1
1 UNITED STATES DISTRICT COURT
2 FOR THE WESTERN DISTRICT OF NORTH CAROLINA
3 CHARLOTTE DIVISION
4
UNITED STATES OF AMERICA, )
5 )
)
6 vs. ) File No. 3:97CR23-P
)
7 AQUILIA MARCIVICCI BARNETTE, )
)
8 Defendant. )
)
9
10
11 Daily Transcript of proceedings before the
12 Honorable ROBERT D. POTTER, United States District Court Judge,
13 before Scott A. Huseby, Official Court Reporter and Notary
14 Public, on the 21st day of January, 1998.
15 APPEARANCES:
16 For the United States:
17 ROBERT J. CONRAD, JR.
THOMAS G. WALKER
18 Assistant United States Attorneys
227 West Trade Street, Suite 1700
19 Charlotte, North Carolina 28204
20 On Behalf of the Defendant:
21 GEORGE V. LAUGHRUN, Esq.
Suite 602
22 301 South McDowell Street
Charlotte, North Carolina 28204
23
24
25
2
1 APPEARANCES: (Continued)
PAUL J. WILLIAMS, Esq.
2 Suite 801
301 South McDowell Street
3 Charlotte, North Carolina 28204
4
5 ---
6
7 THE COURT: Good morning, everyone. Now, members of the
8 jury, you all know what the case is and what the name of the
9 defendant is.
10 MR. CONRAD: Your Honor?
11 THE COURT: Oh, I'm sorry.
12 (Defendant enters the courtroom.)
13 THE COURT: As I said, you all know the name of the
14 defendant by now, you all know generally what is charged by the
15 government in this case, and we are ready to start the trial.
16 First thing, I'll ask the Clerk if she will impanel the jury.
17 (Jury impaneled.)
18 THE COURT: Members of the jury, before I forget it, I
19 want to tell you that we've made arrangements for your parking
20 so you don't have to go look around for parking spaces in the
21 morning. We don't want y'all circling the block. It's very
22 difficult to find a place down here. The Clerk will tell you
23 about that back in the jury room at some later time today.
24 Arrangements have been made about you going in there and all
25 that sort of thing, so you don't have to worry about change and
3
1 whatever is necessary.
2 Members of the jury, as you know, this is a criminal
3 case in which the government has charged the defendant with
4 various crimes. You are to listen to the evidence in the case
5 and render a verdict based on the evidence and nothing else. I
6 will try to remember, in fact, it's sort of routine with me,
7 every time you take a recess, do not discuss the case among
8 yourselves back in the jury room, do not discuss the case when
9 you go out to lunch among yourselves, and do not talk to anybody
10 else about it obviously, don't do that.
11 When you go home tonight or over the weekend, there are
12 going to be some people asking you what you are doing. You are
13 sitting on a criminal case. Do not even mention the name of the
14 case. Now, I don't want you to stand there if somebody says,
15 are you on such and such a case, and say, well, we've been told
16 not to talk about it. Just tell them I said do not talk about
17 it, because if you do, somebody is going to have an opinion that
18 you are talking to, whether it's your wife, or your husband,
19 brother, sister, neighbor, whatever. Somebody will have an
20 opinion, and they will express that opinion to you, and no
21 matter how hard you try, when you get back in the jury room in
22 your deliberations, what they said to you is going to be in your
23 mind. You can't unring the bell. It may have an influence on
24 your deliberations, and we do not want that to happen. We want
25 you to base your verdict purely on the evidence in this case,
4
1 which will consist of the testimony of the witnesses and the
2 exhibits, as I have told you before, which will be admitted into
3 evidence.
4 So do not during the trial discuss the case. Do not,
5 obviously, in case anything appears in the media about it,
6 whether it's on TV, radio, newspaper, whatever, do not listen to
7 it, do not look at it and do not read it. Again, because of the
8 fact that reporters report only what they are interested in,
9 they don't report -- you will be here several days listening to
10 testimony. They don't report all of the evidence. If they did,
11 they'd take up every newspaper they had, because it goes on page
12 after page after page. So do not read anything about the case,
13 and do not look at anything on TV, and do not listen to anything
14 on the radio.
15 Now, you are going to have times when you walk into --
16 I've had trials where people walk into a convenience store or
17 some other place which has a TV on. They see that; you can't
18 help that, obviously. If you do see anything about it, though,
19 I want you to report it. I will ask you each morning, have you
20 seen, heard or read anything about the case. Fortunately, there
21 hasn't been too much publicity about this case, and I hope it
22 stays that way until we get through with it. After that, I
23 don't care. But every morning, I'll ask you, have you seen,
24 heard or read anything about this or had anybody try to discuss
25 it with you. If you have, then I will take you over here to the
5
1 side-bar and ask you what it was and whether or not you feel
2 that it would influence your decision in this case in any way.
3 We are not trying to hide anything from the other jurors, but
4 just as we had each of you examined separately, we don't want to
5 influence any of the other jurors by what you did see or hear.
6 So please understand that.
7 Now, as to the procedure of the trial, first of all
8 there will be opening statements by the government. Then there
9 will be opening statements by the defendant's attorneys. Now,
10 opening statements are what the government will say is what the
11 evidence will show. The defendant's attorneys will tell you
12 what they believe the evidence will not show or will show. The
13 opening statements are just that, they are statements. Listen
14 closely to the statements because they may help you during the
15 trial as to what to expect. But they are not evidence; I can't
16 impress that on you too much. Everybody looks at evidence a
17 little differently. So just listen closely to the statements,
18 pay attention to them, and, of course, I hope it will help you
19 in your listening to the trial as it goes along. At the end of
20 the government's statements, and as I say, there will be
21 defendant's statements, but listen to the statements but do not
22 consider the statements as evidence.
23 The opening statements, when they are concluded, will be
24 succeeded by the testimony of various witnesses. The government
25 having the burden of proof goes first. They will put on the
6
1 testimony or evidence which they believe is essential to their
2 proof of their case. At the conclusion of the government's
3 case, the defendant will put on any testimony that he wishes.
4 Listen closely to all of these witnesses. You are the sole
5 judges of the credibility of the witnesses, I'm not, the
6 attorneys are not. You are the only ones who will decide
7 whether or not certain or all of the witnesses are telling the
8 truth, not only the truth, but whether or not they had the
9 opportunity to see and hear what they are talking about.
10 Now, during those -- during the testimony, there are
11 going to be objections. There can't be a trial without
12 objections; that's the attorneys' job. The job of the attorney
13 for the defendant and for the government is to object to what
14 they believe is not proper evidence to be admitted into the
15 record and to be heard by you, the jury. They're not trying to
16 hide anything from you. There are rules of evidence which have
17 been enacted by Congress, and we try to follow those rules and
18 that's all they are doing is asking the Court to follow the
19 rules of evidence. Hopefully, I can rule on the objection
20 instantaneously.
21 Obviously, there are some times something will come up
22 that I may not know about that I may have to have a short
23 conference with the attorneys. I can assure you this is not
24 going to be an O.J. Simpson trial. I hold that up because so
25 many jurors feel like that's the way court cases are conducted.
7
1 Hopefully, this court case will not be conducted or this
2 courtroom will never be used in that manner.
3 So don't feel we are trying to hide anything from you.
4 If I sustain the objection, it's only because the attorneys have
5 objected to something. We're merely trying to follow the rules
6 of evidence, because we have to get before you the facts which
7 the Congress has said with the assistance, of course, of several
8 people in the legal profession are essential facts which should
9 be admitted in a trial.
10 The bench conferences, as I say, are not going to last
11 long. If it's more than a minute or so, I will let you go back
12 to the jury room where you will be more comfortable. We can
13 then discuss it out here on the record and not influence you
14 any. These arguments are legal arguments, they are not fact
15 arguments. Your job is to determine the facts and not whether
16 or not a matter should or should not be admitted into evidence.
17 Now, at the conclusion of all of the evidence, there
18 will be arguments by the jury -- I mean by the attorneys, to sum
19 up to you what they believe the evidence has shown in the case.
20 It's your recollection of the evidence that counts. If one of
21 the attorneys says something is black and your recollection is
22 it's white, or something did happen but your recollection is it
23 did not happen, it's your recollection that counts, not the
24 attorneys's recollection. Again, though, listen very closely to
25 these closing statements, because they will tie together for you
8
1 the bits and pieces of evidence as it comes in.
2 I dare say that like most trials, no witness knows
3 everything about the case, they know only the part that they
4 heard or saw or smelled or touched or felt in any way. So
5 that's all they can testify about, is what they know about. And
6 those pieces of what each witness will tell you about has to be
7 fitted together by you the jury, but the attorneys' arguments
8 may help you in doing that whenever you get down to your
9 deliberations.
10 And then at the conclusion of the closing statements by
11 the attorneys, the Court will give you its instructions. You
12 are going to hear several terms used during the trial by the
13 attorneys and perhaps by some of the witnesses, and those
14 hopefully will be defined to you by the Court at the conclusion
15 of all of the evidence. So don't concern yourself too much
16 about certain statutes or anything of that nature, we will try
17 to explain all of that to you. Just listen to the evidence and
18 determine what the facts are, because that's what you are here
19 to do and I'm sure you will all do a good job of that.
20 We are going to start. Right now, I'm going to try
21 9:30. I see we have one, two, three, four, I think four jurors
22 from Gastonia, one from Cramerton, one from Monroe, and, of
23 course, down in Matthews. The traffic in Charlotte is such that
24 if you hit the bubble as I call it coming in Independence
25 Boulevard or 85, you are going to be delayed to a certain
9
1 extent. I just saw in the paper this morning they had a van out
2 here on 77 that was crushed between two trucks and, of course,
3 traffic was backed up, I guess, all the way to Rock Hill. And
4 that's going to happen, and it could happen later on. But I
5 just feel like it's easier for you to get here on time if you
6 come in a little bit later.
7 We are going to try the stop every day somewhere around
8 4:30, again, to try to help you to avoid the traffic. I have
9 gone to trials in my younger days a lot longer, 6:00, 7:00, 8:00
10 o'clock at night. Nobody likes it, I don't like it, but we had
11 to get through. I remember one time I was really pushed. So
12 we're going to try to quit at about 4:30 to give you a chance to
13 get on your way before the bubble starts back the other way.
14 Now, don't think that when that clock gets to 4:30, I'm going to
15 cut off a witness in midsentence. I just have to gauge these
16 things as close as I can. If the attorneys inform me or if they
17 know that a witness who is called at 4:00 o'clock is going to
18 run until 5:00 or 5:30, then there's no point in starting and
19 that witness. I don't like to stop him right in the middle of
20 the testimony. And if the direct examination will finish up
21 about 4:15 or so or 4:00 o'clock, 4:15 say, there is no point in
22 trying to go ahead with the cross-examination at that point
23 unless they tell me it will only take a few minutes. We are
24 going to try to be very cognizant of your time and not waste any
25 of your time, and get you home at a decent hour and have you
10
1 come in at a decent hour. If you decide, and you can talk about
2 this among yourselves, that you'd rather start earlier, that
3 suits me fine. I get up every morning at 5:30. If you want to
4 be here at 6:00 o'clock, that would suit me fine. In any event,
5 I don't want you to feel like that you have to come in at any
6 particular time after 9:00 o'clock in the morning. We can start
7 at 9:00 if you want to, but y'all talk about that and let me
8 know if that's what you would rather do.
9 We will have a break in the morning, sometime around
10 11:00, 10:30, 11:00 o'clock, 11:15, again depending on who is on
11 the stand or what is going on. We will take about an hour for
12 lunch, maybe a little bit more, because some of you have never
13 been to downtown in many, many months and you don't know where
14 to go. I like to start lunch about 1:00 o'clock, again, because
15 of the crowds. If you go down there at 12:00, you are going to
16 run into a big long line of people. If you go down at maybe
17 1:00 or a little after 1:00, you can usually walk right in.
18 So those things will all try to be taken into
19 consideration. Afternoon, of course, we will also have a
20 break. Also, if there is any matters that the attorneys have to
21 discuss with me or I have to discuss with them, that will be a
22 break for you. So we are not going to have too many of those, I
23 hope, but we may have some.
24 I believe I have covered about everything as to how we
25 are going to proceed. Are we ready for opening statements?
11
1 Let's see -- oh, it says the jury would like to know the
2 following, bad weather due predicted tomorrow morning. The only
3 bad weather I know of, and I try to keep up with these things,
4 is rain. I don't think we can just push things off because of
5 rain. Obviously, if we are going to have sleet and snow, that's
6 something different. So far, the temperature tomorrow is
7 supposed to be about 40 something, I think, not even down to
8 freezing, I don't think, tonight, very fortunate on that.
9 Keeping notes, keeping notes, any objection by anybody
10 if they do keep notes?
11 MR. CONRAD: No, sir.
12 MR. LAUGHRUN: No.
13 THE COURT: No objection to notes. Only thing I want to
14 advise you about notes is if you take notes, they are your
15 notes. Don't be showing them to the other fellow next to you or
16 the other woman next to you. They are your notes, and you
17 may -- I don't know whether you have all had experience, but
18 sometimes when you are taking notes, you're not listening to
19 what is on the stand now, you're taking notes on what somebody
20 said two or three minutes before that. So that may be a danger
21 to you there. If you can take notes and listen to the testimony
22 going on at the same time, that's fine. But if you are going to
23 be taking notes and not listening to the testimony, it might be
24 better if you didn't take notes.
25 And again, when you get back into deliberations,
12
1 obviously if you have the notes, somebody is going to think,
2 well, he must be right because he took notes, and that's not
3 necessarily so either. It's each individual's recollection of
4 the evidence. If the other juror took notes, that doesn't mean
5 that that testimony is what happened. It's your recollection
6 that counts. I think that covers everything, doesn't it?
7 Members of the jury, at this time we will have opening
8 statements. As I told you, the government has the first go
9 around, they'll have the opening statement. And then after
10 that, the defendants will put on their opening statement. And
11 after that, we will begin with the testimony in the trial.
12 All right, Mr. Walker.
13 MR. CONRAD: Thank you, Your Honor.
14 Ladies and gentlemen of the jury, let me turn your
15 attention to June 21st of 1996, the first day of summer and the
16 last day of 22-year-old Donnie Lee Allen's life. It began like
17 any other day in his life. He went to work at Jacobsen Division
18 of Textron, where he was a service technician for that company.
19 After work, he came back to his parents' house, rested and
20 visited with his parents. After he took a shower, he got his
21 second wind and went out for the evening. That was the last
22 time his family would ever see him alive.
23 He came to Charlotte and went to Coyote Joe's, which is
24 a country and western bar on Wilkinson Boulevard. There he
25 drank some beer, talked to some girls and played some pool. You
13
1 will hear from one of the people he talked to. She will
2 describe him as a quiet person. He was a quiet person, and it
3 was an ordinary night. He had to get up early to work, so he
4 left around midnight. He had no way of knowing when he left
5 that he had only minutes to live. He turned right out of the
6 parking lot and right again at the first light, which is Morris
7 Field Drive. He was on his way back home to McConnells, which
8 is near Rock Hill in South Carolina. It was hot and he had the
9 window down as he pulled up to Billy Graham Parkway.
10 Now, the intersection of Morris Field Drive and Billy
11 Graham Parkway is a remote intersection out near the airport.
12 And on that night, it was pitch dark. Donnie had pulled up to
13 the wrong intersection on the wrong night. A killer waited for
14 him there crouched behind a tree dressed in black armed with a
15 sawed-off semiautomatic shotgun with a flashlight taped to the
16 bottom of the shotgun with a lens colored red, carrying a bag
17 with a crow bar and some bolt cutters. He lurked in the woods,
18 intent on killing someone, anyone, so that he could obtain a
19 car. He had just walked from his house about a mile away. That
20 killer is in the courtroom today, and he is seated over here in
21 a suit and tie between these two lawyers.
22 But that night, he was dressed in black with a black
23 hat, black shirt, black pants. And the evidence will show that
24 he snuck up on Donnie Lee Allen's car at the intersection,
25 Donnie was stopped at a red light, and he snuck up on that car
14
1 with a sawed-off shotgun and he put the sawed-off shotgun
2 through the window and ordered Donnie out of the car. And he
3 walked Donnie over to the side of the road and demanded his
4 wallet, and Donnie obeyed, took out his wallet, threw it at his
5 foot. The killer then took him by gunpoint and marched him from
6 the side of the road down a drainage ditch away from the road.
7 The evidence will show that Donnie was begging for his
8 life at this time, begging him not to kill him. Barnette
9 pointed the gun at him, told him to turn around and shot three
10 times into his back, execution style, very close range. You
11 will hear from a medical examiner in this case, and he will tell
12 that you shotgun wadding was found inside the body.
13 The killing took place near the road, so the defendant
14 dragged the body away from the road after the shooting. Donnie
15 lay there dying from the three bullet wounds to his back as the
16 defendant picked up his wallet from the road, got in the car,
17 made a U-turn and sped away. Again, you will hear from the
18 medical examiner in this case. He will tell you that Donnie did
19 not die right away. At the next intersection, the killer took
20 Donnie's wallet out and counted his money as Donnie lay bleeding
21 to death.
22 What led up to this murderous assault? The evidence
23 will show that two years prior, this defendant had gone up to
24 Roanoke, Virginia with a friend and he met a woman there, Robin
25 Williams, met her at a downtown club, and Robin fell in love
15
1 with this defendant. And being from two different cities, they
2 dated for a while from long distance, and from time to time
3 Robin would send him love letters. And after a time, the
4 defendant persuaded her to let him move in with her when she got
5 a new apartment, and in March of 1995, that's exactly what
6 happened.
7 Sometime thereafter, the relationship turned sour. The
8 evidence will show that the defendant became demanding, became
9 violent. On occasion he beat her, chased her out of the
10 apartment, and on occasion police were called, and in April of
11 1996, Robin Williams had had enough and she asked the defendant
12 to leave. In April of 1996, the defendant had had enough of
13 Robin Williams. He returned to Charlotte, but he called her
14 constantly. After he moved out, Robin moved out of her
15 apartment and moved back in with her mother. The evidence will
16 show that her mother lived on 911 Loudon Avenue in Roanoke,
17 Virginia. Although her relationship with the defendant had
18 deteriorated, her desire to live on her own had not. And so on
19 the night of April 29th, 1996, she returned to her apartment at
20 1616 Keswick Avenue in Roanoke, Virginia. But she was somewhat
21 scared and she asked a friend of hers, Benny Green, to go with
22 her.
23 Around 7:00 o'clock or 8:00 o'clock that night, this
24 defendant called Robin Williams at her mother's house. He
25 called again later that night after Robin and Benny Green had
16
1 gotten to the apartment at 1616 Keswick Avenue, and he was mad.
2 And he got in his brother Mario Vonkeith Barnette's car in
3 Charlotte, and he stopped at a gas station and he bought some
4 gas in a container and made some homemade fire bombs and he
5 drove from Charlotte to Roanoke, Virginia.
6 Not knowing any of this, Robin watched some TV and went
7 to bed, and on the night of April 29th -- actually, it was in
8 the early morning hours of April 30th, around 3:30 in the
9 morning or thereafter, Robin was awakened by loud bangs at her
10 front door. She went to the front of the house, she raised the
11 blinds, and she stared right into the face of this defendant.
12 And you will see pictures of her apartment, and Roanoke is a
13 very hilly community. In the front of her apartment is a
14 ground-level window both in the kitchen and in the living room.
15 But the hill slopes, and in the back of the apartment, the
16 bedroom window is a second-story window with an apartment
17 underneath that apartment.
18 But as she stared out the living room window right into
19 the face of the defendant, she heard him screaming obscenities.
20 She saw him carrying a baseball bat, she observed him go to the
21 car parked right in front of the apartment, pulling right up to
22 the apartment, Benny Green's car, and she watched the defendant
23 use that baseball bat to smash in the windows of the car. And
24 she went to call 911, but her phone lines had been cut. And she
25 ran back to the window and she heard this defendant yelling at
17
1 her, die, bitch, die, and she saw him throw a fire bomb at the
2 house. She heard a whoosh and ran to the front door to get out,
3 but the fire had started there and she could not get out. She
4 ran to the living room window, but the fire beat her there as
5 well. In desperation, she and Benny Green went to the back of
6 the apartment and jumped out a second-story window. She
7 survived but she was badly burned and disfigured, and you will
8 see the extent of those injuries in this trial.
9 How do we know all of this? We know this because Robin
10 spent a couple of weeks at the UVA burn center. And after she
11 was released from the burn center, she came back to Roanoke and
12 she made an appointment with Detective Rick Hall of the Roanoke
13 Police Department. And Detective Hall came to her house and
14 interviewed her, and he taped that interview and you will hear
15 it, And you will hear the voice of the murdered victim
16 identifying this man as the person who fire bombed her house in
17 the morning hours of April 30th.
18 And you will hear from Benny Green who was with her that
19 night, and he will tell you that he was there for protection for
20 Robin and that he had brought a 9 millimeter weapon with him for
21 that purpose. And he will tell you that he looked out the
22 window as well and was within feet of this defendant when he was
23 fire bombing the apartment, and he went and got his 9 millimeter
24 weapon and fired at the defendant or attempted to. But his
25 safety catch was on, and though he pulled the trigger, no shot
18
1 was fired. And he took the safety off and shot a few more
2 times, but by that time the defendant had fled. And as he fled,
3 Green observed him throw one last fire bomb at Green's car.
4 You will hear that as Robin underwent painful skin
5 grafts at UVA burn center in Charlottesville, Virginia, the
6 defendant having come back to Charlotte returned to Roanoke and
7 there left old cards that Robin had sent him, love notes from a
8 happier day, left them on her car which was parked at her
9 brother's house. And on those cards, he had written notes to
10 her that she was a liar and a cheat. And you will hear from
11 Robin's uncle. Robin's uncle will tell that you a few days
12 after the fire bombing, the defendant called her and asked how
13 she was doing and where she was, and the uncle hung up on him
14 and punched the caller I.D. and got a Charlotte, North Carolina
15 phone number.
16 You will see the defendant was not done with Robin
17 Williams. On May 20th, he bought a shotgun at Quik Pawn Shop in
18 Charlotte, North Carolina. He didn't like it, so he went in the
19 next day, traded it in and bought a second gun. And you will
20 hear evidence that he used an alias, a fictitious name, and he
21 indicated that he was not a convicted felon on the form he has
22 to sign to purchase a weapon, and you will hear other evidence
23 that, in fact, this defendant is a convicted felon. On
24 September 20th of 1994, he was convicted of felonious restraint
25 in Mecklenburg County, and it's important because convicted
19
1 felons cannot purchase and possess weapons. So he used his
2 brother's name, just like he used his brother's car to do the
3 fire bombing.
4 And 20 days after the fire bombing and 30 days before he
5 would return to kill Robin Williams, he bought a shotgun, said
6 he was Mario and he had not been convicted of a felony. The
7 form that he signed warned him that an untruthful answer may
8 subject you to criminal prosecution, and any false or
9 misrepresented identification with respect to the transaction is
10 a crime punishable as a felony. So he lied to get a shotgun to
11 kill Donnie and to kill Robin, and you will see that shotgun.
12 After he bought it, he sawed off the barrel, he taped a
13 flashlight to the underside of the gun, and he colored the lens
14 on the flashlight red, and it became in his hands a weapon of
15 destruction and now he was almost ready.
16 A few more things were needed. He got a pair of bolt
17 cutters, because on his first trip to Roanoke, he left his wire
18 cutters outside the apartment after he cut the phone lines. And
19 he got a crow bar and he got dark clothing. And, of course, he
20 needed a car. So on June 21st, dressed in black, carrying the
21 shotgun, he walked from his house, the approximate mile distance
22 to Billy Graham and Morris Field Drive and waited for Donnie Lee
23 Allen and killed Donnie Lee Allen, a young man he never had met,
24 a young man who was in his way. And he got in Donnie's car and
25 he drove to Roanoke, and he spent Donnie's money and disposed of
20
1 his golf clubs and contemplated killing Robin. And he got to
2 Roanoke early in the morning, and again he waited.
3 He waited until there were signs of life in Bertha
4 Williams' house at 911 Loudon Avenue. But Bertha got up around
5 6:00 o'clock in the morning, lights came on in the house and it
6 was going to be a good day for Bertha. Her Robin was home
7 living with her, her grandbaby was due at 6:30, and so Bertha
8 went on the porch to read a paper and wait for her grandbaby.
9 And when her grandbaby came, she went inside to the kitchen and
10 started baking brownies for the church bake sale. And all of
11 that time, a killer was waiting outside her house at 7:05 that
12 morning.
13 She looked up and noticed the time, and she heard a
14 bang. She thought it was the stove blowing up. But it was not
15 the oven. The defendant, having cut her phone lines and
16 reloaded his shotgun, stood waiting at the back door. And the
17 noise that Bertha heard at 7:05 that morning was the first of
18 three shotgun blasts into her back door. Shotgun pellets spread
19 through the kitchen, causing damage to the walls and the
20 furniture, still visible today. And at the sound of the blast,
21 Robin Williams came downstairs and said to her mother, Mama,
22 what is it, and both Bertha and Robin went to the front door and
23 looked outside. And after a while, Bertha said, it must be
24 Mark.
25 Robin began to turn around and around in panic and in
21
1 terror, and she said, what should I do? And Bertha answered, I
2 don't know, baby, just run, just run, baby. And that's what
3 Robin did, she ran out the front door. And Bertha turned
4 around, and standing in the hallway of her house was this
5 defendant, having reloaded yet again, and pointing a gun at
6 her. Bertha picked up her grandchild and said to him, Mark,
7 don't shoot my grandbaby, and the defendant answered her, I'm
8 going to kill everybody.
9 He then ran out the back door and ran after Robin.
10 Robin had run across the street, passed a house across the
11 street. But unfortunately she had fallen a couple of times, and
12 the defendant caught up to her. And he grabbed her by the hair
13 and pulled her back towards her mother's house and he said to
14 her, I have one for you and one for me, and again he lied. He
15 had two shots, and she got both of them. He shot her in the
16 back as she stood next to her mother and fell at the feet of her
17 mother. And Bertha held her dying daughter briefly, left for a
18 second to call her pastor on a cell phone to beg for prayer, and
19 before she got back, Robin had passed on. And this defendant
20 trotted to his car, to the stolen car, to Donnie's car and drove
21 away.
22 He didn't drive back down 77 to Charlotte where pursuit
23 might follow. He went west on Interstate 81, more than 250
24 miles to Knoxville, Tennessee, and there he stole a license
25 plate and replaced the South Carolina plate with a Tennessee
22
1 license plate, and he scraped off the South Carolina inspection
2 sticker from Donnie's car. And eventually he drove Donnie's car
3 back to Charlotte with the stolen Tennessee plates and hid it
4 behind a shopping center on East Independence Boulevard and took
5 the shotgun and clothing and other evidence and hid it in a
6 dumpster behind that shopping center.
7 You will hear that the police found Donnie's car, that
8 FBI agents convinced this defendant's mother to get him to turn
9 himself in, that an FBI agent told him that they had evidence
10 linking him to the murder scene in Roanoke, and that they had
11 found the car they believed he had driven to Roanoke. And four
12 days after the murders occurred, you will hear evidence that he
13 admitted to killing both Donnie and Robin, and he led them to
14 Donnie's body and admitted shooting him and pulling the body
15 into the drainage ditch.
16 And that, ladies and gentlemen, in summary is the case
17 the government intends to offer you today. We will present it
18 to you as best we can and in the order in which the events
19 occurred, starting with the fire bombing, then the steps the
20 defendant took to get ready for the murders, then the
21 premeditated murders of Donnie and Robin. We will present
22 evidence to you to meet all of the statutory elements that we
23 have to meet in this case. We will present to you what we call
24 relationship witnesses, who will testify as to the relationship
25 between the defendant and Robin Williams, because proving that
23
1 they were former intimate partners is part of the burden of
2 proof in this case. We will show you the judgment and
3 conviction order that sets forth his felony status. We will
4 show you experts who will testify that the shotgun used in both
5 murders was one in the same, fingerprint experts to show
6 Donnie's fingerprints -- or the defendant's fingerprints on
7 Donnie's car, and other evidence.
8 At the end of all of the evidence, one of us will stand
9 before you again and we will ask you for one thing and that is
10 do your duty as jurors, and we will ask you to return a verdict
11 of guilty based upon the evidence and upon proof beyond a
12 reasonable doubt on all 11 counts of the bill of indictment that
13 His Honor has read to you. Thank you.
14 MR. WILLIAMS: Good morning. This is a domestic
15 tragedy, an ex-girlfriend killed by a depressed, anguished
16 ex-boyfriend. This became a triangle of tragedy, involving the
17 killing of Donald Lee Allen. These tragedies involve not only
18 the murders of two young people, but the anguish and pain of
19 their families.
20 A defense lawyer's job is to defend, but Mark Barnette
21 has made the government's job easy in this case and our job
22 difficult. Mark confessed three times to shooting Donald Allen
23 and Robin Williams. The confessions were tearful and
24 remorseful. They were recorded on audiotape and videotape. The
25 police never questioned Mark about the fire incident that
24
1 occurred in April of 1996, but you will hear Robin Williams
2 herself in a taped interview with the Virginia police that Mark
3 was the one who set fire to her apartment while her friend
4 Benjamin Green was there.
5 Although we will not contest much or most of the
6 government's case, our system of justice in this country
7 requires you and us to go through this process. Our system
8 requires the government to prove beyond a reasonable doubt each
9 and every element of the 11 charges. All we can ask you to do
10 is be fair, keep an open mind and not prejudge or consider the
11 punishment during this part of the case. Part of your job in
12 this process of listening to the government's evidence will be
13 to go further than the acts themselves, to understand Mark
14 Barnette's thoughts, emotions and the intent, were these acts of
15 premeditation and well thought-out plan, or were they emotional
16 acts without much plan or design, it is for you to say.
17 The evidence will show this was a depressed, anguished
18 young man who could not accept the breakup of his relationship
19 with Robin Williams. Mark Barnette's world collapsed. His
20 anguish and passion for Robin lost its way, and Mark Barnette
21 lost his way. Robin and Mark argued and he was very jealous of
22 her, but there were many cards back and forth in which Robin
23 expressed her deep love for Mark and he for Robin. The
24 relationship deteriorated when Mark thought that Robin was
25 ending their relationship because there was another man in her
25
1 life, and that man was Benjamin Green.
2 You need to listen carefully to Mark's confessions.
3 They contain remorse and thoughts of suicide and regret for what
4 he had done. He tells the police about shooting Donald Allen
5 and Robin Williams, then going to Knoxville, Tennessee where he
6 twice attempts to commit suicide by putting a garden hose on his
7 tail pipe and putting the other end inside the car. He tells of
8 following an elderly black couple to church on Sunday morning so
9 that he could pray for Donald Allen and Robin Williams and ask
10 Jesus to forgive him for what he had done. He then turns
11 himself in and cooperates with the police. The evidence will
12 show these are some of Mark's words from his confessions.
13 When investigator Tony Rice asked him on June 25 during
14 the confession at that time, what do you feel your main reason
15 was for shooting her, referring to Robin Williams, Mark Barnette
16 answered, I'm still trying to find that out, I wanted to die, I
17 wanted to kill myself and I wanted her with me, just one part of
18 me, another is that I was mad that she had threw our
19 relationship out the window for somebody who I didn't know
20 existed, and another part was that I was just so upset, that I
21 was depressed, I didn't know what I was going to do about the
22 relationship we had because it was over in like one night, and
23 we had been together for two years and it was still so many
24 unanswered questions, that's why it was hard to, because I
25 wanted to know, I had a lot of questions I had to ask, right,
26
1 and we didn't, I went, I just went ahead and shot her and I was
2 going to ask myself that, so I didn't and I don't know why.
3 On June 28th when investigator Officer Hall from the
4 Charlotte city police department, during his confession to
5 Mr. Hall, investigator Hall asked this question of Mark
6 Barnette, Mark, why did you shoot him, referring to Donald
7 Allen. Mark Barnette said, I don't know, I still don't know,
8 and he began to cry.
9 And finally in the June 25 or June 28 confession with
10 investigator Bob Hall, the evidence will show that Bob Hall
11 asked Mark Barnette this question: Why did you go to church?
12 Mark Barnette said, because I knew I was wrong, I shouldn't have
13 done that stuff and I -- I felt like that I needed to ask the
14 Lord to forgive me for what I had did, and I wanted him to take
15 care of Donald and Robin and make sure that they were okay and
16 pray and ask them to forgive me, because I don't know what had
17 happened to me, why I did that, to where I let my anger and hurt
18 feelings and all of that stuff build up inside me to where I
19 would hurt anybody like that, and I wanted Jesus to forgive me
20 and to take care of them because I was wrong and I know better.
21 And he began to cry. I wasn't raised like that, something was
22 wrong with me, I didn't know what, but it cost them their lives
23 and it shouldn't have.
24 This part of the case, ladies and gentlemen, is about
25 the what, what happened. There is another story to be told
27
1 involving the why, why this happened, but we cannot tell that
2 now, that's for the penalty phase if you take us there.
3 THE COURT: Government call it's first witness.
4 MR. WALKER: Your Honor, the government calls Officer
5 Hubbard.
6 K.O. HUBBARD,
7 being first duly sworn, was examined and testified as follows:
8 DIRECT EXAMINATION
9 BY MR. WALKER:
10 Q. Good morning, sir.
11 A. Good morning.
12 Q. Would you state your full name for us, please?
13 A. Officer K.O. Hubbard, Roanoke city police department.
14 Q. Officer Hubbard, are you a patrol officer, a patrol
15 police officer with the City of Roanoke police department in
16 Roanoke, Virginia?
17 A. Yes, I am.
18 Q. And Roanoke, Virginia is located in Roanoke County, is
19 that correct?
20 A. Yes.
21 Q. How long have you been a police officer, Officer
22 Hubbard?
23 A. Almost seven and a half years.
24 Q. Were you employed and on duty as a Roanoke city police
25 officer during the early morning hours of April 30th of 1996?
28
1 A. Yes, I did.
2 Q. And did you at that time and on that date respond to a
3 call at an apartment complex located at 1616 Keswick Avenue in
4 Roanoke, Virginia?
5 A. Yes.
6 Q. Were you working alone that morning?
7 A. Yes, I was.
8 Q. Were you in a marked police car?
9 A. Yes.
10 Q. What time did you receive that call concerning the
11 Keswick apartment?
12 A. Approximately 4:00 a.m.
13 Q. Did you respond after you received that call at 4:00
14 o'clock in the morning?
15 A. Yes.
16 Q. Did you go to that location?
17 A. Yes, I did.
18 Q. When you arrived at 1616 Keswick Avenue, what did you
19 notice about the apartment complex?
20 A. The apartment was fully involved with flames. There was
21 also a vehicle in the front, a red Honda, also on fire.
22 Q. When you say a vehicle was in front, the red Honda, was
23 it on fire when you arrived at the scene?
24 A. Yes, it was.
25 Q. Where was the red Honda parked in relation to the front
29
1 door of 1616 Keswick Avenue?
2 A. It was parked directly in front of the apartment.
3 Q. What did you do once you -- did you park your police
4 car?
5 A. Yes, I did.
6 Q. Where did you park your car?
7 A. I parked on the side street.
8 Q. And then what did you do once you parked your car in
9 that manner?
10 A. I approached Robin Williams and Benjamin Green.
11 Q. Where was it when you -- where were you when you first
12 saw Robin Williams and Benjamin Green?
13 A. Towards the rear of the apartment complex.
14 Q. Did they come towards you or did you go towards them?
15 A. I walked towards them, and as soon as they saw me
16 approach them, they turned to walk towards me.
17 Q. Did have you a conversation with those two people?
18 A. Yes, I did.
19 Q. Did you notice anything about Robin Williams that got
20 your attention?
21 A. She had a towel wrapped around one of her arms.
22 Q. Did you notice anything else about her other than the
23 towel?
24 A. She was real nervous and jittery, she talked real
25 nervous.
30
1 Q. Did you speak with Benjamin Green at that point?
2 A. Yes, I did.
3 Q. What, if anything, did Benjamin Green tell you about
4 what had happened?
5 MR. LAUGHRUN: Objection.
6 THE COURT: Sustained -- overruled, excuse me,
7 overruled.
8 MR. WALKER: You may answer the question.
9 THE WITNESS: Talked to Green, he said he heard a
10 knocking, he looked outside and he saw Robin Williams's
11 ex-boyfriend beating his vehicle with a baseball bat. At this
12 point, he stopped beating the vehicle and started lighting
13 what's known as Molotov cocktails and throwing them at the
14 apartment complex. He threw -- one went through the window of
15 the apartment, one bounced off. At this point, he picked it up
16 and threw it back at the apartment complex.
17 BY MR. WALKER:
18 Q. What else did he tell you, if anything?
19 A. He said he fired shots out the window at Barnette. He
20 voluntarily handed me the weapon, which I secured.
21 Q. When you were there, were emergency personnel folks
22 there or were you the first officer to respond?
23 A. I was the first officer on the scene.
24 Q. Did emergency personnel arrive soon after you arrived?
25 A. About a minute or so after I arrived at the apartment.
31
1 Q. And how about fire engines?
2 A. Yes, they arrived, too.
3 Q. Did you pursuant to your investigation of this incident
4 go to the hospital in Roanoke to speak with Robin Williams?
5 A. Yes, I did.
6 Q. When did you do that?
7 A. It was a few minutes after I arrived on Keswick.
8 Q. She had already been escorted to the hospital at that
9 time?
10 A. Yes.
11 Q. And then you went to interview her at the hospital?
12 A. Yes, I did.
13 Q. Why did you go interview Robin Williams?
14 A. I wanted to get more information about the suspect and
15 the address and stuff like that.
16 Q. What condition was Robin Williams in when you spoke with
17 her at the hospital?
18 A. She had calmed down a lot. I guess she was on
19 medication for the pain in the arm. At that point, they took
20 the towel off her arm and you could see some of the skin had
21 bubbled up and the other skin was peeling off the arm, hanging
22 off.
23 Q. Did you talk with her about the incident?
24 A. Yes.
25 Q. Did you get suspect information from her?
32
1 A. Yes, I did.
2 Q. What did you ask her and what did she say?
3 A. I asked her Barnette's full name, birthday, address,
4 which was 3413 West Boulevard here in Charlotte, North Carolina.
5 Q. What did you do with that suspect information after
6 Robin Williams gave you that information?
7 A. Went to the magistrate and obtained warrants, two for
8 arson, two for attempted homicide and one for manufacturing a
9 fire bomb.
10 Q. And were those two attempted homicide counts one for
11 Robin Williams and one for Benjamin Green?
12 A. Yes.
13 MR. WALKER: May I approach the witness, Your Honor?
14 THE COURT: Yes.
15 BY MR. WALKER:
16 Q. Officer Hubbard, I'm going to show you what have already
17 been marked as Government's Exhibits 1A, 1B, 1C, 1D and 1E. I
18 will ask you to take a look at those items, and tell me if you
19 recognize them, and if so, what are they?
20 A. Yes. One is the apartment after the fire bomb had put
21 the fire out, and 1B is the same, different angle. 1C and 1D
22 and 1E is Green's vehicle showing the busted windows and after
23 the vehicle fire was put out.
24 Q. And do all of those photographs fairly and accurately
25 show the apartment and the red Honda as you saw them after the
33
1 fire was put out there at the Keswick address?
2 A. Yes, they do.
3 MR. WALKER: Your Honor, I would move those into
4 evidence for illustrative purposes.
5 THE COURT: That's 1A, B, C and D?
6 MR. WALKER: And E.
7 THE COURT: Thank you. They will be admitted.
8 BY MR. WALKER:
9 Q. Officer Hubbard had you ever been to Robin Williams'
10 apartment before?
11 A. Yes, I had on two occasions.
12 Q. On two occasions?
13 A. Yes, before this event.
14 Q. Would you relate to the members of the jury the two
15 times that you had been to that apartment before and what
16 those -- what that concerned?
17 A. Okay. The first time was in June of '95. I responded
18 to the address, and it was reference to an attempted suicide. I
19 got there, I spoke to Barnette and Williams. They had been into
20 an argument, and during the argument Barnette threatened to kill
21 himself.
22 Q. Did you speak to Mark Barnette about that threat to kill
23 himself?
24 A. Yes, I did.
25 Q. And where were you, were you inside the apartment when
34
1 you had the conversation?
2 A. Inside the apartment, yes.
3 Q. What, if anything, did he say to you on that occasion?
4 A. I asked him did he threaten to kill himself. He told me
5 he lied because he was mad that Williams was threatening to
6 break up with him.
7 Q. And then you said that you had been there on other
8 occasion other than the arson incident, when was that?
9 A. This was April 10th, before the arson. Williams was
10 outside her apartment. She just went to a neighbor and called.
11 She said her and Barnette had gotten into an argument and he
12 left with her car and keys. Since it was cold outside, she was
13 locked out, I let her sit in my vehicle until the mother
14 responded and arrived at the mother's place.
15 Q. What was the date of that incident?
16 A. It was April 10th.
17 Q. Of?
18 A. '96.
19 Q. And you say she stayed in your police car until her
20 mother, Bertha Williams, arrived?
21 A. Yes, I did.
22 MR. WALKER: Your Honor, I don't have any other
23 witnesses for Officer Hubbard.
24 THE COURT: Cross, Mr. Williams or Mr. Laughrun?
25 MR. LAUGHRUN: May it please the Court.
35
1 CROSS-EXAMINATION
2 BY MR. LAUGHRUN:
3 Q. Officer Hubbard, when you went down -- when you went to
4 the incident and Mark threatened suicide?
5 A. Yes.
6 Q. That was '95, wasn't it?
7 A. Yes, sir.
8 Q. I believe you told this jury that he told you he lied,
9 right?
10 A. Yes.
11 Q. Do you have your report there with you?
12 A. Yes.
13 Q. And Roanoke does its incident reports, the offense
14 report would be 95-32082, is that correct?
15 A. Yes.
16 Q. And that's your internal code for these documents and
17 police reports, incident reports, is that correct?
18 A. That's how we keep track of them, yes.
19 Q. And in that narrative, you told -- you wrote what
20 happened that night, right?
21 A. Yes.
22 Q. And it was about 1:38 a.m., I take it?
23 A. Yes.
24 Q. Early morning hours of June 14th, '95, is that right?
25 A. Correct.
36
1 Q. And you went on in that report and you wrote what Mark
2 told you, right?
3 A. Right.
4 Q. He was distraught about the relationship?
5 A. Yes.
6 Q. Or upset about it?
7 A. Yes.
8 Q. And threatened to commit suicide?
9 A. Yes.
10 Q. And, in fact, you wrote down, quote, he stated, you
11 won't see me anymore, close quote?
12 A. Yes.
13 Q. And then you told the jury a few minutes ago that he
14 told you he lied about that, is that right?
15 A. Yes.
16 Q. That's not in your report, is it?
17 A. No.
18 Q. Not anywhere in there, there or a supplement or
19 anything, is that right?
20 A. Right.
21 Q. Now, you went out there also on, I believe
22 April 10th, '96, is that right?
23 A. Yes.
24 Q. About 1:35 a.m.?
25 A. Yes.
37
1 Q. And again for the record, you have your incident report
2 there with you?
3 A. Yes, I do.
4 Q. 96-018730, is that right?
5 A. Yes.
6 Q. Now, you told the jury that incident that Robin locked
7 herself out of the apartment, or the defendant locked her out,
8 is that right?
9 A. Yes.
10 Q. That the defendant locked her out, is that right?
11 A. No, let's see here, I put Williams locked herself out of
12 her apartment.
13 Q. So he didn't lock her out, did he?
14 A. No.
15 Q. According to this, she locked herself out, is that
16 correct?
17 A. Correct.
18 Q. And no action was taken on that incident, is that right?
19 A. Right.
20 Q. Now, after the fire bombing incident, you went down to
21 the Roanoke city magistrate office, is that right?
22 A. Yes.
23 Q. And were sworn under oath and took out warrants, is that
24 right?
25 A. Yes.
38
1 Q. In fact, you took out warrants for, and correct me if
2 I'm wrong, for two counts of attempted capital murder and arson,
3 is that right?
4 A. Correct.
5 Q. And you had an address for the defendant, didn't you?
6 A. Yes.
7 Q. Somebody found a driver's license at the scene, too, had
8 they not?
9 A. I don't -- not when I was there.
10 Q. Okay. You knew his address was 3413 West Boulevard,
11 Charlotte, North Carolina?
12 A. Yes.
13 Q. I take it you did what I call a BOLO, be on the lookout
14 for, is that right?
15 A. Yes.
16 Q. You had the car information that he was in, you had a
17 description of the car, did you not?
18 A. Yes, best we could.
19 Q. And you alerted the Highway Patrol?
20 A. Yes.
21 Q. And you also notified the Charlotte city police, is that
22 right?
23 A. Yes.
24 Q. To come pick him up, is that right?
25 A. Right.
39
1 Q. Do you recall a telex being sent to the Charlotte police
2 on April 30th, '96 about the warrants being outstanding for
3 Mr. Barnette?
4 A. Do I exactly recall?
5 Q. Right, did you ever see that document or anything?
6 A. No.
7 Q. Do you know if one was sent?
8 A. Well, I told dispatch, notified dispatch, and they
9 usually take care of that.
10 Q. And --
11 MR. LAUGHRUN: May I approach the witness, Your Honor?
12 THE COURT: Yes, sir.
13 BY MR. LAUGHRUN:
14 Q. I'm going to show you what I have marked for
15 identification as Defendant's Exhibit 1. Do you recognize that
16 as the telex that was sent by the dispatcher at your request?
17 A. Do I recognize this?
18 Q. Yes, sir.
19 A. No.
20 Q. Did you ever see that before?
21 A. No, sir.
22 Q. Are you familiar with how the telex works from Roanoke?
23 A. Yes.
24 Q. Does that appear to be a telex for be on the lookout for
25 the defendant, two counts of capital murder, et cetera?
40
1 A. Yes.
2 Q. Okay. And the date on that is April 30th, '96, is that
3 right?
4 A. Yes.
5 Q. Okay. And you don't know what happened with that or
6 anything, do you?
7 A. No.
8 Q. Okay. In your two incident reports that you and I went
9 over, the '95 and '96 incident reports, there were no statements
10 in there about any domestic abuse, was there?
11 A. No.
12 MR. LAUGHRUN: Thank you, Judge Potter.
13 THE COURT: Redirect?
14 MR. WALKER: Briefly.
15 REDIRECT EXAMINATION
16 BY MR. WALKER:
17 Q. You also indicated some information in your report
18 concerning the incident back in June of '95, I believe you said.
19 Can you tell us whether you indicated in your report whether
20 emergency personnel responded to the call concerning an
21 attempted suicide?
22 A. Yes, they responded.
23 Q. And were they there when you were there?
24 A. Yes.
25 Q. Did you see whether or not they checked the defendant's
41
1 vital signs?
2 A. Yes.
3 Q. What did you report in your report concerning that?
4 A. His vital signs were normal.
5 Q. And you also indicated that Barnette went back to work
6 and no further action was needed?
7 A. Yes, right.
8 Q. Also on Defendant's Exhibit Number 1, does it indicate
9 the suspect vehicle that was involved, getaway vehicle that was
10 involved?
11 A. Yes.
12 Q. In the arson incident?
13 A. Yes.
14 Q. What information is on there about that?
15 A. It says brown 210 or 280 with North Carolina tags, dark
16 tinted windows, primer spots on driver quarter panel.
17 Q. Primer spots?
18 A. Yes.
19 MR. WALKER: Your Honor, I don't have any other
20 questions.
21 THE COURT: Thank you, sir, appreciate you coming. Call
22 your next witness.
23 MR. WALKER: Your Honor, may I pass these photographs to
24 the jury? I didn't know if Your Honor wanted me to do that now
25 or wait.
42
1 THE COURT: Is that your exhibit?
2 MR. WALKER: Yes, Your Honor.
3 THE COURT: Yes, sir. Okay, next witness.
4 MR. WALKER: Your Honor, the government calls Lieutenant
5 Drewery.
6 JOHN H. DREWERY, JR.,
7 being first duly sworn, was examined and testified as follows:
8 DIRECT EXAMINATION
9 BY MR. WALKER:
10 Q. Sir, would you state your full name for us, please?
11 A. Lieutenant John H. Drewery, Jr.
12 Q. And Lieutenant Drewery, what do you do for a living?
13 A. Firefighter for City of Roanoke.
14 Q. And what is your rank with the fire department of the
15 Roanoke City, Roanoke Virginia fire department?
16 A. Lieutenant.
17 Q. How long have you been in that line of work?
18 A. 33 years.
19 Q. I want to turn your attention to the early morning hours
20 of April 30th of 1996. Were you on duty with the Roanoke fire
21 department on that occasion?
22 A. Yes, sir.
23 Q. And pursuant to your duties on that date, did you
24 receive a call concerning a fire at an apartment located at 1616
25 Keswick Avenue in Roanoke Virginia?
43
1 A. Yes, sir.
2 Q. Did you go to that location?
3 A. Yes, sir.
4 Q. And were you on a fire truck, or tell the jury --
5 A. I was on a fire truck. I was -- my captain was off, but
6 I was riding the seat.
7 Q. Were you the acting captain on that particular occasion?
8 A. Yes, sir.
9 Q. When you arrived at the Keswick apartment complex, what
10 did you see?
11 A. Smoke and flames.
12 Q. And what did you do, did you see anything else that
13 caught your attention other than the apartment and smoke and
14 flames?
15 A. Well, when we pulled up, there was something burning in
16 the middle of the street.
17 Q. Describe what you saw.
18 A. I think it was an oil can, a Havoline oil can.
19 Q. And where did you see that object?
20 A. Right down -- well, it was in the middle of the street
21 about 30 feet from the house.
22 Q. From the front door of Keswick?
23 A. Yes, sir.
24 Q. What did you notice about that item when you saw it?
25 A. Well, I didn't pay too much attention to it until we put
44
1 the fire out, and then I went and looked at it.
2 Q. And what did you see?
3 A. It had been on fire and it finally went -- burned itself
4 out.
5 Q. Was it on fire when you first arrived?
6 A. Yes, sir.
7 Q. And then after the fire was extinguished in the
8 apartment complex, you went back and looked at that object?
9 A. I brought that to the attention of the fire inspector
10 there.
11 Q. I want to turn your attention to something else. When
12 you first arrived, did you see a vehicle there on the scene that
13 got your attention?
14 A. Yes, sir.
15 Q. Describe that vehicle, if you would.
16 A. It was a red, I think a red four-door. I don't know
17 what make it was, model. The windows had been busted out of it,
18 and it had been on fire.
19 Q. And that fire was extinguished on the red vehicle when
20 you got there?
21 A. Yes, sir.
22 Q. How many firemen in your estimation responded to that
23 fire?
24 A. Estimate about 15, about 15.
25 Q. Okay. Now, you mentioned assistant fire marshal David
45
1 Deck. When did you see Marshal Deck arrive on the scene?
2 A. Maybe 25 minutes later, something like that.
3 Q. Was the fire already extinguished at the apartment
4 complex when he arrived?
5 A. Yes, sir.
6 Q. Did you have a conversation with him concerning the item
7 that you had seen in the street?
8 A. Yes, sir, I did.
9 Q. What conversation did you have?
10 A. I told him it looked suspicious, so we walked out there
11 and he took a pencil, put it in a plastic bag.
12 Q. He collected it as evidence?
13 A. Yes, sir. I did not touch it.
14 Q. Did you, when you first arrived at Keswick, did you ever
15 go inside the apartment when it was on fire?
16 A. Oh, yes, sir.
17 Q. Describe for the members of the jury what happened.
18 A. Well, we pulled up. Like I say, I was acting captain.
19 I jumped out of the truck, didn't even take time to put my
20 turnout gear on. The other boy pulled the line up the hill, I
21 helped him pull the line up the hill, I told my driver to charge
22 it before we started in. I tried the door and it was locked, so
23 the third kick I give it, I busted it in. And we hit the fire
24 and knocked it out just like that -- well, not just like that,
25 but we knocked the fire out. And it was burning outside on the
46
1 eaves, so I told Scott to come out here and put that out, and I
2 started jerking them aluminum panels down to make sure it
3 wouldn't get under the -- run back up the roof. And then Deck
4 showed up, and we started collecting evidence.
5 Q. Is that when you collected, went with Marshal Deck and
6 collected the item you saw out in front of the apartment?
7 A. Yes, sir, I showed him that. I didn't want nothing to
8 happen to it.
9 Q. Were you with him when he collected that?
10 A. Yes, sir.
11 Q. Did you also go through the apartment once the apartment
12 was -- the fire was extinguished from in the apartment?
13 A. Yeah. As soon as we knocked the fire down, I went
14 through the house to make sure that nobody was in there. I
15 checked the closets, under the bed and everywhere.
16 Q. And did you go through there with Assistant Marshal
17 Deck?
18 A. Yes, sir.
19 Q. Did you see Assistant Marshal Deck do anything, collect
20 any evidence while you were inside the apartment?
21 A. Yes, sir.
22 Q. And where was that collected?
23 A. On the floor, on the wall, I don't know. I was just
24 holding the bag for him, he was scraping it off of the floor for
25 evidence.
47
1 MR. WALKER: I don't have any other questions of this
2 witness, Your Honor.
3 THE COURT: Cross?
4 CROSS-EXAMINATION
5 BY MR. WILLIAMS:
6 Q. Lieutenant Drewery, just a few questions. Did you do a
7 diagram of the inside of this apartment, sir?
8 A. No, but I got one right here.
9 Q. Do you?
10 A. Yes, sir. I think it's the inside of the apartment.
11 Q. All right. Would you look at what you think is the
12 diagram there as part of your reports and see if you can find
13 it?
14 A. I can tell you what the apartment looked like.
15 THE COURT: Be careful with the microphone?
16 THE WITNESS: Oh, here we go.
17 MR. WILLIAMS: May I approach the witness, Your Honor?
18 THE COURT: Yes, sir.
19 THE WITNESS: Oh, I'm sorry. That thing is sensitive,
20 I'm sorry.
21 MR. WILLIAMS: May I approach the witness, Your Honor?
22 THE COURT: Yes, sir.
23 THE WITNESS: I'm sorry, didn't realize I was doing it --
24 I done it again.
25 BY MR. WILLIAMS:
48
1 Q. Yes, sir. And the diagram that you are referring to,
2 did you draw that diagram or did someone else draw it?
3 A. No, sir, David Deck did.
4 Q. Was that part of the official report?
5 A. Yes, sir.
6 Q. And does it show one bedroom?
7 A. Well, it shows one bedroom here, but I believe it's two
8 bedrooms.
9 Q. Was there a room there -- you have on the diagram a room
10 that's marked bedroom?
11 A. Yes, sir.
12 Q. And then another room that's marked living room?
13 A. Yes, sir.
14 Q. And another room that is marked kitchen?
15 A. Yes, sir.
16 Q. And then there is a third room next to the bedroom that
17 has nothing in it, it's just blank, is that correct?
18 A. I presume that's another bedroom, that's -- you are
19 right, though.
20 Q. Is it blank in your diagram?
21 A. Yes, sir.
22 Q. Do you recall whether there was any furniture in that
23 room?
24 A. I can't recall if it was or not. Wasn't no fire back
25 there.
49
1 Q. All right, sir.
2 MR. WILLIAMS: That's all, Your Honor, thank you.
3 THE COURT: Redirect?
4 REDIRECT EXAMINATION
5 BY MR. WALKER:
6 Q. On the diagram that counsel just showed you, there is no
7 furniture drawn in any of those rooms, is there?
8 A. No, sir, there is not.
9 Q. Did you see furniture in the apartment, though?
10 A. Yes, sir, there was furniture in the apartment. In
11 fact, there was furniture in the living room, but it was burnt.
12 MR. WALKER: I don't have any other questions, Your
13 Honor.
14 THE COURT: Thank you, sir, appreciate you coming. Call
15 your next witness.
16 MR. WALKER: Your Honor we would call Fire Marshal
17 Deck.
18 DAVID L. DECK,
19 being first duly sworn, was examined and testified as follows:
20 DIRECT EXAMINATION
21 BY MR. WALKER:
22 Q. Sir, would you state your full name and tell us what you
23 do for a living?
24 A. David L. Deck, Assistant Fire Marshal for City of
25 Roanoke.
50
1 Q. Marshal Deck, how long have you been a firefighter with
2 the City of Roanoke, Virginia?
3 A. 25 years.
4 Q. Can you tell us your general responsibilities and duties
5 as the Assistant Fire Marshal?
6 A. To determine cause and origin.
7 Q. Of fires?
8 A. Yes, sir.
9 Q. Did you receive a call concerning a fire at an apartment
10 complex located at 1616 Keswick Avenue in Roanoke, Virginia on
11 April 30th of 1996?
12 A. Yes, I did.
13 Q. Did you go to that location?
14 A. Yes, sir.
15 Q. Pursuant to your duties as an assistant fire marshal, do
16 you respond as the fire engines go out to extinguish the fire,
17 or how does that work?
18 A. No, sir, it's after the fire is extinguished. We are
19 called by the in charge person at the fire scene once they
20 extinguish a fire when we can get in.
21 Q. And so did you go to that location?
22 A. Yes, sir.
23 Q. And was the fire extinguished when you arrived?
24 A. Yes, it was.
25 Q. Did you see Lieutenant Drewery with the Roanoke city
51
1 fire department when you got to that location?
2 A. I did.
3 Q. Did you have a conversation with him?
4 A. I did. He pointed out an article in the street that he
5 said was burning when he arrived. Of course, it was
6 extinguished. I did retrieve it and put it in a can, is our
7 normal procedure in collecting evidence.
8 Q. I want to also ask you, at some point when you were at
9 that location, did you have a conversation with a person you
10 identified as Benjamin Green?
11 A. Actually I talked to Lieutenant Drewery about Mr. Green.
12 Q. So you didn't actually talk --
13 A. I really didn't talk directly to Mr. Green.
14 Q. Once the fire was extinguished, did you go inside with
15 Lieutenant Drewery to look at the contents of the apartment?
16 A. Yes, I did.
17 Q. And describe what you saw when you went inside the
18 apartment.
19 A. The living room area was overall burn patterns. It was
20 a definite V pattern, which we -- terminology we use as the
21 configuration of the fire, the way it travels up and out on the
22 wall. It leaves a pattern that very much resembles a V.
23 Q. Did you see a V pattern on one of the walls?
24 A. Yes, I did.
25 Q. And what does that indicate to you?
52
1 A. It normally indicates that the fire started in that
2 area, which as I say we can visualize what a V looks like and it
3 makes a points, and that is normally your point of origin.
4 Q. Did you collect any evidence when you were inside of the
5 apartment there at Keswick?
6 A. Yes, sir, I did.
7 Q. Where did you collect that evidence?
8 A. Right at that V.
9 Q. And was that in the living room area?
10 A. Living room area yes, sir.
11 Q. Was that below a window there in the --
12 A. Yes, it was.
13 MR. WALKER: May I approach the witness, Your Honor?
14 THE COURT: Yes, sir.
15 BY MR. WALKER:
16 Q. Sir, I'm going to show you what has already been marked
17 as Government's Exhibits 2A, 2B, 2C, 2D, 2E and 2F. I will ask
18 you to take a look at those, as well as 2G, if you will take a
19 look at those photographs, along with 2H, and tell me if you
20 recognize what is shown on those photographs, and if so, what is
21 it?
22 A. You want to go one by one?
23 Q. Yes, if you would.
24 A. 2A would be the exterior front door of the apartment.
25 Q. At Keswick?
53
1 A. Yes, sir, and to the right would be the living room
2 window where would have been right above the point of origin.
3 Q. Okay.
4 A. 2B would be just kind of a corner view of the same area
5 of side and front. 2C would be the rear of the apartment. The
6 top left-hand window would be the window that they had to make
7 exit out of. 2D would be your living room. This would be after
8 I had moved the couch out from the wall to get my samples
9 underneath and behind. 2E would be basically the same thing,
10 just a different angle, same thing with 2F, just a little
11 different angle, and 2G, same photo. 2H would be the window
12 where they made the exit, and there is some interesting facts on
13 this photograph.
14 Q. Before I ask you about that, do all of those
15 photographs, those being 2A through 2H, do they fairly and
16 accurately show the apartment, the outside and the inside as you
17 saw it once the fire was extinguished there at Keswick?
18 A. Yes, sir.
19 MR. WALKER: Your Honor, I would move those into
20 evidence.
21 MR. LAUGHRUN: No objection, Your Honor.
22 THE COURT: You may, overruled.
23 MR. LAUGHRUN: I said no objection, Your Honor.
24 THE COURT: Pardon?
25 MR. LAUGHRUN: No objection.
54
1 THE COURT: Oh, I thought you said objection.
2 MR. LAUGHRUN: No, sir.
3 THE COURT: 2A, 2B, 2C, 2D, 2E, 2F, 2G, 2H, they will be
4 admitted.
5 BY MR. WALKER:
6 Q. I want to ask you, Marshal Deck, if you went back to
7 that location next day?
8 A. Yes, I did.
9 Q. And tell the members of the jury why you went back the
10 next day.
11 A. Just to get an overall view. In other words, we're
12 there at night. You can't see anything other than what you put
13 a flashlight on basically. So I did go back to get an overall
14 view of the apartment and anything else I could see.
15 Q. Is that when you took the photograph that you indicated,
16 2H?
17 A. Yes.
18 Q. Okay. And you indicated -- why did you take a
19 photograph of the back window?
20 A. It showed some evidence of what I thought at the time
21 was tennis shoe scuffs on the wall, and actually underneath that
22 window was another window that showed some smudges on it.
23 Q. And why was that significant to you?
24 A. Showed that they had to go out that back way, it was the
25 only way out.
55
1 Q. And that's the second-story window, is that correct?
2 A. Yes, it is.
3 MR. WALKER: May I approach the witness, Your Honor?
4 THE COURT: Yes, sir.
5 MR. WALKER: Your Honor, may Marshal Deck come before
6 the jury and point a few things out on these photographs?
7 THE COURT: Yes, sir.
8 BY MR. WALKER:
9 Q. If you'd come down, sir, and we will start at this end
10 of the jury and we'll do the same thing on that end. Using
11 Government's Exhibit 2G, you indicated that there was a V shape
12 that was significant in your determining the cause of this
13 fire. Will you use that photograph and point to the jury on
14 this side and the other side?
15 A. Okay, this right here (indicating) where it comes up
16 both ways, we call that a V pattern.
17 Q. If you will go down to that side of jury.
18 A. Same thing, right above the window, right below the
19 window, excuse me, going up and out, forming a V.
20 Q. Lastly, I want to show you Government's Exhibit 2H. If
21 you would indicate on that photograph, starting with this end of
22 the jury and then go down and do the same.
23 A. This, you can see close, look dead center about 2 feet
24 down, you see a white mark going down the wall.
25 Q. If you will give the explanation again.
56
1 A. A tennis shoe or something with a white sole left that
2 scuff on there.
3 Q. Will you point to that as you show the photograph to the
4 jury?
5 A. Right about there (indicating), just about down that
6 mortar joint.
7 Q. Okay, you can return to your seat.
8 Now, you indicated that you collected two items of
9 evidence there at the Keswick apartment, is that correct?
10 A. Yes, sir.
11 Q. That's the item that Lieutenant Drewery brought to your
12 attention outside the apartment?
13 A. That's correct.
14 Q. And the other one being some --
15 A. Debris.
16 Q. -- debris from inside. What did you do with that
17 evidence?
18 A. We placed those in cans, tin cans, mark them with my
19 initials, the date of the fire, the fire number, and then submit
20 it to the laboratory for analyzation.
21 Q. Let me show you Government's Exhibit 2I, is that a
22 laboratory request?
23 A. Yes, it is.
24 Q. Concerning the two items that you collected at Keswick?
25 A. Yes, sir.
57
1 Q. Is that part of your report in this case?
2 A. Yes, it is.
3 MR. WALKER: Your Honor, I would move that into
4 evidence.
5 THE COURT: It will be admitted, 2I.
6 MR. WALKER: And I do not have -- if I may have just a
7 moment.
8 BY MR. WALKER:
9 Q. Lastly, Marshal, I'm going to show you two cans, and I'm
10 not going to get these too close to you, but the first being
11 Government's Exhibit 3A. I will remove the top of 3A and I will
12 ask you just to look down in at the contents of that. Is that
13 one of the items that you removed from the Keswick apartment and
14 submitted for laboratory analysis?
15 A. Right, yes, sir.
16 Q. And also the same on 3B, I will remove the top of that
17 and ask you just to look down in there.
18 A. Yes, sir.
19 Q. And those are both marked, is that correct?
20 A. Yes, sir, my name is written in red on the top of both
21 cans.
22 Q. Okay.
23 MR. WALKER: Your Honor, I don't have any other
24 questions.
25 THE COURT: All right, sir, Mr. Williams.
58
1 MR. WILLIAMS: May I approach the witness, Your Honor,
2 very briefly?
3 THE COURT: Yes, sir.
4 CROSS-EXAMINATION
5 BY MR. WILLIAMS:
6 Q. Marshal, if I may show you what has been marked as
7 Defendant's Exhibit 2, and ask you if you have seen that, sir?
8 A. Yes, sir, I drew this.
9 Q. And when you drew that diagram, you wrote in -- did you
10 do the writing also?
11 A. Yes, I did.
12 Q. And in one area, there's written in bedroom, is that
13 correct?
14 A. Yes, sir.
15 Q. And exit out the window?
16 A. Yes, sir.
17 Q. That's in the same room marked bedroom?
18 A. Yes, sir.
19 Q. And then you marked the living room?
20 A. Yes, sir.
21 Q. You also put a box where you marked point of origin?
22 A. Right, indicating the couch.
23 Q. And what did you mean by point of origin?
24 A. Well, I was again repeating myself on that V pattern.
25 Q. And then you marked another room kitchen?
59
1 A. Right.
2 Q. And you marked shot from -- somebody wrote in, shot from
3 this window?
4 A. Right.
5 Q. Did you write that in?
6 A. Yes, I did.
7 Q. What does that indicate?
8 A. Well, at the time, I heard talk at the fire scene that
9 there was a gunshot fired, that it was fired from that window.
10 Q. And then there is a back room with nothing in it, is
11 that correct?
12 A. That's right.
13 Q. And why did you not put anything in that room?
14 A. It had nothing to do with the fire scene.
15 Q. Was there anything in that room that you recall?
16 A. I don't recall.
17 Q. Thank you.
18 MR. WILLIAMS: That's all. If I may retrieve the
19 exhibit, Your Honor.
20 THE COURT: Yes.
21 MR. WILLIAMS: That's all, Your Honor.
22 THE COURT: Any redirect?
23 MR. WALKER: Your Honor, I don't have any redirect. May
24 I pass the photographs that we introduced through this witness
25 to the jury?
60
1 THE COURT: Yes, sir. Thank you very much, you may come
2 down. Call your next witness.
3 MR. CONRAD: United States would call Thomas Simpson.
4 THOMAS P. SIMPSON,
5 being first duly sworn, was examined and testified as follows:
6 MR. LAUGHRUN: Judge, we will be happy to stipulate to
7 the qualifications as a forensic chemist or scientist, whatever
8 his full title is.
9 THE COURT: Thank you, sir.
10 DIRECT EXAMINATION
11 BY MR. CONRAD:
12 Q. Would you please state your name and spell your last
13 name for the court reporter?
14 A. My name is Thomas Simpson, and that's S-I-M-P-S-O-N.
15 Q. Mr. Simpson, how are you employed?
16 A. I'm employed as a forensic scientist with the Western
17 Forensic Laboratory in Roanoke, Virginia.
18 Q. And how long have you been so employed?
19 A. I've been employed there for approximately seven and a
20 half years.
21 Q. And what are your duties as a forensic scientist?
22 A. I'm employed in the trace evidence section. My primary
23 duties are I'm the primary arson resource person, which means I
24 answer any law enforcement questions and evidentiary matters
25 dealing with the evidence. I also am the primary examiner for
61
1 accelerants examinations, and I also do paints, plastics and
2 general chemical exams.
3 Q. Now, the defendant has indicated he'll stipulate to your
4 qualifications, but will you briefly relate to the jury your
5 education and your training?
6 A. I have a Bachelor's Degree in chemistry and a Master's
7 Degree in forensic science. I was employed as a forensic
8 chemist with the Drug Enforcement Administration following
9 graduate school.
10 Q. Are you also an adjunct faculty member?
11 A. Yes, sir, I'm an adjunct faculty member presently with
12 the community college in Roanoke, and I was also an adjunct
13 faculty member with another community college in Dublin,
14 Virginia in 1993, I believe.
15 Q. Now, turning to your -- turning your attention to your
16 duties as a forensic chemist, you indicated that you were an
17 expert in the area of accelerant analysis. Can you relate to
18 the jury what that means?
19 A. Well, if a law enforcement agency has a potential arson
20 examination or investigation and they need evidence examined for
21 the presence of possible petroleum products or possible
22 accelerants, they submit evidence to the laboratory and request
23 an accelerant exam. And my job is to analyze the evidence and
24 determine if any petroleum products or potential accelerants are
25 present.
62
1 Q. What kind of tests do you perform to make that
2 determination?
3 A. It's an inventory test and then also a chemical test to
4 determine if petroleum products are present in the debris.
5 Q. And when you say inventory test and chemical test --
6 A. Generally when I receive an item of evidence for
7 examination, I inventory the evidence to see if it's exactly how
8 the officer submitted it. I open the can, and the first test I
9 do is an odor test. Do I smell a petroleum product, do I smell
10 gasoline, do I smell kerosene. It doesn't determine what I do,
11 but it's a good start. And then I do, basically you start
12 general and you get more specific. I do an extraction test.
13 And that's basically my job is to, if there is an accelerant
14 present, I need to get it out of the sample and I need to
15 analyze it. So I conduct an extraction technique to extract any
16 possible accelerant which might be present, and then I analyze
17 that to see if any petroleum products are present.
18 Q. And how many times have you done that in the course of
19 your career as a forensic scientist since 1990?
20 A. I've analyzed thousands of samples.
21 Q. Now, turning your attention to May of 1996, did you --
22 MR. CONRAD: May I approach the witness, Your Honor?
23 THE COURT: Yes, sir.
24 BY MR. CONRAD:
25 Q. Mr. Simpson, let me approach and hand to you what has
63
1 been marked for identification and introduced into evidence in
2 this case as Government's Exhibits 3A and 3B, and ask you if you
3 can identify those exhibits?
4 A. May I stand?
5 Q. Sure.
6 A. The outer cans that this is, these are not my cans, but
7 the inner cans are in a heavy ziplock plastic bag, and on the
8 ziplock plastic bag is a lab number that we assign to each case
9 and my initials. And this bag is sealed and initialed, and this
10 is tamper resistant tape. And then inside the bag, we do this
11 because water will rust these cans out, and on the can are again
12 that lab number, my initials and that tamper resistant tape.
13 Q. Now, I take it from your testimony that you have seen
14 those exhibits before?
15 A. Yes, sir, I have.
16 Q. If you would describe the cans --
17 THE COURT: Mr. Simpson, is that 3A or 3B?
18 THE WITNESS: Oh, I'm sorry, sir. Item 3B has my
19 initials on it, and Exhibit 3A also has the lab number, my
20 initials and then on the can and the tape, and that's item 3A.
21 BY MR. CONRAD:
22 Q. Now, I take it you have examined those before. Would
23 you tell the jury under what circumstances and where you did
24 that?
25 A. Yeah. Assistant Fire Marshal Deck submitted the two
64
1 small cans to the laboratory and requested an accelerants
2 examination.
3 Q. And did you perform such an examination?
4 A. Yes, sir, I did.
5 Q. What did -- you tested for accelerants?
6 A. Yes, all possible accelerants. The most common
7 accelerants that we analyze for are petroleum based products.
8 Q. And what did your test consist of?
9 A. As I said before, the first step is you open the can and
10 you see if it matches what the investigator identified it as.
11 Item one says a container with liquid, and item two says fire
12 debris. Debris is a nice term which means -- for him it means
13 it's a fire and what is left over, and for me it means I have
14 absolutely no idea what it is other than it's burned up.
15 So the first step is an inventory to see if actually
16 what I have in these cans matches what the investigator
17 submitted. In this case, it did. I refer to item one, which is
18 Government's Exhibit 3A as plastic. That's just a general term
19 that the standard policy in our laboratory is just to identify
20 it as plastic.
21 The first step is to notice if there is any odor
22 present, and in these cases there wasn't any identifiable odor
23 present in either can. And what that does then is I do an
24 extraction technique to see if there's any -- if there are any
25 accelerants present, I will extract them out of the sample. And
65
1 then I analyze that extract on a gas chromatograph and compare
2 it with known standards.
3 Q. And after you did that with item number one,
4 Government's Exhibit 3A, did you make any conclusions?
5 A. Yes. The extract from the item one which was the
6 plastic contained a gasoline petroleum product. And on item
7 two, no petroleum products were identified.
8 Q. And with respect to item one, do you have any more
9 descriptive indication of what that is other than plastic?
10 A. Yes. In my notes, I have that it's the back portion of
11 a plastic container with the partial label, quality engineered
12 ATF, which is probably automatic transmission fluid, and it has
13 some part numbers.
14 Q. Now, you indicated on item number two, Government's
15 Exhibit 3B, that your testing did not indicate the presence of
16 any petroleum?
17 A. That is correct.
18 Q. Can you explain that, is it unusual for there to be
19 debris collected from point of origin in a fire that doesn't
20 leave petroleum products?
21 A. Well, a negative result can mean a lot of things. The
22 first thing it can mean is that there was no petroleum product
23 at that particular spot that the sample was taken. It also
24 could be that the fire, if there was an accelerant present, that
25 the fire burned it all up, and either it completely burned it
66
1 away or burned it below our detection limits. And also it could
2 be that the sample itself interfered with an analysis.
3 Therefore, the material, carpet sometimes can interfere with an
4 identification, and if there is interferences, I will not make
5 an identification.
6 Q. Now, what, if anything, did you do after you completed
7 your tests?
8 A. As pursuant to standard policy, I issue a report or a
9 certificate of analysis which gives the conclusions for my
10 analysis.
11 MR. CONRAD: Your Honor, may I approach?
12 THE COURT: Yes.
13 BY MR. CONRAD:
14 Q. Mr. Simpson, let me approach and hand you what has been
15 marked for identification as Government's Exhibit 4, and ask you
16 if you can identify those exhibits?
17 A. Yes, sir. Government Exhibit 4 looks like the original
18 for the certificate of analysis in this case.
19 Q. And what does the certificate of analysis say?
20 A. It says who submitted it, when they submitted it, who
21 was it submitted by so we have all that in the certificate, also
22 my description of the evidence and my results.
23 Q. And your results being?
24 A. The item one extract contained a gasoline petroleum
25 product, and no petroleum products were identified in the item
67
1 two extract.
2 MR. CONRAD: Your Honor, I'd move admission of
3 Government's Exhibits 3A, 3B and 4.
4 THE COURT: They will be admitted.
5 BY MR. CONRAD:
6 Q. Mr. Simpson, is the term Molotov cocktail familiar to
7 you as a forensic scientist?
8 A. Yes, sir.
9 Q. And when I use that term, what does it mean to you?
10 A. Well, a Molotov cocktail is basically a container which
11 holds an ignitable liquid, an accelerant. The container's use
12 is to just carry the liquid to where it plans to be thrown. A
13 wick is usually put in the opening of the container and lit, and
14 when the Molotov cocktail is thrown and strikes a surface,
15 either the container ruptures or the wick can pop out, spreading
16 the accelerant over the area, and then the flame on the wick
17 will ignite the accelerant.
18 Q. Turning your attention to the definition of destructive
19 device contained in 18 United States Code, Section 921(a)(3), a
20 destructive device is defined as any explosive, incendiary or
21 poison gas, bomb, grenade, rocket, missile, mine or device
22 similar to any of the devices described in the preceding
23 clauses. Do you agree with that definition?
24 A. It sounds like a reasonable definition for destructive
25 device, yes, sir.
68
1 Q. Do you agree that the definition of incendiary device
2 includes any homemade incendiary product or components thereof,
3 the function of which is to ignite and destroy property, and any
4 device composed of a combustible material capable of producing
5 sufficient heat to destroy property of any kind having
6 components designed to ignite that combustible material?
7 A. That sounds like a reasonable definition, yes, sir.
8 Q. Given those definitions, do you have an opinion
9 satisfactory to yourself as to whether Molotov cocktail meets
10 the definition of destructive device?
11 A. A Molotov cocktail is a very destructive device.
12 MR. CONRAD: That's all I have, Your Honor.
13 THE COURT: Thank you, sir.
14 MR. WILLIAMS: No questions, Your Honor.
15 THE COURT: Okay, call your next witness.
16 MR. CONRAD: United States would call Kent McIlhany.
17 Your Honor, may I pass Government's Exhibit 4 to the
18 jury at this time?
19 THE COURT: Yes, sir.
20 KENT MCILHANY,
21 being first duly sworn, was examined and testified as follows:
22 DIRECT EXAMINATION
23 BY MR. CONRAD:
24 Q. State your name for the jury, and if you would, spell
25 your last name for the court reporter.
69
1 A. My name is Kent McIlhany, M-C-I-L-H-A-N-Y.
2 Q. Mr. McIlhany, how are you employed?
3 A. I am a firefighter paramedic with the Roanoke city fire
4 and EMS department.
5 Q. And how long have you been so employed?
6 A. Five and a half years.
7 Q. So on April 30th of 1996, that was your job?
8 A. Yes, sir.
9 Q. And what are your duties?
10 A. I respond to any 911 call involving emergency medical
11 care or fire-related vehicle accidents or police type incidents.
12 Q. In the early morning hours of April 30th, did you
13 respond to such a call?
14 A. Yes, sir.
15 Q. Relate to the jury what call you received and what
16 response you made.
17 A. We received a call for a possible house fire on Keswick
18 Boulevard in northeast Roanoke. We responded. Upon my arrival,
19 I found fire department already on the scene, a house that was
20 apparently on fire. And as we arrived, I exited my ambulance,
21 started walking towards the residence, and Ms. Williams was
22 walking towards me up the block. I found her, she was visibly
23 shaken by the incident, upset and nervous, and also obviously in
24 some pain.
25 Q. Mr. McIlhany, that mike is very sensitive, but if you'd
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1 carefully pull it closer to you and speak up a little louder.
2 A. Okay. She was obviously in pain. I moved her directly
3 to the ambulance out of the weather, it was kind of a cool
4 night, put her in my ambulance and immediately started assessing
5 her injuries.
6 Q. When you say assessing her injuries, what did you do?
7 A. I visibly checked her body for any injuries that she
8 had. I quickly scanned basically her entire body surface
9 looking for anything that I saw that was obvious injuries.
10 Q. And as you did that, what did you observe?
11 A. I noticed immediately that she had burns to her right
12 and left lower arm. Her right lower arm, she had what is
13 classified as second degree burns, which are kind of moderate
14 burns, causes blisters and reddening of the skin. It was mostly
15 around the wrist and hand area, covered about half of the lower
16 arm on the right side. The left arm had more severe injuries.
17 It was second and third degree burns, which basically are red
18 and blistered, also a blanched appearance. It burns directly
19 through all of the issues of the arm. She had that on the lower
20 left part of the arm about halfway up. It also was
21 circumferential, which basically means it completely wrapped
22 around the arm and wrist area and the hand area. This was
23 probably the most severe of the injuries that she had. I also
24 noticed she had some abrasions to her knees and also to the
25 lower right half of her chest and abdomen area, just some small
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1 abrasions. And that's most of the injuries that I found.
2 Q. Did you notice anything with respect to the skin on the
3 left arm?
4 A. Yes, the flesh itself was actually peeling off of her
5 arm from her burns.
6 Q. Was there anything with respect to the smell of the
7 wounds that came to your attention?
8 A. Yes, sir. Flesh has a very distinctive smell. It's a
9 sickening smell. It's a smell that you won't forget.
10 MR. LAUGHRUN: Objection to sickening smell.
11 THE COURT: Overruled.
12 THE WITNESS: It's very -- it's a smell you just won't
13 ever forget.
14 MR. LAUGHRUN: Objection.
15 BY MR. CONRAD:
16 Q. Did it have a nauseating effect on you?
17 A. Yes, sir, it sure did.
18 Q. Did you question Ms. Williams in any way?
19 A. Yes, sir. As part of our standard care that we give, we
20 ask pertinent medical history questions relating to her medical
21 history that might be pertinent to her care, and also asked her
22 questions about the events of that evening, because that is also
23 pertinent to the care of how I would treat her. I would have to
24 know what happened to her so that I know basically what to
25 expect as far as injuries would go.
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1 Q. Describe her demeanor when you began that questioning.
2 A. Very nervous, very upset, she was scared. She even made
3 statements to me to the effect that she was -- could not believe
4 that this had happened to her, and she was --
5 MR. WILLIAMS: Objection.
6 THE COURT: Overruled.
7 THE WITNESS: -- still very afraid of what might still
8 happen to her from that point.
9 BY MR. CONRAD:
10 Q. Did you question her concerning her pain level?
11 A. Yes, sir. As a standard, anybody in pain, we have a
12 little question that we ask to rate the pain on a scale of 1 to
13 10. One is the least pain that you could incur and 10 being the
14 worst pain that you could ever imagine incurring. She rated her
15 pain on a 7 on a scale of 1 to 10, which is rated pretty high.
16 Q. Now, when you asked her about the incident itself, what,
17 if anything, did she tell you?
18 A. She told me that she was asleep.
19 MR. WILLIAMS: Objection.
20 THE COURT: Overruled.
21 THE WITNESS: Was awoken by a disturbance outside, a
22 large commotion outside, some screaming and yelling. She heard
23 her name bei