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, ) SENTENCING PHASE
)
8 Defendant. )
)
9
10
11 Transcript of proceedings before the Honorable
12 ROBERT D. POTTER, Senior United States District Court Judge,
13 before Scott A. Huseby, Official Court Reporter and Notary
14 Public, on the 29th 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 THE COURT: Ready for the jury?
7 MR. LAUGHRUN: Judge, before the jury comes in, if Your
8 Honor please, a couple of things for the record. Judge, we have
9 been provided reports, psychological reports from the government
10 witnesses this morning. I understand from Mr. Conrad they are
11 going to get us the tapes today, Bob?
12 MR. CONRAD: (Nods head.)
13 MR. LAUGHRUN: Sometime today, and we had mentioned
14 that, I know, before.
15 THE COURT: Thank you, sir, call the jury.
16 (The jury returned to the courtroom.)
17 THE COURT: Good afternoon, ladies and gentlemen. How
18 do you like a half day at work?
19 All right, members of the jury, we are here this
20 afternoon to commence the sentencing hearing for the defendant
21 Barnette. You have previously found the defendant guilty of the
22 violations of law as set out in Counts 1 through 11 of the
23 indictment, and in this phase you will consider the evidence
24 from which you will decide the penalty or punishment that the
25 defendant should receive for those violations.
3
1 In this phase, the government will present to you what
2 it contends to be aggravating factors that you should consider
3 in determining whether a sentence of death is justified for the
4 purpose of which you have found the defendant guilty in Counts
5 8, 10 and 11. You must unanimously find beyond a reasonable
6 doubt that the government has proved at least one of those
7 aggravating factors presented to you by the government before
8 you could find the defendant -- before you can find that death
9 is the appropriate punishment for the defendant.
10 The defendant also has an opportunity to present to you
11 what he contends to be mitigating factors in determining whether
12 a sentence other than death is to be imposed on him. The
13 defendant must prove the mitigating factors by a preponderance
14 or greater weight of the evidence before you may consider such
15 mitigating factor is established. Further, a finding with
16 respect to a mitigating factor may be made by one or more of the
17 jurors, and any member of the jury who finds the existence of a
18 mitigating factor may consider such factor established,
19 regardless of the number of jurors who concurred with the
20 mitigating factor that has been established. However, such
21 mitigating factor should be discussed and fairly considered by
22 all of the members of the jury. Recall that a finding with
23 respect to an aggravating factor must be unanimous. The
24 mitigating factor only has to be with one of the jurors.
25 Now, one other factor you will be asked to consider and
4
1 which will be presented to you by the government are the victim
2 impact statements. A victim impact statement may include
3 factors concerning the effect of the offense on the victim's
4 family and may include oral testimony, a victim impact statement
5 that identifies the victim of the offense and the extent of and
6 scope of the injury and loss suffered by the victim and the
7 victim's family and any other relevant information.
8 I believe we are ready to begin. Does the government
9 want to make an opening statement?
10 MR. WALKER: We do, Your Honor.
11 Members of the jury, we are now beginning the sentencing
12 phase in this case in which you will ultimately decide the
13 punishment for this defendant. And the government seeks to make
14 the government's position very clear to you, that at the end of
15 all of the evidence that you will hear during this sentencing
16 phase, the government will prove to you beyond a reasonable
17 doubt that the aggravating factors have been proven to all of
18 your satisfaction beyond a reasonable doubt, that those
19 aggravating factors sufficiently outweigh any mitigating factors
20 you may find by a preponderance on behalf of the defendant.
21 We will prove to you that not only do those aggravating
22 factors exist beyond a reasonable doubt, not only do they
23 sufficiently outweigh any mitigating factors that you may find,
24 but we will also prove to you beyond a reasonable doubt that the
25 only true verdict in this case is a judgment that would sentence
5
1 the defendant to death. We will be asking you to sentence the
2 defendant to death for both the murder of Donald Allen and for
3 the murder of Robin Williams.
4 I want to tell you briefly what the government intends
5 to prove and will prove to you are the aggravating factors as to
6 Counts 7 and 8, one, that the defendant killed Donnie Allen in
7 the expectation of pecuniary gain. The government will prove to
8 you and you may recall, and incidentally, any evidence that you
9 heard during the guilt phase of this case still applies and you
10 may consider during the sentencing phase of this case, the
11 government will prove to you that that aggravating factor of
12 pecuniary gain exists in that the defendant, when he killed
13 Donnie Lee Allen, did so in the expectation of money in the form
14 of what was inside of Donnie Allen's wallet as well as the
15 vehicle that he stole from him. We will move that aggravating
16 factor to you beyond any reasonable doubt.
17 The government will also prove to you that the defendant
18 killed Donnie Allen after substantial planning and
19 premeditation. You heard this evidence as well during the guilt
20 phase.
21 Third, the government will prove to you beyond any
22 reasonable doubt that the defendant has committed a pattern of
23 violence towards others and is likely to be a continuing and
24 serious threat to society. We will prove that to you through
25 the form of witness beyond any reasonable doubt.
6
1 Fourth, the harmful effect and scope of the offense on
2 the Allen family. The Judge instructed you concerning that and
3 we will ask you to follow that instruction, and we will submit
4 to you evidence that will prove that aggravating factor as
5 well.
6 And lastly, as to the murder of Donald Allen, the
7 government will submit to you that the defendant killed two
8 people, and that not only did he kill Donald Allen, but he also
9 intentionally killed Robin Williams. Those are the aggravating
10 factors the government will submit to you for both Count 7 and
11 Count 8. The government will prove the existence of those
12 aggravating factors beyond a reasonable doubt, and we will prove
13 those to you unanimously, and we will prove that they far
14 outweigh any mitigating factor that you may find on behalf of
15 the defendant.
16 I want to now turn your attention to the aggravating
17 factors the government intends to prove exist and do exist
18 beyond any reasonable doubt concerning Count 11 and the murder
19 of Robin Williams. The government will prove that during the
20 commission of her murder, during the commission of the murdering
21 of Robin Williams, the defendant knowingly created a grave risk
22 of death to Bertha Williams and Sonji Hill. We will prove that
23 to you beyond a reasonable doubt. We will ask you to recall the
24 evidence during the guilt phase about how the defendant
25 confronted Bertha Williams, how he confronted and threatened
7
1 Sonji Hill when she was on the phone, and how lastly Bertha
2 Williams was just a few feet away, right beside, in fact, her
3 daughter when the defendant shot at her daughter with a
4 sawed-off shotgun. We will prove to you that that is grave risk
5 to those two people, and we will prove the existence of that
6 aggravating factor beyond any reasonable doubt.
7 Second, the defendant murdered Robin Williams after
8 substantial planning and premeditation. We will ask you at the
9 appropriate time to consider all of the planning and the
10 premeditation the defendant put into killing Robin Williams. We
11 will ask you to consider that three-hour drive that he made to
12 Roanoke, Virginia planning, premeditating, thinking about
13 killing Robin Williams. We will prove that that is substantial
14 planning and that is substantial premeditation. And we ask you
15 to recall all of the evidence that you heard in the guilt phase
16 as you see that the government has met its burden of proof.
17 Third, we will also submit to you that the defendant has
18 committed a pattern of violence toward others and is likely to
19 be a continuing and serious threat to society. We will show you
20 beyond any reasonable doubt that he is a future danger.
21 Fourth, the harmful effect and scope of the offense of
22 the murder of Robin Williams on the Williams family. And
23 lastly, that the defendant killed two people, and that not only
24 did he intentionally kill Robin Williams, but that he had
25 previously killed Donald Lee Allen.
8
1 Today you will hear from several witnesses. You will
2 hear from Natasha Heard, you will hear from Crystal Dennis, and
3 you will hear from Alicia Chambers. They are people from the
4 defendant's past. They will tell you about the relationship
5 they were in with the defendant. They will tell you how he
6 treated them. And I ask you to listen very closely and
7 carefully to that evidence, because it will give you a mirror, a
8 window into the soul of the defendant, and I ask you to look at
9 that evidence as we prove these aggravating factors to you.
10 You will hear from police officers and other witnesses
11 who saw acts of violence perpetrated by this defendant, and you
12 will also hear from Investigator Holl, who will tell you that he
13 took some days after the defendant's arrest for these murders
14 yet a third statement from the defendant. We submit to you that
15 there will be a huge issue as to the credibility of this
16 defendant.
17 I ask you to listen to all of this evidence during this
18 phase of the trial. Listen to the evidence from the defendant.
19 I submit to you that the government will carry its burden of
20 proof. We will prove to you that these aggravating factors
21 exist. We will prove that to all of you unanimously beyond any
22 reasonable doubt. We will prove that they far outweigh,
23 sufficiently outweigh any mitigating factor you may find on
24 behalf of the defendant, for you must be aware that it's not a
25 matter of numbers, it's a matter of weight. And we will ask you
9
1 at the appropriate time to return a verdict that will sentence
2 this defendant to death. Thank you.
3 THE COURT: Mr. Laughrun, Mr. Williams.
4 MR. WILLIAMS: By your verdicts at the first part of
5 this trial, you have decided Mark Barnette will die in federal
6 prison and society is forever protected. He will not walk among
7 society ever again. He will be without his family or friends.
8 He will be severely punished as he should be. Now you
9 individually must decide what punishment to give him, what moral
10 judgment to pass on this human being. You must choose between
11 execution or the rest of his life in prison. Should he be
12 locked alone in a cement wall, steel cell with a conscience you
13 know he has when he told police what he had done and prayed for
14 forgiveness, or do you individually decide to sentence him to
15 death by execution? You must decide whether Mark Barnette is
16 the worst of the worst.
17 MR. CONRAD: Objection.
18 MR. WILLIAMS: Those that the death penalty is there
19 for.
20 MR. CONRAD: Objection. Your Honor, I'm objecting to
21 the comment of defense counsel.
22 THE COURT: Did you object? I'm sorry.
23 MR. CONRAD: I objected to defense counsel's comment
24 about whether the standard is they have to decide the defendant
25 is the worst of the worst. That is certainly not the standard
10
1 in Federal Court, and you're never going to instruct the jury to
2 that.
3 THE COURT: I will sustain the objection on that ground.
4 MR. WILLIAMS: You individually must make the correct
5 moral decision. You will hear again from the families of Robin
6 Williams and Donald Allen. This is victim impact testimony. We
7 will all share in their pain and grief. It will be emotionally
8 powerful, and it is appropriate for them to vent their grief and
9 their passion and their pain. We understand it. We all wish we
10 could erase it. But you must not allow that to make an
11 emotional decision. We must get past that. We ask you to
12 refocus and listen to the life of Mark Barnette before you
13 decide. We also ask you to judge Mark, the human being, based
14 on the totality of his life, not just on what happened between
15 April and June of 1996.
16 The government will go first and talk about their
17 aggravating factors. They will tell you about Mark's trouble
18 with the law, all of which dealt directly or indirectly with his
19 relationship with women. We will ask you to consider the
20 circumstances of these events, and also that he accepted
21 responsibility for some of them and others were dismissed or not
22 prosecuted.
23 The government will tell you about Mark's abusive
24 relationships with women as a reason to execute him. We will
25 ask you to look throughout Mark's life and the abuse in his
11
1 family to understand why Mark treated women the way he did.
2 Evidence will show he learned this behavior from his role
3 models. It was a part of his life. His father abused his
4 mother, his mother abused herself, his step-grandfather murdered
5 his grandmother Pearl when he was less than a year old. There
6 was alcohol and drug abuse in the family. Abuse, neglect and
7 abandonment were normal in his life.
8 His father, who Mark worshipped, finally left his mother
9 and two years later made all of them take blood tests because he
10 didn't think he was their real dad. Mark was 13 when his father
11 told him the blood test proved that he was not his father or his
12 brother Mario's father, but he would still think of them as his
13 own. And he took his two children out to a steakhouse for
14 dinner and explained it this way: If you boys had a girlfriend
15 and she was having babies by someone else, that's what
16 happened. At the time, Mark was almost 14 and his brother Mario
17 was almost 10. Mark was devastated, his father was not his
18 father, his identity was shattered.
19 This was the view of women his role model father gave
20 him to begin his manhood. This was this beginning of the end.
21 After that, almost every relationship with a female was
22 destructive, abusive and painful. What his life was like is
23 crucial to what you are going to do. We will talk about
24 mitigation. Mitigation is not offered as an excuse or
25 justification for these crimes. There is no excuse, there is no
12
1 justification. Our mitigation evidence is to guide you and help
2 you understand Mark's life to help you decide this most
3 difficult moral judgment.
4 You will hear from his family members, from Cindy
5 Maxwell who put together a life history, a life line and
6 genogram to help you understand his life. You will hear from
7 jail deputies and others that Mark has adjusted to prison, has
8 had no infractions or disciplinary problems. You will hear from
9 experts about his depression and his life's effect on him. And
10 you will hear from an expert that Mark is no longer a future
11 danger to us or society. We will ask for life, they will ask
12 for death.
13 In Tennessee, Mark makes peace with God but can't kill
14 himself. He cries during the confessions, after he realized the
15 magnitude of what he had done because he was ashamed of who he
16 had become. We will ask you to consider anything that
17 mitigates, anything about his life, even if we haven't thought
18 about it or mentioned it. You may individually find a reason in
19 your own heart or soul that is your reason not to sentence him
20 to death. Remember this, life without possibility of release
21 means he dies in a federal prison, and you never have to vote
22 for death. No matter what evidence you hear, the law never
23 requires you to vote for death. There has been enough death.
24 We will ask you for life.
25 THE COURT: All right, government call its first
13
1 witness.
2 MR. CONRAD: The United States would recall Investigator
3 Robert Holl.
4 Judge, before Officer Holl takes the stand, the United
5 States would offer into evidence Government's Exhibit 65A, 65B
6 and 65C, which constitute the transcripts of the trial of this
7 matter, as well as reoffer into evidence all of the exhibits
8 admitted into evidence in the guilt phase of this trial.
9 THE COURT: Thank you, sir, they will be admitted. Do
10 have you a witness list you can give me?
11 MR. CONRAD: Yes, sir.
12 ROBERT A. HOLL,
13 being first duly sworn, was examined and testified as follows:
14 MR. LAUGHRUN: Judge, before Investigator Holl
15 testifies, may we get something out of our room? We've got an
16 exhibit I need to get, could we have just one second?
17 THE COURT: All right.
18 (Pause.)
19 MR. LAUGHRUN: Thank you, Judge.
20 THE COURT: All right, Mr. Conrad.
21 MR. CONRAD: Thank you, Your Honor.
22 DIRECT EXAMINATION
23 BY MR. CONRAD:
24 Q. Officer Holl, for the jury's benefit, would you state
25 your name again?
14
1 A. Robert A. Holl, H-O-L-L.
2 Q. And your employment?
3 A. City of Charlotte, Charlotte-Mecklenburg Police
4 Department.
5 Q. In June of 1996, your duties?
6 A. I was assigned to felony investigations, homicide.
7 Q. And as part of those duties, did you investigate the
8 murder of Donnie Lee Allen?
9 A. Yes, I did.
10 Q. And you've previously testified to some of the steps
11 that you took in that investigation, did you not?
12 A. Yes, sir.
13 Q. Turning your attention to June 28th, 1996, would that
14 have been a Friday after the previous Saturday murder?
15 A. Yes, sir.
16 Q. Did you have occasion to do anything with respect to
17 your investigation of that murder on that date?
18 A. Yes, sir, I did.
19 Q. And what if -- what did you do?
20 A. At approximately 3:30, 3:00 o'clock in the afternoon, I
21 was advised by Sergeant Sanders, one of my immediate
22 supervisors, that the federal detainer that was on the defendant
23 Aquilia Barnette had been dropped by the federal government,
24 that the state warrants for murder had been served on him and to
25 go over to the Mecklenburg County jail in order to get the
15
1 individual, bring him back to the law enforcement center for the
2 purpose of interviewing the defendant.
3 Q. Okay, and what did you do on that day?
4 A. I went over to the Mecklenburg County jail. First,
5 before going over there, I called the shift supervisor in charge
6 to see if, in fact, the warrants had been served. He told me to
7 come over approximately a half hour from the time that I called
8 because he was in front of the magistrate at the time. When I
9 did arrive with one other investigator, the defendant was just
10 finishing up in front of the magistrate. He then went in front
11 of one of the deputies where they actually do the paperwork. He
12 was entered into the computer system with warrants from the
13 State of North Carolina being served. Then I took custody of
14 the individual to bring him over to the law enforcement center.
15 He asked me one question over at the jail, which in turn I
16 responded by telling him that I would talk to him when I got
17 over to the law enforcement center.
18 Q. And what question did he ask you?
19 A. I had passed by him the night of the 25th when he was
20 arrested, which was a Tuesday. He asked me at the jail on the
21 28th why my clothing, which I was dressed in a suit coat and
22 tie, was all wet on that particular night.
23 Q. Now, when you brought him back to the law enforcement
24 center, what, if anything, did you do?
25 A. Brought him back to an interview room, asked him if he
16
1 needed anything to eat. He stated that he hadn't had anything
2 to eat all day because of being transported from the north jail
3 area down to the jail downtown in order to go in front of the
4 magistrate. I asked him if he wanted anything to eat, which he
5 did. We took care of that, and also requested to see if he
6 needed to utilize the men's room at all.
7 While his food was being taken care of, I then moved him
8 from the interview room he was in to a more spacious interview
9 room that was off of the main reception area of the second floor
10 of the law enforcement center.
11 Q. What was the reason you were interviewing him on Friday,
12 June 28th, three days after he had been arrested?
13 A. Well, initially I couldn't speak to him when he was
14 arrested because of the federal detainer. Being a state
15 official, I wasn't allowed to have contact with him until the
16 federal paperwork was disposed of. Also, I wanted to speak to
17 him in order because of the crime scenes that I worked, the
18 vehicle that had been recovered that was stolen and also where
19 the victim, Donald Allen, was located. I worked that scene for
20 evidentiary purposes, taking the evidence that I learned from
21 both of those scenes, speak to the defendant in order to
22 establish the two crime scenes as to what the defendant would,
23 if anything, he had to say about it.
24 Q. Now, describe for the jury the process you went through
25 to interview this defendant.
17
1 A. Approximately 16:20, which is 20 minutes after
2 4:00 p.m., I advised the defendant of his Constitutional rights
3 according to Miranda, that he had the right to remain silent,
4 that he had the right to have an attorney present during
5 questioning. That was done in writing; the form was filled
6 out. There was also a section that the defendant read out loud
7 to me. That way, I knew that defendant himself could read and
8 understand what was being explained to him.
9 After he was Mirandized, he signed the document stating
10 that he was willing to talk. I had advised him that I wanted to
11 talk to him about the death that occurred of Donald Allen.
12 Q. Now, did you have any conversation with him with respect
13 to his earlier question of you as to why your clothes were so
14 wet on the night of June 25th?
15 A. Yes, sir, I did.
16 Q. Relate that to the jury.
17 A. I arrived out at the crime scene where the victim was
18 located, Donald Allen, at Morris Field and Billy Graham shortly
19 after 5:00 o'clock in the afternoon. It was approximately 95
20 degrees, sunny and extremely humid. Because of the advanced
21 decomposition of the victim, I wore a biohazard suit, which
22 covers myself from neck to foot, vinyl exterior, doesn't
23 breathe, dressed in a coat and tie underneath it. The
24 perspiration that I had, I dehydrated out there, medic had to
25 assist me. When I took the biohazard suit off at the scene
18
1 after the victim had been removed, all of the body fluids that I
2 had in myself had expired through onto my clothing.
3 Q. Describe the demeanor of the defendant as you began the
4 interview with him.
5 A. Once again, his food had been ordered. He was calm,
6 sitting up in a chair directly to my left, next to a desk, and
7 asking questions along with I asking him questions.
8 Q. Now, Investigator Holl, you said this earlier but the
9 jurors may have forgotten, approximately how long had you been
10 at this time a homicide investigator?
11 A. I went to homicide in June of 1988, and this interview
12 took place Friday, the 28th of June, 1996.
13 Q. And approximately how many homicide investigations have
14 you participated in?
15 A. Participated in over 200 of them.
16 Q. Have you developed an interview technique, that is, do
17 you record the interview, and if so, how do you go about that
18 process?
19 A. I record an interview, but I also do an oral interview
20 prior to a recorded interview. There are times that defendants
21 don't want to be recorded. Thus, it's not going to be
22 recorded. In order to do an oral interview prior, you get rid
23 of the extraneous information, for example, on this particular
24 incident, my clothing being wet. Also a tape recorder is an
25 inhibitor. I don't know Mr. Allen, or correction, I don't know
19
1 Mr. Barnette, and if you put a tape recorder in front of
2 somebody right off, you are not going to get a free flow of
3 communication between two individuals. So there is a need to
4 establish a rapport with an individual before you actually do a
5 recorded conversation. It also assists me and assists the
6 defendant in putting a chronological order of events as they
7 took place in a particular incident.
8 Q. Now, in this case, did you do a pretaped interview and
9 then a taped interview?
10 A. Yes, sir, I did.
11 Q. Notwithstanding the fact that there is no tape recording
12 of the pretaped interview, did you reduce the essence of that
13 interview to writing?
14 A. Yes, I did, sir.
15 Q. Explain that to the jury.
16 A. I wrote out a supplement as to the prerecorded interview
17 that took place. Once again, I stated to Mr. Barnette that I
18 wanted to talk to him reference the murder that took place out
19 on Morris Field and Billy Graham. I asked him if he was at that
20 location and he stated yes. He stated that he left his house
21 and went to that particular location. He stated that he picked
22 that intersection because it was close to his house and that it
23 was also dark. He took along with him a sawed-off shotgun that
24 he stated to me that he had purchased at Freedom Pawn Shop on
25 Freedom Drive, and he also stated that he had a duffle bag with
20
1 him with bolt cutters, a crowbar and two screwdrivers. And he
2 stated to me that the screwdrivers, one was a flat-headed
3 screwdriver and one was a Phillips head screwdriver that was in
4 the duffle bag.
5 He stated that he waited alongside the roadway for a car
6 to come by, because he told me that his purpose of going to that
7 intersection was to steal a car. He waited. He didn't tell me
8 specifically how long that he waited at that intersection. It
9 was around midnight. He wasn't sure if it was Friday night or
10 Saturday morning, just around midnight.
11 He stated that a car came up to the intersection on
12 Morris Field and stopped at the intersection, that the light was
13 red, and the traffic on Billy Graham, the light was green and
14 the traffic was light that particular night on Billy Graham
15 according to the defendant.
16 He said that he approached the vehicle, left the duffle
17 bag on the side of the road, raised the shotgun and pointed it
18 at the driver of the car and requested that he get out of the
19 car. I asked him if the window was up or down and he said the
20 window was down, ordered the victim out of the car and the
21 victim got out of the car. He told the victim to go over to the
22 side of the road. When going over to the side of the road, the
23 defendant stated to him that he wanted his wallet. He said that
24 the victim came out and said to him, don't shoot me, don't shoot
25 me and he stated in the pre-interview that the victim stated
21
1 that numerous times, not to shoot him. The defendant stated
2 that he had to push him at one point in time over towards the
3 side of the road because the victim didn't want to go and that
4 he understood why, that the defendant understood why the victim
5 didn't want to go over to the side of the road.
6 Q. Did he tell you how the shooting took place?
7 A. Yes, sir, that they went down into a drainage area and
8 that he shot him three times.
9 Q. Now, did you ask him about the type of shotgun that he
10 used?
11 A. Yes, sir. He stated that he had a Winchester, it was a
12 sawed-off shotgun. He stated that when he purchased it, it was
13 of the legal length and that he himself had sawed off a portion
14 of the barrel and also a portion of the stock, and that there
15 was a small black flashlight that he taped to the end of the
16 barrel of that particular weapon, and also that he colored the
17 lens of the flashlight red.
18 Q. Did there come a time where there was a conversation
19 about blood on the weapon?
20 A. Yes, sir. I didn't bring that up, he spontaneously came
21 out with that statement saying that, there is blood on the
22 shotgun and the blood is mine. He stated that due to an injury
23 prior to semiautomatic shotguns, when you pull the trigger, it
24 automatically comes back and goes forward, ejecting one shell
25 and placing another shell back in.
22
1 Q. And did your own investigation reveal any evidence
2 consistent with that?
3 A. Yes, there was blood on the right side breach of the
4 weapon.
5 Q. Now, did he tell you the name of the victim?
6 A. Yes, he did.
7 Q. And did he know the name of the victim?
8 A. He stated to me that while he was driving up Morris
9 Field to Wilkinson Boulevard, he stopped at the traffic light
10 and that's where he went through the victim's wallet and saw the
11 driver's license of the victim, and he remembered the name of
12 the victim. I didn't tell him the name of the person, he came
13 out and told me because I was surprised at first when he first
14 mentioned the victim's name.
15 Q. Why were you surprised?
16 A. Because he knew exactly who the person was.
17 Q. Now, did he tell you why he needed a car?
18 A. Yes, sir.
19 Q. What did he say?
20 A. He needed to go to Roanoke where his girlfriend was
21 located.
22 Q. Now, did he tell you -- you testified about the shotgun
23 and the flashlight on the end of the barrel and the tape. Did
24 he say whether or not he knew that he had shot Donald Lee Allen?
25 A. He stated to me that he shot him.
23
1 Q. Did he say anything about the darkness?
2 A. He stated that it was dark out there.
3 Q. Did the darkness have anything to do with whether or not
4 he knew if he shot Donald Lee Allen or not?
5 A. In my opinion, no.
6 Q. Now, did he tell you about going to Knoxville,
7 Tennessee?
8 A. Yes, he did.
9 Q. What did he tell you about that?
10 A. He said after he left Roanoke, he went to Tennessee. I
11 asked him where in Tennessee, he said Knoxville, while in
12 Knoxville, that he went to a shopping mall, to a Sears store and
13 purchased a garden hose. Also when he was in Knoxville, he went
14 to a church and attended a church service on Sunday.
15 Q. Now, you indicated that he had spontaneously told you
16 about the blood on the shotgun and that he had brought up a
17 question at the very outset of your interview. Would you
18 describe his demeanor throughout the process from beginning to
19 end in terms of how he appeared to you on that day?
20 A. On both the oral interview and the taped interview, he
21 was polite, he was calm. There were times that he would nod his
22 head instead of answering yes or no or whatever the answer may
23 be. It was usually a yes, no response and that was during the
24 taped portion of the interview that I had to remind him that it
25 was a taped conversation, that he would have to orally respond.
24
1 Other than that, I heard him clearly, and there were times that
2 he started to cry.
3 Q. Now, were you armed when you were interviewing him?
4 A. Yes, I was.
5 Q. Did you display your weapon or in any way intimidate or
6 threaten him as you conducted this interview?
7 A. I didn't threaten him in any way. My weapon is on the
8 right side of my person. The defendant was on my left side.
9 Q. At some point, were you prepared to do a taped
10 interview?
11 A. Yes, sir, I was.
12 Q. And did you do that?
13 A. Yes, sir, I did.
14 MR. CONRAD: Your Honor, may I approach?
15 THE COURT: Yes, sir.
16 BY MR. CONRAD:
17 Q. Investigator Holl, let me hand to you what has been
18 marked for identification as Government's Exhibit 51A and
19 Exhibit 51B, and ask you if you recognize those exhibits?
20 A. Yes, sir.
21 Q. What is Government's Exhibit 51A and 51N?
22 A. 51A is a cassette tape, taped statement with the
23 defendant. 51B is a typed transcript, 33 pages in length, of
24 the interview with the defendant, Aquilia Barnette.
25 Q. Does the tape which is Government's Exhibit 51A
25
1 accurately record the interview that you conducted on Friday,
2 June 28th with Aquilia Marcivicci Barnette?
3 A. Yes, sir.
4 Q. Is the transcript an accurate transcribing of the tape
5 of that interview?
6 A. Yes, sir.
7 MR. CONRAD: Your Honor, I'd move admission of
8 Government's Exhibit 51A and 51B.
9 THE COURT: Let them be admitted.
10 MR. CONRAD: Your Honor, at this point I would request
11 permission to play that tape for the jury.
12 THE COURT: All right, members of the jury,
13 remember -- do they have a transcript?
14 MR. CONRAD: Yes, sir.
15 THE COURT: Have you given the jury a transcript?
16 MR. CONRAD: Yes, sir, and if I could approach and hand
17 the transcript to the Court.
18 THE COURT: Members of the jury, remember what I told
19 you back during the other phase of the trial, the transcript is
20 a method to help you to understand the tape. The tape itself is
21 the evidence, though, and not the transcript. If there is any
22 variation in the transcript and the tape, you will consider what
23 you hear on the tape, inflection of voice or anything of that
24 nature.
25 AGENT MODZELEWSKI: Ladies and gentlemen, again, turn
26
1 the power on so the green light is on, place the volume controls
2 about halfway up on each side, keep in mind to keep the blue
3 bulb visible on the top of your head, too, please.
4 (Pause.)
5 MR. CONRAD: Your Honor, while that tape is rewinding,
6 can I approach the witness with another exhibit?
7 THE COURT: Yes, sir.
8 BY MR. CONRAD:
9 Q. Officer Holl, let me approach and hand you what has been
10 marked for identification as Government's Exhibit 51C, and ask
11 you if you recognize that exhibit?
12 A. Yes, sir.
13 Q. What is Government's Exhibit 51C?
14 A. It is a supplement of my initial contact with the
15 defendant and also the oral interview that I had with Aquilia
16 Barnette prior to the taped, recorded statement.
17 Q. Is that an accurate supplement with respect to the
18 conversation that took place with you and Mr. Barnette on that
19 day?
20 A. Yes, sir.
21 MR. CONRAD: Your Honor, I'd move admission of
22 Government's Exhibit 51C.
23 THE COURT: It will be admitted.
24 (Tape played for the jury; transcript provided to the
25 jury.)
27
1 BY MR. CONRAD:
2 Q. Officer Holl, let me turn your attention to a part early
3 in that interview, and it's found at Page 1412 of the
4 transcript. Do you recall the conversation concerning the bolt
5 cutters, bottom of the page, I remember now that they were in
6 the bag, I didn't put them in there specifically, but I remember
7 that they were in the bag in my room upstairs, there was a pair
8 of bolt cutters, a crowbar, I had a couple of screwdrivers. Do
9 you recall that?
10 A. Yes, sir.
11 Q. Now, at any time in your interview of the defendant, did
12 he tell you that he had left wire cutters up in Roanoke,
13 Virginia the month before?
14 A. No, sir, he did not.
15 Q. And at any time in your interview, had he told you that
16 he had gone up to Roanoke, Virginia to fire bomb her apartment?
17 A. No, sir, he didn't.
18 Q. When he told you that he had bought a shotgun in his
19 brother's name, did he tell that you he had left his Virginia
20 driver's license in Roanoke the month before?
21 A. No, sir, he did not.
22 Q. Let me turn your attention to the next page which -- do
23 you recall the conversation concerning the red lens of the
24 flashlight taped to the under side of that shotgun?
25 A. Yes, sir.
28
1 Q. And the defendant indicated to you that he did that some
2 day when he was bored, is that correct?
3 A. Yes, sir.
4 Q. Do you know what effect on a flashlight a red lens has?
5 A. Yes, sir.
6 Q. And how do you know that?
7 A. I've been in the military.
8 Q. And so being in the military, tell the jury what effect
9 on a flashlight the coloring of a lens red has.
10 A. In part of your training in the military and also when
11 you are on exercises or in a conflict, you change over at
12 nighttime and put a red lens in. That subdues the lighting on
13 the flashlight so when you are a distance away from that
14 particular flashlight, somebody cannot see you but you can see
15 where you are going yourself. It's for nighttime.
16 Q. And military people know that?
17 A. Yes, sir.
18 Q. Did the defendant ever tell you that his father had done
19 that in Vietnam?
20 A. Said that his father did it in Vietnam and his
21 grandfather in Korea.
22 Q. Now, turning your attention to Page 1414, do you recall
23 asking him what kind of car Donnie Lee Allen was in and he said,
24 it was a black Honda is all I can could tell, I knew it was a
25 Prelude, but I really -- it was really blurry, I had drank like
29
1 six beers, and I know, I know it was a black Honda, that's about
2 all I got out of it?
3 A. Yes, sir.
4 Q. Now, you interviewed him at length, did you not, about
5 the details of that night?
6 A. Yes, sir, I did.
7 Q. Was there any indication to you in the way he described
8 that night that he was under the influence or in way
9 inebriated?
10 A. No, sir.
11 Q. And why do you say that?
12 A. From my experience with people that are intoxicated,
13 from the information that I obtained from the defendant, it was
14 my opinion that both his mental and physical faculties were in
15 effect. He stated to me that he went to that intersection
16 because, one, it was close to home, and it was dark. He knew
17 that that intersection was dark, he knew what the lighting was
18 out there. He stated that when he got to the intersection, that
19 he left the bag on the side of the road, the tan duffle bag. He
20 knew that the light on Morris Field was red. He knew that the
21 light on Billy Graham was turning from a yellow. He knew that
22 the traffic was light. He stated to me that the traffic was
23 light.
24 When he went over to the victim and ordered him out of
25 the car, and at some point he had to help push the victim over
30
1 to the side of the road so the victim knew where he was going.
2 He came out and said that he understood why the victim was being
3 hesitant, so he understood what was going on around him, that he
4 demanded his wallet, that it was over in a drainage area. In
5 the statement, he said that it was over where the grassy area,
6 he said in a ditch and then he came out and said, like a
7 drainage area.
8 And he stated that it was dark out, so he knew his
9 surroundings, but yet he came out and said that it was so dark
10 that he wasn't sure whether he shot the victim or not. At
11 first, he said that he did shoot him. Then he came out and
12 said, I'm not sure if I shot him. But yet in the statement, he
13 came out and said, before he left, I grabbed his wallet. A
14 human being as big as the victim and a wallet, and it's so dark,
15 that he was able to bend over, he had motor functions. It was
16 dark, but he was able to find a wallet that he said the victim
17 threw on the ground, that he picked up, that he grabbed before
18 he left there. He turns the car around because the light was
19 red at the intersection so he could drive. He had motor
20 skills.
21 Went up to the intersection of Wilkinson and Morris
22 Field and he went through the victim's wallet. The printing on
23 the driver's license is small, but he could read it. He told me
24 who the victim was in this incident, and he had the motor skills
25 to go through the wallet. He understood how much money he had,
31
1 that he had to get gas, and he also knew why he had to go to
2 Roanoke.
3 Q. Did he also have the motor skills in addition to picking
4 up the wallet to going back and locating the duffle bag where he
5 had laid it once before and take that with him?
6 A. He had the motor skills to pick up a duffle bag. He had
7 the motor skills to pull the trigger on a shotgun and kill.
8 Q. Now, with respect to describing the car as a black
9 Honda, did you know at that time that he had driven through the
10 law enforcement center and identified the vehicle to Sergeant or
11 Investigator Sanders and FBI agent Womble?
12 A. No, I did not.
13 Q. Did you know he described it as, that's it, that's the
14 blue Honda Prelude?
15 A. No, I did not.
16 Q. Did you know at that time that he had told Detective
17 Sanders in an interview three days before that it was a blue
18 Honda Prelude?
19 A. No, I did not.
20 Q. Now, in the course of your interview, did he describe
21 events that occurred from a time on Friday night until a time
22 Monday evening?
23 A. Yes, he did.
24 Q. Did that description include travel from Charlotte to
25 Roanoke to Knoxville and to Charlotte?
32
1 A. Yes, sir, it did.
2 Q. And did he tell you what times of day that those
3 occurred?
4 A. Yes, sir he did.
5 Q. And those times of day included both nighttime and
6 daytime?
7 A. Yes, sir.
8 Q. Over a long period of time?
9 A. Yes, sir.
10 Q. But on June 28th, three days after his arrest, he didn't
11 know the color of the car he was driving that whole time period?
12 A. He stated that he didn't know -- he said that it was
13 black. It's not a black vehicle. And he also got down in the
14 back of the car to change a license plate and to put a different
15 plate on the car where the color of the car is displayed.
16 Q. Would he have used a screwdriver to do that, do you
17 know?
18 A. He didn't respond, but I would assume so.
19 Q. Did he have screwdrivers with him when he was in
20 Knoxville, Tennessee?
21 A. Yes, he did.
22 Q. Did he have those screwdrivers when he left the home on
23 3413 West Boulevard?
24 A. Yes, he did.
25 Q. Along with the bolt cutters and crowbar?
33
1 A. Correct.
2 Q. Now, turn your attention to Page 1416 of the
3 transcript. Do you recall in the interview this defendant
4 telling you, after I told him to turn around, I looked, I looked
5 back and I was going to leave, but I didn't, and I shot him and
6 I don't remember, I don't remember how close I was to him, but I
7 remember shooting him.
8 In your opinion, based upon what you know about the
9 crime scene and the physical evidence and what he told you, was
10 he being truthful with you at that time?
11 MR. LAUGHRUN: Objection.
12 THE COURT: Overruled.
13 THE WITNESS: In part of it, no.
14 BY MR. CONRAD:
15 Q. And what do you mean by, in part of it, no?
16 A. It says that he shot him. I believe him there. I don't
17 remember how close I was to him, but I remember shooting, and
18 that part, I don't believe.
19 Q. Do you recall when he --
20 MR. LAUGHRUN: Objection to him not believing that, if
21 Your Honor please.
22 THE COURT: Overruled.
23 BY MR. CONRAD:
24 Q. Do you recall him telling you, I was going to leave, but
25 I didn't?
34
1 A. Yes, sir, I do.
2 Q. In your opinion, based upon what you know of the
3 physical evidence in the case, was that a truthful statement?
4 MR. LAUGHRUN: Objection.
5 THE COURT: Overruled.
6 THE WITNESS: No.
7 BY MR. CONRAD:
8 Q. Why do you say that?
9 A. He stated to me that he went to that intersection in
10 order to steal a car, and he pushed a reluctant person across
11 the street.
12 MR. LAUGHRUN: Objection to reluctance.
13 THE COURT: Excuse me, Mr. Laughrun, what was your --
14 MR. LAUGHRUN: Reluctant is not the defendant's
15 statement, if Your Honor please. I object to that.
16 THE COURT: Overruled, go ahead.
17 THE WITNESS: Down into a high grassy wooded area and
18 shot him.
19 BY MR. CONRAD:
20 Q. Now, on that same page when he says, I just remember
21 shooting, I know that gun holds three shots and I know I shot
22 more than that, I don't remember if there was a sound because I
23 know it holds three, so I had to shoot him three, but I don't
24 know if I hit him or not, I just shot where he was standing.
25 When he told you that, had you had any conversation with
35
1 Agent Womble about what, if anything, the defendant had told him
2 about that shooting incident?
3 A. No, sir.
4 Q. Did you know that the defendant had told Agent Womble
5 that after he shot him, he pulled the body down into the
6 drainage ditch?
7 MR. LAUGHRUN: Objection, he said he didn't talk to him,
8 Judge.
9 THE COURT: Overruled, go ahead.
10 BY MR. CONRAD:
11 Q. Did you know that?
12 A. No, sir, I did not.
13 MR. LAUGHRUN: Objection, move to strike the question,
14 Judge.
15 THE COURT: Overruled, motion denied.
16 BY MR. CONRAD:
17 Q. You previously testified in the guilt phase of this
18 trial, did you not, with respect to your observation of the
19 blood patterns at the crime scene?
20 A. Yes, sir.
21 Q. And you testified, I believe, that the blood pattern was
22 consistent with the defendant's statement to Agent Womble that
23 he pulled the body down into the drainage ditch towards the
24 wooded area?
25 A. Yes, sir.
36
1 Q. And you also testified that it was consistent with
2 Donnie crawling from the place where he was shot to his ultimate
3 location of the body, is that correct?
4 A. That's correct.
5 Q. Do you have an opinion based upon your investigative
6 experience and your investigation of that crime scene, do you
7 have an opinion as to whether after he shot Donnie, the
8 defendant did or did not drag him from that point?
9 MR. LAUGHRUN: Objection, like to be heard, can we be
10 heard?
11 THE COURT: Yes, sir, come on up here.
12 (Bench conference, not recorded.)
13 THE COURT: Objection is overruled.
14 MR. CONRAD: Thank you, Your Honor.
15 BY MR. CONRAD:
16 Q. I will repeat my question to you, sir. Do you have an
17 opinion satisfactory to yourself as to whether or not after he
18 shot Donnie Lee Allen, the defendant dragged the body down
19 towards the drainage ditch?
20 A. Yes, sir.
21 Q. And what is that opinion?
22 A. That he was dragged.
23 Q. And what do you base that opinion on?
24 A. The blood located at the top of the drainage ditch once
25 again sloped down from Morris Field where the first blood was
37
1 located, that -- two things: the lack of blood on the victim's
2 shoes, the sneakers, purple and white Nike Pegasus sneakers that
3 he was wearing, that when the victim, if he crawled down there
4 would have been crawling through blood; that for a period of
5 time, the victim was on the cement at the top of that drainage
6 area where the first blood was observed. At the bottom of the
7 drainage ditch is where the rocks are to break up the water
8 flow, rocks being approximately that big or larger, that whether
9 the victim reached that rocky area, if he crawled with three
10 gunshot wounds to the back, he would have had to try to get
11 himself over onto his side. With that lack of blood on his
12 shoes, it's consistent in my opinion with the victim being
13 dragged.
14 MR. CONRAD: May I approach the desk?
15 THE COURT: Yes, sir.
16 BY MR. CONRAD:
17 Q. Investigator Holl, can you come off the stand and stand
18 before the jury, please?
19 THE COURT: Have y'all seen this?
20 MR. LAUGHRUN: They were admitted, Judge, in the first
21 phase.
22 BY MR. CONRAD:
23 Q. Let me hand to you a stack of photographs that have been
24 admitted in the guilt phase of this trial depicting the crime
25 scene as we saw it on June 25th, 1996, and ask you whether you
38
1 can use these photographs to illustrate your testimony for the
2 jury?
3 A. Yes, sir.
4 Q. Investigator Holl --
5 MR. LAUGHRUN: Judge, I would like to be heard again if
6 I may. May we be heard outside the presence of the jury.
7 THE COURT: You want to do it over here?
8 MR. LAUGHRUN: Can we do it on the record outside the
9 presence of the jury?
10 THE COURT: Members of the jury, it's about time for
11 y'all to take a recess anyway. Do not discuss this matter among
12 yourselves while you're out, and leave all the exhibits on the
13 chair, please.
14 (The jury left the courtroom.)
15 THE COURT: All right, Mr. Laughrun.
16 MR. LAUGHRUN: Judge, if I might --
17 THE COURT: Excuse me just a minute. I was saying, all
18 right, Mr. Laughrun, at the same time you were talking. Now,
19 what did you say?
20 MR. LAUGHRUN: Thank you, Judge.
21 Judge, I object for this reason: Investigator Holl last
22 Friday spent about 45 minutes going through every one of those
23 photographs that the government is asking him to identify again.
24 I sat in the corner. He was kind enough to show me then show
25 two sections of the jury where in his opinion, the body was
39
1 dragged and went through the whole scenario. The government
2 offered the transcript of that proceeding into evidence without
3 objection this afternoon; it's in.
4 Knowing Investigator Holl the way I do since 1986, I
5 guess, he is going to testify to the exact same scenario. It's
6 repetitive, it's cumulative, it does not go to any contested
7 fact. The government has already got that into evidence without
8 cross-examination on it at the guilt phase, so it's irrelevant
9 to the death notice. They are limited to what they put in that
10 notice. This has nothing to do with substantial planning,
11 Judge, whether he drug the body or not. They've already got
12 that before the jury at the first phase.
13 We are going to be here another three days, which is
14 fine if that's what they want to do, but they are retrying phase
15 one. All the stuff comes in anyway, they're entitled to hear
16 it. They can make any argument they want to. Mr. Huseby is
17 kind enough to give everybody daily copies of the transcripts.
18 They can hold up the transcript and say, read his testimony
19 again. That's exactly what they are getting ready to do to this
20 jury for the next 45 minutes. Investigator Holl will go through
21 15 to 20 photographs in two separate sections, one for each
22 section of the jury, and go through the whole thing he went
23 through last Friday.
24 THE COURT: Mr. Conrad?
25 MR. CONRAD: Your Honor, I think we are entitled to
40
1 prove substantial planning and premeditation in the most
2 probative way possible, and that's what the government is
3 intending to do on this point, Your Honor.
4 THE COURT: All right, sir, I'm going to overrule that.
5 We'll come back at 4:00 o'clock and finish up.
6 MR. LAUGHRUN: Could we put on the record what happened
7 at the bench conference, too, Judge, before I forget?
8 THE COURT: Yes, sir, go ahead.
9 MR. LAUGHRUN: Judge, at the bench conference a few
10 moments ago, Investigator Holl was being questioned about the
11 statements that Mr. Barnette gave to him in my opinion, and the
12 objection was in a cross-examination type fashion about the
13 defendant being untruthful about certain things. We objected to
14 that, Judge, as being outside the scope of the death notice.
15 Your Honor overruled that objection, and I believe that was all
16 that was discussed at the bench conference.
17 THE COURT: Thank you, sir.
18 (Brief recess.)
19 MR. LAUGHRUN: Judge could we approach with the U.S.
20 Attorney?
21 (Bench conference not recorded.).
22 THE COURT: Thank you, Mr. Laughrun.
23 MR. LAUGHRUN: For the record, all that was put on the
24 record at that point, after the recess I noticed a group of boy
25 scouts were in the courtroom. I looked at the U.S. Attorney and
41
1 informed Your Honor, at least I did, that I had a 10 year old
2 son and personally I wouldn't want him to listen to the type of
3 testimony that would be heard in the courtroom. Your Honor, was
4 kind enough, I believe Frank Whitney was with them, I believe,
5 they left the courtroom. And I believe that was all that was
6 said in the bench conference. Mr. Conrad joined me and said
7 that he didn't want his son to hear that either.
8 THE COURT: Thank you, call the jury.
9 (The jury returned to the courtroom.)
10 THE COURT: All right, Mr. Conrad.
11 MR. CONRAD: Thank you Your Honor.
12 BY MR. CONRAD:
13 Q. Officer Holl, prior to the break you were going to use
14 the photographs to illustrate your testimony with respect to
15 your observations at the crime scene concerning the blood
16 pattern, would you please continue?
17 THE COURT: Would you say what exhibit you are referring
18 to, what number.
19 THE WITNESS: 34G. This is the top of the drainage
20 area, where the victim was shot, it's not the totally top of the
21 drainage area but where the victim was standing. It slopes
22 down, once again, Morris Field being the top of my hand down, so
23 it slopes down, this being the high point, slopes down to the
24 wooded area at the top of the photograph.
25 BY MR. CONRAD:
42
1 Q. Could you describe the degree of blood that is shown in
2 that photograph at that point?
3 A. It's a larger area of blood at this particular location,
4 all of the dark area that you see is blood.
5 34E this, is a photograph of the drainage area just back
6 to show the entire drainage area, the dark area is blood down in
7 here on the sides. It starts to get into the shaded area
8 because of the lighting. This is the top of drainage area, this
9 is down in the wooded area, so this is the sloped down portion
10 of the drainage area. The blood is flowing from bottom of the
11 photograph to the top of the photograph.
12 Q. Using 34E, can you tell the jury where the greatest
13 concentration of blood is in that photograph?
14 A. There is two areas, one at the top and one part way down
15 the drainage area. This is the beginning of the rocky portion
16 of the -- just off the drainage area into the woods, those are
17 the rocks that are located for the purpose of breaking up the
18 water flow for erosion. This was taken when the victim was
19 still located on the rocks, and he is not in this photograph.
20 This is the victim located -- 34 I -- located on the
21 rock bed on his back.
22 Q. Is that the position of the decedent Donnie Lee Allen
23 when you observed him that day?
24 A. Yes, sir 34M, as in Mary. Once again, this is the
25 victim located in the wooded area, the high brush on the rocks,
43
1 and I will come back in and explain that in a minute. The
2 victim is laying on his back on the grassy area on the rocks,
3 the rocks that you saw in the other photograph, here is one of
4 the shoes, that's another shoe without blood, if he crawled
5 through that pool of blood on his own down approximately 25
6 feet, there would be blood on those shoes.
7 MR. LAUGHRUN: Objection to that, move to strike, if
8 Your Honor please.
9 THE COURT: I'm sorry?
10 MR. LAUGHRUN: Move to strike.
11 THE COURT: I think he is entitled to state his opinion,
12 overruled.
13 THE WITNESS: 34L this is a different photograph showing
14 the victim's left foot with a white sneaker.
15 BY MR. CONRAD:
16 Q. Officer Holl, do you independently recall seeing that
17 crime scene on that occasion?
18 A. Yes, sir.
19 Q. And observing that shoe?
20 A. Yes, sir.
21 Q. Do you recall in the recorded interview you asking the
22 defendant whether or not he called a medic or anybody as he
23 drove away?
24 A. Yes, sir.
25 Q. Do you recall him telling you, you know, I thought --
44
1 this is at page 1418 -- no, I was scared, I didn't think I
2 really had shot him, you know, if I thought I had shot him I
3 thought he would -- you always hear about people getting shot
4 and then where that traffic was, I thought maybe he will get up
5 and somebody will see him. Is that statement consistent with
6 the physical evidence that you saw at that crime seen?
7 A. No.
8 Q. And in what ways is it inconsistent?
9 MR. LAUGHRUN: Objection.
10 THE COURT: Overruled.
11 THE WITNESS: On getting up, seeking help on his own,
12 also the fact of when he came out and said he didn't mean to
13 shoot him, and I'm not sure if I shot him. You got a shotgun
14 involved, it's not a single projectile that comes out of the
15 shotgun, it's a number of pellets that come out and spray. The
16 concentration of that spray is greater the shorter the barrel
17 is. The concentration of the spray is greater -- the longer the
18 barrel is the further away the victim is located. Thus if the
19 victim is far away from the sawed off shotgun, far away from a
20 shotgun that is completely intact, the less amount of pellets
21 that are going to actually strike because of that distance in
22 between the weapon and the target.
23 And once again, the defendant told me it was dark, he
24 wasn't sure, the defendant told me that it was dark but then he
25 also said I shot him. The defendant said that the victim threw
45
1 the wallet down on the ground and they were in a ditch, a
2 drainage area, I'm not sure -- he said I'm not sure. But yet
3 after the shooting occurred once again he was able to locate a
4 wallet.
5 MR. WILLIAMS: Objection, Your Honor, this is redundant.
6 THE COURT: I'll sustain all of that.
7 MR. CONRAD: I will move on.
8 BY MR. CONRAD:
9 Q. Investigator Holl, before you -- well, you can go ahead
10 and sit down. Using these two photographs and in conjunction
11 with the rest of your investigation including your interview of
12 the defendant, your observation of the crime scene and your
13 experience as a law enforcement officer with over two hundred
14 homicide investigations under your belt, do you have an opinion
15 as to what happened on that night?
16 MR. WILLIAMS: Objection.
17 THE COURT: There's a pretty broad question, I will
18 sustain the objection.
19 BY MR. CONRAD:
20 Q. Let me turn your attention to Government's Exhibit 34G,
21 and state whether or not there is a heavy concentration of blood
22 shown in that exhibit?
23 A. Yes, there is.
24 Q. And let me turn your attention to Government's Exhibits
25 34E and ask you whether or not that concentration is thickest at
46
1 the beginning of the blood trail?
2 A. Yes.
3 Q. And is there another pool of blood that is heavy in
4 concentration as well?
5 A. Yes, sir, there is.
6 Q. And where is that?
7 A. This location (indicating).
8 Q. And do you have an opinion based upon your observations
9 that night as reflected in Government's Exhibit 34E and 34G as
10 to what happened with respect to Donnie Lee Allen's body?
11 A. Yes, sir.
12 MR. LAUGHRUN: Objection.
13 THE COURT: Overruled, what happened with respect to
14 Donnie Lee Allen's body, he can answer.
15 THE WITNESS: Yes.
16 BY MR. CONRAD:
17 Q. Please state that opinion to the jury.
18 A. My opinion, the victim was shot, fell to the ground and
19 then at some point in time after being shot, that the defendant
20 with the vehicle stopped out in the middle the roadway and
21 nobody in it, went up and moved the car to the side of the road,
22 came back up and dragged the body down into the rocky area.
23 Q. And would that be consistent with the blood trail left
24 as shown in those exhibits?
25 MR. LAUGHRUN: Objection.
47
1 THE COURT: Overruled.
2 THE WITNESS: Yes, sir.
3 BY MR. CONRAD:
4 Q. Turning your attention to transcript page number 1419,
5 do you recall asking the defendant why he shot him and his
6 answering, I don't know, I still don't know?
7 A. Yes, sir, I do.
8 Q. Had he previously told you that he had shot Donnie Lee
9 Allen to get a car to go to Virginia?
10 A. Yes, sir.
11 Q. Turning your attention to transcript page --
12 MR. LAUGHRUN: Your Honor, I object. The transcript is
13 in evidence and the jury heard it, he is going through every
14 question and answer.
15 THE COURT: Members of the jury, it's of course up to
16 you to remember what the testimony or the statements were on the
17 tape. The transcript which you been through at the same time
18 you are going through the tape is not evidence, it's your
19 memory, not what the transcript says, overruled.
20 BY MR. CONRAD:
21 Q. Do you recall in your interview the defendant telling
22 you that he couldn't sit there and kill myself selfishly and not
23 pray for the victims, do you recall that?
24 A. Yes, sir.
25 Q. Do you recall what he told you he did in order for him
48
1 to be able to go and pray for the victims?
2 A. What page are you at?
3 Q. 1426, carry over to 27.
4 A. I recall him telling me that.
5 Q. And what did he tell you?
6 A. Stated that he was going to the church.
7 Q. Did he tell you anything with respect to the taking the
8 tag off of another car?
9 MR. LAUGHRUN: Judge, objection, we've been over this.
10 THE COURT: Overruled.
11 THE WITNESS: Yes, sir, he did.
12 BY MR. CONRAD:
13 Q. What did he say?
14 A. He says that he took the South Carolina tag off and put
15 a Tennessee license plate on the back of the car.
16 Q. So he could go to church?
17 A. Correct.
18 Q. Did he tell you also that he had taken the inspection
19 sticker off of the car so that he could kill himself?
20 MR. WILLIAMS: Objection.
21 THE COURT: Taking inspection sticker off of the car?
22 BY MR. CONRAD:
23 Q. Turn your attention to page 1435 and ask whether he
24 said, I noticed that cars from Tennessee didn't have inspection
25 stickers on them and I didn't want to get stopped before I
49
1 killed myself so I scraped it off?
2 A. That's correct.
3 Q. Did he ever tell you in either your pretaped or taped
4 interview that he scraped the inspection sticker off or stole
5 the license plate for the purpose of evading or eluding
6 officers?
7 A. Yes, sir.
8 Q. Did he say that?
9 A. Yes, he did.
10 Q. Now, with respect to after he had told you about trying
11 to kill himself and going to church, did he then drive from
12 Knoxville, Tennessee to Charlotte with a stolen license plate on
13 his car and a scraped off inspection sticker?
14 A. Yes, sir.
15 Q. How he parked the car he told you behind a shopping
16 center?
17 A. Yes, sir.
18 Q. Do you recall why he told you he did that?
19 A. So the police could find it.
20 Q. And did he tell you why he put material in the dumpster
21 behind the shopping center?
22 A. Yes, sir.
23 Q. What did he tell you about that?
24 A. Without looking at that particular page, so somebody
25 would get a hold of it, for example, the shotgun.
50
1 Q. Are you familiar with someone named Shawanda Nero?
2 A. I know the name through the defendant.
3 Q. Okay. Do you know where Shawanda Nero in June of 1996
4 lived?
5 A. Yes, sir.
6 Q. Why do you know that?
7 A. The defendant told me and I went to the apartment
8 complex where she lives which is adjacent to where the vehicle
9 is located.
10 Q. Approximately how far is it from the place where the
11 stolen vehicle was parked behind the shopping center and
12 Shawanda Nero's apartment complex?
13 A. To the apartment complex itself, 25 yards; to her
14 apartment, approximately two hundred yards.
15 Q. State whether or not it would have, if someone wanted to
16 store material safely whether it would have been easy to do?
17 MR. LAUGHRUN: Objection, objection.
18 THE COURT: I don't know what the question is yet.
19 MR. CONRAD: Let me rephrase it.
20 BY MR. CONRAD:
21 Q. If the defendant wanted to store a shotgun and other
22 evidence he wanted found later such as a church bulletin, a
23 Sears receipt, a garden hose and other items, how much farther
24 would he have had to have gone to get to the Castlewood
25 apartments and store them at his cousin's apartment?
51
1 MR. LAUGHRUN: Objection.
2 THE COURT: Overruled, how far is his cousin's
3 apartment.
4 MR. LAUGHRUN: He testified 25 yards.
5 THE COURT: Let him answer.
6 THE WITNESS: To her apartment, approximately 200 yards.
7 THE COURT: That's more than 25 yards.
8 BY MR. CONRAD:
9 Q. In your capacity as a homicide investigator, does that
10 also involve responding to suicide or attempted suicide calls?
11 A. Yes, sir, it does.
12 Q. And have you done that in your career as a homicide
13 investigator?
14 A. Yes, I have.
15 Q. And state whether or not you have ever responded to a
16 carbon monoxide suicide?
17 A. Yes, I have.
18 Q. In your experience, is it -- is the defendant's story
19 that he tried to kill himself by carbon monoxide poisoning
20 consistent with your experience responding to other carbon
21 monoxide poisoning cases?
22 MR. LAUGHRUN: Objection.
23 MR. WILLIAMS: Objection.
24 THE COURT: Overruled.
25 THE WITNESS: No, it's not.
52
1 BY MR. CONRAD:
2 Q. In what way is it not consistent?
3 A. Every one that I've been on, which also includes with a
4 hose attachment, of some type of hose attachment from the
5 exhaust pipe to the motor vehicle, they were all fatal.
6 Q. Now, state whether or not, when you were interviewing
7 this defendant -- strike that. During your career as a homicide
8 investigator, have you had occasion to interview people
9 suffering from depression?
10 MR. WILLIAMS: Objection, Your Honor, I mean unless he's
11 been qualified or they intend to qualify him as a psychologist.
12 THE COURT: He asked whether he ever interviewed people
13 suffering from depression, so far, let's see what else he asks
14 him.
15 THE WITNESS: I interviewed people that appeared to be
16 depressed. Whether they have clinically been told by a medical
17 physician that they are depressed that I don't know.
18 BY MR. CONRAD:
19 Q. What symptoms do you recognize in a person who appears
20 to you to be depressed?
21 MR. LAUGHRUN: Objection.
22 THE COURT: Overruled -- I mean, sustained, I think you
23 are getting too far on that one.
24 BY MR. CONRAD:
25 Q. Did you notice any signs of depression when you saw --
53
1 MR. LAUGHRUN: Objection.
2 THE COURT: Wait until he gets the question out. What
3 is the question?
4 BY MR. CONRAD:
5 Q. Did you observe any signs of depression in the defendant
6 when you interviewed him on June 28th, 1996?
7 THE COURT: Overruled, I think that people can do that,
8 certainly observe somebody in depression, overruled.
9 THE WITNESS: Only at the times when he started to cry.
10 BY MR. CONRAD:
11 Q. Did he indicate any signs inconsistent with a state of
12 depression?
13 MR. WILLIAMS: Objection.
14 THE COURT: Overruled.
15 THE WITNESS: From my experience of interviewing people,
16 no.
17 MR. LAUGHRUN: Objection, move to strike.
18 THE COURT: Overruled, motion denied.
19 MR. CONRAD: Your Honor I have no further questions of
20 this witness.
21 THE COURT: Cross.
22 CROSS-EXAMINATION
23 BY MR. LAUGHRUN:
24 Q. Investigator Holl, you told the jury last Friday and
25 again today that there is quite a bit of blood loss by Mr. Allen
54
1 is that correct?
2 A. Yes, sir.
3 Q. Substantial blood loss, is that right?
4 A. Correct.
5 Q. And you are aware that the Honda vehicle was towed to
6 the law enforcement center?
7 A. Yes.
8 Q. And Crime Scene Search went through it?
9 A. Yes.
10 Q. And they put a red sticker on every piece on the vehicle
11 there was blood?
12 A. That's right.
13 Q. And I want to show you some photographs marked as
14 Defendant's Exhibit 47A through L.
15 MR. LAUGHRUN: Approach the witness, Your Honor?
16 THE COURT: 47.
17 MR. LAUGHRUN: 47A through L. Approach the witness?
18 THE COURT: Thank you. Yes, sir.
19 BY MR. LAUGHRUN:
20 Q. I ask you to look at these and ask you if these appear
21 to be the photographs inside of the Allen Prelude marked with
22 the exhibit stickers or the yellow -- red tags where blood was
23 found?
24 A. Yes, sir, it is.
25 Q. And they would appear to be numerous, would they not?
55
1 A. Very much so.
2 Q. All over the dashboard where the stereo was, where the
3 gear shift was, everywhere, is that correct?
4 A. Including inside the fuel cover on the exterior.
5 Q. Which would be opened to put gas in?
6 A. Yes, sir.
7 Q. Now, when you interviewed Mr. Barnette at the jail, you
8 asked him, did you not, to sign two consents to withdraw his
9 blood, is that right?
10 A. I interviewed him at the law enforcement center,
11 subsequently at the jail he signed two consents, one from me and
12 one from the jail facility to obtain his blood.
13 MR. LAUGHRUN: Approach the witness, Your Honor?
14 THE COURT: Yes.
15 BY MR. LAUGHRUN:
16 Q. I show you what has been marked as Defendant's Exhibit
17 20 and 21 and ask you if those are those two documents?
18 A. Both, yes, sir.
19 Q. And that consented not only for the Charlotte Police
20 Department to get viles of his blood but for the jail also, is
21 that correct?
22 A. When I requested his blood, he gave me verbal and
23 written consent. The jail has a policy that they also will get
24 a consent from the individual. That way if he does sign, the
25 jail nurse who is a registered nurse at the jail, will draw the
56
1 blood. If for some reason there is a problem, for example, he
2 refused to sign the form but verbally consents to do it, we have
3 to take him to Carolina's Medical Center. So the jail itself
4 did not get any blood.
5 Q. Charlotte Police Department did?
6 A. They withdrew the blood and they gave me the viles.
7 Q. You took that and gave it the appropriate control for
8 analysis?
9 A. That's correct.
10 Q. And put a complaint number on it, is that correct?
11 That's correct.
12 Q. And you are familiar with the luminol process?
13 A. Yes, sir.
14 Q. Correct me if I'm wrong, that's a process that you can
15 use to detect blood that may have been tried to wipe off or
16 something like that, is that correct?
17 A. Yes, sir.
18 Q. Explain that process to the jury, how luminol works.
19 A. Whether it be washed off, whether it be visible, whether
20 it's not visible to the naked eye, luminol with the three
21 chemicals that are combined -- with the two chemicals that are
22 combined, there is three metals within the blood that it will
23 react to, and that's the reactive agent even if you wipe it off,
24 I will still have the metals present, at least one that will
25 make luminol react to it so that you see it with a naked eye.
57
1 Q. So if you tried to wipe it off, you'd still get traces
2 of it with the luminol process?
3 A. Yes, sir.
4 Q. Days later, is that right?
5 A. Correct.
6 Q. Now, Mr. Allen's blood was obtained from the autopsy, is
7 that correct?
8 A. That's correct.
9 Q. And you didn't find any of Donnie Lee Allen's blood in
10 that vehicle, on any of marks that I showed you, did you?
11 A. I can't state that.
12 Q. You never saw any report that showed his blood in there,
13 did you?
14 A. May I explain?
15 Q. Yes.
16 A. I filled out the necessary paperwork to go up to the lab
17 to have an analysis done on his blood. Subsequently, days after
18 that, I was transferred to a different unit, where I'm presently
19 assigned, I don't know what the results are.
20 Q. You haven't seen those results, have you?
21 A. No.
22 Q. The government hasn't shown you the results and asked
23 you to identify lab reports identifying that the blood stains
24 were in the vehicle were Donnie Lee Allen's, have they
25 A. No.
58
1 Q. The clothing that you got from the vehicle, black
2 clothes Mr. Barnette had on, you saw that?
3 A. Correct.
4 Q. No blood on that as far as you know?
5 A. No blood on what?
6 Q. On the clothing that matched Donnie Lee Allen?
7 A. No blood from who?
8 Q. From the defendant?
9 A. No, not that I know of.
10 Q. In fact the blood on the shotgun was Mark's blood,
11 wasn't it?
12 A. I only know that from what the defendant told me, I
13 don't know what the results are from the lab.
14 Q. And there was no evidence that Mr. Barnette wore any
15 gloves that night, was there?
16 A. No, there isn't.
17 Q. Okay. Now, as an investigator of 200 homicides, and you
18 testified probably -- well, I'll ask you how many homicide cases
19 have you testified?
20 A. Too many.
21 Q. Okay. If you were still the investigator in the case,
22 you would want to know whether Donnie Lee Allen's blood was in
23 that vehicle, wouldn't you, if it was still your case?
24 A. Yes, sir.
25 Q. Now, let me ask you to look at some more documents,
59
1 Defendant's Exhibit 26?
2 MR. LAUGHRUN: Approach the witness, Your Honor.
3 THE COURT: Yes, sir.
4 BY MR. LAUGHRUN:
5 Q. This appears, Investigator Holl, to be his waiver of
6 rights that you asked him to sign, and he signed that, did he
7 not?
8 A. Yes, he did.
9 Q. Freely and voluntarily?
10 A. Yes, sir.
11 Q. Just like you told the jury?
12 A. Yes, sir.
13 Q. Didn't have a lawyer with him?
14 A. No, he did not.
15 Q. Didn't ask for a lawyer?
16 A. No, he did not.
17 Q. Been in custody two days at that point?
18 A. Three days.
19 Q. Three days, didn't ask for an attorney?
20 A. No, he did not.
21 Q. And if he wanted one, one would have been provided for
22 him?
23 A. Without cost.
24 Q. And at no cost to him?
25 A. Correct.
60
1 Q. And at no time did he say, I don't want to talk to you,
2 at no time he refused to answer any questions?
3 A. He spoke voluntarily.
4 Q. You also are aware that he gave a description of where
5 the body was found?
6 A. Yes, sir.
7 Q. Have you seen that, in his own handwriting?
8 A. No, I have not.
9 Q. Let me ask you to look at Defendant's Exhibit 17, and
10 compare that to Defendant's Exhibit 26, the 26 being the waiver
11 of right form that you had that Mr. Barnette signed, is that his
12 signature?
13 A. Yes, sir.
14 Q. And it's your policy, you had him write his name and
15 date of birth?
16 A. It's not our policy, I asked him his name, he gave it to
17 me, black male, date of birth, his age, place where it occurred,
18 I wrote law enforcement center. I put the date down, the time,
19 he placed the time that he signed the waiver, initialed that
20 entry and over where I wrote his name to the top left he placed
21 his initials acknowledging.
22 Q. Okay. And the signature on here, does that appear to be
23 the same signature that's on Defendant's Exhibit 17, in your
24 professional opinion not as a handwriting expert?
25 A. In my opinion, yes.
61
1 Q. That got on there corner Billy Graham at Morris Field
2 Road?
3 A. Left side drain ditch.
4 Q. Okay. Now, you were transferred to the HITS unit?
5 A. Correct.
6 Q. And that's the highway for the new unit?
7 A. I'm an investigator assigned to the highway interdiction
8 traffic safety, I investigate traffic fatalities for the
9 possible prosecution of a driver.
10 Q. For the offense of driving while impaired, habitual DUI,
11 second degree murder, things like that?
12 A. Yes, sir.
13 Q. As part of the police department's policy they assign a
14 complaint number to all homicides and any calls for service, is
15 that correct?
16 A. That's correct.
17 Q. And in this case, the complaint number -- and do you
18 have anything up there with the complaint number, Investigator
19 Holl?
20 A. Yes, sir.
21 Q. Would be 960625171602, is that correct?
22 A. Yes, sir.
23 Q. I'm going to ask you to look at Defendant's Exhibit 2A
24 and ask you if it appears to be a property sheet with that
25 complaint number on it?
62
1 MR. LAUGHRUN: Approach the witness.
2 THE COURT: Yes, sir.
3 BY MR. LAUGHRUN:
4 Q. Does that appear to be a property sheet, Investigator
5 Holl, from Crime Scene Search Officer G.S. Chapman, with the
6 same complaint number for this case?
7 A. Yes, sir.
8 Q. And it's showing on this a Compose box was seized from
9 the vehicle?
10 A. Yes, sir.
11 Q. I ask you to look at Defendant's Exhibit 2, see if that
12 appears to be a Compose box that appears to be taken somewhere
13 inside a vehicle?
14 A. It was found own the driver's side of the vehicle
15 underneath the seating portion of the driver's seat. I observed
16 it there the first day, when her maiden name was technician Amy
17 Ray, searched the vehicle, processed the car. And it wasn't
18 until after the interview and the defendant saying that that was
19 his that I went back to seize that property.
20 Q. And her name now is Reece, is that correct, or Kise, K I
21 S E, just got married --
22 A. Correct, I'm not positive.
23 Q. Now, I ask you Investigator Holl to look at Defendant's
24 Exhibits Number 45 and 46?
25 MR. LAUGHRUN: Approach the witness?
63
1 THE COURT: Yes, sir.
2 BY MR. LAUGHRUN:
3 Q. What appear to be photographs of the Honda as it
4 appeared at the law enforcement center, does that appear to be
5 the Allen vehicle, Investigator Holl?
6 A. Yes, sir.
7 Q. Two copies down there in the basement of the lower level
8 of the law enforcement center?
9 A. One photograph depicting the driver's side of the
10 vehicle and one the passenger side.
11 Q. And that was in the basement of the law enforcement
12 center, it's now demolished?
13 A. This is in the old building.
14 Q. Which doesn't exist anymore?
15 A. Correct.
16 Q. Now, the color of vehicle appears to be what, dark blue
17 color?
18 A. Navy blue.
19 Q. I believe you said the defendant in his statement told
20 you the vehicle was black, is that right?
21 A. Yes, sir.
22 Q. Investigator Holl, you mentioned to the jury that you
23 investigated 200 suicide attempts?
24 A. No, sir.
25 Q. Carbon monoxide poisoning, you investigated several
64
1 suicide attempts?
2 A. Several suicides involving carbon monoxide.
3 Q. You said all of those were fatal, correct?
4 A. Yes, sir.
5 Q. You wouldn't get a call if it wasn't fatal because you
6 are in homicide, is that right?
7 A. Not necessarily. Part of, at that pint in time, the
8 responsibilities of a homicide investigator was that if it was
9 fatal we would respond. If it was an attempted suicide, the
10 paperwork, incident report, which is an offense report depicting
11 what occurred, would come up to homicide. It was up to the
12 homicide investigators to follow through with the case to see if
13 the victim subsequently died or was released from the hospital.
14 Q. So you would get some calls where carbon monoxide
15 wouldn't be fatal?
16 A. I never received any.
17 Q. In the police department there was a procedure in the
18 homicide unit for processing the nonfatal carbon monoxide
19 attempts, is that a fair statement?
20 A. As of 1996, I haven't been there, I can't state that.
21 Q. At the time of the incident it would have been, is that
22 right?
23 A. Yes, sir.
24 Q. Now, when Mr. Conrad went through your first statement
25 with you, you said that you reinterviewed the defendant, were
65
1 you aware that he had been interviewed twice before?
2 A. I knew he had been interviewed by Investigator Sanders
3 and FBI Agent Womble. The other interview I did not know at
4 that time had taken place.
5 Q. So you did not know about the Tony Rice interview?
6 A. That's correct.
7 Q. Did you know anything at the time that you interviewed
8 Mr. Barnette about the facts of the Roanoke incident?
9 A. All I knew on that particular case, that he drove up
10 there and shot and killed her.
11 Q. Did you know anything about the April 1996 fire bombing
12 incident?
13 A. No.
14 Q. Mr. Conrad asked you on direct examination, did he tell
15 you about the fire bombing of the apartment, do you recall him
16 asking you that, and you said no? You never asked him about it
17 because you didn't know about it, is that correct?
18 A. That's correct.
19 Q. When you went through and asked him about what happened,
20 you told the jury a few moments ago he was cooperative and
21 answered all of your questions?
22 A. Correct.
23 Q. At that time you asked him about where the items were
24 found you already knew where the items were found, correct?
25 A. Yes.
66
1 Q. In the dumpster?
2 A. The items that I knew of, I knew where they were found.
3 Q. And he told you they were in the dumpster?
4 A. That's correct.
5 Q. You didn't know where the shotgun came from, did you,
6 where he had bought it?
7 A. That's correct.
8 Q. And he told you that?
9 A. Yes, sir.
10 Q. And with that information you were able to go to Freedom
11 Drive Quik Pawn Shop and find out where he bought it, is that
12 right?
13 A. With the information that he supplied, he would have
14 been able to tell me that, with the serial number off of the
15 weapon, it would eventually have been traced back to that place.
16 Q. You could have found it through ATF?
17 A. Which I subsequently asked for a trace from ATF on that
18 particular weapon to come back to the origin where it was made
19 and who the first owner was.
20 Q. And it came back that it had been sold by Quik Pawn shop
21 to Mario Barnette?
22 A. Yes.
23 Q. So the defendant told you he used his brother's name?
24 A. Yes.
25 Q. At that time you didn't know that, right? At the time
67
1 he told you, you didn't know how he bought the shotgun?
2 A. No, I did not know that.
3 Q. And with that information you went out and talked to
4 Mr. Freshour at the Quik Pawn Shop?
5 A. That's correct.
6 Q. And he confirmed and gave you the bills of sale and ATF
7 forms?
8 A. Correct.
9 Q. I believe you told us when Mr. Conrad asked you that he
10 was polite, cooperative and he was depressed and at times he
11 cried?
12 A. Could you repeat that?
13 Q. That you told him on direct examination that he was
14 polite, cooperative, nodding his head sometimes, cried sometimes
15 and exhibited signs of depression when he crying, is that a fair
16 statement?
17 A. When he was crying, he appeared to be depressed at that
18 time.
19 Q. You asked him about the flashlight on the shotgun?
20 A. Yes, sir.
21 Q. With the red lens?
22 A. Yes, sir.
23 Q. You already knew about that because you had seen the
24 weapon?
25 A. Yes, sir.
68
1 Q. And he told you it had a red lens on it?
2 A. Correct.
3 Q. Never tried to deny that at all?
4 A. No, he did not.
5 Q. Now, when he told you he took the tag from the Hampton
6 Inn in Knoxville, the police department or FBI was able to
7 verify that as well?
8 A. My understanding they were, I requested the
9 investigation on that to start the minute I started the case
10 back at 7:15 Tuesday morning. You are asking me something that
11 was later found out after I left.
12 Q. Let me ask you this, have you learned since that time
13 that the individual came in and testified at the first part of
14 trial said that he was in the parking lot at Hampton Inn and
15 said that he had his tag stolen?
16 A. I know the tag was stolen subsequently because of the
17 paperwork that I have learned just prior to the trial. What the
18 person testified to, I don't know if somebody came in or not.
19 Q. Do you know Investigator Holl whether or not
20 Mr. Barnette agreed to have head and hair samples taken from
21 him, or do you know?
22 A. I would have to see that.
23 Q. And I take it if that was done and submitted to the lab
24 you would have gone to the HITS unit before that process came
25 through?
69
1 A. Most definitely.
2 Q. Investigator Holl, with all of the interviews you have
3 done, I take it it's your practice, and correct me if I'm wrong,
4 before you use a tape recorder for an interview you go through
5 the pretape questions, is that right?
6 A. It's my practice, sir.
7 Q. I think you told us that was for two reasons, first, to
8 try to get someone to open up and not be intimidated by the
9 tape?
10 A. Because it's an inhibiter.
11 Q. And they didn't know you it would be a real inhibiter,
12 wouldn't it?
13 A. It would be a way of establishing a repour without
14 putting a mechanical device in front of them.
15 Q. And I believe you told us it was a way to get the person
16 you are interviewing to get the events chronologically in order?
17 A. Correct.
18 Q. Give them a preview of what you were going to ask them?
19 A. That's correct.
20 MR. LAUGHRUN: Thank you, Judge Potter.
21 MR. CONRAD: Briefly judge.
22 REDIRECT EXAMINATION.
23 BY MR. CONRAD:
24 Q. Did the defendant tell you that he had illegally
25 purchased a shotgun prior to the purchase of this shotgun, did
70
1 he tell you that?
2 A. No, he did not.
3 Q. Did he tell you he used a false name to purchase that
4 first gun?
5 A. I didn't know about the first gun.
6 Q. So he didn't tell you about denying that he was a
7 convicted felon when he bought the gun because he didn't tell
8 you anything about the gun?
9 A. That's correct.
10 Q. And when you went to Freshour's, you got one bill of
11 sale?
12 A. When I went to where?
13 Q. To Quik Pawn Shop and talked to Jacob Freshour, he gave
14 you a receipt for the shot gun that the defendant told you
15 about?
16 A. That's correct.
17 Q. But not the other illegal purchase?
18 A. I didn't know about the other purchase.
19 Q. Now, at the conclusion of your interview of him, which
20 involved questions concerning the murder of Donald Lee Allen,
21 and the murder of Robin Williams, you asked him is there
22 anything else you would like to add, did he tell you about the
23 fire bombing of the woman that he murdered?
24 A. No, sir.
25 MR. CONRAD: That's all I have.
71
1 THE COURT: Thank you sir, come down. Appreciate it.
2 Do you have a witness you can get through in a reasonable time
3 today?
4 MR. CONRAD: I'm sorry judge?
5 THE COURT: Do have you a witness that you can finish in
6 a reasonable time.
7 MR. CONRAD: Next witness starts a completely different
8 area.
9 THE COURT: We better recess. Members of the jury,
10 appreciate you coming down today, do not discuss the case among
11 yourselves or anyone outside of the courtroom overnight. I
12 neglected to ask you when you first came, have any of you seen
13 or heard or read anything about this case.
14 (Jurors shake heads.)
15 THE COURT: Nobody has. Thank you, very much. And do
16 the same thing now, don't read anything about it, don't talk
17 about it, don't tell anyone, don't look at any TV about it and
18 don't read the newspapers about it. See you tomorrow morning at
19 9:30, we will have a full day tomorrow. Thank you very much.
20 (The jury left the courtroom.).
21 THE COURT: Recess until 9:30 tomorrow.
22 (Court in recess.)
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