
18 Q. Did he say anything with respect to how he had purchased
19 the weapon?
20 A. Yes, sir. He had gone to the pawnshop, bought it by use
21 of his brother's identification.
22 Q. Did he tell you about the purchase of any other weapon
23 from that pawnshop?
24 A. I don't recall any other weapon.
25 Q. So he only told you about this one particular weapon?
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1 A. Yes, sir. He -- well, he knew exactly which weapon it
2 was. He said it was a Winchester, when he was questioned about
3 the weapon itself.
4 MR. CONRAD: May I approach, Your Honor?
5 THE COURT: Yes, sir.
6 BY MR. CONRAD:
7 Q. Detective Sanders, let me approach and hand to you what
8 has been introduced into evidence as Government's Exhibit 31E1
9 and ask you whether you can identify this as a Winchester
10 shotgun?
11 A. Yes, sir, I can. It's marked here on the barrel, it's a
12 Winchester clearly, it gives a model number.
13 Q. Did the defendant, when you were interviewing him, did
14 he say anything about what he did with the weapon that he
15 purchased after he purchased it?
16 A. Yes, sir. He explained everything about the weapon. He
17 said the neighborhood he lived in where that particular house
18 was located, he hunted varmits with the weapon, was the story he
19 had given us.
20 Q. He said what?
21 A. That he had to hunt varmits with the weapon, so he had
22 taped a flashlight to the barrel so that he could see snakes at
23 night to shoot at them. He told me at one time that he had
24 actually cut the barrel off and cut the stock off.
25 Q. Did he tell you whether he cut the barrel off so as to
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1 improve his hunting of snakes?
2 A. I don't recall that part, but I do know that he had to
3 have the flashlight on there. And I don't think he could tell
4 me why he cut the stock off.
5 Q. Did he tell you why he had put a red plastic insert in
6 the flashlight? Did that have a hunting purpose?
7 A. I don't recall that.
8 Q. Did he tell you where he got the ammunition for the
9 shotgun?
10 A. It was a Wal-Mart or K-Mart. He had bought it at the
11 Wal-Mart in the past.
12 Q. Did he tell you anything about using black tape to
13 modify the weapon in any way?
14 A. Yes, sir. He stated he had put the black tape on the
15 barrel to hold the flashlight on, and the stock. When he first
16 stated, I believe he may have even told us that, or one of us
17 asked him, what type of tape, and he didn't act like he
18 understood what we were saying. I said was it like electrical,
19 or what, and he said no, it's not like electrical, it's the kind
20 you would use on a hockey player's stick, the rough tape.
21 Q. Now turning your attention to the driver's license, did
22 the defendant tell you, or the driver's license plate, the car
23 license plate, did he tell you when he had switched the tag from
24 the South Carolina plate to the Tennessee plate?
25 A. At the motel there in Tennessee he wanted to get it off
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1 right away in the event that law enforcement was looking for the
2 vehicle.
3 Q. Did he say he had done that on Sunday morning?
4 A. I believe that was when it was done.
5 Q. Did he also tell you that he had gone to church on
6 Sunday?
7 A. Yes, sir, he did.
8 Q. What was the purpose for going to church?
9 A. He stated that he went to church to pray for the person
10 that he had killed in Charlotte.
11 Q. He indicated to you that he had gone to church to pray
12 for the person he killed in Charlotte?
13 A. Right.
14 Q. Did you ask him whether he had told anybody about the
15 incident?
16 A. Yes, sir, I did.
17 Q. And what did he say?
18 A. He had originally not told anybody about the person in
19 Charlotte, Mr. Allen, but he had called his mother and told her
20 about the killing in Roanoke of Robin Williams.
21 Q. Did he tell you how he got back from Tennessee to
22 Charlotte?
23 A. He drove back with the Honda Prelude.
24 Q. Did he tell you whether he had driven back with the
25 stolen license plate on the Honda?
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1 A. No, sir. At that time it had already been switched out
2 and that license plate was in the trunk of the vehicle.
3 Q. Did he tell you anything about Shondra Nero?
4 A. Yes, sir, he did.
5 Q. What did he tell you about her?
6 A. She is a relative, and he had contacted her also and
7 told her about the killing in Roanoke.
8 Q. Do you know where he drove the car back to, did he tell
9 you that?
10 A. Yes, sir, he did.
11 Q. What did he say?
12 A. He said he drove it over off of Independence near
13 Shondra's residence.
14 Q. And once he got to the location in Charlotte where he
15 left the car, did he tell you what he did with anything in the
16 car?
17 A. Yes, sir, he did. With the same bag that he had used
18 earlier when he left his house with the shells and the shotgun,
19 he placed the shotgun, and I believe the hose and other items,
20 in the bag and placed them in a dumpster which is near where he
21 parked the Honda.
22 Q. And did he also put the -- did he tell you what he did
23 with the South Carolina license tag?
24 A. It remained in the trunk of the blue Honda.
25 Q. Did he say anything about golf clubs in the trunk of the
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1 blue Honda?
2 A. Yes, sir. Sometime during the interview he mentioned
3 that he did remember seeing golf clubs in the trunk of Donald
4 Allen's car but he didn't know what happened to those either.
5 Q. Did you ask him about the clubs?
6 A. I can't remember if -- I believe we did, and I don't
7 know how we knew to ask him, but he was asked and he did
8 remember seeing them but did not know what he did with them.
9 Q. Did the defendant indicate to you whether he knew how
10 many shells the shotgun held?
11 A. Yes, sir, he did.
12 Q. What did he say to you?
13 A. He said it would take one in the chamber and then you
14 could load two.
15 Q. Did he indicate whether or not he had more than three
16 shells when he left his house that night?
17 A. Yes, sir. He had put extra shells inside the bag. He
18 wasn't sure of the exact number, but he put extra ones.
19 Q. And did he tell you whether or not he used those shells
20 to shoot the man on Morris Field and Billy Graham Drive or what
21 type of shells they were?
22 A. Yes, sir. He said they were 12-gauge shells and they
23 were red in color. When questioned about this he remembered
24 them being red, and he stated that he had seen shells that were
25 yellow and green as well but he knew these were red in color.
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1 Q. Did he tell you where he bought those shells?
2 A. From the Wal-Mart.
3 Q. Did you ask him why he shot Donnie Lee Allen?
4 A. Yes, sir, I did. I asked him if he had failed to
5 cooperate with him or if he tried to resist or if he tried to
6 run; he stated no, he just told him to turn around and he shot
7 him multiple times, said he shot him real close.
8 Q. Did he talk to you about depression at all?
9 A. Yes, sir, at one time he did talk about depression, it
10 was earlier, prior to this incident.
11 Q. What did he say about that?
12 A. He said he had seen some Charter Pine commercials about
13 depression and had talked to one of his relatives in the past
14 about depression or seeing the commercials.
15 Q. Do you recall the defendant telling you that the only
16 reason he was at Billy Graham and Morris Field Drive was because
17 he knew it was dark and he was going to wait for someone to come
18 along and take their car so that he could ride to Virginia?
19 A. Yes, sir, he did. He stated it wasn't just anyone, he
20 said it was whoever stopped at the red light, he was going to
21 take their car.
22 Q. Detective Sanders, let me hand you what is marked as
23 Government's Exhibit 36 and ask you if you recognize that
24 exhibit?
25 A. Yes, sir, I do.
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1 Q. What is Government's Exhibit 36?
2 A. This is a supplement made from my notes.
3 Q. And did you prepare that supplement?
4 A. Yes, sir, I did.
5 Q. And does it accurately reflect the interview that you
6 conducted with the defendant, Aquilia Marcivicci Barnette, on
7 June 25th --
8 A. Yes, sir, it does.
9 Q. -- 1996?
10 A. Yes, sir.
11 MR. CONRAD: Your Honor, I would move admission of
12 Government's Exhibit 36.
13 THE COURT: Let it be admitted.
14 BY MR. CONRAD:
15 Q. During the time that you interviewed him, did you allow
16 the defendant to have breaks and get drinks and do anything
17 else?
18 A. Yes, sir. Throughout the duration there were several
19 times that he was given an opportunity for food, water, use of
20 the rest room.
21 Q. Did he ever use the phone while you were interviewing
22 him?
23 A. Yes, sir. Upon completion he wanted to speak with his
24 mother and explain to her about the killing of Donald Allen, he
25 didn't want her to hear it from someone else.
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1 Q. Did he indicate in your presence that he hadn't told his
2 mother about that killing before that time?
3 A. Correct. He had only told her about the Roanoke at that
4 time.
5 MR. CONRAD: That's all I have, Your Honor.
6 THE COURT: Cross?
7 MR. LAUGHRUN: Thank you, Judge Potter.
8 CROSS-EXAMINATION
9 BY MR. LAUGHRUN:
10 Q. Officer Sanders, you are related to Mike, is that
11 right? You're his brother, is that correct?
12 A. I am Mike.
13 Q. I'm sorry, you're related to Rick?
14 A. I am related to Rick.
15 Q. And, Detective Sanders, in your experience with the
16 police department, you know it's possible, do you not, to take
17 an address and find out how many calls for service have been at
18 that address, is that a fair statement?
19 A. That is correct.
20 Q. In fact, your office keeps those on computer, do they
21 not?
22 A. Various addresses, correct. I don't know the time
23 anymore due to --
24 Q. Okay. But of at least until recent times, they keep
25 calls for service at various addresses, is that a fair
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1 statement?
2 A. It would be a fair statement, right, if it's a serious
3 incident for sure.
4 Q. And any time a report is generated, it's generated in
5 following way, and correct me if I'm wrong, the year is first,
6 for example, 98 for today?
7 A. Correct.
8 Q. Month, 01 for today?
9 A. Correct.
10 Q. The 23rd being the day?
11 A. Right.
12 Q. And the time in military time?
13 A. Right.
14 Q. Followed by 00, which means the first call for service
15 during that minute, correct?
16 A. For that particular minute, correct.
17 Q. And 01 would be the second call during that 60-second
18 time period, is that right?
19 A. That's correct.
20 Q. When you interviewed Mr. Barnette, he told you his
21 address was 3413 West Boulevard, correct?
22 A. Yes, sir, that's correct.
23 Q. I want to show you a document, if I could, marked
24 Defendant's Exhibit 18 and ask you to take a look at this, if
25 you would.
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1 MR. LAUGHRUN: May I approach the witness, Your Honor?
2 THE COURT: Yes, sir.
3 BY MR. LAUGHRUN:
4 Q. Detective Sanders, I'm going to show you what is marked
5 for identification as Defendant's Exhibit 18, which appears to
6 be a printout of the calls for service that the police
7 department answered at 3413 West Boulevard. Does that appear to
8 be what that is?
9 A. Yes, sir, it does.
10 Q. And that looks like it's computer generated, doesn't it?
11 A. Yes, sir.
12 Q. Let me ask to you look at this blowup of that, Detective
13 Sanders, and ask you if this blowup marked as Defendant's
14 Exhibit 18A appears to be a blowup of that document?
15 A. It does.
16 Q. Now, let me ask you to look at what you have as
17 Defendant's Exhibit 18 and 18A and ask you if it appears that
18 the police department went to 3413 West Boulevard 29 times from
19 1993 up until the date of the arrest of Mr. Barnette, about 25
20 times?
21 A. That would be correct.
22 Q. Now, on that document, go down to where it says
23 96-052151001, do you see that on there?
24 A. I do.
25 Q. That would be, for the jury's benefit, a call for
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1 service went out on May 2nd, '96 at 15:10, which would be 2:10
2 in the afternoon, is that right?
3 A. 3:00.
4 Q. I'm sorry, 3:10 the afternoon. A second call for
5 service then, is that right?
6 A. Correct.
7 Q. And if you go over to the right, it appears that three
8 cars went out and answered the call?
9 A. Cars assigned, three, that's correct.
10 Q. Does it say what type of report went out, can you tell
11 from that what type call went out?
12 A. This particular time it was a miscellaneous incident.
13 Q. Now, going under underneath the next call for service,
14 June 22nd, '96, 10:50, does that appear a call for service went
15 out on June 22nd?
16 A. Yes, sir.
17 Q. Was that the date the defendant was arrested, or was
18 that three days earlier?
19 A. He would have been arrested on the 25th.
20 Q. So three days earlier a call for service went out, is
21 that right?
22 A. That is correct.
23 Q. Okay. From April 30th of '96 until the one on here
24 96-0502151001, there were no calls for service and no units
25 responding to that area, is that correct?
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1 A. I'm sorry, what was --
2 Q. From April 30th, 1996 until May 2nd, 1996, there were no
3 calls for service at 3413 West Boulevard, was there?
4 A. It doesn't show on here, no.
5 Q. And tell the jury, if you would, what an miscellaneous
6 incident report is.
7 A. A miscellaneous incident is -- there are certain reports
8 that are categorized where you must make a large report. A
9 miscellaneous incident could be anywhere from a barking dog,
10 loud noise, we have no complainant upon arrival. It would be
11 anything that wouldn't have a follow-up investigation, more or
12 less.
13 Q. And there would be no -- it's just usually done on an MI
14 card, is that correct?
15 A. Now it's done through the computer, but, correct, the
16 MI -- it's the same thing, it's just typed in a computer in the
17 cars now.
18 Q. And before the computers, it would have been the MDT's,
19 the motor data terminals, is that correct?
20 A. That's correct.
21 Q. And before Charlotte police got the MDT's, they did it
22 on a card, did they not?
23 A. That is correct.
24 Q. What's called an MI or miscellaneous incident report
25 card, is that right?
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1 A. Right.
2 Q. Now, as far as your involvement in this case, when you
3 got the response -- well, you got a call by Mr. Womble, is that
4 correct?
5 A. I was originally contacted by Special Agent Phil King
6 and told to see Mr. Womble.
7 Q. And Phil King is an FBI agent also, is he not?
8 A. That is correct.
9 Q. And when you went to the FBI office, I take it you went
10 to the FBI office there at the Wachovia center?
11 A. That is correct.
12 Q. Had you been informed as to what this was about when you
13 went there? Had you had any background information?
14 A. Only upon arrival there.
15 Q. Now, when you got there, was Mr. Barnette already there?
16 A. At the FBI office?
17 Q. Right.
18 A. No, he was not.
19 Q. So you went out to the location at 3413 West Boulevard,
20 correct?
21 A. That is correct.
22 Q. It's right across from a public housing project, is that
23 correct?
24 A. That is correct.
25 Q. Is that Della Hay?
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1 A. I believe it's Della Hay.
2 Q. Della Hay Courts?
3 A. There is a couple of them there, I believe it's Della
4 Hay.
5 Q. Now, when you went out there to the residence, did you
6 go with Special Agent Womble?
7 A. That is correct.
8 Q. You arrested Mr. Barnette?
9 A. Yes, sir.
10 Q. Without incident?
11 A. That is correct.
12 Q. And y'all didn't send a blue and white to that unit, did
13 you?
14 A. No. We carried backup units with us in unmarked cars.
15 Q. In fact, it's verified in Defendant's Exhibit 18 that no
16 cars went out there, no police report was generated because of
17 that, is that correct?
18 A. When we were there?
19 Q. Right.
20 A. That is correct.
21 Q. Now, when you got there and arrested Mr. Barnette, he
22 didn't give you any problems, he cooperated with you?
23 A. No, we didn't have any problem with him.
24 Q. In fact, you waited until you got outside to handcuff
25 him, didn't you?
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1 A. We did, we handcuffed him in the rear of the vehicle.
2 Q. And had given him a few minutes to spend with his
3 family?
4 A. We stood by and let him say good-bye to his family,
5 correct.
6 Q. Had you been aware, Detective Sanders, that he had been
7 wanted since April 30th?
8 A. I wasn't until we got down and was informed of --
9 Q. Because you were not involved in that process, were you?
10 A. No.
11 Q. You didn't get any telexes or anything, did you?
12 A. No, I didn't.
13 Q. And when you got down, you found that there had been a
14 warrant out since April 30th, is that a fair statement, later on
15 in your --
16 A. At some point later on.
17 Q. Now, when you got down to the FBI office, did you read
18 him the rights or did Special Agent Womble?
19 A. Special Agent Womble read them.
20 Q. And he understood his rights?
21 A. That is correct.
22 Q. And he didn't want to sign anything, is that a fair
23 statement?
24 A. He said that he would answer the questions he deemed
25 necessary or appropriate but he did not wish to sign the form,
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1 correct.
2 Q. He answered all of your questions?
3 A. He did.
4 Q. He didn't ask for a lawyer?
5 A. No, sir.
6 Q. You told him if he wanted a lawyer one would have been
7 appointed to him at no charge to him?
8 A. That's correct.
9 Q. And he agreed to cooperate with you?
10 A. He did answer the questions, correct.
11 Q. And at that time you were not aware of Mr. Allen and him
12 being missing, were you?
13 A. Not when he was read his rights either verbally or with
14 this form.
15 Q. Now, do you have the diagram with you that he drew about
16 the location of the body?
17 A. I do not. I think there was one turned in; I'm not real
18 sure. I don't have it.
19 Q. It's in the possession of the government?
20 A. I don't have the diagram, to my knowledge. I just know
21 what he wrote on the paper giving the location.
22 Q. He gave you specifics about where it was?
23 A. That is correct.
24 Q. And y'all went out to the scene?
25 A. Correct.
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1 Q. And you found the body of Mr. Allen, is that correct?
2 A. That is correct.
3 Q. And you came back to the law enforcement center?
4 A. That is correct.
5 Q. Well, back to the police department downtown?
6 A. At that point we went to the law enforcement center,
7 right.
8 Q. You didn't go back to the FBI office, did you?
9 A. No, sir.
10 Q. Now, you have -- do you have your Government's Exhibit
11 36 in front of you, your supplemental report?
12 A. Yes, sir, I do.
13 Q. Now, when you got the information about the body, did
14 y'all call a blue and white to meet you out there, or did
15 another vehicle go with you?
16 A. This is prior to going to the body, you are saying
17 when --
18 Q. Right, prior to going out --
19 A. When he first talked to him at the FBI office?
20 Q. Right.
21 A. I contacted homicide -- or I contacted dispatch and had
22 them raise a homicide supervisor.
23 Q. And that is, just happens to be your brother --
24 A. Sergeant Sanders --
25 Q. -- Sergeant Sanders --
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1 A. -- correct.
2 Q. -- is that right? Okay. Now, when you got out there,
3 eventually you left that area, is that correct?
4 A. That is correct.
5 Q. Do you remember having any trouble finding the body?
6 A. Upon arrival, at first we did. When we first arrived on
7 the scene, Aquilia Barnette told Special Agent Womble to pull to
8 the right there at the intersection on Morris Field. At that
9 point he turned on the tears and said it's over there and
10 pointed across the street.
11 Q. In fact, he pointed right where it was, didn't he?
12 A. Pointed in the vicinity, correct.
13 Q. And when he pointed, I believe you and D.C. Laney
14 exited, got out of the car, right?
15 A. When he first pointed, I exited the vehicle and
16 explained to Sergeant Sanders and D.C. Laney what he stated,
17 across the street.
18 Q. And you went over there?
19 A. The two of them went over at first and started walking;
20 after a few seconds it didn't appear they were finding anything,
21 so I bent over and I said, now you pointed over, and he said
22 it's further down, and at that point they located the body.
23 Q. He said it's further down, that's what he said, right?
24 A. Right, where they were --
25 Q. And you went down there?
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1 A. The two of them did, I stood up --
2 Q. You told them go on further, is that correct?
3 A. That is correct.
4 Q. And out at that intersection it's kind of like a culver
5 or a concrete drainage ditch, is that correct?
6 A. That is correct.
7 Q. And in June it was heavy in foliage?
8 A. It was.
9 Q. Now, after you found the body, I take it other crime
10 scene search and other blue and whites arrived, is that correct?
11 A. I don't recall calling any blue and whites, but we did
12 call crime scene and other homicide investigators.
13 Q. And then y'all went back to the police department and
14 started your statement that you tried to record but due to
15 something not your fault it didn't record, is that correct?
16 A. That is correct. The audio just was not good.
17 Q. Now, when you went over his rights again, he was wasn't
18 re-advised, was he, he was just told that his rights were still
19 in effect, is that a fair statement?
20 A. Right. He had been given his rights verbally at his
21 mother's and then given his rights with the form at the FBI and
22 he was informed that they still carried over and asked if he
23 still understood that he had the same rights.
24 Q. Let me ask you, if you would, Detective Sanders, to
25 begin with page four of your statement, the fourth line down
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1 that begins at 6:15 p.m. Can you find that on your report?
2 A. Right.
3 Q. I would ask you to go down about four paragraphs, four
4 sentences, I apologize, the defendant started talking about how
5 he had gotten drunk and thought about his girlfriend?
6 A. Correct.
7 Q. He said he walked where it was real dark so no one could
8 see him at the location, is that correct?
9 A. That is correct.
10 Q. Now top of the next page, the first full paragraph,
11 quote, the defendant stated that he didn't know how many times
12 he shot the victim, closed quote, defendant just stated, I shot
13 him real close, I didn't mean to hurt him but I knew he was hurt
14 because I shot him real close, is that correct?
15 A. That is correct.
16 Q. He went on to say it was pitch black so he couldn't see
17 him, then stated, quote, I was scared as hell, closed quote, and
18 you note, I repeated this twice, is that correct?
19 A. Right.
20 Q. Did he also go on to say in that paragraph that he
21 was -- quote, the defendant said that he was so mad at her for
22 taking his life away, I hated her for that but I also loved her,
23 is that correct?
24 A. That is correct.
25 Q. And he started crying, I believe, is that right, next
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1 sentence down?
2 A. He did turn the tears on at that time. I don't know
3 that it was crying, but the tears did start.
4 Q. In fact, on the videotape -- you said that he turned the
5 tears on, on the videotape he was just crying uncontrollably,
6 wasn't he?
7 A. He could turn tears on any time he wants to. Of course,
8 I never knew him before then so I can't tell you that it was
9 legitimate crying or not. I know he could turn the tears on.
10 Q. You had never met him before, is that correct?
11 A. That is correct.
12 Q. Now, when you go on to the second full paragraph there,
13 it goes on to say, quote, defendant made the statement that,
14 quote, something told him to kill her and to kill himself,
15 closed quote. The defendant said, quote, he just didn't have
16 shit to live for, closed quote, is that correct?
17 A. That is correct.
18 Q. Now, the next page, the third paragraph down -- I'm
19 sorry, the second full paragraph, about the fourth sentence
20 down, the defendant stated that he knew the man had to be hurt
21 because he shot him pretty close, defendant said he went to
22 church in Knoxville, Tennessee, while in church he prayed for
23 Donald Allen, is that correct?
24 A. I know that's in here.
25 Q. Okay. About the second full paragraph down that begins
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1 defendant was asked if.
2 A. Is that the one about the billfold?
3 Q. Yes, sir.
4 A. Correct.
5 Q. Now, it also goes on in that paragraph to say, defendant
6 stated that he purchased a garden hose at Sears which he
7 intended to kill himself with, defendant said he put the hose in
8 the tail pipe, taped it to the tail pipe with some duct tape
9 which he purchased at an Auto Zone, he then went to sleep in the
10 Sears parking lot and was awakened by a security guard. Is that
11 what he told you?
12 A. That is correct.
13 Q. Now, the next paragraph talks about the weapon, putting
14 some duct tape -- some black tape around the flashlight, is that
15 what the next paragraph talks about?
16 A. Correct.
17 Q. It doesn't have any statements on there in that
18 paragraph that you wrote based on your recollection that talks,
19 quote, about seeing snakes at night and shooting them, is that
20 correct, or shooting varmits at night, is that in that
21 paragraph?
22 A. I don't see it in this paragraph, no.
23 Q. Now, the next page, the first full paragraph, he was
24 asked, I believe by you, or a conversation between you and the
25 defendant, quote, defendant stated he had gone to church Sunday
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1 at a First Calvary Baptist Church in Knoxville, Tennessee, is
2 that correct?
3 A. Correct.
4 Q. And continues, the defendant stated that while in church
5 he sat in the very back, he remembered crying a lot and he had
6 prayed for the man that he had killed in Charlotte, is that what
7 he says?
8 A. That's correct.
9 Q. And then about the next to the last sentence, defendant
10 stated he told Shondra, quote, he knew he was in a lot of pain
11 but still didn't know how he had done all that, closed quote?
12 A. That is correct.
13 Q. Detective Sanders, did you go down to South Carolina to
14 meet with the Allen family?
15 A. Did I?
16 Q. Yes, sir.
17 A. No, sir, I didn't.
18 Q. Now, the videotape that you mentioned to Mr. Conrad when
19 you first began, it was actually a videotape that was attempted
20 to be done for this interview, is that correct?
21 A. That is correct.
22 Q. And I believe you told me earlier that due to a
23 malfunction you couldn't hear very much on it, is that correct?
24 A. It wasn't a malfunction in the equipment. It was just
25 the sound was just not loud enough to really make out most of
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1 it.
2 Q. And it was done in the interview room at the law
3 enforcement center?
4 A. That is correct.
5 Q. Second floor?
6 A. Right.
7 Q. Now, that videotape has been provided, correct?
8 A. Yes, sir.
9 MR. LAUGHRUN: Judge, by stipulation, this is the audio
10 tape -- videotape marked as Defendant's Exhibit 19, if Your
11 Honor please, for purposes of identification.
12 Thank You, Judge Potter. That's all.
13 THE COURT: Redirect?
14 MR. CONRAD: Briefly, Judge.
15 REDIRECT EXAMINATION
16 BY MR. CONRAD:
17 Q. Defendant's Exhibit 18 which Mr. Laughrun showed you,
18 what exactly is that?
19 A. It's a printout showing calls for service at 3413 West
20 Boulevard.
21 Q. Calls for service, what does that mean, calls for
22 service?
23 A. Just any call dispatched from the law enforcement center
24 to this location.
25 Q. So if someone complained and wanted a police car sent to
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1 3413, it would show up on that printout?
2 A. Correct, if they dispatched a vehicle.
3 Q. And is there any way to tell from that printout the
4 nature of the calls made?
5 A. That should be on here.
6 Q. Go ahead and count and tell me exactly how many there
7 are.
8 A. It's showing 29 on this particular printout.
9 Q. And as to each call is there a description of the nature
10 of the call?
11 A. Yes, sir, it does, it gives the type of call.
12 Q. What types of calls for service were made to 3413 West
13 Boulevard?
14 A. Well, you start out with a 1091, which is a domestic,
15 and then a 63 could be just anything, investigates suspicious
16 activity, gun is a 1082, which means see the complainant or see
17 the person.
18 Q. That means someone from 3413 West Boulevard called?
19 A. That is correct. And then you've got 1060, which would
20 be a suspicious vehicle. You've got a 91 here, which, again,
21 that's domestic. 85 is a damage to property. 86 is a larceny.
22 1092 on one date, it's an assault. One of them shows a 1046,
23 which could be a burglar alarm. When I say burglar alarm, it
24 just means someone could have called in a loud noise that
25 sounded like a burglar alarm, a horn going off or anything, and
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1 it could have went in as 46, it doesn't really mean a burglar
2 alarm per se or a break-in.
3 Q. Okay.
4 A. And then you've got another suspicious person,
5 suspicious person. I believe 1038 is a hang-up, someone called
6 and hung up the line and so they send a car out to check if it's
7 someone needing assistance for medical or --
8 Q. I see. Between the dates of April 30th, 1996 and June
9 22, 1996, are there any calls for service?
10 A. No, sir.
11 Q. If someone wanted to call and turn someone in, would
12 that register as a call for service?
13 A. If it's put in to be dispatched, it would.
14 Q. Is there any such call between the 30th of April and the
15 22nd of June?
16 A. I do not see one on here.
17 MR. CONRAD: Okay. That's all I have.
18 MR. LAUGHRUN: May I, Judge?
19 THE COURT: Yes, sir.
20 RECROSS-EXAMINATION
21 BY MR. LAUGHRUN:
22 Q. Detective Sanders, let's go down to the call for service
23 on May 2nd, 1996, that's a 1099 type call, is that right?
24 A. Right, 1099.
25 Q. And that's serve warrant, warrant on file, is that
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1 right?
2 A. That is correct.
3 Q. And the next call for service being June 22nd, '96, 1063
4 call, and that's just an investigate type call, is that correct?
5 A. Correct.
6 Q. Now, if you would, on the May 2nd, 1996 call for
7 service, the 1099 serve warrant, there were three vehicles sent
8 there, is that right?
9 A. That is correct.
10 Q. And then no calls for service went out on June 25th
11 because the FBI responded to that call, did they not?
12 A. That is correct.
13 Q. One other question about -- in his statement that you
14 took, Government's Exhibit 36, you asked Mr. Barnette --
15 MR. CONRAD: Object, outside the scope of redirect.
16 THE COURT: Sustained.
17 MR. LAUGHRUN: That's all, Judge.
18 MR. CONRAD: That's all I have, Your Honor.
19 THE COURT: Thank you, sir.
20 Call your next witness.
21 THE WITNESS: Do you want this?
22 THE COURT: That's the defendant's.
23 THE COURT: Call your next witness.
24 MR. CONRAD: The United States would call Detective Tony
25 Rice.
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1 TONY RICE,
2 being first duly sworn, was examined and testified as follows:
3 DIRECT EXAMINATION
4 BY MR. CONRAD:
5 Q. Would you state your name and occupation for the jury,
6 please.
7 A. Tony Rice, I'm employed by the Charlotte-Mecklenburg
8 Police Department in the capacity of a homicide investigator.
9 Q. How long have you been employed by the
10 Charlotte-Mecklenburg Police Department?
11 A. 15-1/2 years.
12 Q. What are your current duties?
13 A. I'm assigned to the homicide section, where I
14 investigate cases involving homicide, suicide, natural death, or
15 death under suspicious circumstances.
16 Q. And in June of 1996 were you employed in the same
17 capacity?
18 A. Yes, sir, I was.
19 Q. Did you have an occasion on June 25th, 1996 to conduct
20 an interview of Aquilia Marcivicci Barnette?
21 A. Yes, sir, I did.
22 Q. And where did that interview take place?
23 A. It took place at the law enforcement center.
24 Q. And do you know what time of day or night that took
25 place?
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1 A. Roughly a little after 7:00 p.m. in the evening.
2 Q. Now, do you recall an interview that Detective Sanders
3 conducted with Mr. Barnette that was videotaped but the
4 videotape was poor quality?
5 A. Yes, sir, I do.
6 Q. And after that interview took place, did you make a
7 decision to reinterview the defendant?
8 A. Yes, sir.
9 Q. And did you -- strike that.
10 Because of the poor quality of the videotape, did you do
11 anything to memorialize that interview?
12 A. Yes, sir. In addition to the videotape, we added a
13 cassette player inside the interview room.
14 Q. And was an audio tape of that interview prepared?
15 A. Yes, sir, it was.
16 Q. And did you cause to have prepared as well a transcript
17 of that interview?
18 A. Yes, sir, I did.
19 Q. And have you reviewed the tape and the transcript of
20 that interview and do they fairly and accurately either record
21 or transcribe the interview as it took place on that evening?
22 A. Yes, I've reviewed it and they do accurate transcribe
23 that interview.
24 Q. Let met approach and hand you what has been marked for
25 identification as Government's Exhibits 37A and 37B and ask you
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1 if you recognize those?
2 A. Yes, sir, I do.
3 Q. What is Government's Exhibit 37A?
4 A. 37A is the original and a copy of the tape, cassette
5 tape, of the interview with myself, Investigator Sanders, and
6 Mr. Barnette.
7 Q. Okay. And Government's Exhibit 37B, what is that?
8 A. The transcribed portion of the tape itself.
9 Q. Now, prior to that interview did you have any
10 conversation with Mr. Barnette?
11 A. Prior to this interview, no, sir, I did not.
12 MR. CONRAD: Your Honor, I would move admission of
13 Government's Exhibits 37A and 37B.
14 THE COURT: Admitted.
15 MR. CONRAD: I would request that I be permitted to play
16 the tape for the jury.
17 THE COURT: Yes, sir.
18 AGENT MODZELEWSKI: Ladies and gentlemen, please again
19 take the headphones, turn the power on so that the green light
20 is visible, turn your volume controls so they're about halfway,
21 put your headphones back on, keeping the bulb on top in line
22 with the infrared antenna.
23 (Tape played for the jury, transcript provided to the jury.
24 MR. CONRAD: No further questions of this witness.
25 THE COURT: Cross?
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1 CROSS-EXAMINATION
2 BY MR. WILLIAMS:
3 Q. Investigator Rice, you did a supplement report, is that
4 correct?
5 A. Yes, sir, I did.
6 Q. And I notice on your report, you referred to on Page, I
7 believe it's 3 of the report at the top of that page, the audio
8 was hard to understand sometimes because the black male was
9 talking low, do you see that?
10 A. Yes, sir, I see that.
11 Q. Was this during the same time that this tape that the
12 jury just heard was being recorded?
13 A. No, sir, that was during an interview conducted by
14 Investigator Sanders and Sergeant Sanders with Mr. Barnette
15 prior to this interview taking place.
16 Q. So your supplement here is talking about the interview
17 with J.M. Sanders, or is that another interview?
18 A. Prior to my interview taking place?
19 Q. Yes.
20 A. What is described on Page 3 is actually an interview
21 being conducted by Sergeant Sanders and Investigator Sanders,
22 and I'm watching that interview on a monitor.
23 Q. Okay. And is that interview that you just described the
24 same one that the jury just heard?
25 A. No, sir.
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1 Q. Different one?
2 A. Yes, sir.
3 Q. Was that interview that you just described videotaped?
4 A. Yes, sir.
5 Q. Okay. And down at the bottom of this page of that first
6 top paragraph, you said, the black male was crying and the audio
7 became increasingly hard to understand at times, correct?
8 A. That is correct.
9 Q. What interview are you referring to there?
10 A. That is the first interview that had taken place between
11 Mr. Barnette, Sergeant Sanders and Investigator Sanders.
12 Q. Was that the interview that was videotaped?
13 A. That interview was videotaped.
14 Q. And it was during the videotaping that he was crying
15 that you were referring to?
16 A. That is correct.
17 Q. Now, I believe down at the bottom of that page of your
18 supplement, you have a statement, the black male continued to
19 talk about his girlfriend, he was crying heavily. Now, I didn't
20 hear any crying on this tape that the jury just heard, so again,
21 are you referring to the videotape interview?
22 A. That sentence in context is referring back to the very
23 first interview conducted between those individuals, yes.
24 Q. And is that the interview that was videotaped?
25 A. That interview was videotaped, yes.
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1 Q. Was it then that he was crying heavily?
2 A. That's correct.
3 Q. Did he appear to you during those times to be remorseful
4 for what he had done?
5 MR. CONRAD: Objection.
6 MR. WILLIAMS: I will withdraw the question.
7 BY MR. WILLIAMS:
8 Q. When you said at the top of Page 4 that the black male
9 added that he had prayed for the man on Sunday in a church,
10 which interview were you referring to, the one the jury just
11 heard or another interview?
12 A. That would be the first interview that had taken place.
13 Q. The video interview?
14 A. That's correct.
15 Q. And on Page 5 of your supplement, the last paragraph
16 that you talk about in your interview that you describe in that
17 paragraph when he was talking about the area where Donald Allen
18 was shot, the black male advised that the area was very dark, is
19 that correct?
20 A. That is correct.
21 Q. And on your supplement, Mark Barnette told you that he
22 attempted suicide by putting a garden hose in the car on Page 4
23 of your supplement, is that correct, first paragraph?
24 A. He indicated to those investigators that he had, not
25 directly to me, no.
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1 Q. But that is in your supplement, isn't it?
2 A. Yes, sir, it's in the supplement pertaining to what I
3 observed.
4 Q. And you heard that?
5 A. Yes, sir.
6 Q. And you observed that?
7 A. Yes, sir.
8 Q. And he talked about his depression on Page 6 of your
9 supplement, he talked to you about his depression that began in
10 March or April of 1996, is that correct, top of the page on Page
11 6?
12 A. Yes.
13 Q. And you wanted to do a second -- during that videotaping
14 on Page 7 of your supplement, you wanted to do a second
15 videotape about the death of Robin Williams in Virginia, but
16 that was never done, is that correct?
17 A. I'm sorry, I didn't understand you, sir.
18 Q. Referring to Page 7 of your supplement?
19 A. Okay.
20 Q. You wanted to do a second videotape of Mark about the
21 death of Robin Williams in Virginia, but that was never done, is
22 that a fair statement?
23 A. No, sir.
24 Q. It's not a fair statement?
25 A. No, sir.
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1 Q. Did you talk about on Page 7 of doing another videotape?
2 A. Yes, sir.
3 Q. Was that second videotape ever done?
4 A. Yes, sir.
5 Q. Which one was that?
6 A. The interview that we just heard on the tape recorder.
7 Q. I'm talking about videotape.
8 A. Yes, sir.
9 Q. So that was videoed?
10 A. Yes, sir, video and audio.
11 Q. Do you have that tape here in court?
12 A. I don't personally, no, sir.
13 Q. And you wanted to ask Mark questions about the fire
14 incident according to Page 10 and 14 of your supplement?
15 A. That would have been on the 26th, yes, sir.
16 Q. But you never did do that, is that correct?
17 A. That's correct.
18 Q. The entire time that Mark Barnette was with you or in
19 your presence, he was open and candid and honest and answered
20 all of the questions?
21 MR. CONRAD: Objection.
22 THE COURT: Sustained.
23 BY MR. WILLIAMS:
24 Q. He answered all of your questions?
25 A. Yes, sir.
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1 Q. The first time during the interview that was audio
2 recorded that the jury just heard, there was a beginning part
3 where the tape was cut off, and it was on Page 3 of the
4 interview?
5 A. Yes, sir.
6 Q. And it's got on there whispering, stopped the recorder,
7 and you say stop the recorder. Why was that stopped?
8 A. Mr. Barnette wanted to get clarification on one of the
9 questions I had actually asked of him. And during the time the
10 tape recorder was off, that's what he had asked for, some
11 clarification on the question.
12 Q. Do you remember testifying on a previous occasion in
13 court about that?
14 A. Yes, sir, I do.
15 MR. WILLIAMS: May I approach the witness, Your Honor?
16 THE COURT: Yes, sir.
17 BY MR. WILLIAMS:
18 Q. I show you a transcript of your testimony on the prior
19 occasion that you referred to, and referring to his question --
20 MR. CONRAD: What page, Counsel?
21 MR. WILLIAMS: Page 178. The question was asked,
22 Investigator Rice, there were two points in that tape where the
23 recorder was shut off, do you recall those times? And your
24 answer was, I believe it was right around 1950 and right about
25 2005 or 2006, is that correct?
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1 A. Uh-huh, that's correct.
2 Q. Question, do you recall why the recorder was cut off?
3 And do you recall your answer being, the recorder was cut off
4 the first time for Mr. Barnette to compose him, he hung his head
5 cried, we started back. The second time it was cut off, we were
6 discussing the issue of the shotgun and he didn't know exactly
7 how to answer that question because that maybe was part of the
8 Charlotte case, and he didn't flow we were going -- we were
9 doing the tape on Virginia, what he actually needed to say about
10 that. Does that refresh your recollection?
11 A. Yes, sir, that's correct.
12 Q. All right.
13 MR. WILLIAMS: Nothing further, Your Honor.
14 MR. CONRAD: Your Honor, just briefly.
15 REDIRECT EXAMINATION
16 BY MR. CONRAD:
17 Q. Investigator Rice, I want to make sure the jury
18 understands exactly what happened the night of June 25th.
19 Investigator Sanders, that's Mike Sanders, right?
20 A. That is correct.
21 Q. And he also goes by the initials J.M. Sanders, correct?
22 A. Yes, sir.
23 Q. And he did an interview that started at 6:15, correct?
24 A. Yes, sir.
25 Q. And you weren't in the room, but you were monitoring it?
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1 A. That is correct.
2 Q. And then at some point, y'all discovered the video
3 quality was not good?
4 A. That's correct.
5 Q. And you went in and did a second interview, correct?
6 A. That's correct.
7 Q. Limited solely to the Roanoke incident?
8 A. Yes, sir.
9 Q. And that's what the jury heard just now?
10 A. Yes, just the Roanoke incident.
11 Q. Thank you. There is no other interviews, videotaped
12 interviews involving you or Investigator Sanders out there
13 somewhere?
14 A. No, sir.
15 Q. Thank you.
16 MR. CONRAD: That's all I have.
17 THE COURT: Thank you, sir. We will take the afternoon
18 recess at this time, members of the jury. Do not discuss the
19 case among yourselves while you're out, please.
20 (The jury left the courtroom.)
21 THE COURT: Recess until 3:10.
22 (Brief recess.)
23 THE COURT: Call the jury.
24 (The jury returned to the courtroom.)
25 THE COURT: All right, government call your next
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1 witness.
2 MR. CONRAD: United States would call Investigator
3 Robert Holl.
4 ROBERT A. HOLL,
5 being first duly sworn, was examined and testified as follows:
6 DIRECT EXAMINATION
7 BY MR. CONRAD:
8 Q. Sir, would you state your name for the jury and spell
9 your last for the court reporter?
10 A. Robert Holl, H-O-L-L.
11 Q. Officer Holl, how are you employed?
12 A. City of Charlotte, Charlotte-Mecklenburg Police
13 Department.
14 Q. How long have you been employed by the Charlotte Police
15 Department?
16 A. Since January 19th, 1983.
17 Q. And in June of 1996, how were you employed with the
18 Charlotte Police Department?
19 A. Felony investigations, homicide.
20 Q. And at that time, how long had you been a felony
21 investigation homicide investigator?
22 A. Seven years.
23 Q. And approximately -- turning your attention to that
24 period of time, how many homicide investigations have you
25 conducted?
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1 A. As either a lead investigator or some type of contact
2 with a homicide, probably over 200.
3 Q. And with respect to the week of June 24th, did you have
4 occasion to become involved in the investigation of the homicide
5 of Donald Lee Allen?
6 A. Yes, sir, I did.
7 Q. And as part of that investigation, did you participate
8 in the crime scene search at Billy Graham Parkway and Morris
9 Field Drive?
10 A. Eventually I did, yes, sir.
11 Q. Let me approach and hand to you what has been marked for
12 identification as Government's Exhibit 39K, L, M, N and O -- N
13 and O, and ask you if you can identify those exhibits?
14 A. (Witness reviews exhibits.) Yes, sir, I can.
15 Q. And what are those exhibits?
16 A. These are photographs of the scene, both daytime and
17 nighttime, of where the victim Donald Allen was located out at
18 Morris Field and Billy Graham.
19 Q. Do they fairly and accurately depict that intersection?
20 A. Yes, sir.
21 Q. And would you take each of the photographs and show the
22 jury --
23 MR. CONRAD: Your Honor, I'd move admission.
24 THE COURT: K, L, M, N and O, they will be admitted.
25 BY MR. CONRAD:
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1 Q. Go ahead, and as to each, would you show the jury the
2 photograph and tell them what it depicts?
3 A. This is a daytime photograph of the intersection of
4 Billy Graham and Morris Field, and on this particular
5 photograph, the victim was found over in this general area.
6 This is a photograph of the intersection of Morris Field
7 and Billy Graham in the daytime, and the victim was located in
8 this particular area just off of Morris Field.
9 This is a photograph identifying the area of the culvert
10 where the victim was located just off of Morris Field. The
11 victim was located down inside the wooded area. This is the
12 drainage area which is off of Morris Field before you get to
13 Billy Graham, and the victim was located down in the wooded area
14 off of the culvert.
15 This is a photograph at nighttime by delayed exposure in
16 color of the intersection of Morris Field and Billy Graham. I
17 was present during the time that this was taken.
18 This is a photograph of the intersection of Morris Field
19 and Billy Graham in color at nighttime.
20 This is also a color photograph at nighttime, delayed
21 exposure at the intersection of Morris Field and Billy Graham.
22 And the photographer is standing on the opposite side of Morris
23 Field from where the victim was located.
24 This is a photograph at nighttime, delayed exposure, in
25 color at the intersection of Morris Field and Billy Graham with
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1 the photographer standing on the opposite side from where the
2 victim was located.
3 This is a black and white photograph, delayed exposure,
4 standing on Morris Field facing Billy Graham, and the area where
5 the victim was located was down here. This is the
6 intersection.
7 Black and white photograph standing on Morris Field up
8 from where the victim was located down in this general area, and
9 that's Billy Graham.
10 Q. Officer Holl, while you're up, let me hand you what has
11 been marked for identification as Government's Exhibit 34A, and
12 ask you if that's a photograph that you can identify?
13 A. Yes, sir.
14 Q. What is Government's Exhibit 34A?
15 A. It's an aerial photograph of the intersection of Morris
16 Field and Billy Graham.
17 Q. And does that photograph fairly and accurately depict
18 that intersection?
19 A. Yes, sir.
20 Q. And can you tell by looking at that photograph when that
21 photograph was taken?
22 A. I know when the photograph was taken.
23 MR. CONRAD: Your Honor, I'd move admission of
24 Government's Exhibit 34A.
25 THE COURT: Let it be admitted.
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1 BY MR. CONRAD:
2 Q. When was that photograph taken?
3 A. That was taken the day that the victim was located by
4 crime scene technician Payne in the helicopter belonging to the
5 department, and that photograph was taken per my request.
6 Q. Can you walk up and down and show the jury Government's
7 Exhibit 34A?
8 A. This is daytime aerial photograph at the time that the
9 victim was located, Morris Field, Billy Graham, and the victim
10 was located right below my thumb. This is an aerial photograph
11 of the intersection of Billy Graham and Morris Field at the time
12 the victim was located, and the victim was located right in
13 there (indicating).
14 Q. Are there any street lights in that photograph?
15 A. No, sir, there is not.
16 Q. And do you know where the intersection of Morris Field
17 and Billy Graham Parkway is?
18 A. Yes, sir.
19 Q. Tell the jury where in the City of Charlotte that
20 intersection is located.
21 A. If you go down Interstate 77 and get off on the Woodlawn
22 exit and then get on Billy Graham headed out either towards the
23 airport, approximately three intersections down would be the
24 intersection of Morris Field, also going in the direction of the
25 Coliseum.
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1 Q. Between Tryon Street and Interstate 85 on Billy Graham
2 Parkway, how many intersections would you say there are?
3 A. I think there is approximately five.
4 Q. And would that include West Boulevard?
5 A. Yes, it would.
6 Q. Are any of the intersections other than this
7 intersection in June of 1996, were any of those other
8 intersections intersections that did not have street lights?
9 A. Not that I know of.
10 Q. Investigator Holl, did I ask you to measure the distance
11 from 3413 West Boulevard to the intersection of Morris Field
12 Drive and Billy Graham Parkway?
13 A. Yes, sir.
14 Q. Did you do that?
15 A. Yes, I did.
16 Q. About how far of a distance is it?
17 A. Eight-tenths of a mile, which would be approximately
18 4,424 feet.
19 Q. Now, with respect to June 25th 1996, would you tell the
20 jury what you did when you arrived at the intersection of Billy
21 Graham Parkway and Morris Field Drive?
22 A. I arrived at approximately 17:40, which would be 20
23 minutes of 6:00 p.m. I went down to the area of where the
24 victim was located. My supervisor at the time was on the scene,
25 advised me of where the defendant had stated that the victim was
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1 located. At that time, crime scene had not arrived yet, the
2 crime scene technician that was going to process the scene. I
3 walked down the culvert, observed where the victim was and then
4 I backed off the scene, waiting for crime scene to arrive and
5 process the area for the physical evidence that was there.
6 Once Technician Payne from crime scene search arrived, I
7 explained to her where the victim was located, advised her what
8 I needed done on the scene, and at that time, photographs were
9 taken starting with overall photographs and then eventually
10 going into where the victim was located. At my request, she
11 also collected three spent shot shells, which are shells that go
12 into a shotgun, red in color with brass ends, 12-gauge. One
13 shot wadding was also collected down towards where the victim
14 was located, and that's part of an item that's located inside of
15 each shot shell. Also, there was areas of blood that were on
16 the cement culvert, and I requested that she collect a sample of
17 blood, and also there were a pair of pants that were to the
18 right of the culvert halfway down toward where the victim was
19 and I requested those be collected.
20 I also requested the police helicopter respond out to
21 the scene, at which time when it did arrive, Technician Payne
22 went up in the helicopter in order to do overall photographs,
23 aerial, of what I requested. I requested measurements to be
24 done of that particular location, and because of the hilly slope
25 off of Billy Graham down to the intersection of Morris Field,
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1 when you are on Billy Graham, here's Morris Field, on Billy
2 Graham it slopes extremely down into this vegetated area, myself
3 and Investigator Jackson actually did the measurements and
4 recorded those measurements.
5 Q. And what did those measurements indicate to you?
6 A. The purpose of the measurements were in order to place
7 the victim and also the evidence at the scene and also to where
8 it could be placed right back in that exact same spot. The
9 victim was located approximately 65 feet off of Billy Graham
10 Parkway down the embankment just off of the drainage culvert
11 area from Morris Field.
12 Q. And describe the victim as you saw him on that day.
13 A. At the bottom of the cement culvert is a rock bed area,
14 rocks being approximately this size. The victim was lying on
15 the rock bed on his back. His head was slightly canted to the
16 left. The victim's left arm was down towards his side with his
17 left arm at the elbow bent and the hand positioned this way
18 (indicating). The right arm was slightly out from the side of
19 at a 45, bent at the elbow with a hand resting on the right
20 thigh. The right leg was relatively straight, slightly bent at
21 the knee, and the left leg was straight but out on a 45-degree
22 angle from the victim's torso. The victim was wearing a cotton
23 pullover like a golf knit shirt, three buttons at the collar.
24 The two buttons from bottom to top were buttoned. The top
25 button was unbuttoned. That was tucked into a pair of blue
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1 jeans with a brown belt. He also had a gold chain around his
2 neck, a wrist watch with a brown leather band, white socks and
3 purple and white Nike Pegasus sneakers.
4 Q. Did the gold chain around his neck have a cross on it?
5 A. At that time, I did not know because I did not touch the
6 victim.
7 Q. You mentioned that you wanted to photograph three
8 shotgun shell casings. Where were those shotgun shell casings
9 located?
10 A. They were located on the cement culvert prior to where
11 the victim was located.
12 Q. Other than photographing the areas that you directed the
13 crime scene search technicians to photograph and do a
14 measurement, did you do anything else at the crime scene?
15 A. I ended up assisting and removing the victim from the
16 location so that body removal could move the victim to the
17 medical examiner's office.
18 Q. Was that done?
19 A. Yes, sir.
20 Q. Officer Holl, I'm going to approach and hand you what
21 has been marked for identification as Government's Exhibits 34B,
22 C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q and R, and ask you
23 if you can identify those exhibits?
24 A. (Witness reviews exhibits.) Yes, sir.
25 Q. What are Government's Exhibits 34A through R?
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1 A. Crime scene located at Morris Field and Billy Graham.
2 Q. Are these the photographs that you directed crime scene
3 technicians to take?
4 A. Yes, sir.
5 Q. And do they fairly and accurately depict the crime scene
6 on that date?
7 A. Yes, sir.
8 Q. And would they assist you in your testimony before the
9 jury today?
10 A. Yes, sir.
11 Q. Officer Holl, if I could ask you to come off the stand
12 and come before the jury.
13 THE COURT: Do you want to move admission?
14 MR. CONRAD: Move admission.
15 THE COURT: 34A, B, C -- wait a minute, 34B, I guess,
16 34B, C, D, E, F, G, H, I,, J, K, L, M, N, O, P, Q and R, let
17 them be admitted.
18 MR. CONRAD: Thank you, Your Honor.
19 BY MR. CONRAD:
20 Q. Officer Holl, starting at this end of the jury, would
21 you show the jury each of these photographs, tell the jury why
22 you wanted them photographed and the significance in terms of
23 your investigation?
24 A. This is the cement culvert located on Morris Field. It
25 depicts the culvert which leads down into the curved portion of
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1 the culvert, which more or less parallels Billy Graham at that
2 point to where the victim was located. This is the culvert
3 located on Billy, or correction, on Morris Field, which leads
4 down into the high grassy area which parallels down by Billy
5 Graham. And at the end of the culvert, this is where the victim
6 was located. The purposes of this photograph was to start from
7 an outer surrounding area from where the scene was of where the
8 victim was located and eventually leading into where the victim
9 was located.
10 This is a photograph of the beginning of the curve, and
11 at the end of the --
12 THE COURT: Officer Holl, excuse me, you probably ought
13 to make reference to what exhibit it is just for the record.
14 THE WITNESS: The first one was 34B.
15 34C, this leads down to where the victim was located,
16 down in the wooded area, the high grassy area, and right there,
17 the dark spot that's located on the culvert, is dried blood.
18 34D, this is the same culvert, just a photograph as you
19 approach even closer to where the victim is located, beginning
20 of the dried blood trail that led down to where the victim was
21 located.
22 34E, this is the same culvert where the victim was
23 located. The victim was located down here at the bottom of the
24 culvert. This is the trail of dried blood that leads down to
25 where the victim was located. There, there and there, where my
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1 three fingers are located, are spent shot shells.
2 Q. Investigator Holl, with respect to the shotgun shell
3 casing that you pointed out closest to the bottom of the
4 picture, the presence of the shotgun shell casing there together
5 with the initiation of blood spots, does that have any
6 significance to you as an investigator?
7 A. Yes, sir.
8 Q. What significance does it have for you?
9 A. The elevation of the culvert, once again this is 34E,
10 the high point of the culvert is here (indicating). As you go
11 back towards the high grassy wooded area, the culvert slopes.
12 The victim was first shot here. This is the high pitch of the
13 culvert down in the tall, grassy area that goes this way. The
14 grassy area where the victim was located would be at the
15 bottom. Blood is at the top, the blood trails down, the victim
16 was first shot at this point.
17 34F, it's a closeup picture of the photograph that you
18 just saw. This area right here is dried blood, that's dried
19 blood, and in the center is dried blood. This area out here is
20 just shadowing from the sun or the light because of the
21 exposure, and a spent 12-gauge shot shell. Just a closeup
22 photograph of the culvert, dried blood, dried blood, it trails
23 down. This area right here is just shadowing from the
24 photography with a spent shot shell that's depicted there and
25 also there.
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1 34G, this is the closeup area of the beginning of the
2 trail of blood at the top slope of the culvert as it leads down
3 to where the victim was located. This is a picture at the
4 bottom of the culvert where the rocks are located, which is
5 where the victim was located. The victim was located right in
6 this area (indicating), and that's a part of the shot shell.
7 It's the bottom of the culvert with the rocks. The culvert as
8 it slopes up is at this end. It slopes upwards towards Morris
9 Field, and the victim is located here. At the bottom of the
10 pen, there is a piece of plastic which is part of the 12-gauge
11 shotgun shell.
12 THE COURT: What number was that?
13 THE WITNESS: 34H.
14 34I, the photographer is standing at the bottom of the
15 culvert at the beginning of the tall grass wooded area. It
16 shows the legs of the victim and the lower torso. It's the
17 wooded tall grassy area at the bottom of the culvert, and it
18 shows the legs, lower torso. It's the blue jeans that the
19 victim wore.
20 34J, it's a closeup photograph of the victim laying on
21 his back on the rock bed area at the bottom of the culvert,
22 right leg slightly bent at the knee and the right leg at a
23 45-degree angle from his torso.
24 34K, closeup photograph of the victim, blue jeans and a
25 pullover knit shirt buttoned up by the collar. The color, I did
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1 not know.
2 34L is a photograph of the victim taken from the side,
3 the photographer standing to the side of the victim.
4 34M, picture of the wooded area where the victim was
5 located also showing the slope of the ground as it goes up
6 towards Billy Graham. Morris Field is out here (indicating).
7 34N, this is down in the high grassy area where the
8 victim was located, which is at the bottom down here, and Billy
9 Graham Parkway is up where you can see the sky area to show the
10 elevation drop off of the roadway. Morris Field is over here.
11 The victim was located down in here, elevation up to Billy
12 Graham Parkway.
13 34O, it's a picture of the clothing that was located
14 down in the culvert.
15 34P goes back to the culvert leading down to where the
16 victim was located, which is the top of the photograph. Once
17 again, the culvert is sloped this away from this point to the
18 top of the photograph going this way (indicating), depicting the
19 spent shotgun shell item two, spent shotgun shell item three,
20 dried blood, dried blood, and then blood trailing down to where
21 the victim was located, spent shotgun shell two, three, and the
22 blood running down to where the victim was located down at this
23 point.
24 34Q, the culvert showing spent shot shells and also
25 dried blood.
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1 34R, at the bottom of the box indicated item six is part
2 of the shotgun shell that was located just below the victim's
3 right foot. The victim is located up here (indicating), clear
4 piece of plastic that's located at the bottom of number six.
5 BY MR. CONRAD:
6 Q. Officer Holl, based on your training and experience, in
7 reviewing the crime scene that you reviewed on June 25th as well
8 as the photographs that you had ordered taken of that crime
9 scene, I will ask you whether or not in your opinion the
10 physical evidence found at the crime scene was consistent with
11 someone being shot and dragged farther down into the drainage
12 ditch of that culvert?
13 MR. LAUGHRUN: Objection.
14 THE COURT: Overruled.
15 THE WITNESS: Yes, sir.
16 BY MR. CONRAD:
17 Q. And what is the basis of that opinion? And if you can
18 use Government's Exhibit 34Q to assist you in telling the jury,
19 please do so.
20 A. 34Q which you've seen is the culvert and the blood.
21 It's consistent with the blood pattern of the victim being
22 dragged and also the way the victim was located, on his back.
23 The positioning of the victim supports being pulled.
24 Q. As part of your investigation, are you aware that the
25 shirt that the victim was removed and submitted later on for
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1 laboratory analysis and further testing?
2 A. Yes, sir.
3 MR. CONRAD: Your Honor, that's all we have of this
4 witness at this time.
5 THE COURT: Cross?
6 CROSS-EXAMINATION
7 BY MR. LAUGHRUN:
8 Q. Investigator Holl, on June 25th you were asked to
9 conduct an interview of the defendant, were you not?
10 A. Pardon me?
11 MR. CONRAD: Your Honor, I object and would like to be
12 heard.
13 THE COURT: All right.
14 (Bench conference not recorded.)
15 THE COURT: Objection sustained.
16 BY MR. LAUGHRUN:
17 Q. Investigator Holl, you were the chief investigator in
18 this case, is that a fair statement?
19 A. Up until the 18th of July.
20 Q. Now, you also reviewed all of the other reports in the
21 case, I take it, everything came across your desk that was
22 generated by the other homicide investigators?
23 A. I would have to say up through the 18th, the majority of
24 it; but being that the case wasn't completed at that time, not
25 everything, no.
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1 Q. How about the report that may have been generated by
2 Officer Bowling on June 26th of '96?
3 A. I would have to look at it, sir.
4 Q. Let me show you what I'm going to mark for just
5 identification only as Defendant's Exhibit --
6 MR. CONRAD: Again, Your Honor, there was an objection,
7 outside the scope of direct.
8 THE COURT: Sustained.
9 MR. LAUGHRUN: Judge, I haven't even had a chance to ask
10 him the question yet.
11 THE COURT: Well, I don't know what -- he must know what
12 you're going to do, I don't.
13 MR. LAUGHRUN: Well, I think I have a right to ask him
14 the question first.
15 MR. CONRAD: Your Honor, my objection is just that
16 report was never inquired into, and that's why I object.
17 THE COURT: Mr. Laughrun, I will sustain the objection.
18 You can put it on on your side of the case.
19 MR. LAUGHRUN: May I have just a moment?
20 THE COURT: Yes, sir.
21 (Attorney/client discussion.)
22 MR. LAUGHRUN: Judge, can we be heard briefly?
23 THE COURT: Yes, sir
24 (Bench conference not recorded.)
25 BY MR. LAUGHRUN:
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1 Q. Investigator Holl, you were asked by Mr. Conrad in
2 examining Government's Exhibits that you introduced whether or
3 not the body could have been pulled to that area, is that right?
4 A. Yes, sir.
5 Q. The body could have also crawled to that area, could it
6 not?
7 A. Yes, sir, could have.
8 Q. And turned over in the woods, is that correct?
9 A. I have an opinion to that. I'm not an expert in the
10 injuries that the medical examiner determined.
11 Q. Now, you were also asked to look at some photographs,
12 and I think you identified certain of those photographs. Let me
13 ask you --
14 MR. LAUGHRUN: If I may approach the witness, Your
15 Honor?
16 THE COURT: Yes, sir.
17 BY MR. LAUGHRUN:
18 Q. Investigator Holl, I ask you to take a look at
19 Defendant's Exhibit 24 for identification, and ask you if that's
20 a photograph at night of that same culvert?
21 A. Yes, sir.
22 Q. And it's lit up by some sort of artificial light. Would
23 that be a light from a camera or something?
24 A. Yes, sir.
25 Q. And is that the way it appeared that night?
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1 A. Yes, sir.
2 Q. I ask you to look at Defendant's Exhibit 23. Does that
3 also appear to be --
4 A. May I back up to this?
5 Q. Please, I'm sorry.
6 A. It appeared this way on the night that the photograph
7 was taken.
8 Q. Which was not the night of the homicide?
9 A. Correct.
10 Q. Defendant's Exhibit 23, I ask you if that's a photograph
11 looking across Morris Field over into the area where the body
12 was found?
13 A. Yes, it is.
14 Q. And it's lit up by some artificial light, is that
15 correct?
16 A. That's correct.
17 Q. Based on where the point -- based on where the
18 photograph was taken, is that right?
19 A. That's correct, that appears to be Billy Graham down
20 here.
21 Q. Does that appear to be the way it was the night the
22 photograph was taken?
23 A. Yes.
24 Q. Okay. Officer Holl, that area where the body was found
25 out on Billy Graham and Morris Field is in the Baker Two
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1 district, is that right?
2 A. No, sir, it's not.
3 Q. Where is it?
4 A. At that point in time, it was in what is called the Adam
5 Two patrol district. I'm not sure if it's been redirected to
6 another area now, but it's not Baker Two.
7 Q. At that time, it was Adam Two, is that correct?
8 A. Correct.
9 Q. At that time, was there a branch office or satellite
10 office, was the satellite office on Wilkinson Boulevard open
11 yet, do you know?
12 A. No, it was not.
13 Q. So the calls for service would generate out of the LAC
14 at that point for the Adam Two service area?
15 A. No, sir.
16 Q. Would there be another area where they were generated
17 from?
18 A. All calls for service were called in per se to 911. The
19 Adam Two patrol district office is located on South Tryon at
20 Clanton Road.
21 Q. Is it still there?
22 A. Yes, sir, it is.
23 MR. LAUGHRUN: That's all for now, Judge, we'd reserve
24 the right to recall Investigator Holl, if Your Honor please.
25 THE COURT: Yes, sir, you have that right. Any
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1 redirect?
2 MR. CONRAD: No, sir.
3 THE COURT: Thank you, sir, you may come down.
4 MR. WALKER: Your Honor, the government would call
5 Officer Payne.
6 L.A. PAYNE,
7 being first duly sworn, was examined and testified as follows:
8 DIRECT EXAMINATION
9 BY MR. WALKER:
10 Q. Ma'am, would you state your fall name and tell us what
11 you do for a living?
12 A. Lori Ann Payne, I'm a crime scene search technician.
13 Q. Officer Payne, as a crime scene search technician, did
14 you respond to a call back on June 25th of 1996 at the 3800
15 block of Billy Graham Parkway and the 4700 block of Morris Field
16 Drive here in Charlotte, Mecklenburg County?
17 A. Yes, I did.
18 Q. When you got to that intersection, did you see homicide
19 investigator R.A. Holl at that location?
20 A. Yes, I did.
21 Q. Once you arrived at that scene, did you become aware
22 that a victim there by the name of Donald or Donnie Allen had
23 been pronounced dead there on the scene?
24 A. Yes, sir.
25 Q. Was the area secured once you arrived?
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1 A. Yes, sir, it was.
2 Q. What did you do once you made your arrival there at that
3 intersection?
4 A. First thing I did was I talked to Investigator Holl, and
5 he kind of just let me know what was going on and everything.
6 And I asked him what he wanted me to do, and he instructed me
7 what to do and I started out by taking my photos, taking my
8 notes, and then we took some measurements. And I went up in the
9 helicopter, took more photos from the helicopter, and eventually
10 just collected the evidence that was at the scene.
11 MR. WALKER: May I approach the witness, Your Honor?
12 THE COURT: Yes.
13 BY MR. WALKER:
14 Q. Officer Payne, I'm going to show you what have already
15 been introduced into evidence, these photographs, 34B through
16 34R. Those are the photographs that you took at the request of
17 Investigator Holl, is that correct?
18 A. Yes, sir.
19 Q. You indicated that you collected some items at the crime
20 scene. Will you tell the members of the jury what you
21 collected?
22 A. Yes. I collected three spent shot shells, one
23 bloody -- well, appeared to be blood on it, a shot shell wad, a
24 pair of navy blue cotton pants, and I took what I thought was a
25 blood sample. There was a dark mark on the ground that appeared
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1 to be blood, so I took a sample of that.
2 Q. And those items that you just described, did you collect
3 those as evidence in this case?
4 A. Yes, I did.
5 Q. Did you put each of those items in a sealed container,
6 either a box or a sealed evidence envelope?
7 A. Yes, sir.
8 Q. And did you then initial and mark those envelopes
9 according to procedure and submit those as evidence with the
10 property control at the Charlotte Police Department?
11 A. Yes, I did.
12 MR. WALKER: Your Honor, may she join me at the table in
13 front of the jury?
14 THE COURT: Yes, sir.
15 MR. WALKER: If you would come down.
16 BY MR. WALKER:
17 Q. Referring your attention first, and I will hand you
18 these scissors, if you would open Government's Exhibit 33A and
19 removed the contents, please.
20 A. Okay.
21 Q. You have removed an item from the envelope which is
22 marked as 33A-1. Are those the dark pants that you collected
23 there at the crime scene there at that intersection?
24 A. Yes, they are.
25 Q. How can you tell those are the ones you collected?
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1 A. Well, anytime I collect clothing, I put my initials and
2 my code number on the clothing, which you can see on the tag.
3 And also on my notes, I have that it's a pair of navy blue, 100
4 percent cotton pants, waist 32, length 30, and that's what these
5 are.
6 Q. Are the pants in substantially the same condition now as
7 when you collected them at that location?
8 A. Yes, sir.
9 MR. WALKER: Your Honor, I would move the evidence bag,
10 33A, and the pants, 33A-1, into evidence.
11 THE COURT: Let them be admitted.
12 BY MR. WALKER:
13 Q. Referring your attention now to 33B, is that a sealed
14 evidence envelope?
15 A. Yes.
16 Q. And does it bear the markings, your signature and other
17 notes?
18 A. Yes, it does.
19 Q. If you would open that using those scissors.
20 MR. WILLIAMS: Excuse me, is that 31 or 33?
21 THE COURT: 33B.
22 BY MR. WALKER:
23 Q. You have removed two items from Government's Exhibit
24 33B. One of those items is 33B-1, the other item is 33B-2. If
25 you would, have you ever seen 33B-1 before, and if so, what is
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1 it?
2 A. Yes, I have. This is a spent shot shell. On the shot
3 shell, it says federal 12-gauge heavy field, one and one-eighth
4 ounce. And I found this on the -- on a concrete drainage
5 culvert near the big blood spot that I collected what appeared
6 to be blood, near the spot where I collected the sample.
7 Q. And you are referring to that item, it's been sealed and
8 placed inside the box that you have in your hand, is that
9 correct?
10 A. Yes.
11 Q. Would you please open that box?
12 A. (Witness complies.)
13 Q. And for purposes of identification, I will get you to
14 remove the actual item from the box. Let's keep the box labeled
15 as 33B-1. If you would remove that item which I will now mark
16 as 31B-1(a), if you will allow me to do that, and tell the jury
17 if you have ever seen that item before.
18 A. Yes, this is the spent shot shell that I just mentioned
19 that I collected from the drainage culvert.
20 Q. If you would place that back inside 33B-1. And
21 referring your attention again to 33B-2, this box, what does
22 that box contain?
23 A. This is another spent shot shell that I found next
24 to -- well, it wasn't really next to it, it was a couple of feet
25 from this one, and it was also on the drainage culvert near the
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1 blood.
2 Q. And that box is sealed as well, is that correct?
3 A. Yes, sir.
4 Q. And if you would, open that box and remove the contents?
5 A. (Witness complies.)
6 Q. And you have removed from that an item which I will mark
7 as 33B-2(a), and I will ask you if you have ever seen that item
8 before?
9 A. Yes, I have.
10 Q. How can you tell?
11 A. Well, because it's in -- it was in the box that has my
12 writing on it and my initials and code number on the box where I
13 sealed it.
14 Q. Is that the other shotgun shell casing that you
15 collected at the crime scene of Billy Graham and Morris Field?
16 A. Yes, it is.
17 Q. If you would place that back inside.
18 A. (Witness complies.)
19 Q. And lastly, referring your attention to sealed evidence
20 envelope bearing the mark Government's Exhibit 33C, if you would
21 using those scissors open that and remove the contents.
22 MR. WALKER: While she is doing that, Your Honor, I
23 would move into evidence 33B, 33B-1, 33B-1(a), 33B-2 and
24 33B-2(a).
25 THE COURT: Let them be admitted, 33B, B-1, B-1(a), B2
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1 and B-2(a).
2 BY MR. WALKER:
3 Q. Now, you have removed from Government's Exhibit 33C two
4 items, one of which is marked 33C-1 and the other is marked
5 33C-2. 33C-1 and 33C-2 are both sealed boxes, is that correct?
6 A. Yes, sir.
7 Q. If you would, open both of those -- tell me first, are
8 your writings on both of those boxes?
9 A. Yes, my writing is on both boxes along with my initials
10 and code number on the bag.
11 Q. If you would open both of those and remove the contents?
12 A. (Witness complies.)
13 Q. You have removed from that box, the box being 33C-1, an
14 item that I will mark as 33C-1(a). Is that the other shotgun
15 shell that you found there at the crime scene at Billy Graham
16 and Morris Field Road?
17 A. Yes, sir.
18 Q. If you would place that back inside of 33C-1.
19 A. (Witness complies.)
20 Q. And lastly, turning your attention to 33C-2, if you
21 would indicate if you've ever seen that sealed box before?
22 A. Yes, I have.
23 Q. And what is inside of that particular item?
24 A. This is the shot shell wad that I found and it appears
25 to have blood on it, and it was located on top of some rocks.
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1 There was like a little rock bed at the end of the drainage
2 culvert, and it was approximately 3 feet from the victim's right
3 foot.
4 Q. If you would open that up, please.
5 A. (Witness complies.)
6 Q. And I will label that item that you have removed from
7 33C-2 as 33C-2(a), and I'll place that back inside and I'll ask
8 you if that is the item --
9 A. Yes, sir, it is.
10 Q. -- that you removed from the rocky area at the end of
11 the drainage ditch?
12 A. Yes.
13 Q. All of those items appear to be in substantially the
14 same condition as when you collected them there that day?
15 A. Yes, sir.
16 MR. WALKER: Your Honor, I would also move admission of
17 33C, 33C-1, 33C-1(a), 33C-2 and 33C-2(a).
18 THE COURT: Let them be admitted.
19 MR. WALKER: I don't have any other questions, Your
20 Honor.
21 MR. WILLIAMS: No questions, Your Honor.
22 THE COURT: Thank you, sir. Thank you ma'am, step
23 down. Call your next witness.
24 MR. WALKER: Your Honor, the government would call
25 Donald Bryant.
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1 CHARLES DONALD BRYANT,
2 being first duly sworn, was examined and testified as follows:
3 DIRECT EXAMINATION
4 BY MR. WALKER:
5 Q. Mr. Bryant, if you would state your full name and tell
6 the jury what you do for a living.
7 A. My name is Charles Donald Bryant, the Second, and I'm
8 assistant medical examiner for Mecklenburg County.
9 Q. What experience do you have in law enforcement,
10 Mr. Bryant?
11 A. Prior to coming to the medical examiner's office in
12 1992, I was the senior crime scene technician one with the
13 Charlotte-Mecklenburg Police Department, and I have a total now
14 of 17 years in this type of work.
15 Q. And what do you currently do for a living?
16 A. I am the assistant medical examiner. That entails scene
17 investigations for the medical examiner's office. I assist at
18 autopsy, perform any background investigations or follow-up
19 investigations at the direction of the medical examiner.
20 Q. And were you on duty and working in that capacity back
21 on June 25th of 1996?
22 A. Yes, sir, I was.
23 Q. Pursuant to your responsibilities as the assistant
24 medical examiner, did you respond to a homicide scene at the
25 intersection of Morris Field Drive and Billy Graham Parkway here
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1 in Charlotte on that particular day?
2 A. Yes, sir, I did.
3 Q. If you would, indicate to the members of the jury
4 whether as part of your duties you approached the body of
5 someone you later identified to be the body of Donald Lee Allen?
6 A. Yes, sir, I did.
7 Q. If you would, indicate to the members of the jury
8 whether or not you looked at his body, the articles of clothing
9 on his body for any wallet or any other item of jewelry.
10 A. Yes, sir. Prior to placing the body in the body bag for
11 transport, I did perform a cursory search of the body and did
12 not locate a wallet on the body.
13 MR. WALKER: I don't have any other questions, Your
14 Honor.
15 THE COURT: Cross?
16 MR. LAUGHRUN: No questions.
17 THE COURT: Thank you, sir, you may step down.
18 MR. WALKER: Your Honor, the government would call Todd
19 Nordhoff.
20 TODD J. NORDHOFF,
21 being first duly sworn, was examined and testified as follows:
22 DIRECT EXAMINATION
23 BY MR. WALKER:
24 Q. Mr. Nordhoff, would you state your full name and tell
25 the jury what you do for living?
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1 A. My name is Todd J. Nordhoff. I am a firearm and tool
2 mark examiner with the Charlotte-Mecklenburg Crime Laboratory.
3 MR. LAUGHRUN: Judge, we'll stipulate as to his
4 qualifications. I think it's a fire mark and tool mark
5 examiner, is that -- expert, is that correct?
6 THE WITNESS: Firearm and tool mark examiner.
7 MR. LAUGHRUN: We will so stipulate, Your Honor.
8 MR. WALKER: We will accept that stipulation that
9 Mr. Nordhoff is an expert in firearms and tool mark
10 identification.
11 THE COURT: Thank you.
12 BY MR. WALKER:
13 Q. Mr. Nordhoff, how many times have you testified before
14 in court as an expert in firearms and tool mark identification?
15 A. Approximately 115.
16 Q. You did some laboratory analysis pursuant to your
17 expertise in this case, did you not?
18 A. Yes, I did.
19 Q. Tell the members of the jury exactly what is involved in
20 the field of firearms and tool mark identification.
21 A. I examine firearms related to cases that the police
22 department brings to me, firearms and firearm-related evidence,
23 which include bullets, cartridge cases and anything else that is
24 relevant to the firearm type case. Tool marks would include pry
25 marks or impression type marks, typically from break-in's or
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1 things like that. And I also do shoe prints and tire tracks.
2 MR. WALKER: May I approach the witness, Your Honor?
3 THE COURT: Yes, sir.
4 BY MR. WALKER:
5 Q. Mr. Nordhoff, I'm going to show you what is already in
6 evidence as Government's Exhibit 31E-1. I will ask you to take
7 a look at that weapon, and tell me if you even seen that before,
8 and if so, how you can tell?
9 A. Yes, I have. I have my initials engraved on the barrel.
10 Q. Pursuant to your work, were you requested to do some
11 analysis of that particular weapon?
12 A. Yes, I was.
13 Q. What analysis did you do, what testing did you do of
14 that shotgun?
15 A. I determined what it was and that the barrel was -- or
16 whether or not the barrel was of legal length, and whether the
17 firearm was operable. And then I compared some discharged shot
18 shells.
19 Q. Let met take each of those areas one at a time. What is
20 exactly the make, model and caliber of that particular shotgun?
21 A. This is a Winchester model 140, 12-gauge semiautomatic
22 shotgun.
23 Q. How many shotgun shells will that shotgun hold?
24 A. It holds two in the magazine, which is a tube that runs
25 in through here, and it will hold one in the chamber.
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1 Q. So three altogether?
2 A. Three altogether.
3 Q. After a person were to expel those three shells, the
4 person would have to reload to shoot another shell, is that
5 correct?
6 A. That's correct.
7 Q. You mentioned that you measured the barrel length of the
8 shotgun. What was the result of that measurement?
9 A. The barrel length is 14 inches.
10 Q. You also indicated that you conducted a test to
11 determine whether that gun is in operating condition. Is it?
12 A. It is, it is in good operating condition.
13 Q. And was it at the time that you did your laboratory
14 analysis?
15 A. Yes, it was.
16 Q. Would you explain to the members of the jury exactly how
17 that shotgun works?
18 A. Yes. Typically the shotgun shell will be -- live shot
19 shell will be loaded into the well here, and I can't really show
20 you because the tie is in the way, but it would be loaded up in
21 here. The bolt would be closed. The trigger is pulled,
22 shooting the load out the muzzle. The -- as the load goes out
23 the muzzle, the recoil force pushes back on the breach face,
24 which is this part here. And as that happens, there is a little
25 hook in here that extracts the shot shell out of the chamber,
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1 and there is another little piece of metal in there that kicks
2 it out the side, this port right here. After that is out, it
3 slides back forward under spring tension, loading the next live
4 shot shell into the chamber.
5 Q. And you said the spent shotgun shells are ejected to the
6 right, is that correct?
7 A. I didn't say that, but it is correct.
8 Q. Let me also draw your attention, if you would put that
9 weapon down to the side just for a second and join me at this
10 table.
11 MR. WALKER: If he may do that, Your Honor.
12 THE WITNESS: I don't like pointing it at anybody.
13 BY MR. WALKER:
14 Q. If you will come down and join me at this table,
15 Mr. Nordhoff, and I'm going to refer your attention first to
16 these items over here. Government's Exhibit 31J is an evidence
17 bag that's in evidence, as well as 31J-1 and 31J-2. I then am
18 going to refer your attention to the other items here which you
19 see marked which are all already into evidence. If you will
20 look at each of these items and indicate whether those were the
21 items that you used in your analysis when you compared with the
22 shotgun.
23 A. Yes, these are all exhibits that I've seen before and
24 examined pursuant to this case.
25 Q. And if you will just remain here at the table with me,
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1 each of these shotgun shells, do they bear your initials
2 somewhere on the shells so that you can tell that those are the
3 ones that you looked at?
4 A. Yes, they have my initials and case number.
5 Q. You looked also not only at the items which crime scene
6 technician Payne identified and were moved into evidence, but
7 also some shotgun shells that were retrieved from the crime
8 scene up in Roanoke, Virginia. Were you also asked in this case
9 to compare those spent shotgun shell casings with the shotgun
10 that I showed you previously?
11 A. Yes, I was.
12 Q. And did you do the same analysis with those shotgun
13 shell casings as you did with the shotgun shell casings
14 recovered at the Charlotte homicide scene?
15 A. Yes, I did.
16 Q. Tell the members of the jury what testing you did and
17 what those results were.
18 A. Okay. I test fired the shotgun as I mentioned before.
19 I took the shot shells that I knew were fired in that gun that
20 test fired and compared those under a comparison microscope to
21 the unknown shot shells that I received from the different crime
22 scenes.
23 Q. And what were the results of those examinations?
24 A. All of the shot shells were discharged from that
25 shotgun.
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1 Q. So you are saying that all of these spent shotgun shells
2 were discharged out of this shotgun over here, the shotgun that
3 I previously showed you which is Government's Exhibit 31E-1?
4 A. That's correct.
5 Q. Tell the members of the jury how it is that you can tell
6 them that those shotgun shells were fired from that exact
7 weapon.
8 A. As I mentioned before, when the firearm is discharged,
9 there are a lot of pressures that take place inside the
10 shotgun. If I can use one of these as the trigger is pulled,
11 the firing pin strikes the primer on the shot shell. Inside the
12 primer is a pressure sensitive chemical that ignites and it
13 ignites the gunpowder which is inside here. When the gunpowder
14 ignites, it forces everything out of the barrel of the firearm.
15 As that happens, the shot shell just recoils against the breach
16 face, which is, as I pointed out, back here (indicating).
17 When that breach face was manufactured, it was milled in
18 a milling operation that leaves little scratches or what we call
19 individual characteristics on that face, and there are no two
20 breach faces that have exactly the same markings. So what I do
21 is I look at those marks that are made impressed on the primer
22 and/or the shot shell head itself and compare those marks under
23 the microscope, and if I can match those up, then I can say that
24 the shot shell on this side of the microscope was fired from the
25 same gun as the shot shell on this side of the microscope.
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1 Q. So these spent shotgun shells, one of which you have,
2 21D, all of which were located at the crime scene of the 900
3 block of Loudon Avenue, those four shells were fired from this
4 shotgun, 31E-1?
5 A. They were discharged in it, yes.
6 Q. And as well, the other items, spent shotgun shells that
7 were recovered at the intersection of Morris Field Drive and
8 Billy Graham Parkway, those three spent shotgun shell casings
9 were also fired from this shotgun as well?
10 A. They were discharged from it.
11 Q. Okay, you can return to your seat.
12 Does the barrel lengths of a shotgun make a difference
13 concerning the spray pattern of the pellets once they leave the
14 end of the barrel of the shotgun?
15 A. Yes, it does.
16 Q. Explain how that works.
17 A. As the pellets leave the barrel of the firearm, they
18 spread out in a cone-shaped pattern. The longer the barrel is,
19 the longer the group of pellets will stay together. And so when
20 you shorten it, therefore, the pellets will spread out faster.
21 Q. I want to ask you a couple more questions about shotgun
22 shell wadding, and in your opinion as an expert, normally how
23 far a shotgun wadding will travel once the shotgun shell is
24 discharged from the shotgun?
25 A. That depends on a lot of different factors. I don't
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1 know that I'm comfortable giving you a --
2 Q. Let me put it to you this way, let me show you
3 Government's Exhibit 39A, B, 39C, 39D, 39E, 39F, 39G, 39H, 39I,
4 and lastly 39J. Do you recognize the shirt that is shown in
5 those photographs?
6 A. Yes, I do.
7 Q. Do those photographs fairly and accurately show the
8 shirt that you understand was on the victim Donald Lee Allen at
9 the time he was shot there at that intersection of Billy Graham
10 and Morris Field Drive?
11 A. Yes, they do.
12 MR. WALKER: Your Honor, I would move admission of those
13 exhibits, which are 39A through 39J.
14 THE COURT: 39A through J will be admitted.
15 BY MR. WALKER:
16 Q. Did you also examine the actual shirt that is shown in
17 those photographs?
18 A. I did.
19 Q. And what were you asked to do when you looked at those
20 photographs and the actual shirt, what were you asked to do?
21 A. I was asked to determine a muzzle to garment distance.
22 Q. And did you use the shotgun that I showed you, the one
23 over there on that table that's in evidence in this case, did
24 you use that very shotgun to conduct that range determination
25 test?
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1 A. Yes, I did.
2 Q. Tell the members of the jury how you did that and what
3 your conclusions were concerning -- well, once you looked at and
4 measured the holes, three shotgun holes to the shirt that the
5 victim was wearing.
6 A. Okay. What I did was examine the shirt to determine the
7 size of the holes and the characteristics, I guess, of the
8 holes. Then I took the shotgun and ammunition, which was the
9 same as that I had received as the evidence ammunition, and I
10 test fired the shotgun into cloth at different distances ranging
11 from 1 to 6 feet.
12 Q. And based on your measurements of the holes to the
13 victim's shirt in this case, what was your opinion or what is
14 your opinion as to the distance the gun was from that shirt when
15 the gun was fired?
16 MR. LAUGHRUN: Objection.
17 THE COURT: Overruled.
18 THE WITNESS: Based on the testing that I did, the
19 muzzle to garment distance was greater than contact but less
20 than 5 feet.
21 BY MR. WALKER:
22 Q. And when you say greater than contact but less than 5
23 feet, was that the same for each of the three shotgun holes?
24 A. Yes, it was.
25 MR. WALKER: I don't have any other questions, Your
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1 Honor -- excuse me, Your Honor, just one brief question.
2 BY MR. WALKER:
3 Q. Mr. Nordhoff, you completed a laboratory analysis, did
4 you not, showing the results of your examination?
5 A. I issued, I believe, three different reports.
6 Q. Let me show you what I will label as Government's
7 Exhibit Number 40, it consists of four pages. If you will take
8 a look at those, are those the laboratory reports that you
9 generated as a result of your examination?
10 A. Yes.
11 MR. WALKER: Your Honor, I would move admission of
12 Government's Exhibit 40. That consists of four pages.
13 THE COURT: Let it be admitted.
14 MR. WALKER: And I don't have any other questions of
15 Mr. Nordhoff.
16 THE COURT: Cross?
17 MR. LAUGHRUN: No questions, Judge Potter.
18 THE COURT: Thank you, sir, you may step down.
19 THE COURT: Anymore witnesses?
20 MR. WALKER: Your Honor, the government would call
21 Dr. James Sullivan.
22 MR. LAUGHRUN: Judge, could we be heard before this
23 testimony outside of the presence of the jury? Might need a bit
24 longer than that, Judge, maybe a little longer than that.
25 THE COURT: How many more witnesses do you have?
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1 MR. WALKER: Your Honor, this is the last witness.
2 THE COURT: How long is it going to take?
3 MR. WALKER: Should not take that long, Your Honor. He
4 is the medical examiner that examined the body -- I would think
5 less than 30 minutes.
6 THE COURT: Members of the jury, go back to the jury
7 room just for a few minutes. We'll see if we can finish up
8 today. Do not talk about the case while you are out.
9 (The jury left the courtroom.)
10 MR. LAUGHRUN: Judge, if we could have two seconds,
11 there is a couple of photographs that we've objected to. We
12 want to see what they are going to offer before we make an
13 objection, if any, to Your Honor, if you could just give us a
14 minute to look at those.
15 THE COURT: Go ahead.
16 MR. LAUGHRUN: Judge, if we could before the jury gets
17 back, we had filed a motion, Your Honor, on October 24th asking
18 Your Honor to exclude various photographs due to the state of
19 decomposition that had taken place. It's your order number
20 filed November 24th, your docket number 190.
21 THE COURT: 190, I've got it right here, sir.
22 MR. LAUGHRUN: Judge, that was made, the government --
23 we didn't have a hearing on that, that was made without Your
24 Honor reviewing the photographs.
25 THE COURT: Yes, sir, let me look at them.
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1 MR. LAUGHRUN: I would ask Your Honor to review those.
2 THE COURT: I'm going to review them right now, just
3 pass them up here.
4 (Pause.)
5 THE COURT: What do you want to say Mr. Laughrun.
6 MR. LAUGHRUN: Judge, the condition of that does not
7 illustrate in any way any relevant fact in the case. The
8 medical examiner is going to testify. He has taken his own
9 photographs in addition to those. He has a diagram that the
10 government is going to offer that we will stipulate to. He has
11 an x-ray that he is going to offer, an enlarged x-ray to show
12 the nature and extent of the wounds. And I would contend that
13 those items that the government intends to offer, and for the
14 record, I believe they are Government's Exhibits 42A -- I'm
15 sorry, I believe it's 42A through 42D that they just tendered to
16 Your Honor, violate Rule 403.
17 There is nothing in that that is illustrative. There's
18 nothing in that that they need. It's cumulative. All it is,
19 Judge, is to inflame the jury here on the very last evidence
20 they hear of the government's case before a two-day break. It's
21 not relevant under any situation, because they've got other
22 evidence that they can do it. It's extremely prejudicial
23 because of what it shows. They don't need that evidence, and I
24 would contend to Your Honor it's merely to inflame the passions
25 of the jury. It was not the way, the condition that Mr. Allen's
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1 body was left on June 22nd -- I'm sorry, June 22nd. It's
2 something that time has eroded because of the nature of a body
3 out late in the summer, and it does nothing to illustrate their
4 case.
5 THE COURT: All right, let's see what the government
6 says.
7 MR. CONRAD: Your Honor, Mr. Laughrun knows that the
8 photographs that were taken that are not relevant to the medical
9 examiner's testimony, we -- there are photographs that will not
10 assist him in his testimony, and we have not tried to offer
11 those photographs. We have selected the four photographs that
12 we have been informed by the medical examiner that they are
13 illustrative of his testimony and they are probative on the
14 points that we offer them for. We briefed this issue. We cited
15 cases to Your Honor. This argument was made by defense counsel
16 in motion. It was responded to by us and the Court ruled on
17 that, and I would contend that the Court ruled correctly. They
18 are probative on issues of the nature of the wounds and the
19 distance, and the medical examiner has indicated that they would
20 assist him in his testimony.
21 THE COURT: Let's get him in here and let's ask him on
22 the record.
23 MR. LAUGHRUN: Judge, if I may, too, while he is on his
24 way in, Your Honor had not had a chance to review those when you
25 made your order, and I think that --
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1 THE COURT: Well, I know, I put it very clearly in here.
2 I want to hear what he has to say, though.
3 MR. LAUGHRUN: Right.
4 THE COURT: Call him in.
5 JAMES M. SULLIVAN,
6 being first duly sworn, was examined and testified as follows:
7 THE COURT: Which want of you gentleman want to --
8 MR. WALKER: I will.
9 VOIR DIRE DIRECT EXAMINATION
10 BY MR. WALKER:
11 Q. Dr. Sullivan, you took a series of photographs when you
12 conducted the autopsy on the body of Donald Allen, is that
13 correct?
14 A. That's correct.
15 Q. That's something that you no as the normal course of
16 business when you do an autopsy on a person, is that right?
17 A. That's correct.
18 MR. WALKER: May I approach the witness, Your Honor?
19 THE COURT: Yes, sir.
20 BY MR. WALKER:
21 Q. I'm going to show you Government's Exhibits 42A through
22 42D, and ask you just simply to look at those. Those are the
23 photographs that you took of Mr. Allen's body when you did the
24 autopsy, is that correct?
25 A. That's correct.
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1 Q. And, in fact, you actually took an additional photograph
2 that is not included in the government exhibits, is that right?
3 A. That's correct.
4 Q. And that additional photograph was a photograph of the
5 head and face of Donald Allen, is that right?
6 A. That's correct.
7 Q. And do you remember meeting with Bob Conrad and I when
8 we asked you about those photographs and your anticipated
9 testimony here today?
10 A. Yes.
11 Q. And we asked you in particular about the photograph
12 that's not marked as a government's exhibit, whether that would
13 be relevant or illustrative for any point concerning your
14 testimony, and you indicated that it would not be, is that
15 correct?
16 A. That's correct.
17 Q. And but then we also asked you about the four
18 photographs that you see there, 42A through 42D, and if you
19 would, tell us whether those photographs are relevant first of
20 all and whether they would help you illustrate your testimony to
21 the jury concerning the three shotgun wounds suffered by Donald
22 Allen.
23 A. They are relevant, but I would say that they are of
24 minimal help in explaining to a jury about the shotgun wounds.
25 Because of the decomposition or artifact present, it is very
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1 difficult for one who is not used to viewing decomposed bodies
2 to make much sense out of what is seen here. So they are
3 relevant, they can be of some assistance, but I would think to a
4 jury of lay people, this is of minimal assistance.
5 THE COURT: All right, sir, sustain the objection based
6 on that.
7 MR. WALKER: Judge, he has with him an x-ray and he has
8 a machine that he is going to put the x-ray on to illuminate the
9 x-ray. May we set that up before the jury comes out?
10 THE COURT: Yes, sir.
11 MR. WALKER: It will just take a moment.
12 THE COURT: Doctor, if you'll just step down. When the
13 jury comes in, be sworn again. Just make sure that he's sworn
14 before the jury.
15 Could you set that just a little bit more towards the
16 middle, because we've got some jurors down here on the end that
17 get short changed, I think, about everything. Just move
18 whatever that is and put it right -- I'm sorry, I didn't know
19 your cord wouldn't reach, that's all right. Okay, I guess
20 that's about the best we can do. Ready for the jury?
21 MR. WALKER: We are, Your Honor.
22 THE COURT: All right, call the jury.
23 (The jury returned to the courtroom.)
24 THE COURT: Members of the jury, the attorneys are aware
25 that they're treading on your time now. They are going to make
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1 this as short as possible. If we can finish this part up today,
2 I think we'll go ahead and do it.
3 MR. WALKER: Your Honor, we would call Dr. Sullivan at
4 this time.
5 JAMES M. SULLIVAN,
6 being first duly sworn, was examined and testified as follows:
7 MR. WILLIAMS: If Your Honor please, to save time, I
8 know he's not been introduced, but the defense will stipulate to
9 Dr. Sullivan's expertise as a forensic pathologist and will
10 testify as an expert in that capacity.
11 THE COURT: Thank you, sir.
12 DIRECT EXAMINATION
13 BY MR. WALKER:
14 Q. With that stipulation, Dr. Sullivan, how many times have
15 you testified before in court and given your expert opinion
16 concerning causes of death?
17 A. Several hundred times.
18 Q. I want to refer your attention to a particular autopsy
19 you did in this case, the autopsy of Donald Lee Allen. You did
20 that here in Charlotte, North Carolina at your facility, is that
21 correct?
22 A. That's correct.
23 Q. When did you conduct the autopsy of the body of Donald
24 Lee Allen?
25 A. June 26th, 1996.
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1 Q. You generated an autopsy report as a result of your
2 examination?
3 A. Yes, sir.
4 MR. WALKER: May I approach the witness, Your Honor?
5 THE COURT: Yes, sir.
6 BY MR. WALKER:
7 Q. I'm going to show you Government's Exhibit 43A. Is that
8 the autopsy report that you generated once you did the autopsy
9 on the body of Donald Allen?
10 A. Yes, sir.
11 MR. WALKER: Your Honor, I would move admission of his
12 autopsy report, that being Government's 43A.
13 THE COURT: Let it be admitted.
14 BY MR. WALKER:
15 Q. If you would, relate to the members of the jury what you
16 noticed and observed about the body when you did that autopsy.
17 A. The autopsy showed the body of a young adult white male
18 who was in a state of marked decomposition with three shotgun
19 wounds to the body. They were all -- all of the shotgun wounds
20 were to the right side of the body. They all appeared to be of
21 close range.
22 Q. When you stay of close range, what in your opinion was
23 the distance?
24 A. I give a rough estimate of about 3 feet from the end of
25 the barrel to the shirt or skin surface. I think Mr. Nordhoff
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1 made measurements on the shirt and his estimation would be more
2 accurate, but that would be my estimation.
3 Q. Okay. And as a result of the autopsy you did on
4 Mr. Allen, you concluded, did you not, that he died of multiple
5 shotgun wounds?
6 A. Yes, I did.
7 Q. You also generated a diagram which is part of your
8 autopsy report, is that correct?
9 A. That's correct.
10 Q. Let me also show you Government's Exhibit 43B. Is that
11 just simply an enlarged diagram of your diagram?
12 A. Yes, sir.
13 Q. Would that help you illustrate your testimony to the
14 jury?
15 A. Yes.
16 MR. WALKER: Your Honor, I would move admission of 43B.
17 THE COURT: Let it be admitted.
18 BY MR. WALKER:
19 Q. Before I get you to turn your attention to the diagram,
20 if you would indicate what you observed about each of the
21 shotgun wounds that Mr. Allen suffered.
22 A. The first shotgun wound, and that is not to indicate
23 that I know the order of the shotgun wounds, but the one that
24 was arbitrarily labeled number one was to the shoulder area.
25 The entrance wound was on the outer aspect of the shoulder a
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1 little bit toward the back, and the shotgun pellet charge was
2 directed predominantly to the left, slightly upward and very
3 slightly forward, caused injury in the area of the shoulder
4 including fracture of the humerus, which is the upper arm bone
5 at the shoulder, and caused injury to the tissue around the
6 clavicle or collarbone.
7 The shotgun wound which was arbitrarily labeled shotgun
8 wound number two was to the right upper arm. It had its
9 entrance with the arm in anatomic position, which is the palm
10 forward, and probably does not represent the way the arm was at
11 the time of the jury. But in anatomic position, the entrance
12 wound is in the back of the arm and it caused injury in a
13 direction forward through the arm causing complete fracture
14 separation of the midpart of the right upper arm bone and injury
15 to the soft tissue in that area.
16 The third shotgun wound arbitrarily labeled shotgun
17 wound number three was to the upper chest. It had its entrance
18 on the far right side of the upper back and it was directed
19 predominantly to the left, slightly forward and upward. It
20 caused fracturing of several ribs on the back side of the chest
21 and caused injury to the right lung and to the right side of the
22 liver.
23 Q. Did you recover any pellets or shotgun wadding in any of
24 those wounds?
25 A. Yes. In shotgun wound number one, I recovered pellets
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1 and shotgun wadding. In shotgun wound number two, I recovered
2 pellets, I could find no wadding in that wound. And in shotgun
3 wound number three, I recovered pellets and shotgun wadding.
4 THE COURT: Excuse me, Doctor, would you move that
5 microphone up just a little bit?
6 THE WITNESS: Yes, sir.
7 THE COURT: Each time you use a P, it will pop on you.
8 That's fine, I think that will do it.
9 BY MR. WALKER:
10 Q. What in your opinion Dr. Sullivan, is the significance,
11 if any, of finding the shotgun wadding inside the wounds?
12 A. It helps to indicate the range generally. It would
13 suggest that a range of under 5 feet, say, for the wadding to
14 enter into the wound along with the pellets.
15 Q. Did you collect some of those pellets and the wadding
16 that you found in those wounds?
17 A. Yes, I collected the wadding and a sample of pellets
18 from each of the wounds.
19 Q. I'm going to show you, Dr. Sullivan, Government's
20 Exhibit 45A, it appears to be a sealed envelope, and I am going
21 to open the top of 45A and I'm going to remove the contents,
22 which are marked as 45B and 45D. And if you would, looking at
23 those two items, as well as 45C, have you ever even those items
24 before, and if so, how can you tell?
25 A. Yes, I have seen them. These are the packages of the
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1 evidence that I recovered from the shotgun wounds, the samples
2 of pellets and the wadding. 45B is pellets from shotgun wound
3 number two which I collected and sealed as evidence. 45D is
4 pellets and wadding which I recovered from shotgun wound number
5 three and sealed as evidence. 45C is pellets and -- a sample of
6 pellets and wadding I recovered from shotgun wound number one
7 and sealed as evidence.
8 Q. Are all of those items in substantially the same
9 condition as when you recovered them from the body of Donald
10 Allen?
11 A. Yes, sir.
12 MR. WALKER: Your Honor, I would move admission of 45A,
13 45B, 45C and 45D.
14 THE COURT: Let them be admitted.
15 BY MR. WALKER:
16 Q. Did you also, Dr. Sullivan, generate x-ray photographs
17 showing the pellets inside of the body of Donald Allen?
18 A. Yes.
19 Q. Do you have that x-ray with you today?
20 A. Yes, sir.
21 MR. WALKER: Your Honor, may he join me at the machine
22 here?
23 THE COURT: Yes, sir.
24 BY MR. WALKER:
25 Q. If you would come down, Dr. Sullivan, and if you would
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1 remove the x-ray, which I will label as Government's Exhibit 44,
2 and if you could just simply -- I will label it after you have
3 shown it to the jury. If you would put that on your machine
4 there, and using that x-ray, can all of the members of the jury
5 see the x-ray, using that particular x-ray -- you can start down
6 on this side of the jury and then go to the other side of the
7 jury, indicate what that shows.
8 A. This is an x-ray of the right arm and trunk of Donald
9 Allen at the time of autopsy. This is the middle of the body,
10 the spinal column. These are the right ribs, the right chest,
11 this is the right arm, the right shoulder, the right elbow.
12 This illustrates the pellets from the three shotgun wounds which
13 I described earlier, one labeled shotgun wound number one which
14 is to the right shoulder area, pellets distributed in the
15 direction to the left causing a fracture of the right shoulder.
16 The ball, this is part of the ball and socket joint of the right
17 shoulder is fractured from the shaft.
18 In this area of the right arm, you can see pellets from
19 what was shotgun wound number two. There is some artifact here
20 due to the decomposition and shrinkage of tissue, so the pellets
21 have sunk down to a little bit lower level in the x-ray than
22 they would have been in a nondecomposed state. The wound was
23 across this way through the arm back to front and in the normal
24 arm carrying position towards the left and caused complete
25 fracture and separation of the midportion of the shaft of the
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1 right arm.
2 This cluster of pellets on the right side of the chest
3 is what was described as shotgun wound number three. Probably
4 difficult for you to see, but there are rib fractures on this
5 right side of the chest and the pellets continue in a direction
6 predominantly to the left and into the right lung and into the
7 liver which extends up into the chest cavity in this area.
8 Q. And if you would, do the same with this side, the left
9 side of the jury.
10 A. This is an x-ray taken of the right arm and
11 predominantly the right side of the trunk of Donald Allen at the
12 time of autopsy and illustrates the pellets from the three
13 shotgun wounds. The first area is -- I'm sorry, to orient you,
14 this is the middle of the body, the spinal column, these are the
15 right side of the ribs, this is the right arm, right shoulder,
16 right elbow. And this cluster of pellets is from shotgun wound
17 number one, which was directed predominantly to the left and
18 caused fracture to the ball of the ball and socket joint of the
19 shoulder and injury in the right clavicle area. This cluster of
20 pellets is in the right arm. Again, there is some artifact due
21 to shrinkage of tissue due to decomposition and the pellets have
22 sunk to a lower level. They would be normally in this area
23 where you see fracture and separation of the shaft of the right
24 upper arm.
25 This cluster of pellets in the right chest and upper
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1 abdomen area is due to shotgun wound number three with rib
2 fractures in this area, on this side of the chest and the pellet
3 charge extending predominantly to the left causing injury to
4 lung and to the liver, which sits about here (indicating).
5 Q. Okay, Let me turn that off. And while you are here, let
6 me show you Government's Exhibit 43B, and if you could, I will
7 hold this up and we will start with the left side of the jury,
8 using this diagram, indicate what this diagram illustrates.
9 A. Predominantly the entrance site of shotgun wound number
10 one which is on the outer aspect of the right shoulder towards
11 the back, that wound again directed to the left and slightly
12 forward and slightly upward causing fracture here and injury in
13 the clavicle area.
14 Shotgun wound number two with some decompositional
15 artifact, in other words, the wound is expanded due to
16 decomposition and post mortem destruction of the tissues, but
17 the entrance site on what would be the back of the arm with the
18 arm in the anatomic position and the palm facing forward, again
19 probably more to the left with the arm in normal carrying
20 position and partial exit site on the inner aspect of the front
21 of the right upper arm.
22 And the entrance site of shotgun wound number three
23 again expanded due to some post mortem decomposition on the far
24 right side of the right upper back and directed predominantly
25 left and somewhat upward and forward causing injury to the right
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1 lung and liver in the area.
2 The diagram illustrates the entrance site of shotgun
3 wound one, which is on the outer aspect of the right shoulder
4 and the back. The wound was directed to the left, slightly
5 upward and slightly forward and caused injury fractures of the
6 right shoulder bone that was described in the clavicle area.
7 Entrance site on the back of the right upper arm where
8 shotgun wound number two, directed forward, slightly to the left
9 with the arm in normal carrying position. These are partial
10 exits on the front of the right upper arm. All of these wounds
11 expanded because of decomposition.
12 Shotgun wound number three, the entrance site on the far
13 right side of upper back and directly to the left predominantly,
14 slightly upward and slightly forward causing injury to the lung
15 and the liver in this area.
16 Q. Return to your seat.
17 And lastly, Dr. Sullivan, each of these shotgun wounds,
18 in your opinion, would they have caused a fast release of blood
19 out of the wound at the time that the wound was inflicted?
20 A. Well, relatively rapid exsanguination from injury to
21 blood vessels in the arm obviously which suffered severe injury,
22 less severe bleeding than the lung cavity or the liver, that
23 would be much less rapid.
24 Q. Dr. Sullivan, you indicated that there were three
25 shotgun wounds and you could not determine the order of
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1 infliction of those wounds. Do you have an opinion as to
2 whether Donald Allen died immediately once those wounds were
3 inflicted?
4 A. Yes.
5 Q. What is that opinion?
6 A. No, he did not.
7 Q. What is your opinion concerning that?
8 A. Concerning?
9 Q. How long it took him to -- how long was he conscious and
10 then how long was he unconscious before he died?
11 A. I can't give an exact minute obviously to either of
12 those questions. I can give a very rough estimate to give a
13 frame of reference of maximum times.
14 Q. If you would do that, please.
15 A. Again, this is, death is -- the mechanism of death in
16 this case is due to blood loss and also respiratory compromise
17 due to the injury of the lung. Neither of those would be in the
18 immediate time frame, in other words, not in terms of seconds.
19 It would be in terms of minutes for loss of consciousness.
20 Again, I can't state specifically two minutes or three minutes
21 or four minutes. I think a maximum time would be five minutes
22 to retain consciousness. In terms of time until death, again, a
23 very rough estimate just to give the maximum, I can't specify
24 exactly, it's not in terms of seconds and not in terms of a few
25 minutes, some minutes, I think a maximum would be 15 to 20
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1 minute range.
2 MR. WALKER: I don't have any other questions, Your
3 Honor.
4 MR. WILLIAMS: No questions.
5 THE COURT: Thank you, sir, thank you, Doctor,
6 appreciate your time. Is that it?
7 MR. CONRAD: Your Honor, there are some documents to be
8 entered into evidence pursuant to stipulation, and there are
9 also some factual stipulations as well.
10 THE COURT: You want to wait and do that Monday or do
11 you want to do it now?
12 MR. CONRAD: I can do that right now, Your Honor.
13 THE COURT: Go ahead and get through with it.
14 MR. CONRAD: Your Honor, the first document is
15 Government's Exhibit 17. It is a three-page document bearing
16 the seal of the Mecklenburg County Superior Court. It is a
17 judgment rendered September 20th, 1994 in the matter of State v.
18 Aquilia Barnette, 93CRS076063, a felony conviction for felonious
19 restraint. I would move admission of that document pursuant to
20 stipulation and request that --
21 THE COURT: Let it be admitted.
22 MR. CONRAD: Request to pass it to the jury.
23 THE COURT: Yes, sir.
24 MR. CONRAD: The second document is Government's Exhibit
25 41, which is a self-authenticating document of the Department of
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1 the Treasury, Bureau of Alcohol, Tobacco and Firearms. It's a
2 certificate of nonregistration. It's a several-page document
3 indicating that neither a weapon made from a shotgun, a
4 Winchester shotgun, model 1400, serial number N868530, nor any
5 destructive devices have ever been registered to the defendant,
6 Aquilia Marcivicci Barnette. And I would move admission of that
7 document and request permission to pass it to the jury.
8 THE COURT: All right, sir.
9 MR. CONRAD: Your Honor, there is a written stipulation
10 between the parties labeled Government's Exhibit 48 that
11 stipulates among other things that the defendant Aquilia
12 Marcivicci Barnette's date of birth is July 7th, 1973, and at
13 the time of the offenses charged in the indictment, he was over
14 the age of 18.
15 The second factual stipulation is that the defendant,
16 Aquilia Marcivicci Barnette, is a convicted felon, that is, he
17 was convicted on September 20th, 1994 of a crime punishable by
18 imprisonment for a term exceeding one year, and that at the time
19 of the offenses charged in the indictment did not have that
20 conviction expunged or set aside and he had not been pardoned or
21 had his civil rights restored.
22 The third stipulation is as to Government's Exhibit 19.
23 THE COURT: 19?
24 MR. CONRAD: Yes, sir. It's a partial map of the
25 southern United States, including the cities of Charlotte, North
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1 Carolina and Roanoke, Virginia and Knoxville, Tennessee.
2 THE COURT: That's already been admitted.
3 MR. CONRAD: Right. The distance between Charlotte,
4 North Carolina and Roanoke, Virginia is approximately 194
5 miles. The distance between Roanoke, Virginia and Knoxville,
6 Tennessee is approximately 257 miles. The distance between
7 Knoxville, Tennessee and Charlotte, North Carolina is
8 approximately 220 miles.
9 THE COURT: Thank you, sir.
10 MR. CONRAD: There is a stipulation, Your Honor, that
11 the photograph introduced of Donald Lee Allen through Mr. Allen
12 and the -- well -- Your Honor, there is a stipulation that
13 because of the Court's rulings has no bearing on this case, I
14 will go to the next one.
15 Government's Exhibit 22 is a photograph of Robin
16 Williams.
17 Government's Exhibit 23A through 23M are autopsy
18 photographs of Robin Williams. The individual depicted in
19 Government's Exhibit 22 is the same individual depicted in
20 Government's Exhibits 23A through 23M.
21 THE COURT: Thank you, sir.
22 MR. CONRAD: The next stipulation is that the 1994 Honda
23 Prelude, vehicle identification number JHMBA8142RC004261, which
24 was recovered by law enforcement officers on June 24th, 1996 on
25 Independence Boulevard, Charlotte, North Carolina belonged to
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1 Donald Lee Allen, who resided at 2075 McConnells Road,
2 McConnells, South Carolina. Donald Lee Allen purchased the 1994
3 Honda Prelude from Honda Cars of Rock Hill, 686 Gallery
4 Boulevard, Rock Hill, South Carolina. If called to testified, a
5 qualified witness from Honda Cars of Rock Hill would testify
6 that the 1994 Honda Prelude was transported, shipped and
7 received in Rock Hill from a place outside the State of South
8 Carolina prior to its being sold to Donald Lee Allen.
9 THE COURT: Thank you, sir.
10 MR. CONRAD: Your Honor, there are two stipulations with
11 respect to medical records that have not yet been introduced
12 into evidence and are not currently here in the courtroom, but
13 the medical records are for the Community Hospital of Roanoke
14 Valley for Aquilia Marcivicci Barnette for the time period
15 including June 5th, 1995, and medical records for Robin Williams
16 from the University of Virginia Medical Center burn unit for the
17 time period May 1st, 1996. Those records constitute records
18 kept in the ordinary course of business and are admissible into
19 evidence.
20 THE COURT: All right, thank you, sir. Is that it?
21 MR. CONRAD: There are a couple more stipulations with
22 respect to the admissibility of the two shotguns in evidence,
23 those having been admitted earlier in the trial. Government's
24 Exhibit 31E-1 is a Winchester, model 1400, 12-gauge shotgun,
25 serial number N 868530, which was seized from a shopping center
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1 parking lot on East Independence Boulevard, Charlotte, North
2 Carolina. This Winchester shotgun was manufactured in the State
3 of Connecticut. By virtue of its origin in the State of
4 Connecticut and subsequent discovery in the State of North
5 Carolina, this shotgun travelled in interstate commerce.
6 THE COURT: Thank you, sir.
7 MR. CONRAD: There's a stipulation that one ten-print
8 fingerprint card containing the fingerprints of Aquilia
9 Marcivicci Barnette was compared to a latent fingerprint lifted
10 from the top of a 1994 blue Honda which belonged to Donald Lee
11 Allen and which was recovered from a parking lot of a shopping
12 center on East Independence Boulevard, Charlotte, North
13 Carolina. If called to testify, Nancy Kern, a fingerprint
14 analyst with the Charlotte-Mecklenburg Police Department would
15 testify as follows: that she has been recognized as an expert
16 in fingerprint analysis in State and Federal Court; that she
17 compared the fingerprint card of Aquilia Marcivicci Barnette
18 with the latent fingerprint lifted from the top of the 1994 blue
19 Honda mentioned above; that in her expert opinion, the latent
20 print was identified to the left index and left middle finger of
21 Aquilia Marcivicci Barnette.
22 THE COURT: Thank you, sir.
23 MR. CONRAD: There is a stipulation as to a report which
24 was not introduced into evidence and therefore is no longer
25 relevant. And the last stipulation between the parties is that
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1 all evidence seized by the Charlotte-Mecklenburg Police
2 Department and the Roanoke Police Department was properly
3 inventoried and maintained at their respective property control
4 departments, made available for inspection to counsel for the
5 defendant, and no objection based upon chain of custody or
6 authenticity will be made.
7 This stipulation is hereby entered into for the purpose
8 of this criminal trial and for no other purpose. Both the
9 United States and the defendant reserve the right to call
10 witnesses concerning the subject matter of this stipulation.
11 The defendant reserves the right to raise any objections
12 relating to the relevance of the evidence described herein,
13 dated 23rd of January, 1998, signed by counsel and the defendant
14 himself.
15 THE COURT: Thank you, sir.
16 MR. CONRAD: Move admission of the stipulation of
17 Government Exhibit 48.
18 MR. WALKER: Your Honor, as those Exhibits are being
19 passed, I did not ask permission to pass to the jury
20 Government's Exhibit 39A through 39J. May I pass those photos
21 to the jury?
22 THE COURT: Well, if you want to, go ahead. They can
23 look at them, I guess.
24 (Pause.)
25 THE COURT: Mr. Walker, are those all fastened together?
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1 It would be much faster if they could pass one at a time as they
2 look at them rather than go through the --
3 MR. WALKER: Your Honor, I will be glad to separate
4 those.
5 (Pause.)
6 MR. CONRAD: Your Honor, I would as well admit by
7 stipulation the laboratory report of Nancy Kern indicating that
8 the latent print lifted from the blue Honda was identified as
9 the left index and left middle finger of Aquilia Marcivicci
10 Barnette.
11 THE COURT: Does that have an Exhibit Number on it?
12 MR. CONRAD: It does, Your Honor, Government's Exhibit
13 35.
14 THE COURT: 35, thank you, sir.
15 MR. CONRAD: May I pass it to the jury?
16 THE COURT: Let it be admitted.
17 Y'all want to come up here?
18 (Bench conference not recorded.)
19 THE COURT: Would you gentlemen object to them taking
20 that back there while we talk about this matter?
21 MR. CONRAD: Yes, sir.
22 THE COURT: Any objection from the defendant? They've
23 got pictures --
24 MR. LAUGHRUN: No, sir, it's the stipulation that we're
25 objecting to.
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1 THE COURT: Y'all, to save some time, we've got
2 something we have to bring up among the attorneys. Just take
3 that back there with you and be looking at it. Do not discuss
4 it, do not say anything to each other about it, just look at it.
5 Just take them on back in the jury room with you.
6 (The jury left the courtroom.)
7 MR. LAUGHRUN: Your Honor, if we --
8 THE COURT: All right, Mr. Laughrun, what is it you
9 want?
10 MR. LAUGHRUN: Well, before we do that, Judge, when
11 Investigator Holl testified, we attempted to
12 cross-examination -- cross-examine him, if Your Honor please,
13 about some matters. The government objected, Your Honor, with
14 Rule 611(c) sustained objections outside the scope of direct.
15 We objected, had a bench conference. At the bench conference,
16 we asked Your Honor to reconsider saying it was discretionary
17 with Your Honor. You declined to do that. That's all that was
18 discussed at the bench conference then, is that correct,
19 Mr. Conrad?
20 MR. CONRAD: Yes, except I think it was 611(b).
21 MR. LAUGHRUN: 611(b), I'm sorry, right. And, in fact,
22 I believe you said put it in when it's your turn or something
23 along those lines. I believe that's what Mike's recollection
24 is, too, Judge.
25 We also had a bench conference just now about
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1 scheduling. Your Honor asked us how long we would take.
2 Mr. Conrad said he had an objection, we said we'll put it all on
3 the record, and that was all that was said at that bench
4 conference about five minutes ago, is that a fair statement,
5 Bob?
6 MR. CONRAD: Yes.
7 THE COURT: All right, sir. Now, do you know what it is
8 they are going to put on?
9 MR. CONRAD: Let me proffer to the Court what I think it
10 is and be corrected by Mr. Laughrun if I'm wrong. I anticipate
11 Mr. Laughrun offering into evidence the taped confession that
12 the defendant made to Officer Holl on Friday, June 28th, 1996,
13 the third of three confessions. We offered two of those
14 confessions into evidence already.
15 I anticipate Mr. Laughrun and Mr. Williams offering into
16 evidence the videotape that -- of the first two confessions that
17 have already been introduced into evidence by the government
18 through the testimony of Investigator Sanders and the testimony
19 of Investigator Rice.
20 THE COURT: The one nobody could hear or see or
21 something?
22 MR. CONRAD: Yes. Judge, I have a threefold objection
23 to that testimony coming in from the defense side. The first
24 ground for my objection is that that evidence is hearsay. It's
25 not hearsay when offered by the government, because it's a party
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1 admission, and the rules under 801 for a party admission is when
2 that is offered by the opposing party. So when they offer it,
3 they don't meet the requirement for a party admission, so it
4 should not come in under Rule 801.
5 The only other exception that it would qualify as either
6 nonhearsay or an exception to the hearsay rule is a statement
7 against interest, and Your Honor, they are not offering it for
8 that purpose. They are not offering it for a statement against
9 interest, they are offering it to show remorse. It's a
10 self-serving statement by the defendant, and under 804-3, it
11 doesn't come in as an exception to the hearsay rule. So I
12 contend to Your Honor that the statement Barnette made to
13 Investigator Holl when not offered by the government doesn't
14 qualify under the hearsay rules, it should be excluded as
15 hearsay.
16 The second grounds for my argument, Your Honor, is that
17 that recording is not being offered for a relevant purpose, It's
18 being offered to show remorse. That's a proper factor at
19 sentencing, because then the issue is whether it's a mitigating
20 factor or not. Remorse is not an element of the offense, nor is
21 it an affirmative defense. And it comes in properly at
22 sentencing but has no relevant purpose in this trial in the
23 guilt phase of the trial, and the defendant has no right to
24 offer self-serving statements at this time.
25 And my third argument, Your Honor, would be in the
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1 Court's discretion, you can rule this evidence out as being
2 cumulative. It's the third confession. The jury has heard two
3 confessions offered by the government, and it's being offered by
4 the defense solely again to show remorse. And the defense has
5 no right to offer cumulative evidence on a nonrelevant point in
6 their case in chief just because the government didn't offer
7 it.
8 So for those three reasons, the fact that it's hearsay
9 and not allowed for by any hearsay exception and not relevant to
10 an issue in the case and it's cumulative, I'd ask the Court to
11 bar the defense from putting on testimony of a third confession.
12 THE COURT: Mr. Laughrun, first of all, is that what you
13 plan on offering?
14 MR. LAUGHRUN: Every bit of it, Judge, yes, sir, and
15 I'll tell you why. First, if I could address them one at a
16 time, it's under 803-1-1. The Congress has passed a very
17 liberal rule that says things that aren't hearsay. Present
18 sense impression, a statement describing or explaining an event
19 or condition made while the declarant, being the defendant, was
20 perceiving the event or immediately thereafter. It was done two
21 days after he was arrested, so it qualifies as a present sense
22 impression.
23 It also, Judge, qualifies as nonhearsay in that it
24 explains his state of mind, emotion, sensation or physical
25 condition such as intent, plan, motive, design, mental, feeling,
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1 pain and bodily health, but not including a statement of memory
2 or belief to prove the fact remembered or unless it relates to
3 execution of a will or whatever. So it qualifies as a
4 nonhearsay exception under 803-1 and 803-3, which says it's not
5 hearsay.
6 It's entirely relevant, Judge, because the statement
7 that the government doesn't want the jury to hear talks about
8 the defendant saying, well, I don't know if I shot him or not,
9 it was dark, I know I hurt him real bad, I didn't mean to kill
10 him, things like that. That goes entirely, Judge, to issues
11 that are present in Counts -- 11 of the bill of indictment,
12 which -- 10 and 11, which is the homicide of Donald Lee Allen,
13 if Your Honor please. So it goes to show premeditation and
14 deliberation clearly and the lack thereof, so we have a right to
15 present that.
16 Also, Judge, finally, in --
17 THE COURT: Excuse me just a minute. Is the videotape
18 the remorse part, is that what you're --
19 MR. LAUGHRUN: Well, the videotape, Judge, you can hear
20 parts of the confession, parts of it, you can't.
21 THE COURT: I'm talking about the videotape you are
22 talking about putting in.
23 MR. LAUGHRUN: Yes, sir. This goes, Judge, part and
24 parcel of the non-objected-to statements by the defendant that
25 were offered by J.M. Sanders today. So in the interest of
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1 fairness, the jury ought to hear, as they say, the rest of the
2 story, as Paul Harvey says, the rest of the story, they ought to
3 hear the rest of it, too. They can put whatever --
4 THE COURT: Excuse me, go ahead, I'm sorry.
5 MR. LAUGHRUN: They can put whatever weight on it they
6 want to, but I would contend it's admissible because it goes
7 hand in hand with the statement Officer J.M. Sanders gave and
8 the video that -- audio that they heard from J.M. Sanders, Your
9 Honor.
10 Judge, as my co-counsel says, too, J.M. Sanders
11 testified that the defendant, quote, turned on the tears, close
12 quote, that was his quote. This is offered to rebut that, and I
13 think we have a right to do that. We didn't ask him, did he
14 turn on the tears? He says, no, he was able to turn on the
15 tears at will. Those were his words. We have a right to rebut
16 that, I think, with the videotape. The jury can put whatever
17 weight on it they want to. They can discard it. But we have a
18 right in our case in chief, a case where the government is
19 seeking to execute the defendant if he's convicted, to put that
20 on in front of the jury at our case in chief.
21 Also, Judge, my last argument is, and I understand the
22 government as a right to withdraw whatever they want to in the
23 exhibit list, Exhibit 38 in the filed witness list says that
24 they are going to offer the cassette tape of Barnette's
25 statement to Robert A. Holl and the transcript thereof. And
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1 there is a disclaimer at the end, and they have a right to do
2 that, I'm not fussing about that. In our opening statement,
3 Mr. Williams told the jury, you are going to hear three
4 confessions from the defendant. We staked ourselves out based
5 on what we understand the law is and that; and if it's not
6 admissible, we are ineffective as a matter of law, if Your Honor
7 please.
8 THE COURT: Did you say that in your opening statement?
9 MR. LAUGHRUN: We sure did.
10 MR. CONRAD: They did, Your Honor. But, I mean, but
11 they took a choice of forecasting what the government's evidence
12 would be, and just -- if their argument is it's on our exhibit
13 list and therefore they should be able to put it in in their
14 case in chief, I think they're on very thin ice. It's classic
15 hearsay. They are not offering it against us, they are offering
16 it for them and that's not a party admission and it's hearsay.
17 It's certainly not a present sense impression as argued by
18 Mr. Laughrun. A present sense impression is when you see
19 something and right away say anything about it. It says
20 perceiving the event or condition or immediately thereafter. We
21 are talking about Friday, the 28th, when the events in question
22 occurred on the previous Saturday. So, I mean, it doesn't work
23 just because it's on our exhibit list and they made a mistake
24 thinking we were going to put in. There is a lot of evidence on
25 our exhibit list that we didn't put it.
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1 MR. LAUGHRUN: Judge, we've got it marked already
2 whether they offered it or not. I'm not saying just because
3 it's not on their list, we don't offer it. I haven't heard an
4 argument saying it's not a present sense then existing mental
5 emotional or physical condition, I haven't heard a word about
6 that. And the reason they don't want the tape played, Judge, it
7 shows a very remorseful, tearful, crying defendant two days
8 after he's given the second statement.
9 THE COURT: What does that have to do with the guilt
10 phase?
11 MR. LAUGHRUN: It has a lot to do, Judge, because it
12 describes his reactions and his mental thought during the Donald
13 Allen homicide. There is also some very substantive stuff in --
14 THE COURT: What does that have to do with the guilt
15 phase?
16 MR. LAUGHRUN: Judge, the jury has got to find beyond a
17 reasonable doubt based upon the indictment that it was unlawful,
18 willful premeditation and with deliberation, and it goes to
19 rebut that at the guilt phase. And we have a right to play
20 that, Judge, and that's why they don't want to play it. If it
21 had none of that, they wouldn't play it. That's why they played
22 the first statement and not the second statement, the second
23 statement being the Bob Holl statement that we have got here.
24 That's why they don't want to play it, and I understand, I was a
25 prosecutor, too, as Mr. Williams was. Read you a quote, Judge,
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1 that Mr. Williams has found. Quote, I didn't know if I hit him
2 or not, I just shot where he was standing, I know I fired three
3 times, I never touched him after I shot him. Now, that shows
4 lack of premeditation and deliberation, and that's why they
5 don't want the jury to hear it. Now, they can disregard it if
6 they want to.
7 THE COURT: Mr. Laughrun, he told the man to walk across
8 the road.
9 MR. LAUGHRUN: Yes, sir.
10 THE COURT: He told him to turn around.
11 MR. LAUGHRUN: Yes, sir.
12 THE COURT: He shot him three times.
13 MR. LAUGHRUN: Yes, sir.
14 THE COURT: Right?
15 MR. LAUGHRUN: Yes, sir.
16 THE COURT: If that isn't premeditation, I don't know
17 what is.
18 MR. LAUGHRUN: Well, we have a right, Judge, to argue
19 our side of that to the jury.
20 THE COURT: You can argue all you want to.
21 MR. LAUGHRUN: But not if we can't offer this evidence.
22 THE COURT: You don't have to put evidence, you can
23 argue.
24 MR. LAUGHRUN: No, sir, I can't, I have nothing to argue
25 that on, Judge. I mean, his -- the government wants to pick and
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1 choose the confessions, and they can't do that, Judge. I mean,
2 it either all comes in or none of it comes in.
3 MR. CONRAD: That's exactly what the rules allow us to
4 do. We can pick and choose what admissions of a party opponent
5 we want to put into evidence, and that's what we did. They
6 cannot offer hearsay, self-serving declarations for their side.
7 THE COURT: I'm going to sustain the objection. Call
8 the jury, I'm going to let them go.
9 MR. LAUGHRUN: Is that to the video also, Judge?
10 THE COURT: Yes, sir. That's the part about the crying,
11 is that what you're talking about?
12 MR. LAUGHRUN: No, sir, the video goes to supplement,
13 number one, it goes to supplement the J.M. Sanders statement,
14 and the statement that Sanders said, we tried to start the
15 videotape and we couldn't get any audio.
16 MR. CONRAD: Your Honor, that's offered solely for the
17 purpose of impeachment. They chose not to do it when J.M.
18 Sanders was on the stand and now they want to put it in their
19 case in chief, and it's not permissible to put in the case in
20 chief. It's only for the purpose of impeachment, they had that
21 opportunity, they chose not to.
22 MR. LAUGHRUN: Fine, we'll call him as a witness, then.
23 THE COURT: Objection is all sustained, Mr. Laughrun,
24 call the jury. Now, you are not going to put on anything else
25 Monday, is that right?
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1 MR. LAUGHRUN: Yes, sir, we are going to publish our
2 exhibits to the jury that we --
3 THE COURT: Pardon?
4 MR. LAUGHRUN: We have got some exhibits we've offered
5 to publish to the jury.
6 THE COURT: What?
7 MR. LAUGHRUN: Well, if you give me a minute, Judge,
8 we've got about 20 of them that were offered and have been
9 identified by various witnesses.
10 MR. CONRAD: We may not have any objection to that if we
11 can publish it right now.
12 THE COURT: What is it?
13 MR. LAUGHRUN: I mean, Judge, we've got --
14 THE COURT: Let's get it over with now, then,
15 Mr. Laughrun, it's 5:25. All right, call the jury.
16 MR. LAUGHRUN: Judge, can you give us a minute to find
17 them? I mean, I didn't know we were going to put on our
18 evidence today, but can you give me just a minute to find it? I
19 think out of fairness, we have got --
20 THE COURT: All right, I don't want to call them all the
21 way back in here, though, to put those little bit of things in.
22 MR. LAUGHRUN: I'm sorry?
23 THE COURT: I say I don't want to call them back just to
24 put in a little bill of evidence like that. When the jury comes
25 out, you've got to rest in front of the jury. You haven't done
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1 that yet.
2 MR. LAUGHRUN: I would like to rest over objection, if
3 Your Honor please.
4 THE COURT: Okay, sir.
5 (The jury returned to the courtroom.)
6 THE COURT: Excuse us just a few more minutes.
7 (The jury left the courtroom.)
8 MR. LAUGHRUN: Judge, for the record, we would like to
9 offer previously identified Exhibit Number 1, which is a telex
10 that was sent from Roanoke Police Department about be on the
11 lookout for a vehicle matching the description of the defendant
12 that was not objected to when he showed it to the witness. I
13 believe it was the first witness who testified, Mr. Hubbard.
14 The rest of the telexes, Judge, are telexes sent by the Roanoke
15 Police Department. They have been marked and labeled
16 Defendant's Exhibits 4, 5, 6 -- 3, 4, 5, 6, 7 and 8.
17 THE COURT: Just tell me, what's the purpose of these,
18 Mr. Laughrun?
19 MR. LAUGHRUN: Judge, the purpose of these is to show
20 that the Charlotte Police Department were looking for the
21 defendant, they couldn't find him, he surrendered himself.
22 Defendant's Exhibit Number 10 is a telex from the Charlotte
23 Police Department saying that 3413 West Boulevard, Charlotte is
24 not a valid address, sent by the Charlotte Police Department
25 May 2nd, 1996. Defendant's Exhibit Number 18 --
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1 THE COURT: 3413 is not a valid address? It's been
2 talked about all during --
3 MR. LAUGHRUN: Oh, Judge, it gets better. Our police
4 department says that address doesn't exist, that's why they
5 didn't pick the defendant up.
6 THE COURT: All right.
7 MR. LAUGHRUN: That's why Defendant's Exhibit 18, 3413,
8 there were 29 calls for service to that address for an address
9 our police department says doesn't exist.
10 Defendant's Exhibit 11 and 12, Judge, is the mailbox
11 photographs that were identified by all of the witnesses saying
12 that's where the defendant lives, it's a valid address and
13 that's where it is.
14 THE COURT: Okay.
15 MR. LAUGHRUN: Defendant's Exhibit 16, Judge, is the
16 tail pipe that was identified by Officer Price, crime scene
17 search officer --
18 THE COURT: The one that had the tape on it? Okay.
19 MR. LAUGHRUN: Yes, sir. And, Judge, Defendant's
20 Exhibit Number 25 and 23 were crime scene photographs identified
21 by Investigator R.A. Holl that says -- that just shows what they
22 are, the crime scene of the date and time in question, one at
23 night, one in the daytime. And I believe, Judge Potter, that's
24 all.
25 For the record, Judge, I think I need to offer, and I
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1 will have a copy made for the record tomorrow -- Monday, the
2 tape that we wanted to offer and the transcript of the same, and
3 I will mark those for the record.
4 THE COURT: All right, fine, they will be exhibit
5 numbers whatever they are.
6 MR. LAUGHRUN: I do, Judge. They're marked -- the tape
7 will be marked as 27, and I need to play it, Judge. As I
8 understand the government, now, I want to stake them out, they
9 are not objecting to us playing this at the penalty phase.
10 That's what they said to you a few minutes ago. I want to make
11 sure that's -- they're not going to --
12 THE COURT: Is that your agreement?
13 MR. LAUGHRUN: We're not at agreement because we still
14 want to play it at guilt innocence.
15 MR. CONRAD: Yes, sir.
16 THE COURT: Okay, anything else?
17 MR. LAUGHRUN: And then we have got the transcript and
18 the --
19 THE COURT: Third confession, you've got the transcript.
20 MR. LAUGHRUN: And we've got the videotape.
21 THE COURT: You've got the videotape.
22 MR. LAUGHRUN: But that's the only copy we've got, so I
23 want to keep it for penalty --
24 THE COURT: You can make a copy over the weekend,
25 though. All right, what do you want to say?
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1 MR. CONRAD: No objection to any of the exhibits.
2 THE COURT: Let me put this on the record also while we
3 are here. The Exhibit Numbers 42A through 42D, which were
4 pictures of the victim, Mr. Allen, after he was shot and found
5 some three or four days later, the Court had issued an order,
6 document number 190, in response to the defendant's motion in
7 limine, document number 148, denying the defendant's motion that
8 those photographs not be admitted. Since that time and after
9 hearing Dr. Sullivan outside of the jury, and wherein
10 Dr. Sullivan said the relevance of those photographs was
11 minimal, the Court sustained the defendant's objection. In
12 other words, I did just the opposite of what we did in the order
13 number 190, but I just want to put that on the record. Okay,
14 Mr. Laughrun?
15 MR. LAUGHRUN: Yes, sir, that's correct, Your Honor.
16 THE COURT: And the reason I did that was because you
17 didn't put anything paring it --
18 MR. LAUGHRUN: We were hoping -- we asked for a hearing.
19 THE COURT: At one time, I had written that I was going
20 to look at them.
21 MR. LAUGHRUN: Right, we asked for a hearing on it, and
22 then my understanding at the pretrial conference was you
23 wanted --
24 THE COURT: That's right, you are right. Al right,
25 fine.
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1 MR. LAUGHRUN: Judge, one other thing.
2 THE COURT: I heard Dr. Sullivan, so it didn't get in.
3 I just want to make sure the record is clear on that.
4 MR. LAUGHRUN: Yes, sir. One other thing, Judge, if we
5 may, the transcript -- the government has gone to great lengths
6 to try to show the defendant drug Mr. Allen's body. The
7 statement, Judge, part that we want to offer that we're not
8 going to be allowed, it says, did you ever touch him after you
9 shot him? No, man, I was scared, I ran, I grabbed the bag and
10 got in the car. And that rebuts one of the government's
11 theories, and again, we'd ask to play that tape at guilt
12 innocence, Judge.
13 THE COURT: All right, sir, objection sustained on that,
14 put it all in the record. You're ready for the jury, call the
15 jury. The jury is coming in Tuesday morning, I just want y'all
16 to understand that.
17 (The jury returned to the courtroom.)
18 MR. LAUGHRUN: Judge, I apologize, can we have one
19 minute with you at the bench?
20 THE COURT: First of all, you had all of those exhibits
21 that you took out with you?
22 JUROR: Yes.
23 THE COURT: I want to apologize to you for keeping you
24 back there, but I think it's saved you a day of coming in. In
25 other words, we are going to probably let you off on Monday and
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1 let you come in on Tuesday. Hold on just a minute.
2 (Bench conference not recorded.)
3 THE COURT: Okay, members of the jury, we have some
4 matters to take care of on Monday. There's no sense in you
5 sitting around here during it. At one time, we were thinking
6 about you having to come back --
7 MR. LAUGHRUN: Judge, I need to offer exhibits -- oh,
8 I'm sorry.
9 THE COURT: And coming in for about an hour, but I think
10 we've eliminated all of that. So you will have Monday off, and
11 come back Tuesday morning at 9:30. At that time, we should be
12 able to have the final arguments and the Court's instruction on
13 the guilt phase. This is the first phase of the trial, the
14 guilt phase, do you understand that? Hope you enjoy Monday.
15 Now, what was it, Mr. Laughrun?
16 MR. LAUGHRUN: I didn't hear you, Judge, I apologize.
17 THE COURT: Did you want to do something right now?
18 MR. LAUGHRUN: I've got some exhibits to offer for us,
19 yes, sir.
20 THE COURT: All right, sir.
21 MR. CONRAD: Your Honor, may I be heard first?
22 THE COURT: Yes, sir.
23 MR. CONRAD: At this point, the United States of America
24 rests.
25 THE COURT: Yes, sir, I meant to let you get that in.
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1 Thank you.
2 MR. LAUGHRUN: Judge, at this point, we would offer
3 Defendant's Exhibits 1, 3, 4, 5, 6 --
4 THE COURT: Wait a minute, slow down. 1 what?
5 MR. LAUGHRUN: 3, 4, 5, 6, 7.
6 THE COURT: 7.
7 MR. LAUGHRUN: 8, 10.
8 THE COURT: 8, 10.
9 MR. LAUGHRUN: 11, 12.
10 THE COURT: 11, 12.
11 MR. LAUGHRUN: 18.
12 THE COURT: 18?
13 MR. LAUGHRUN: Yes, sir.
14 THE COURT: All right.
15 MR. LAUGHRUN: 23, 25.
16 THE COURT: 23, 25.
17 MR. LAUGHRUN: And 16.
18 THE COURT: 26?
19 MR. LAUGHRUN: 16.
20 THE COURT: 16.
21 MR. LAUGHRUN: Had one out of order.
22 THE COURT: 1, 3, 4, 5, 6, 7, 8, 10, 11, 12, 18, 23, 25
23 and 16, is that right?
24 MR. LAUGHRUN: Yes, sir, and ask permission to publish
25 these to the members of the jury, if Your Honor please.
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1 THE COURT: Can we wait and do that on Tuesday?
2 MR. LAUGHRUN: Yes, sir, that's fine, no objection at
3 all.
4 THE COURT: Okay, we will do that, then.
5 All right, members of the jury, now we are going to let
6 you go. Have a nice weekend and have a nice Monday. Don't
7 forget to come back on Tuesday. If you have any exhibits or
8 anything, be sure you leave them on the chair. Have a nice
9 weekend. Tuesday at 9:30.
10 (The jury left the courtroom.)
11 THE COURT: All right, Mr. Laughrun, you want nunc pro
12 tunc to have a Rule 29 motion?
13 MR. LAUGHRUN: Right, Judge, and if I may briefly, the
14 indictment that the government has brought, Judge, is first, as
15 Your Honor knows, this type of prosecution. If I could briefly
16 go through the ones I don't want to be heard on, we don't want
17 to be heard on, that might be easier. Counts 4, 5, 6, 7, 8 and
18 9, Judge, we have no argument on based on the evidence that
19 you've heard.
20 Count one, Judge, if I may, is the fire bombing
21 incident.
22 THE COURT: Yes, sir.
23 MR. LAUGHRUN: Now, it alleges that the incident took
24 place in Roanoke, Virginia, travelled intentionally to commit
25 the crime. There is no evidence, Judge, that he did, when the
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1 intent took place. There's evidence that along the way, the
2 defendant stopped and got gas, put it in some container that's
3 been offered by the government and went ahead with the act.
4 There is no evidence where that intent was formed or where the
5 gas was bought, was it North Carolina or South Carolina; and we
6 had previously made a motion, Judge, to dismiss that count for
7 lack of jurisdiction. We'd renew that motion at this time under
8 Rule 29 of the Federal Rules of Criminal Procedure.
9 With regard to Count 2, Judge, again, there is
10 absolutely no evidence that this incident took place in the
11 Western District of North Carolina. The evidence -- the
12 indictment alleges that he carried a fire bomb filled with
13 flammable liquid in Mecklenburg County in the Western District
14 of North Carolina, and also goes on to say, and in the Western
15 district of Virginia. Well, if all it says is in the Western
16 District of Virginia, then it ought to be prosecuted in
17 Roanoke. Here the testimony is he left, got in the car, and
18 somehow made what the government has contended is a Molotov
19 cocktail. Again, Judge, there's no evidence that took place in
20 the Western District of North Carolina, which again relieves
21 this court of any jurisdiction in that matter, if Your Honor
22 please.
23 Judge, Count 3 is the exact same argument, that he is
24 charged in this district with using and carrying a fire
25 explosive material. There's absolutely no evidence of any of
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1 that taking place in the Western District of North Carolina, and
2 that's in the light most favorable to the government. The light
3 most favorable to the government says he left Charlotte and
4 drove to Roanoke, however far they said it was, 194 miles I
5 believe is the stipulation. We don't have any evidence as to
6 where the fire bomb was constructed. It's not like the shotgun
7 where they can say he went to Quik Pawn Shop, bought it and left
8 and then drove to Roanoke and committed a homicide. If that
9 were the allegations, we don't have an argument, but it's not.
10 The evidence is through the defendant's own statements, and
11 that's the only evidence they have got of that, is that
12 somewhere along the way he constructed, and that's my word, or
13 put together an incendiary device that the government has
14 alleged is a fire bomb. We would again move to dismiss those
15 counts, too.
16 Judge, Count 10 is the intimate partner count. We have
17 previously filed a motion and a brief in that regard. We would
18 stand on that, especially after you've heard the evidence here,
19 that there is no evidence at the time that the tragic death of
20 Robin Williams took place on June 22nd that these individuals
21 were intimate partners, if Your Honor please. The statute says
22 at the time the offense was committed, they were intimate
23 partners, and the evidence is they had been broken up at least
24 30 days before that tragedy took place.
25 And the same goes to Count 11, if Your Honor please, and
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1 that's all we'd care to offer at this time.
2 THE COURT: All right, sir. Government?
3 MR. CONRAD: Yes, sir, Your Honor. With respect to 1,
4 Count 1, I contend to Your Honor that 2261 is a continuing
5 offense and venue lies both in Mecklenburg County and the
6 Western District of Virginia. And the government has proved,
7 taking the evidence in the light most favorable to the
8 government and drawing all inferences therefrom favorable to the
9 government, that the defendant did travel across a state line,
10 that is, did transport himself from Charlotte, North Carolina to
11 Roanoke, Virginia with the intent to injure, harass and
12 intimidate an intimate partner. I think there is sufficient
13 evidence presented to this jury to show that immediately upon
14 hanging up the phone with Robin Williams, he formed a requisite
15 intent to go up to Roanoke, Virginia and fire bomb her
16 apartment. And taken in the light, taking the evidence in the
17 light most favorable, that count is readily proved.
18 THE COURT: All right.
19 MR. CONRAD: With respect to the argument as to Counts 2
20 and 3 of the indictment, charging violation of 924(c), and
21 charging violation of 844(h), the law is crystal clear that if
22 there is venue for the underlying offense, which is the charge
23 in Count 1, then there is proper venue for the 924(c) offense as
24 well. The defendant misquotes the evidence on that count. He
25 says the only evidence of that count is the defendant's
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1 statement. My recollection of the evidence is that he did not
2 make any admissions to police officers with respect to that
3 count. Instead what the evidence was from his best friend is
4 that he had stopped at a gas station to pick up some gas in a
5 container and then drove to Roanoke. So I contend to Your Honor
6 that the offense of using and carrying the destructive device
7 began in Charlotte, and taking the evidence in the light most
8 favorable to the United States, was properly proved.
9 With respect to Counts 10 and 11, the defendant alleges
10 as he did in motion that the government has failed in its proof
11 of showing intimate partner. And I would cite to Your Honor 18
12 United States Code, Section 2266, definitions, wherein it
13 states, a spouse or, quote, intimate partner, end of quote,
14 includes a spouse, a former spouse, or person who shares a child
15 in common with the abuser and a person who cohabits or has
16 cohabited with the abuser as a spouse.
17 THE COURT: There is circumstantial evidence of that.
18 MR. CONRAD: There's plenty of evidence on that, Judge.
19 It's not a present sense definition, it includes present and
20 former intimate partners. And I would contend to you that we've
21 more than satisfied our burden there. So I would ask the Court
22 to overrule the defendant's Rule 29 motion.
23 THE COURT: All right, sir. As to Counts 1, 2, 3, 10
24 and 11, the Court finds that there is sufficient evidence to go
25 to the jury in the light most favorable to the government and
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1 will deny those motions.
2 See you on Monday morning --
3 MR. LAUGHRUN: Judge, a couple things more I think we
4 need to put on the record, Judge.
5 THE COURT: Yes, sir.
6 MR. LAUGHRUN: Since you denied our request to call
7 Investigator Holl on Monday, we have not subpoenaed him. Would
8 the Court keep him under subpoena for the penalty phase to have
9 him available? If not, we'll have to file a motion with Your
10 Honor and issue a subpoena for him Monday morning.
11 MR. CONRAD: No objection, Judge, we will make sure he
12 is here.
13 THE COURT: I want to tell you all, what time do you
14 want to do the jury instructions, 9:00, 9:30, 10:00?
15 MR. LAUGHRUN: How about 9:00 o'clock Monday morning?
16 THE COURT: 9:00 o'clock Monday morning. Are you going
17 to have the defendant there? If you do, we'll do it in the jury
18 room.
19 MR. LAUGHRUN: May we have just a moment?
20 MR. CONRAD: Your Honor, may I propose doing it early
21 afternoon. There were some jury instructions I fully intended
22 to get to you.
23 THE COURT: That's right. You told me you were going to
24 get them today and I haven't seen them.
25 MR. CONRAD: I haven't given them to you, and I would
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1 like to give them to you Monday morning. We had no idea we
2 would put on our evidence this quickly. We have been working on
3 those jury instructions and want to give them to you, but we
4 don't have them to give them to you.
5 THE COURT: Want to give them to me Monday morning?
6 MR. CONRAD: I would give them to you first thing Monday
7 morning, yes, sir.
8 THE COURT: All right, would you be able to do it Monday
9 afternoon?
10 MR. LAUGHRUN: Judge, we'll be here whenever you tell us
11 to be.
12 THE COURT: Let's say Monday afternoon, then, at 2:00
13 o'clock. That will give me a chance to digest what he has and
14 go over it. It shouldn't take us that long. You gave me some
15 instructions which are the boilerplate, but we will take care of
16 that.
17 MR. LAUGHRUN: Judge, one thing, too, a couple of
18 things. Since we are now at the point where it's our time to
19 put on evidence, we rest, renew our Rule 289 motion we
20 previously made.
21 THE COURT: Well, come in Tuesday morning, rest before
22 the jury and then put on -- and I will consider your motion as
23 they are made.
24 MR. LAUGHRUN: Do you want to inquire of us, Judge, or
25 Mr. Barnette if he wants to testify? We informed him of that,
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1 and his answer is going to be he does not wish to testify at
2 this stage. Do you wish to inquire about him? We informed him
3 of that fact and have no objection if you want to inquire.
4 THE COURT: Okay. You want me to ask him right now?
5 Mr. Barnette, you understand you have a right to testify?
6 THE DEFENDANT: Yes, sir.
7 THE COURT: Do you understand also you have a right not
8 to testify or to put on any evidence of any kind?
9 THE DEFENDANT: Yes, sir.
10 THE COURT: Which way do you want to do it?
11 THE DEFENDANT: I prefer not to testify, Your Honor.
12 THE COURT: You are not going to testify?
13 THE DEFENDANT: No, sir.
14 THE COURT: And you're going to put on any evidence of
15 any kind?
16 MR. LAUGHRUN: Well, we put on, Judge, our exhibits and
17 seek to offer --
18 THE COURT: Exhibits yes, I'm sorry.
19 MR. LAUGHRUN: Seek to offer the other evidence that
20 you've allowed the government's objection to.
21 THE COURT: Thank you very much, Mr. Barnette.
22 MR. LAUGHRUN: One other thing, Judge, we discussed with
23 Mr. Barnette about whether or not he wants to be here for the
24 charge conference. He has no desire to be here for that, and we
25 can do it in chambers. I think, though, Mr. Huseby probably
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1 needs to be present for that.
2 THE COURT: We will meet in my chambers, then, is the
3 best place to do it, I think.
4 MR. LAUGHRUN: 2:00 o'clock Monday?
5 THE COURT: Do we need him there?
6 MR. LAUGHRUN: I think we have to have him there, Judge.
7 THE COURT: Well, I know you'll be happy, but, I mean,
8 do we need to put him in there for the charge conference? I'm
9 talking about the court reporter.
10 MR. LAUGHRUN: I think we probably need him there for
11 the charge conference.
12 THE COURT: You want him there for the charge
13 conference?
14 MR. LAUGHRUN: Yes, sir.
15 THE COURT: All right. In that case, we've got to do it
16 in the jury room, we have more space in there. The jury room,
17 then, at 2:00 o'clock on Monday afternoon.
18 Okay, I'll see y'all at 2:00 -- I've got to get those
19 instructions, now, Monday morning.
20 MR. CONRAD: First thing, Judge.
21 THE COURT: We'll see y'all at 2:00 o'clock on Monday
22 afternoon and go back to court on Tuesday morning at 9:30.
23 Okay.
24 MR. LAUGHRUN: 2:00 o'clock Monday, right?
25 THE COURT: 2:00 o'clock Monday in the jury room, 9:30
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2 (Court in recess.)
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