1 STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE 2 COUNTY OF JOHNSTON SUPERIOR COURT DIVISION FILE NOS.92-CRS-2661-62 3 92-CRS-2569, 2570 4 STATE OF NORTH CAROLINA ) ) T-R-A-N-S-C-R-I-P-T 5 VS. ) ) VOLUME 10 6 GEORGE EARL GOODE, JR., ) Pages 1616-1819 DEFENDANT. ) 7 _________________________) 8 The transcript of the MAR proceedings, taken in the General Court of Justice, Superior Court Division, 9 Johnston County, North Carolina, at the September 13, 2004, Special Criminal Session, before the Honorable 10 Steve Balog, Judge Presiding. ******** 11 APPEARANCES: 12 Mr. Barry McNeill 13 Special Deputy Attorney General Attorney General's Office 14 Raleigh, North Carolina On behalf of the State. 15 Mr. Thomas Lock 16 Assistant District Attorney Prosecutorial District 11-B 17 Smithfield, North Carolina On behalf of the State. 18 Ms. Diane Savage 19 Attorney at law Cary, North Carolina. 20 On behalf of the Defendant. 21 Ms. Lisa Miles Mr. Mark Montgomery 22 Attorneys at Law Durham, North Carolina 23 On behalf of the Defendant. 24 Tina McNair Official Court Reporter 25 Judicial District 11-B Smithfield, North Carolina. 1616 1 THE COURT: Good morning everyone. 2 All right. Have our witness come back 3 around. 4 MR. MCNEILL: Your Honor, Mr. Lock should be 5 in any moment now. 6 THE COURT: I saw him come out of the 7 courtroom in the hallway. He's probably headed this 8 way. 9 MR. MCNEILL: Just one housekeeping matter, 10 Your Honor. I think yesterday when we had showed a 11 report to Agent Deaver, there was a suggestion that that 12 had not been provided to defense counsel, and we had our 13 copy of it. The Clerk has located in the Clerk's file 14 the filed copy, Your Honor. And just for the record 15 that copy does show service upon the counsel and it does 16 show in the Court's copy that the affidavit -- I think 17 Ms. Brown has that there, Your Honor -- that the 18 affidavit of Agent Deaver was attached as number 1; that 19 on the first page of Agent Deaver's affidavit, he 20 referred and incorporated the report which was attached 21 to it along with a photograph of spot G and H that was 22 referred to yesterday. So just for the record, Your 23 Honor, we would -- of course, I can't speak -- I don't 24 know if they did ever see it, but I can only state for 25 the record that it was served upon counsel. 1617 1 THE COURT: All right. Thank you. 2 You may proceed with your questions. 3 BY MR. MCNEILL: 4 Q. Good morning, Agent Bendure. 5 A. Good morning. 6 Q. Yesterday, when I think we left your examination, 7 we were talking about spot A that you had detected on 8 the coveralls; isn't that correct? 9 A. That's correct. I believe so. 10 Q. Just for the record, Agent Bendure, you were in 11 court yesterday, were you not? 12 A. Yes. 13 Q. And you were in court when Deputy Mazur was 14 opening up the packages that he had initially delivered 15 and then received back from the SBI? 16 A. That's correct, yes. 17 Q. Have you had a chance to see those packages since 18 you had examined the coveralls? 19 A. No, not since I returned them to him. The last 20 hearing we had here, I gave those back to Deputy Mazur 21 on that day. 22 Q. Just for the record and so it's clear, I was 23 going to hand you what was yesterday marked as State's 24 MAR Exhibit 34, ask if you want to put on a pair of 25 gloves. First of all, do you recognize the package? 1618 1 A. Yes, I do. It bears my case number, the date I 2 received it on 21st of April 2004, and the lab number 3 that's assigned to it, and my initials there. 4 Q. Your initials are on the right-hand side of the 5 bag; is that correct? 6 A. That's correct. 7 Q. Bearing the date of 4/21/04? 8 A. Yes. 9 Q. And is the R2004-9144, is that the lab number 10 you're referring to? 11 A. Right. 12 Q. If you have to step down to open the bag, that's 13 fine. 14 A. Yes. These are the coveralls that I sent back. 15 Q. And are they in substantially the same condition 16 that they were when you initially received them? 17 A. Yes. I had them wrapped in the brown paper. I 18 did my analysis on top of the brown paper. When I 19 completed my analysis, I just wrapped the coveralls up 20 into the brown paper and stuck them back into the bag. 21 Q. And, Agent Bendure, except for -- now, there has 22 been some alterations of the coveralls, hasn't it? 23 A. Yes, of the cuttings I made. 24 Q. Okay. Except for the cuttings that you made, are 25 the coveralls in substantially the same condition? 1619 1 A. Yes. 2 Q. And we were talking about spot A on the right leg 3 of the coveralls that's illustrated on the chart, 4 State's Exhibit 36; isn't that correct? 5 A. Yes, it is. 6 Q. Can you point out to the Court again where that's 7 located? 8 A. Okay. Speaking of the right leg? 9 Q. Yes. On the right leg. 10 A. On the right leg, the circle that was pointed out 11 -- said there was a circle on the leg that I looked for, 12 that's the only circle I found on the bottom of the leg. 13 And the cuttings or the stain that I removed came from 14 these spots. They're each designated with a letter, "A" 15 through "J" up to the circle, and then there's a 1K over 16 towards the inside seam. And I did do another one over 17 on top of a clay stain. That is spot L. 18 Q. Now, in particular as to -- directing your 19 attention to spot A again, can you describe to the Court 20 what it looked like to you under microscopic analysis? 21 A. As I said yesterday, I limited my search to 22 anything that appeared to me to be blood that was 23 adhering or seemed to me it had been applied wet to the 24 fabric. It was either adhering to the yarn or it was 25 absorbed down into the -- 1620 1 MS. SAVAGE: Objection, Your Honor. 2 Nonresponsive. 3 THE COURT: Overruled. 4 A. It's either adhering to the fiber or absorbed 5 down into the yarn. 6 Q. Okay. In particular, in spot A, did it appear to 7 have any kind of color to it? 8 A. Yes. 9 Q. What was that color? 10 A. A dark red, which I would associate with a 11 blood-like substance. 12 MS. SAVAGE: Move to strike, Your Honor. 13 Objection. No relevance, not been proven. The sample 14 as blood is nonresponsive. 15 THE COURT: Overruled and denied. 16 Q. Now, Agent Bendure, I think you said it was 17 encrusted yesterday; isn't that correct? 18 A. That's correct. 19 Q. Did you find any type of loose material under 20 your microscopic examination particularly of the spot A? 21 A. No. Everything I removed from spot A was 22 adhering or absorbed down into the yarn. 23 Q. Were you looking for loose material? 24 A. No. Because I wanted to eliminate the 25 possibility of anything that could be laying on the 1621 1 surface contamination. That was the whole purpose of 2 what I was trying to do. I was trying to find something 3 that was adhering to the garment. 4 Q. So from your answer, I take it you were looking 5 for the possibility of any type of loose material? 6 A. Yes. I didn't observe any, not in the areas I 7 looked at. 8 Q. Now, you noted yesterday that there were fibers 9 there within spot A that had an encrusted substance; 10 isn't that correct? 11 A. Yes. 12 Q. Were these fibers still connected to the garment? 13 A. Yes. 14 Q. The fibers -- 15 A. These will be fibers that are protruding out of 16 the yarn and they're still bound to the yarn. 17 Q. Were these fibers loose in any way? 18 A. No. 19 Q. In regard to spot A, Agent Bendure, as an expert 20 in trace evidence, do you have an opinion whether spot A 21 was the result of contamination? 22 A. I don't believe so. 23 MS. SAVAGE: Objection, Your Honor. No 24 foundation to make that opinion. 25 THE COURT: Overruled. You may answer. 1622 1 A. I do not believe it was a source of contamination 2 from a flake laying on the surface. As far as wet 3 blood, I can't eliminate that possibility, but it would 4 had to have been applied wet if it was because you have 5 to have a source of contamination with wet blood. What 6 I was looking for was anything that looked like it had 7 been applied wet. 8 MS. SAVAGE: Objection, Your Honor. Move to 9 strike. 10 THE COURT: Overruled and denied. 11 Q. After you examined spot A, did you continue your 12 examination of the other spots there, in particular 13 spots B through F? 14 A. Yes, I did. 15 Q. Could you tell the Court what they appeared to 16 you to be? 17 A. Basically, the same type of thing, either spot 18 shape or an isolated globular on fiber, something like 19 that. It absorbed down into the yarn. It's very 20 similar to "A". 21 Q. What color were they? 22 A. What's that again? 23 Q. What color, if any, were they? 24 A. Basically, the same color I was looking for, that 25 dark red blood-like substance. 1623 1 MS. SAVAGE: Objection, Your Honor. Move to 2 strike everything he just said. No foundation, 3 unreliable, not relevant. 4 THE COURT: Overruled and denied. 5 Q. And how did the spots that you saw in B through F 6 appear to you to be other than in color? What 7 consistency were they? 8 A. Well, basically, to me it looked to have been 9 applied basically the same type of way, from a wet state 10 and then dried into the fabric. 11 Q. In spots B through F, did you see any evidence of 12 any dried flakes? 13 A. No, sir. I found nothing that was laying on the 14 surface. If it was something laying on the surface, I 15 would have eliminated that sample. I strictly limited 16 my search to anything adhering to the garment. 17 Q. And were the fibers in spots B through F, were 18 they attached as in "A"? 19 A. Yes. They were either like I said a globular or 20 they were absorbed down into the yarn. 21 Q. Were there any lose fibers in B through F? 22 A. There were loose fibers laying on the surface, 23 but nothing with blood adhering to it. 24 Q. As to spots B through F, Agent -- 25 MS. SAVAGE: Objection, Your Honor. 1624 1 Compound question, B through F, and objection to blood 2 adhering. 3 THE COURT: Overruled. 4 Q. Agent Bendure, in regards to spots B through F, 5 do you have an opinion whether these spots were the 6 result of contamination? 7 A. In my opinion, it would have to be wet 8 contamination, not dry. 9 Q. Now, spots G and H are the ones in the circle, is 10 that correct, Agent Bendure? 11 A. Yes. G and H are there and also "I" up over to 12 the side. 13 Q. Okay. If I could direct your attention to the -- 14 let me grab the photographs. Directing your attention 15 to the photographs that are marked 27-1 through 27-130 16 -- you also looked at spots G and H under the 17 microscope, isn't that correct? 18 A. That's correct. 19 Q. And would you describe to the Court what you saw 20 under the microscopes in G and H, first of all? 21 A. G and H appeared to me to be the same type of red 22 substance present. In addition, there's probably a 23 little bit more soil there than I saw in the others. 24 MS. SAVAGE: I'm sorry. I didn't get that 25 answer. 1625 1 A. It's probably some more soil in those two spots 2 than I saw in some of the other spots. 3 Q. If I could direct your attention to State's 4 Exhibit 27-46. Can you locate that photograph? 5 A. Okay. 6 Q. Is that a photograph, an image that was taken of 7 the spots G and H? 8 A. Yes, it is. 9 Q. Again, were those photographs taken under your 10 direction by Mr. Trevillian; is that correct? 11 A. That's correct. 12 Q. And is the photograph in State's Exhibit 27-46, 13 was it under any special magnification? 14 A. Yes. Basically, I think we just started with an 15 overall that's been blown up. You can actually see a 16 scale on the picture. 17 MS. SAVAGE: Objection, Your Honor, 18 nonresponsive. 19 THE COURT: What's the magnification of the 20 -- 21 THE WITNESS: I'm not sure about the 22 magnification. I just put a scale in there. There's a 23 metric scale up to the side. 24 THE COURT: All right. Overruled. 25 MS. MILES: I'm sorry, Your Honor. Can I 1626 1 ask the witness to move that bag so I can see? 2 THE WITNESS: Sure. 3 MS. MILES: Thank you. 4 Q. And when you first examined the areas in -- the 5 circled area, the spots in the circled area, there were 6 no lettering or anything like that; isn't that correct? 7 A. All the lettering was put on there by myself. 8 Q. Okay. Could you under lighting detect any spots 9 in the circled area? 10 A. I could detect spots in the circled area. I 11 could not say they appeared to be a blood-like substance 12 to me until I put them under a microscope. 13 Q. And under the microscope you directed and took 14 photographs of spot G, did you not? 15 A. Yes, sir, I did. 16 Q. Would you turn to State's Exhibit 27-29, please. 17 A. You want me to show this to the Judge here? 18 Q. Yes. 19 A. I'm sorry. 20 THE COURT: Thank you. 21 A. What was the number again? 22 Q. 27-29. 23 A. Okay. 24 Q. What does that photograph illustrate? 25 A. 27-29 is what I call a smaller stain in the 1627 1 circle of G. Sort of -- there are two stains. The 2 smaller stain G, it's a 5X magnification, 5X phototube, 3 1.5X on the camera, and is a picture of the surface of a 4 spot and shows where the blood has been absorbed into 5 the yarn. 6 MS. SAVAGE: Objection, Your Honor to the 7 word "blood". He's been admonished already by the 8 Court. 9 A. Blood-like substance. 10 THE COURT: Objection sustained. The 11 correction is noted. 12 Q. Again, in the spot G, was there any color to this 13 area? 14 A. Yes. The dark red that I was looking for. 15 Q. Was it -- would you characterize it as -- how 16 would you characterize it? 17 A. I characterize it as a blood-like substance that 18 would have had to be applied to the yarn in a wet state. 19 The reason I say that is that if you look at the surface 20 and the material has gone past the top fibers, gone into 21 the yarn, absorbed into the yarn and dried. 22 MS. SAVAGE: Objection, Your Honor. Move to 23 strike. No foundation, unreliable, not relevant. 24 THE COURT: Overruled and denied. 25 Q. Agent Bendure, do you have an opinion whether or 1628 1 not spot G was the result of contamination? 2 A. Only if the blood was from a wet source or 3 blood-like substance. 4 Q. Directing your attention to photographs 30 and 31 5 -- and if you would hand that up to Your Honor. 6 THE WITNESS: Here you are, Your Honor. 7 THE COURT: Thank you. 8 Q. Turning first to photograph 30, what does that 9 illustrate? 10 A. 30 and 31 are the smaller stain of -- the 11 smallest of the large stain of H, and then the small 12 stain of H. Just two shots. They're the same thing, 13 probably different exposure. I'm not -- I think I'm 14 correct. I believe that's right. Let me check my notes 15 on that one. Yes. Stain of H has got sort of a larger 16 stain and a small stain, and I've got a picture of each. 17 I've got what I call H1 and H2 in my notes; 30 is H1 and 18 31 is H2, both taken 5X. 19 Q. 5X meaning five magnification? 20 A. Yes, magnification on the scope itself. 21 Q. Taking photograph 30 first, what does that 22 illustrate? 23 A. 30 would be the smaller one. And basically, it's 24 the same type of thing I'm looking for. The material 25 has gone down into the yarn or adhering to the fibers of 1629 1 the yarn. And to me, it's a blood-like substance that 2 had been applied in a wet state and it's absorbed or 3 adhering to the fibers in the yarns in this stain. 4 MS. SAVAGE: I'm sorry. Is he talking about 5 30 or 31? 6 THE WITNESS: 30, State's Exhibit 27-30. 7 MS. SAVAGE: Which is H1? 8 THE WITNESS: H1, right. The smaller of the 9 two. 10 MS. SAVAGE: The smaller of the two? 11 THE WITNESS: Uh-huh. 12 Q. And would you now describe what's depicted in 31? 13 A. Excuse me. The larger of the two, the larger 14 stain. I'm sorry. Smaller is the second one. 31 15 would be the smaller stain, and 31 is the same. I 16 expect to see the same type of -- I was looking for the 17 same thing type of thing there--a dark red substance 18 that appeared to have been applied to the yarn of the 19 fibers in a wet state. The photograph shows the 20 material down into the yarn itself. 21 Q. Agent Bendure, we're talking about a very small 22 amount of material? 23 A. Yes, sir. 24 Q. Is that correct? 25 A. Yes. 1630 1 Q. A microscopic amount of material; would that be a 2 fair characterization? 3 A. Yes. I guess a more correct term will be 4 microscopic. It's sort of in between a microscope and 5 -- I tend to put things in a microscopic, 100X. A 6 microscope would be something up to 100X, but it's 7 smaller enough you have to use a microscope. 8 Q. And let me ask you do you have an opinion whether 9 or not these spots, these H1 and H2 spots, were the 10 result of contamination? 11 A. As I said before, only if it came from a wet 12 source. 13 Q. Now, you've located other spots, "I" "J" and "K" 14 on the right leg; isn't that correct? 15 A. That's correct. 16 Q. Can you point those out? 17 A. Yes. "I" and "J" and "K" are over here. I and J 18 -- "I" is inside the circle, "J" is just outside the 19 circle, and "K" is over towards the inside seam. 20 Q. And were one of the spots actually in the circle 21 itself? 22 A. Yes. "I" is inside the circle itself. 23 Q. Okay. And were these spots that you saw in "I" 24 "J" and "K" were they similar in appearance to the 25 earlier ones you described here today? 1631 1 MS. SAVAGE: Objection, Your Honor, not 2 specific. Similar to which ones? Every one? 3 MR. MCNEILL: I did qualify the question. 4 THE COURT: It's overruled. You may 5 complete your question. 6 Q. Were spots "I", "J" and "K" similar to spot A? 7 A. Yes. "I" and "K" probably had more of the 8 droplets adhering to the fibers, globulars of blood on 9 the -- 10 MS. SAVAGE: Objection, Your Honor, to the 11 word "blood". 12 THE COURT: Sustained. 13 A. "I" and "K" had a blood-like substance adhering 14 to the fibers in a globular form. It had encrusted 15 around individual fibers. "J" was probably more into 16 the fabric itself, absorbed into the yarn, but they're 17 very similar to the other ones I removed. 18 Q. And photographs were taken of these spots, were 19 they not? 20 A. Yes, they were. 21 Q. Directing your attention now to spot L, can I ask 22 you ask you to look for and obtain photographs 27-40 and 23 27-48. Excuse me, Agent Bendure -- 40, 41 and 48. 24 A. 40, 41 and 48. Okay. 25 Q. Agent Bendure, where was -- first of all, where 1632 1 was spot L located? 2 A. You said 48? 48 is a clay stain. 3 Q. Okay. Let me ask you first where was spot L 4 located? 5 A. Spot L was located on the left leg. I believe 6 it's about seven and a quarter, seven and three-five. 7 It's about -- 8 Q. And in conjunction with -- you just mentioned 9 measurements, your report does refer to the 10 measurements, isn't that correct? 11 A. Yes, they do. You can follow those on the back 12 of the second page. It's about 7.81 inches from the 13 bottom hem of the left leg towards the front of the 14 lower left leg. 15 Q. And what is depicted in photograph 40, 27-40? 16 A. 27-40 is what I described as a -- looks like a 17 broken droplet of "L", the spot, on the surface. It 18 says 4X magnification by 5X photo, 1.5 camera, and it 19 shows it sitting on the surface, what I described as a 20 clay stain surface. 21 Q. Now, you said sitting on the surface, what is 22 sitting on the surface? 23 A. What looks like to me to be a reddish or 24 blood-like substance. It's when the droplet had dried, 25 either the fibers that are loose on the surface. 1633 1 Q. Was this substance loose in any manner? 2 A. No. 3 Q. Did you probe it to see if it was loose? 4 A. Yes, I did. 5 Q. And what is depicted in photograph 41? 6 A. 41 is the same thing, but it's a closeup of that, 7 the spot I described as a blood-like droplet. It shows 8 the fibers that are encrusted in the droplet. 9 Q. And was there anything significant to you about 10 finding a stain in this manner? 11 MS. SAVAGE: Objection, Your Honor. Finding 12 a stain in what manner? Finding what stain in what 13 manner? 14 THE COURT: Overruled. 15 A. Going back to what I said originally, what I was 16 looking for was anything that was attached. This 17 droplet appeared to me to be attached to the surface of 18 the left leg and it met the conditions that I was 19 looking for, something that was a dark red, blood-like 20 substance that's adhering to the fabric. To me, it had 21 to have been applied in a wet state. 22 Q. And did there come a time when you showed or 23 illustrated these -- what you had found, these spots, 24 "A" through "L" to post-conviction counsel and an expert 25 that came to your lab? 1634 1 A. Dr. Miller, yes. I showed these to them on the 2 30th of April. 3 Q. And at that time were these the areas that you 4 had located at that time? 5 A. These are the areas I had located up to that 6 point, yes. 7 Q. And did there come a time when you proceeded with 8 your examination of the coveralls? 9 A. Yes. As they left that day, I continued working 10 on the case. 11 Q. And were other areas found? 12 A. Yes. I had my photography and I did continue for 13 a number of days look through the rest of the stuff. I 14 also examined the boots and found something on the 3rd 15 of May on the boots. So I did an examine -- continued 16 examination of everything. The stains that I had at 17 that point, I later -- I think around the 11th or -- 18 about the 11th, I think I had those cut and removed. He 19 came in and photographed them on the 11th. After he 20 left, I went in and removed them on that afternoon. Mr. 21 Trevillian had to do a photo shoot for a law enforcement 22 appreciation or law enforcement -- 23 MS. SAVAGE: Objection, Your Honor. 24 Nonresponsive, not relevant. 25 THE COURT: Overruled. You may complete 1635 1 your answer. 2 A. I could not continue having the photographs done 3 the next day. I had to go to the 13th to have them 4 photographed, the cuts, the cuts I had taken out because 5 he had another obligation on the 12th. So, there's a 6 reason there's a difference in the day there. 7 Q. Going back to your showing these areas to 8 post-conviction counsel and Dr. Miller, did you have 9 occasion to illustrate to Dr. Miller what you testify to 10 here in court today about spot L? 11 A. Yes. She expressed an interest to see if the 12 blood -- 13 MS. SAVAGE: Objection, Your Honor. Hearsay 14 what she says, what her interest was. 15 THE COURT: Overruled. You may complete 16 your answer. 17 A. She expressed an interest in knowing that the 18 spot we were looking at, what I described as a droplet, 19 had been -- was attached to the surface. I demonstrated 20 that to her with a probe and showed to her that it was 21 attached to the fibers. 22 Q. And as you just testified, you continued your 23 investigation, examination of the coveralls and found 24 additional spots, "M" through "U"; is that correct? 25 A. Yes. 1636 1 Q. How many total spots did you eventually find on 2 the coveralls? 3 A. I guess, go through the alphabet U, X, Y, Z. 4 About 20 or 23, I guess. Excuse me, 22. 5 Q. Can you point out to the Court, starting with -- 6 you finished with "L" where that was located. Can you 7 point out now where "M" through "U" was located? 8 A. "M" through "U" -- I got them marked on another 9 exhibit. 10 Q. Okay. Now, this was what you had done up to the 11 point you showed post-conviction counsel and Dr. Miller? 12 A. Right. Before I made any cuts. 13 Q. Okay. Now, using State's Exhibit 37, can you 14 then point out where the other areas were located? 15 A. Yes. As I was taking the cuttings from "A" 16 through "L", in this area I had a microscope slide 17 placed in this area. As I'm taking the cuttings off and 18 placing these cuttings on the slides, I can look through 19 the slide and start to see material that I may have 20 overlooked. I went back with a closer look at it and I 21 had more additional spots on the yarns that I could also 22 remove. In addition to that, I went back and looked a 23 little closer on the left leg and found additional 24 spots. 25 Q. And one by one, will you show the Court where 1637 1 those are located? 2 A. Yes. After "L", come down and I find a spot 3 here, "M". I have one at "N" right on the hem at the 4 bottom. I go back over here and I've got -- these are 5 the ones I saw through the microscope slide, very small 6 spots. I've got O, P, Q, R, S, T, and there's one down 7 here I found later on the hem. That's "U". And that's 8 the last one I found. 9 Q. Now, the photographs were taken of these spots 10 "M" through "U"; is that correct? 11 A. Yes. 12 Q. And would you describe those spots "M" through 13 "U"? 14 A. "M" through "U"? 15 Q. In particular, were they similar to spot that you 16 earlier described today as spot A -- 17 MS. SAVAGE: Objection, Your Honor. Too 18 general. Move to strike, not relevant, no foundation. 19 THE COURT: Overruled. 20 A. "M" though "U" fit the criteria that I was using 21 to locate and isolate a spot. It had to be a dark red 22 substance, appeared to be -- had a blood-like substance 23 present, dark red, and appeared to me to have been 24 applied red adhering either to the fiber or absorbed 25 into the yarn. 1638 1 Q. With regard to "M" through "U" were any of these 2 spots loose material? 3 A. What's that again now? 4 Q. Were any of the spots "M" through "U" loose 5 material? 6 A. No. Everything was adhering to the fabric or the 7 fibers. 8 Q. In your opinion were spots "M" through "U" the 9 result of contamination? 10 A. Only if the source of the blood-like substance is 11 wet. 12 Q. And you said after finding these spots, you did 13 something with these spots; isn't that correct? 14 A. Yes. 15 Q. And what was that? Would you describe that 16 process to the Court? 17 A. Basically, the defense requested that I have 18 these things photographed before, after I made my cuts, 19 and then photograph of the cuttings. So, they would 20 note the progress of how things were removed, and I gave 21 them a photo documentation of the removal. 22 Q. And when you say removal, what kind of removal? 23 A. Basically going in with a scalpel, a surgical 24 scalpel, and cutting around the -- either cutting -- 25 going in and grabbing hold of the fiber that the 1639 1 blood-like substance is adhering to a fiber or yarn, 2 cutting that loose from the fabric and putting it on a 3 microscope slide to isolate it. 4 Q. What procedure did you use to cut out these 5 spots? 6 A. I just basically used a scalpel with use of 7 stereoscope. 8 Q. Did you use any special procedures to avoid any 9 contamination of one spot to the next spot? 10 A. Yes. I used a sterile blade. I had discussed 11 this evidence with the folks in the DNA unit. 12 MS. SAVAGE: Objection, Your Honor. 13 Hearsay, nonresponsive. 14 THE COURT: Overruled. He may explain his 15 procedures. 16 A. Based on minute quantity of the red-like 17 substance, a lot of these spots would be combined. I 18 made all the cuttings around these spots basically with 19 -- probably with one to three different blades because 20 they were going to be combined in the same vessel 21 eventually. So the cutting that I used, I didn't use 22 the same -- I didn't even use the same blade for the 23 boots. That's a different procedure. In this case, I 24 just basically went around the spot as close as I could 25 get to the spot without actually getting into the spot 1640 1 and cut the fabric or the fibers away. I've got 2 photographs I believe illustrating the single fibers and 3 the fabric swatches themselves. 4 Q. Okay. And turning your attention to photograph 5 27-78. 6 A. Okay. 7 Q. What is illustrated in photograph 27-78? 8 A. 27-78 are fibers I removed from the area at "A" 9 that were attached to single fibers. Now, these are 5X 10 magnification -- excuse me -- 1.4X mag and, of course, 11 5X photo magnification and 1.5 on the camera. They 12 contained the encrusted spots that are still adhering 13 fibers and encased around the fibers. 14 Q. And all of the material that's contained -- 15 that's illustrated in photograph 27-78 is from spot A; 16 is that correct? 17 A. That's correct. All of these are from spot A. 18 Q. Do you have a photograph of 79 there also? 19 A. Yes. I hope so. Yes. 20 Q. And what is illustrated in photograph 27-79? 21 A. 27-79 is a swatch of the remainder of "A" the 22 stain. That would be anything that's left to absorb 23 down the -- the material that's absorbed down into the 24 yarns. That would be the remainder of the stain. 25 Q. And did you proceed to do this for each one of 1641 1 the spots "A" through "U"? 2 A. Yes. I used the same procedure for everything, 3 "A" through "U". If I had loose fibers that could 4 demonstrate how blood-like substance was encapsulated 5 around the fiber, I would make those cuttings. I 6 believe the next photograph, 79-80, demonstrates that is 7 a very close-up view. 8 Q. What does 80 illustrate? 9 A. 27-80 are the fibers I removed from "P" but it's 10 at a higher magnification. 11 Q. And could you show those to the Court, please? 12 A. 27-80 shows the blood-like substance encapsulated 13 around the fibers and these three particular cuttings 14 that I made, and it's at 4X magnification. I believe 15 the other one is at 1.4X. 16 Q. And photograph 27-81, can you tell the Court what 17 that illustrates? 18 A. 81 would be a swatch that was removed from "B". 19 After I removed those that were adhering or became 20 encapsulated around the fibers, I then cut a swatch of 21 the remanding stain of the blood-like substance. 22 Q. And the remainder of the spots are illustrated in 23 other photographs, is that correct, 78 through 105; is 24 that correct? 25 A. Yes, sir. All very similar in appearance. 1642 1 Q. Okay. Once the material was removed, both the 2 fibers and the swatches, what was done with that? 3 A. They're placed -- all the single fibers were 4 placed in one capsule. They're photographed first, and 5 then they're placed into one capsule. And then the 6 swatches from all, from "A" through "U" were placed in 7 six other capsules. We had a total of seven capsules. 8 Q. What kind of capsule are you referring to? 9 A. This would be a vial that I received from the DNA 10 unit to put anything that's going to be -- they're going 11 to do DNA extraction. These are sterile vials that you 12 would place material in to look for DNA. 13 Q. And so, the fibers are placed in one of the 14 capsules; is that correct? 15 A. Right. All the single fibers with globulars are 16 placed in one capsule and the swatches are placed in the 17 remaining six. 18 Q. Okay. And what was then done with the capsules 19 or vials? 20 A. They were turned over to Agent Bissette. I 21 believe that was on the 14th of May. Let me check my 22 notes here on that one. Yeah. Everything was turned 23 over to her on the 14th of May. I have my notes. I 24 only have a notation by item #3, but that also includes 25 item #4. That was a mistake on my part in not making a 1643 1 notation on item #4, but there were seven capsules or 2 vials with material removed from the coveralls on #4. 3 The thing I have over to left of my margin there, turned 4 over to Agent Bissette on 5/14/04 includes the material 5 I removed for three and four. 6 Q. Did that complete your examination of the 7 coveralls? 8 A. Yes. Once I removed everything, I turned -- of 9 course, I did photograph the garment after the cuttings 10 were done and that concluded what I was doing. 11 Q. Were there other areas on the coveralls that you 12 examined? 13 A. Yes. I looked at the upper legs of the 14 coveralls, the arms, around the pockets, particularly 15 when someone's handled a bloody instrument they may have 16 blood on their hands or get blood in their pockets, and 17 I looked for those areas. I didn't find any other blood 18 in any other area except on the bottom of the leg. 19 MS. SAVAGE: Objection again, Your Honor, to 20 the term "blood". You have admonished him twice or 21 three times now. Move to strike his testimony. 22 THE COURT: Objection sustained. But I want 23 to assure counsel that I'm not considering his as having 24 given me an expert opinion or anything else on which I 25 can rely that it's actually blood at any time he may 1644 1 have said blood instead of blood-like substance. 2 Whether you objected or not, I won't consider it as 3 being evidence that it's actually blood. 4 You may proceed. 5 Q. Agent Bendure, were there any areas found outside 6 the lower front portions of the coveralls, the lower 7 front -- yeah, the lower front area of the coveralls? 8 A. All the spots that I located and isolated and cut 9 for testing by the DNA unit were taken off the front 10 areas of the lower left and right leg. 11 Q. As an expert did you attach any significance to 12 the location of these areas? 13 MS. SAVAGE: Objection, Your Honor. No 14 foundation, not qualified in that area. 15 THE COURT: Sustained. 16 Q. Was it important to you about the location of the 17 areas that you found? 18 MS. SAVAGE: Objection, Your Honor. Same 19 observation, not qualified in that area. 20 THE COURT: Mr. McNeill, do you wish to be 21 heard about his qualifications to comment on that? I 22 don't know what you're trying to elicit, but I'll give 23 you an opportunity to be heard. 24 MR. MCNEILL: Your Honor, what I would like 25 to be able to ask Agent Bendure was the areas in which 1645 1 -- the isolated areas in which he found these, whether 2 or not that impacts the confidence in his opinion that 3 these areas were not from contamination. And he's been 4 allowed to offer an opinion here that in his opinion 5 these were not from contamination other than the 6 possibility of some type of wet-like substance being 7 encrusted. As an expert in trace evidence in finding 8 these areas only in these isolated areas, I think that 9 he will have an opinion about whether or not that 10 supports his earlier expressed opinion about they could 11 not have been from contamination. 12 THE COURT: All right. Wish to be heard? 13 MS. SAVAGE: Your Honor, I think that 14 explanation speaks for itself. He's an expert in -- 15 you've qualified him as an expert in trace evidence. 16 His opinion about what it means at a certain location on 17 a garment regarding contamination is not -- he's not an 18 expert in that. There's no foundation that he is 19 qualified to talk about certain areas of a garment would 20 be contaminated more than other areas of a garment. 21 There's just simply no foundation for that. 22 THE COURT: Thank you. Objection's 23 overruled. You may restate your question, Mr. McNeill. 24 Q. The spots that you found were located in specific 25 areas on the garment; is that correct? 1646 1 A. The lower front area of both legs. 2 Q. Does that have any impact on your confidence in 3 your earlier testimony that these spots were not from 4 contamination? 5 A. In dealing with trace evidence, when I'm looking 6 for trace materials, whether it's a red-like substance 7 or any type of particular matter, I would expect to see 8 contamination on more than just one area. I would 9 expect to see it transferred to other areas of the 10 garment if it's contamination. To me, whatever was 11 applied here, this blood-like substance, was applied in 12 a wet state in a very isolated located area at the lower 13 part of the front of the legs. This is a piece of 14 garment in a bag. Other parts of the garment are going 15 to be exposed to whatever you have exposed, whatever the 16 source you're having is going to come from if it's 17 contamination. I would expect to see more in other 18 areas, but the isolated area of the bottom of the two 19 legs tends to show that it's probably not contamination. 20 I can't say beyond a reasonable doubt that it's not, but 21 I cannot state that -- I can clearly state I don't 22 believe it's contamination from dry flakes. 23 Q. Okay. 24 MS. SAVAGE: Objection, Your Honor. Move to 25 strike the entire statement he just made. Not reliable, 1647 1 no foundation, not relevant. 2 THE COURT: Overruled and denied. 3 Q. Now, in addition to the coveralls, you testified 4 that you had examined the boots; is that correct? 5 A. Yes, sir. 6 Q. And again showing you what's been previously 7 marked as State's Exhibit MAR Exhibit 33. Get you to, 8 first of all, identify it. 9 A. I can identify the bag. It bears my case number 10 that was assigned R2004-9144. It bears the lab number I 11 had assigned to it, lab #3; the date I received it on 12 4/21/04 from Deputy Mazur, and bears my initials. 13 Q. Okay. 14 A. I think the initial case, item number assigned to 15 it was item #31. This is exhibit MAR 33. 16 Q. Okay. And would you remove the contents. 17 A. Okay. 18 Q. And, do these appear to be the same boots that 19 you received from Deputy Mazur? 20 A. Yes. They were in this inner bag, the brown 21 paper bag here. There's an inside bag present. They 22 were inside that bag. I don't believe the bag was 23 probably sealed, but the outside bag was. And it bears 24 two military style boots, black in color. They bear my 25 case number, my initials, the date I received it, and 1648 1 the item number assigned to it from the lab. 2 Q. There are two boots -- 3 A. Two boots, a left and a right. 4 Q. And, did you proceed to examine those boots once 5 received at the lab? 6 A. Yes, I did. 7 Q. You know when your examination of the boots took 8 place? 9 A. I did a general screening. I think I completed 10 the right boot or the -- the right boot first. I did 11 not find anything present on it. I think I found three 12 areas of interest on the 3rd of May and noted those. 13 And later after I photographed them, I did the same type 14 of thing. I went in and removed them, isolated them, 15 and put them in a vial provided by the DNA unit, and 16 placed all three questioned areas in the vial. 17 Q. Okay. And you also had Mr. Trevillian photograph 18 steps of your examination of the boots; is that correct? 19 A. Yes. I did this basically at the request of the 20 defense. 21 Q. And directing your attention, first of all, to 22 photograph 27-106 -- 23 THE COURT: You need the boots any more at 24 this point? 25 MR. MCNEILL: No, Your Honor. 1649 1 THE COURT: Let him put the boots up. 2 MR. MCNEILL: Okay. Your Honor, it may be 3 helpful though for him to illustrate with the boot to 4 you where he found the areas. 5 THE COURT: That's fine. 6 Q. While you're doing that Agent Bendure, you said 7 you examined the right boot; is that correct? 8 A. Yes. 9 Q. And did you locate any areas of interest on the 10 right boot? 11 A. No. I did not find any blood-like substance on 12 the right boot. 13 Q. And how were you examining -- how did you examine 14 the boot? 15 A. They were examined visually first under some 16 bright light in my search room, my search area -- my 17 search table in my work area. And then after doing a 18 visual, I went in under the stereoscope. The boots are 19 a large item, so I have to -- I've got a swing arm 20 standing there and I can swing the scope off the edge 21 and hold the boot up underneath it. 22 Q. Did you check any areas of interest on the right 23 boot? 24 A. None on the right boot. 25 Q. I think you just testified that you did find 1650 1 areas on the left boot? 2 A. That's correct. Three areas in question. 3 Q. Okay. And where was the first area found? 4 A. The first one I located was on the edge of the 5 side. Let me get these gloves on. It was on the side 6 of the boot in this area here, the outside edge of the 7 boot down in the sort of a little rib pattern you see on 8 the sole, top of the edge of the sole of the boot. 9 Q. For the record, which boot are you holding up? 10 A. The left. 11 Q. Have you located photograph 106? Is that 12 correct? 13 A. Yes, I have. 14 Q. And what is depicted in 106? 15 A. 106 is a photograph of the left boot, side angle 16 showing the area, an overall of the left side of the 17 boot. 18 Q. That's from the left outside of the boot? 19 A. Left side of the left boot. 20 Q. Okay. I now direct your attention to photograph 21 108. 22 A. Okay. 23 Q. And what's depicted in photograph 108? 24 A. 108 is a closer shot of the left side of the 25 boot, shows the area in which I removed the -- appeared 1651 1 to me to be like a blood-like substance on the edge of 2 the top of the sole of the boot. 3 Q. Could you see the substance, Agent Bendure, with 4 your naked eye? 5 A. Yes. Well, I could see the material there, but 6 it didn't appear to me to be a blood-like substance 7 until I had it under the scope. 8 Q. And what color did it appear to you under the 9 scope? 10 A. Had the dark red that I was looking for. 11 Q. And does photograph 108 illustrate your testimony 12 here today? 13 A. Yes, it does. 14 Q. Let me direct you to -- if you could pass 15 photograph 108 to the Court, please. Direct you to 16 photograph 109. 17 A. 109, again is the same thing, but may be backed 18 off on the magnification by the photographer. It's 19 still a closeup on the left side. The lighting is a 20 little bit better and the red tint can be seen better. 21 Q. Did you probe the substance that you are 22 illustrating here on the side of the -- 23 A. Very little because it was encrusted and matted 24 up into the groove of the notch that it's up against. 25 Q. And, do you have a photograph that illustrates 1652 1 the substance at a greater magnification? 2 A. I believe so. If I could have just a moment, 3 please. Yes, I do. 27-112. 4 Q. And what is depicted in 27-112? 5 A. It shows the red-like substance I was looking 6 for. It's encrusted with some debris down on the 7 surface of that notch or that little ridge there. 8 Q. Is this photograph taken while the substance is 9 still adhered to the boot itself? 10 A. Yes. That's before I removed it. 11 Q. Okay. Now, if you would show that photograph to 12 the Court, please. Agent Bendure, did you locate other 13 areas on the left boot also? 14 A. Yes. There were two on the bottom. 15 Q. And, first of all, using the boot itself, would 16 you illustrate to the Court where the second area was? 17 A. The second -- I'm not really sure which one I 18 found first, but I believe it was probably the one -- 19 there was a small oval type stain that had dried on the 20 surface. It dried. You can tell it was adhering to the 21 surface; it had been cracked. When you get a substance 22 similar to blood on a surface like this and when it 23 dries, it will crack and start to separate. Pretty much 24 like the bottom of a waterbed or riverbed in the desert, 25 the ground starts to crack. When the blood dries, the 1653 1 material starts to crack and separate; and I've got a 2 photograph to demonstrate that. But that's right here 3 near the 9P -- excuse me -- 9R that's on the boot here. 4 Q. Is that raised lettering that you're referring 5 to? 6 A. Yes. That's raising lettering on the bottom of 7 the boot. And the area I removed, the questioned area 8 that I removed, you can see where I went in with a 9 scalpel and cut a lot of that area there. There's a cut 10 on the boot now. The other area, the one that may have 11 been second one or third one I believe, that's up here 12 in the second channel here, up in the corner, right up 13 in this area. 14 Q. Now, directing your attention to photograph 111, 15 do you have that photograph before you? 16 A. Sure. 17 Q. What does it illustrate? 18 A. 111 demonstrates the area I just described. 19 Q. Which one of the areas you just described? 20 A. The one near the raised lettering, the 9R, from 21 the bottom of the boot back towards the heel. I have a 22 photograph with a scale present and the area is right 23 below the metric scale I have right here. It's very 24 difficult to see. You have to use incident lighting to 25 see it at its best. 1654 1 Q. And how would you characterize the substance? I 2 mean, was it loose substance or -- 3 A. No. It's adhering to the surface. And I did go 4 in with a probe and had to pick those off the surface. 5 So I went and cut the scraping. I did some scraping and 6 cutting of that material. 7 Q. And, do you have a photograph there that 8 illustrates under greater magnification the substance 9 that you found in that second area near the 9P area? 10 A. Yes, I do. They are shots 27-116, 27-117, and 11 27-118, I believe show that. These are all closeups of 12 what I call the crusted on the surface. 13 Q. And that's on the arch area of the boot; is that 14 correct? 15 A. Yes. 116 is probably more of an overall; 117 and 16 118 are closer shots of some of the areas. 17 Q. Okay. Would you hand those up to the Court along 18 with photograph 111, I guess. 19 Now, directing your attention to photograph 20 27-110. You have that photograph? 21 A. Yes, I do. 22 Q. What does it illustrate? 23 A. 27-110 is the other third area. It shows the -- 24 an overall of the groove channel area here in the boot. 25 I have a metric scale in it. Right below the -- 1655 1 beginning of the metric scale, on this edge right here, 2 I have a red-like substance encrusted up against the 3 inside channel for that area. In other words, it would 4 not be in contact with the ground. It would be 5 protected down inside the cavity of this groove. 6 Q. And, did you also look at this area under greater 7 magnification? 8 A. Yes, I did. 9 Q. Do you have that photograph? 10 A. Yes. This shows the material -- 11 Q. Which photograph, first of all? 12 A. Photograph 27-115. It shows the material blown 13 up, the area blown up, and it's encrusted with some 14 debris on along the edge of that channel. 15 Q. In your opinion, Agent Bendure, were the three 16 areas that you found on the boot the result of 17 contamination? 18 A. I would feel that it would have to be -- 19 MS. SAVAGE: Objection, Your Honor. 20 THE COURT: Overruled. 21 A. As I said about the coveralls, I feel the 22 material I found on the boot would have to have been 23 applied wet. Mostly because of the way it's matted into 24 the material, absorbed down in the material mixed with 25 it, and also the little spot down towards the 9R 1656 1 lettering that looked to be -- appears to be a dried 2 spot on the surface. 3 Q. One of the areas was in the -- on the sole of 4 boot in the first area; isn't that correct? 5 A. Sole? 6 Q. On the outside of the sole. 7 A. What I call the top left side of the left boot 8 sole on the edge of it, along here where the left 9 leather is sewn in on the sole portion of the boot up on 10 the top edge. 11 Q. Okay. And is that in a creviced area? 12 A. Yes. 13 Q. Do you have any opinion about how a substance 14 would come to be encrusted in that creviced area? 15 MS. SAVAGE: Objection, Your Honor. No 16 foundation for that opinion. 17 THE COURT: Overruled. 18 A. What I was seeing was not a loose flake-like 19 material as described with the coveralls. It had to be 20 something that would have been applied wet. 21 Q. You removed these areas, is that correct, from 22 the boot, these three areas? 23 A. Yes. 24 Q. And can you tell the Court how you went about 25 doing that? 1657 1 A. Sterile scalpel blade to slice the material from 2 the side of the boot, the first spot. I used a scalpel 3 on the area inside that little channel or groove near 4 the toe. And I believe I cut and scraped on the spot 5 above the 9R. I may have scraped a few flakes off and 6 then took the rest of the stain or suspected stain off 7 with a scalpel blade. 8 Q. And what was done with this material that you 9 removed from the boot? 10 A. All placed in the same vial, DNA vial, the vial 11 for DNA provided to me by Special Agent Bissette. I 12 then put it in the vial, sealed it, and turned it over 13 to her on the 14th of May. 14 Q. There was a knife also submitted to you; isn't 15 that correct? 16 A. Yes, sir. 17 Q. I hand you what's been now marked as State's 18 Exhibit MAR Exhibit 35. 19 A. Leave that in the container? 20 Q. Yes. 21 A. Okay. 22 Q. Is this the exhibit that you received from Deputy 23 Mazur? 24 A. Yes, it is. 25 Q. Does it bear your -- 1658 1 A. It bears my markings on the outside and on the 2 handle of the blade -- of the knife. Excuse me. 3 Q. Did you make any examination of this item of 4 evidence? 5 A. Basically, I just went and viewed the possible or 6 suspected stains and made a note of those, made a 7 diagram, and then turned the knife directly over to 8 Agent Bissette. 9 Q. Did you remove the -- 10 A. Yes. I removed the knife from the case with the 11 defense present. 12 Q. What type of examination did you make of the 13 knife? 14 A. Basically just to see if there was anything there 15 that they could examine for, and I did find some suspect 16 stains that I photographed. Dr. Miller pointed one out 17 inside the handle for me, and I made a note of that to 18 the folks -- to them to look inside the handle also. 19 Q. And, did you direct Mr. Trevillian to take 20 photographs of the knife and the stains that you 21 detected on it? 22 A. Yes. 23 Q. And are those illustrated in photographs 120-130? 24 A. I believe so. Yes, sir. 27-120 through 27-130. 25 Q. Did you testify whether or not you removed any of 1659 1 the stains from the knife? 2 A. No. I just made -- areas of interest, I 3 photographed overalls of the knife. 4 Q. Which photograph are you referring to? 5 A. 27-120 and 121 are overalls of the knife; 27-122 6 is a shot of material. There's some type of smear or 7 encrusted stuff on the blade which I did not remove. 8 27-123 is a spot. I believe this is the spot that Dr. 9 Miller pointed out to me on the lock pinned down in the 10 handle. She asked me to photograph that. Another shot. 11 And I've got encrusted material on the other side of the 12 blade there. 13 Q. Which number are you referring? 14 A. 27-125. And then I've got 27-126 is another 15 duplicate of that or something close to that. And then 16 there's a smear that I was talking about on the blade. 17 That's State's Exhibit 27-127. You can see the smear on 18 the blade. Again, a dark red substance on the blade in 19 State's Exhibit 27-128. 129 is another shot, dark red 20 material on the blade. And then there's a shot of some 21 of the lettering, the Gerber lettering on the blade. 22 27-130, there's dark red material down into the 23 lettering that's stamped into the blade. 24 Q. Now, going back, if I could, to one of the spots 25 that was within the circle area on the coveralls. 1660 1 A. Yes. 2 Q. Were you aware that there had been a 3 phenolphthalein wiping of area "H"? 4 MS. SAVAGE: Objection, Your Honor. The 5 test was done with out-of-date chemicals. It has no 6 probative value. 7 THE COURT: Overruled. You may proceed with 8 the question. 9 A. It was indicated to me that a phenolphthalein 10 test had been performed, yes. 11 Q. Did you know which area had been tested with the 12 -- or had been wiped with the filter paper? Did you 13 know which area it was? 14 A. I could pick it out because of the condition of 15 that spot. There are two main spots in there, "G" and 16 "H". And "H," you can see that it's been braided a 17 little bit. As a matter of fact, if you look at the 18 photograph, in State's Exhibit 75 I believe, "H" is a 19 little bit -- has a more white area around it. That's 20 where you stroke over with filter paper, it may transfer 21 some fiber to the surface get that white appearance. 22 Q. And you examined "H" under the stereomicroscope; 23 isn't that correct? 24 A. Yes, sir. 25 Q. Was there any evidence under the microscope of 1661 1 any grinding of the material in spot H? 2 A. Just on the top of the surface, not down in the 3 yarn. Surface abrasion, yes. 4 MR. MCNEILL: Your Honor, that's all the 5 questions we have at the present time for Agent Bendure. 6 THE COURT: All right. Just one moment. 7 You can have a seat, Agent Bendure. 8 At this point are all of our exhibits back 9 into the bags? 10 THE WITNESS: Near the bags, sir. You want 11 me to put them back in the bags? 12 THE COURT: Yes. We'll start from scratch 13 that way. 14 While he's doing that, Mr. McNeill, I'm 15 going to let you put these photographs that have been 16 handed up back in with the other pictures so 17 everything's in numerical sequence that may be used as 18 reference by anybody who's looking for a photograph. 19 MR. MCNEILL: Glad to do so. 20 THE COURT: Thank you for the housekeeping. 21 All right. You may cross-examination. 22 MS. SAVAGE: I think this will be a good 23 time to take a comfort break. 24 THE COURT: That will be all right. 25 We're going to be at ease until 11:00. 1662 1 We'll take our morning break at this time. 2 (Recess 10:45.) 3 THE COURT: Let our witness come back 4 around, and you may proceed with cross-examination. 5 MS. SAVAGE: Thank you, Your Honor. 6 CROSS-EXAMINATION by MS. SAVAGE: 7 Q. Agent Bendure, you have no idea when the stains 8 that you're talking about today were deposited, do you? 9 A. I couldn't tell you when they were put on there, 10 no, ma'am. 11 Q. Do you have a current resume? 12 A. No. Not with me. 13 Q. Did you have one? 14 A. I've got one that's probably not up to date. It 15 hasn't been updated lately. 16 Q. Did the Attorney General or the District Attorney 17 tell you to bring your resume to court? 18 A. I was under the impression that everybody had all 19 the resumes. I didn't know you didn't have one. 20 Q. Did you give one to the Attorney General? 21 A. No. Because it goes in my file. They keep them 22 in my personnel file. 23 Q. Did he tell you though that expert witnesses were 24 supposed to turn over their CVs? 25 A. I was making the assumption that one had been 1663 1 turned in. 2 Q. Why did you make that assumption? 3 A. Because I thought from one of the memos I think 4 or motions you filed, I derived from the memo that all 5 that stuff had been turned over. 6 Q. So, then, on the next break, you can call the lab 7 and have them fax something to the Attorney General so 8 we can get that? 9 A. Somebody could have something faxed here. 10 Q. And I want to talk about the equipment in the 11 laboratory, specifically the microscope. The microscope 12 that you were using, did the SBI lab have microscopes in 13 1993? 14 A. Yes. 15 Q. And they certainly had microscopes that were 16 capable of doing 40 to 70X magnification; isn't that 17 right? 18 A. 70X? 19 Q. 40 to 70X? 20 A. Not stereoscope, not my section. We didn't have 21 anything up to 70X, no. But most of our scopes that 22 have been purchased -- we have the M8 model which goes 23 up to fifty, and then we proceeded to buy Olympus scopes 24 after that that go up to 64X. 25 Q. And when was that, 1993? 1664 1 A. Early mid 90's, something like that, yeah. The 2 last ten years. 3 Q. And 64 and 70, that's not really an appreciable 4 difference, is it? 5 A. Not really, but the lighting has improved, 6 particularly the condition of the scopes in serology 7 unit are probably not as anywhere near quality that we 8 have in our trace unit. 9 Q. Well, what's the difference in quality? 10 A. As I described yesterday, the stereoscopes used 11 in the serology unit have fluorescent lighting, which 12 did not give you good lighting or the surface of the 13 materials, not as good as the halogen light does. The 14 halogen light gives you a brighter light. The ring 15 light that you can now purchase gives you very uniform 16 light around the area. As a matter of fact, I joked 17 with them about their stereoscopes being like a toy. 18 Q. Well, isn't it true that the only difference 19 between the lighting is in the color, that fluorescent 20 lighting gives you kind of a bluish tint and halogen 21 lighting just a clearer light? 22 A. Yes. The bluing's going to have an affect on the 23 appearance of the stuff in yarns or the fibers. 24 Q. But color has nothing to do with the 25 magnification of availability, right? 1665 1 A. No. The magnifications aren't even close either. 2 These are really -- what I could described, I've been 3 using microscopes since 1981. And the scope that 4 serology and the DNA unit had at the time, to me are 5 poor quality stereoscopes. 6 Q. Well, was 1981. What about 1983, '90, '93? 7 A. '93, I'd say they had basically the same scopes. 8 They just purchased some new scopes. They're a lot 9 better and they're using I think the fiberoptics that we 10 use now. 11 Q. Did they have lighting in 1993 in the lab? 12 A. Yes, the fluorescent type. 13 Q. So if they wanted to look at evidence under 14 lighting or under the poorer microscopes that they had 15 back then, they had that option, right? 16 A. Sure. If they found something of interest. 17 Q. Now, on your report, you make no note of how the 18 evidence was previously packaged; isn't that right? 19 A. The container it came in, sealed brown paper bag. 20 Q. So someone looking at your report down the road 21 would not know how the evidence was packaged before it 22 got to the SBI this time, isn't that right? 23 A. I have no idea. I just can tell you how I 24 received it. It was in a sealed brown paper bag as far 25 as the coverall and the boots. The knife was in that 1666 1 plastic tube. 2 Q. Have you taken a look at Defense Exhibit Number 3 66 which is the laundry bin with the original evidence? 4 A. No. 5 Q. Can you come down and take a look at Exhibit 66? 6 A. Sure. Talking about the cart container? 7 Q. Right. 8 A. Okay. 9 Q. And can you see that in there items of evidence 10 from -- it says "DeCastro" and "Goode". You see that on 11 the single box right there? 12 A. Yeah. 13 Q. And do you see that three is a tailgate from a 14 car stuck in the box with the other evidence? 15 A. Tailgate from a truck, yes. 16 Q. And, did anyone tell you that the items -- you 17 can return to your seat? 18 A. Okay. 19 Q. Did anyone tell you that items of evidence that 20 you received were originally in with this laundry bin? 21 A. Oh, no. No one's told me anything about the 22 condition of the evidence except I think you pointed out 23 something in your visit that some of these items may 24 have been in contact with other items. 25 Q. So since I pointed it out to you, did you not 1667 1 think you should write that in your report so that 2 someone down the road, when they're reviewing it, would 3 know that there was possible contamination coming into 4 the lab? 5 A. Well, after you told, that's reason I told you in 6 the search room where we did the -- looked at the 7 coveralls, that I was limiting my search to the area 8 that I felt were absorbed into the yarns or applied in a 9 wet state. That would avoid anything like flakes. I 10 did describe that that day when I was going through the 11 spots I did locate. 12 Q. But did you make a note on your report that 13 someone else could look at it down the road to know that 14 the evidence coming into the lab was possibly 15 contaminated? 16 A. No. Because that's just information you're 17 telling me. That's not in my firsthand knowledge of 18 that. 19 Q. So, now, that you have firsthand knowledge seeing 20 the bin and the way the evidence is maintained, are you 21 going to go back to the lab and fill out a corrected 22 report? 23 MR. LOCK: Objection. 24 THE COURT: Grounds for the objection. 25 MR. LOCK: It's argumentative, Your Honor, 1668 1 saying corrected report. Supplemental might be more 2 accurate, but not a corrected report. 3 THE COURT: Sustained 4 Q. Are you going to go back to the lab and fill out 5 a supplemental report now that you've seen the bin of 6 evidence where the original evidence is -- 7 A. No, ma'am. My report describes what I do in my 8 analysis. They don't describe how the condition of the 9 evidence was prior to that. I can't describe where this 10 has been since then. You're showing me a bin of 11 evidence, but I can't tell you what was the contact with 12 what. I don't know if something was kept in a bag or 13 box separate from the tailgate or any of other piece of 14 evidence. 15 Q. Right. 16 A. I'm just going based on what you've told me, and 17 I can't go on your word to write a report. 18 Q. Okay. But you heard Mr. Mazur's testimony 19 yesterday? 20 A. Yes. Heard most of it. 21 Q. How he received the evidence, right? 22 A. Maybe the condition of the evidence as he got it, 23 but I don't know -- he said some of the bags were torn. 24 Q. Would you like to come down and take a better 25 look at the evidence so that you don't have to take my 1669 1 word for it. You can have firsthand information of how 2 the evidence is in this case? 3 A. I don't know how that would benefit me giving an 4 opinion about the condition of the evidence. 5 Q. Well, you're saying that there couldn't be any 6 contamination here. Does looking at that evidence not 7 change your opinion? 8 A. If you can show me a wet area of contamination, I 9 could say that. As I said before, the spots I was 10 looking at the blood had to been applied in a wet state. 11 If there's wet blood present now, which I doubt there 12 is, I couldn't give you a statement on contamination as 13 far as coming from other pieces of evidence. It would 14 had to been applied wet. 15 Q. Number one, what is your basis for saying that 16 contamination would only occur if it was wet? What is 17 the basis for that statement? 18 A. The state of the evidence that I was looking for, 19 how it was applied to the fibers and the yarns, as I 20 describe that yesterday. The only blood-like substance 21 I was looking for was anything to me that appeared to 22 have been applied in a wet state. If I had found 23 anything with flakes, I would not have examined it. 24 Q. But what I'm asking you is how can you support 25 your opinion? Are there studies conducted in the lab to 1670 1 support your opinion that says only something that 2 originated wet can cause contamination? Do you know of 3 any study? 4 A. Based on what I was observing, as I told you 5 yesterday, my observation, with my experience in looking 6 at bloody evidence from other analysts in the laboratory 7 and looking at fabrics and looking at surface of fabrics 8 over the last 23 years and using common sense in 9 deriving at what I saw, I made those conclusions that 10 I'm looking for something that had globular shape 11 encased in a fiber or was absorbed down into the yarn. 12 And when I say absorbed down into the yarn, you've a 13 dark red substance below the top fibers. If I've got a 14 blood -- 15 MS. SAVAGE: Objection, Your Honor. Move to 16 strike. This is nonresponsive. I asked if he could 17 support it with any study. 18 THE COURT: It's overruled. Please answer. 19 A. If I've got flakes that's been ground into the 20 fabric, most of that flake will be at the top of the 21 surface of material, not down encased down into the 22 yarns in a red state. When you smash blood flakes, they 23 tend to give you a yellowing effect. When you've got a 24 dried -- solid dried blood stain, it gives you a darker 25 red. As you pry into those little specs of blood, they 1671 1 have a yellowing effect. You're cutting in the serum, 2 dried serum. 3 Q. Can you point us to an article that supports your 4 opinion? 5 A. I don't believe anybody's done an article on that 6 theory. Not that I know of. 7 Q. Can you point us to any books that supports that 8 opinion? 9 A. No, ma'am. I just base it on my experience in 10 the laboratory and using common sense. 11 MS. SAVAGE: Move to strike all his 12 testimony, Your Honor. There's no foundation. It's 13 unreliable and -- it's unreliable. 14 THE COURT: Motion to strike is denied. 15 Q. Now, it's proper protocol in the lab that you put 16 paper under an item to examine in order to avoid 17 contamination; isn't that right? 18 A. That's correct. 19 Q. And paper underlying an item should be changed 20 whenever you examine another item of evidence; isn't 21 that right? 22 A. Yes. I wouldn't use the same piece of paper to 23 examine two items unless they were packaged in the same 24 packing. 25 Q. And when you're cutting an item, you change paper 1672 1 for each different time you're cutting; isn't that 2 right? 3 A. No, ma'am. Why should I change the paper? 4 Q. Well, when you touch the evidence in this case, 5 did you not notice that flakes, visible flakes fall onto 6 the paper? 7 A. Visible flakes, you mean after I did my cuttings? 8 Q. No. Just touching the evidence, did you not see 9 -- 10 A. I had debris on the material, yeah. 11 Q. Did you save that debris? 12 A. It should be in the paper if there's any there at 13 all. 14 Q. When you say it should be in the paper -- 15 A. I kept that pair of coveralls on that same piece 16 of paper. 17 Q. But did you collect that debris and keep it 18 separate? 19 A. No, ma'am. It's all fold up into the paper. 20 Q. Now, besides using a scalpel, did you ever change 21 that scalpel blade? 22 A. I used about three different blades. Because 23 when you're trying to make the fine cuts in these small 24 areas, the blade tends to start getting dull. I would 25 change the blade. 1673 1 Q. So you changed the bladed based on dullness, not 2 because of the contamination issue? 3 A. On the coveralls I changed it three times. I 4 knew we were going to combine all these stains together. 5 Q. But you said you found twenty something, 23 -- 6 A. 22. Through U, basically. You got W, X, Y, Z. 7 So it's 22. 8 Q. And you did not change blade for each and every 9 stain? 10 A. No. 11 Q. And besides using a blade, did you have to use 12 any forceps? 13 A. I was holding a pair of forceps, yes. 14 Q. How many pairs of forceps did you use? 15 A. I used the same pair on the coveralls. The 16 forceps were either holding the edge away from the stain 17 or holding the fiber away from the stain. 18 Q. And did you flame the forceps before you used 19 them? 20 A. In alcohol, flame and alcohol. 21 Q. And did you flame and alcohol them each time? 22 A. In between? 23 Q. Yes. 24 A. No, ma'am. Just the beginning of the cutting 25 because I knew all those cuttings were going to go 1674 1 together. 2 Q. When you say all the cuttings were you going to 3 go to together, didn't you say there were seven 4 different tubes? 5 A. Yes, I did. To get some space instead of 6 cramming it into one. The swatch is -- the size of the 7 vial, the swatches would take up too much room to put 8 everything into one. So I had to use up to about seven. 9 One for the sealed fibers with the globulars and I used 10 six others to put the rest of the swatches in. 11 Q. But are you saying that you were told there was 12 only going to be one DNA analysis of all the -- 13 everything you collected was going to go through DNA 14 analysis one time? 15 A. Based on the minute quantity, after consulting 16 with Agent Bissette -- just had her to look at it -- 17 based on the amount we had present, they thought that 18 they were going to have to run it all together. So when 19 I was using the forceps and using the scalpel on the 20 coveralls, there was no need to change the blade because 21 all those stains were going to be combined eventually. 22 Q. In terms of the lab, you would say that the 23 samples were all batched? 24 A. They were batched together, yes. You're talking 25 about something that's very small in quantity. 1675 1 Q. And you sampled -- and each one of those 2 suspected stains were co-mingled in order to be tested; 3 is that what you're saying? 4 A. Yes, ma'am. Including the single fibers. 5 Q. What kind of internal review support your type of 6 work production? Do you have any proficiency tests? 7 A. Based on what? Proficiency test on what? 8 Q. You know what the word proficiency test -- 9 A. Oh, yes. I do them all the time. I just 10 completed two. I've got different areas of analysis I 11 do and I do tests that are in accordance with ASCLD, 12 yes. I'm tested every year. 13 MS. SAVAGE: Your Honor, at this time I 14 would ask that we be given his proficiency test. I 15 don't believe we have those at this point, do we? 16 MR. MCNEILL: I know we turned over 17 proficiency tests to you. Whether or not you have one 18 for Agent Bendure, I don't know. 19 A. I believe you only requested proficiency test was 20 from Agent Freeman on your order that I read. Nothing 21 about proficiency tests from all the agents. 22 MS. SAVAGE: Your Honor, it was my 23 understanding that you informed the Attorney General's 24 Office that they were to turn over every piece of paper 25 in this case to us. 1676 1 THE COURT: Maybe I expected something 2 different than you did. But it would have appeared to 3 me that if there were something that you had requested 4 that you had not received, that I would have heard about 5 it before today's date at 11:15. 6 MS. SAVAGE: Your Honor, we weren't told he 7 was going to give an expert opinion. 8 THE COURT: I can't imagine what you thought 9 he was going to testify about if you didn't think it was 10 going to be an expert opinion. 11 MS. SAVAGE: Your Honor, we believe he was 12 going to testify as to what he did, how he actually did, 13 and not give opinions about what he thinks all that 14 means. And besides, Your Honor, I mean, we asked for 15 all the proficiency studies. I would think the Attorney 16 General would know that, you know, when we're asking for 17 proficiency studies. 18 THE COURT: At this point your request is 19 not timely. If you don't have it, that is too bad. 20 Q. Do your proficiency tests include giving you 21 blind samples? 22 A. My proficiency and most proficiency tests for -- 23 I'm trying to answer your question. 24 MS. SAVAGE: Your Honor, I don't care about 25 most proficiency tests, Your Honor. I asked about his 1677 1 proficiency test. 2 THE COURT: I'm going to let him put it in 3 whatever context he needs to explain and answer your 4 question. 5 You may proceed with your answer. 6 A. My proficiency test, as most proficiency tests 7 are given to laboratories across the country, there will 8 be identification of materials. And basically, the 9 identification of materials I deal with are metals, 10 fibers, arson or accelerant materials, and explosives. 11 I get proficiency tested in that area. As far as 12 looking through a microscope, nobody has proficiency 13 tests for looking through a microscope. No one does a 14 proficiency test in that area. You can't proficiency 15 test every tool that you used or that's all we would be 16 doing in the laboratory. 17 We do proficiency test for identification 18 purposes. I've not performed any identification here. 19 I've just described the material that appeared to be 20 something to me. I never said the samples were blood. 21 So, therefore, I've done no blood identification. 22 Therefore, I do no proficiencies on blood 23 identification. I'm not a serologist or a DNA person. 24 I just mainly look at materials because I know what they 25 look like. I went in and isolated the material and 1678 1 provided it to the DNA unit. 2 And the reason I told you about the wet 3 state of the material versus the dry state is that's 4 limited to that because you had that the fact that there 5 may have been some contamination; that that 6 contamination is most likely going to come in a dry 7 form. Unless you can show me where you got wet blood 8 packed in the evidence that's contaminated the evidence. 9 So, I'll know. So my opinions about the state of 10 wetness or blood being absorbed in the yarn is not 11 really what I call expert opinion. It's observation of 12 my experience and common sense. As far as proficiency, 13 getting back to the original question, there are no 14 proficiency tests for what I did that are given to 15 anybody. If you have one, I'd like to see it. 16 Q. Well, you're not familiar with everybody -- you 17 said all labs across the country -- 18 A. I try to stay very versed on what people are 19 proficiency tested on. Yes, I do. 20 Q. Have you ever been given a proficiency test with 21 known samples that you don't know about. In other 22 words, you know what a blind proficiency test is? 23 A. Yes. Yes, ma'am. 24 Q. Have you ever been given -- 25 A. In my area of expertise, I'm given blinds, yes. 1679 1 Q. Have you been given samples other than blood and 2 been tested with that? 3 A. I just described them--fibers, metals, explosives 4 and accelerants. 5 Q. No. I'm talking about ketchup or taco sauce, 6 coffee, things like that. 7 A. I've observed those things on garments. 8 Q. You been blind tested for those? 9 A. No. I don't believe anybody has been blind 10 tested for them. 11 Q. So you've never been blind tested for grease on 12 cloth? 13 A. No. I just know what grease stains look like. 14 Q. And you haven't been tested for taco sauce on 15 cloth? 16 A. No, ma'am. 17 Q. Or paint? 18 A. No. I've never been tested, but I know what 19 paint looks like. 20 Q. Or ketchup? 21 A. And I know what ketchup looks like too. 22 Q. But isn't that the same as saying a doctor 23 looking at a x-ray. They might see a spot, but you just 24 don't remove somebody's lung just because you see a spot 25 on a lung, right? 1680 1 A. I would never try to make that analogy between 2 what I do and what a doctor does. I'm just telling you 3 that I've removed material that appeared to be a 4 blood-like substance and appeared to be a dried, 5 absorbed or globular that dried on those fibers. That's 6 all I did. 7 Q. But you do know that there were two 8 phenolphthalein tests on the coveralls in 1993 and they 9 were both negative. You are aware of that? 10 A. You told me that yesterday. I did not know what 11 the tests or what the results were. 12 Q. Well, Agent Bissette did phenolphthalein on the 13 coveralls. It was negative. 14 A. Yes. 15 Q. You're now aware of that? 16 A. You told me that. 17 Q. Do you believe that or would you like to see a 18 report? 19 MR. LOCK: Objection. 20 A. I take your word. 21 THE COURT: Wait a minute. Sustained. Ask 22 your next question. 23 Q. The record shows that Agent Bissette did a 24 phenolphthalein and it was negative? 25 A. Okay. 1681 1 Q. And also Agent Deaver did a phenolphthalein on 2 the coveralls in 1993 and that was also negative. Are 3 you aware of that? 4 A. Sure. 5 Q. And also Agent Deaver did a phenolphthalein test 6 on the sole of the boot and it was also negative? 7 A. That's correct. 8 Q. And that was in 1993? 9 A. I guess. Yes, if that's what you say. 10 Q. Now, have you been trained in procedures for the 11 handling of biological evidence with an eye towards DNA 12 in particular? 13 A. No. I've just observed serologist handling DNA 14 or in blood evidence over the years. 15 Q. So, you've no specific training? 16 A. No. I've participated in luminols and crime 17 scene searches and things, but I've never trained, gone 18 through a training program in serology or DNA unit. 19 Q. And are you aware that with the greatest samples 20 there's even a bigger risk of cross-contamination? 21 A. Sure. 22 Q. Are you aware that you can inadvertently 23 cross-contaminate samples? 24 A. Could you be more specific. 25 Q. Well, you have some evidence that you can't see 1682 1 with the naked eye; is that right? 2 A. Like in this case, you couldn't see with the 3 naked eye. 4 Q. So you can cross-contaminate evidence because you 5 don't know you're even touching that evidence; isn't 6 that right? 7 A. You contaminate evidence, yes, if it's 8 transferred by some material. It goes back to those 9 transfer principles. Transfer evidence and that's going 10 to contact. 11 Q. Now, are you familiar with the term "substrate 12 controls"? 13 A. I have an idea what it is, yes. 14 Q. What is it? 15 A. Basically, it's a sample of the material that the 16 substances that your questioned stain is on and the 17 substrate or material is checked or put as control. You 18 apply your test against it to see if there's any false 19 positive or negative reaction. 20 Q. Is it fair to say that a substrate control would 21 be a piece, for example, of the coveralls adjacent to 22 where you've seen a spot but not -- adjacent to where 23 you've seen the spot, but there's nothing on it? 24 A. Well, we're talking about something that's very 25 small and you're talking about something that's almost 1683 1 invisible. So, I don't know how you can get a good 2 control off of coveralls. I did take pictures at your 3 request, Dr. Miller. I did take a shot of the clay 4 stain and the grease stain. 5 Q. But there are places on those coveralls where 6 there are no stains apparently, right? 7 A. Oh, sure. I would think there are some. Very 8 few, but there are some there. 9 Q. You could have cut a piece of coveralls had you 10 not -- basically what you would think nothing on, right? 11 A. If it is requested by somebody, I would do that, 12 yes. I'm not a DNA or serologist. My job is to remove 13 the blood-like substances that appeared to me to have 14 been applied in a wet state, put those in vial and pass 15 those on to the DNA folks. 16 Q. So nobody requested that you cut a clean area of 17 the coveralls so that they can be run as a control; is 18 that right? 19 A. No, ma'am. 20 Q. Now, your lab report says that you subjected the 21 items to macroscopic analysis? 22 A. Right. 23 Q. And macroscopic in the dictionary means you can 24 see it with the naked eye, right? 25 A. Well, it's from that laser word "microscopic." 1684 1 It takes something below 100X. Some of the vendors, 2 when they sell them, they sell microscopes they'll 3 describe them as microscopes. Some of the vendors will 4 describe them as macroscopes. It depends on who you're 5 dealing with. It's a term that's sort of used loosely. 6 Q. So anyone looking at your report down the road, 7 macroscopic, common sense would make them think -- 8 A. They can look at my magnifications of my pictures 9 and have an idea of how small -- 10 Q. I'm asking about the word macroscopic. A person 11 looking at that word, macroscopic, common sense would 12 mean if you looked in the dictionary it meant you were 13 looking at it with the naked eye, right? 14 A. Well, you're looking at it with the naked eyed. 15 But to me, what I've had vendors to describe that scope, 16 that is a microscope. That's not the naked eye. You're 17 still going through an optic system. It's a microscope. 18 So, I mean, you're not just using the naked eye. You're 19 using the naked eye to use it to look at anything, but 20 you're looking at what's called a low-powered 21 magnification. When I use the term macroscopic, I mean 22 low mag. That's my definition. 23 Q. But a person looking at your report -- you're 24 talking about common sense, common sense to anybody 25 looking at a report would think macroscopic meant naked 1685 1 eye? 2 A. Well, anybody that's dealt with industry buying 3 microscopes knows that the term is used loosely. So 4 they would have to be a little cautious at how they 5 approach the word "macroscopic," not just the straight 6 dictionary meaning. Anybody that's been in the 7 microscopic area, deals with microscopes and 8 stereomicroscopes particularly, knows the term is used 9 both ways. Some of the vendors use microscopes and some 10 of them use macroscope. 11 Q. Now, did you request or did you yourself do 12 presumptive or screening tests on any of the other 13 stains before turning them over? 14 A. I did no presumptive testing because I was just 15 trying to preserve the stains that I observed and to 16 pass those on to DNA. They made the judgment call 17 whether they should do any other preliminary testing. 18 Q. When you say preserve, because when you do 19 phenolphthalein you do -- 20 A. You'll take some of the material away, yes. 21 Q. Now, is it fair to say that we can't a hundred 22 percent -- we'll never be able to say with a hundred 23 percent certainty that those stains -- we'll never be 24 able to identify those stains as being blood, will we? 25 A. I don't know. That's not my job. My job was to 1686 1 remove a blood-like substance that appeared to have been 2 applied in a wet state and turn that over. From my 3 understanding, there was not going to be any other 4 testing but DNA testing to see if the victim's DNA was 5 present in those red substances. 6 Q. So your understanding was that the lab was never 7 going to confirm that the stain was blood; is that 8 right? 9 A. I think you would ruin the samples in my opinion. 10 You would ruin what you had there. If you ever tried to 11 do any preliminary testing, you would have shot your wad 12 on everything and you would have done. And the same 13 thing in '92, you would have wasted all your samples or 14 '93, excuse me. If you tried to do any testing in '93 15 because we didn't have the equipment to do that. 16 Q. Wait. Let's take this one step at a time. Do 17 you think you've answered my question? 18 A. Yes, I believe I did. 19 Q. The question was is it your understanding that 20 the lab did not plan to do any confirmatory test that 21 the substance was, in fact, blood? That's the question. 22 A. All I have is an impression that the lab was 23 going to take my stains that I cut out and run them for 24 DNA. I don't know of any other test that they tried to 25 do. There may have been some testing done on the knife 1687 1 because of the quantity on the blade, I don't know. 2 Once I turned the samples over, I don't know what 3 happens as far as their testing. My impression was they 4 were going to DNA testing of those red substances. 5 Q. You're not under the impression that DNA is a 6 blood test, are you? 7 A. No. DNA is DNA. DNA is various materials--hair 8 root, hair shaft. You get a mitochondrial DNA in the 9 hair shaft. There are all various types of DNA -- 10 forms, excuse me. 11 MS. SAVAGE: Court's indulgence. 12 MS. MILES: Your Honor, I'm looking for a 13 document right now. If I could have just a second I 14 think I can put my hands on it. 15 Q. Do you have with you Agent Bendure your whole 16 file? 17 A. Yes. I think I provided you a copy of that. 18 Q. But I want -- 19 A. I have nothing more than what you got there. You 20 should have my file. 21 MS. SAVAGE: I'd like to mark this as 22 Defendant's Exhibit 67 for identification purposes -- 23 68. 24 (Defendant's Exhibit Number 68 for 25 identification.) 1688 1 Q. Are you familiar with this request for 2 examination of physical evidence? 3 A. This is the SBI file form I received. I have a 4 photocopy thereof. 5 Q. And you have a copy of it in your notes? 6 A. Yes. 7 Q. Okay. And can you identify what is it? 8 A. That's the SBI file and request form. 9 Q. And who did you receive that from? 10 A. The submitting person, they first had Duane 11 Deaver's name on here, but Ron Mazur is actually the one 12 who made the request or brought the evidence in. 13 Q. And, do you see on there you were supposed to 14 examine the brown bag containing the black boots, the 15 brown bag containing the coveralls and the clear plastic 16 tube containing the knife for the presence of blood? 17 A. Right. 18 Q. And the presence of blood means use 19 phenolphthalein, isn't that true? 20 A. No to me. I'm looking for what appears to be 21 blood. I'm just trying to isolate it. 22 Q. But do you see where it says additional analysis 23 requested. Instructions, if blood is found on items 31, 24 32B or 3-T, please type for DNA and compare to items 19 25 and 20. You see where it says that? 1689 1 A. Yes. 2 Q. Okay. There is no test that you can point to say 3 blood was found on item 31, the boots; 32B, the 4 coveralls or 3-T, the knife; isn't that right? 5 A. Not from here. I didn't -- I wasn't trying to 6 find blood. I was trying to find anything that appeared 7 to be blood and then pass that on. And I believe Agent 8 Deaver knows that I don't identify blood. So I think 9 when he used the term "blood," he's referring to 10 anything I thought appeared to be blood. 11 Q. Was there a corrected report then so that this 12 would say thought to be blood? 13 A. No, ma'am. We get all kinds of requests on these 14 forms as we have to correct them sometimes and show them 15 what we're actually looking for. Some of these forms 16 are not -- I don't put a lot of stock in this as 17 actually being marching orders of what I'm suppose to be 18 doing. I was supposed to be looking for something. And 19 in talking to him over the phone or through a phone 20 message, I would be looking for something that appeared 21 to be blood, I select that and pass it on to the DNA 22 folks. 23 Q. But you understand how documentation is very 24 important, right? 25 A. Sure. 1690 1 Q. But you could leave the lab and someone else has 2 to rely on your reports and these types of requests for 3 information; isn't that right? 4 A. Yes, ma'am. And anybody that knows where's I was 5 assigned to the unit would know that I don't identify 6 blood, and they would know that I'm just removing a 7 blood-like substance. 8 Q. But people down the road who don't know you and 9 where you were assigned, they look at this and it says 10 that blood is found on items, please type for DNA. 11 Isn't that what it says? 12 A. That's what it says on the form, ma'am, but 13 that's not the -- 14 Q. Good enough. 15 MS. SAVAGE: Move to admit Exhibit 67 (sic). 16 Your Honor, I need to make a copy first. So may I hold 17 it until we have a copy? 18 THE COURT: If we correct our number to 68. 19 MS. MILES: 68. 20 THE COURT: 68 is admitted. Copy can be 21 handed up when it's available. 22 (Defendant's Exhibit 68 admitted into 23 evidence.) 24 MS. MILES: Your Honor, I think the Clerk 25 was going to copy something else for us. If I could go 1691 1 ahead and hang this up. 2 THE COURT: That will be great. 3 By MS. SAVAGE: 4 Q. Now, you said you did not know of any wet source 5 that could have caused contamination; is that right? 6 A. That's correct. 7 Q. Were you here when Agent Deaver testified 8 yesterday? 9 A. Most of it, I believe I was here. 10 Q. Did you hear when he talked about how the package 11 that housed Mr. Batten's shirt, the stain had soaked 12 through? Did you hear that testimony? 13 A. Had soaked through. I didn't hear that. 14 Q. You didn't hear that testimony. And you don't 15 see any evidence on these coveralls of stain having 16 soaked through from one side to the other, do you? 17 A. No. I would not think this blood-like substance 18 that's on the coveralls would be where I've got an item 19 that is soaking onto it. A soaking stain appear a 20 little different than that. I do have droplets on the 21 surface of these stains. If it was just something that 22 was soaking through or making forcing contact, the blood 23 would go into the fabric and would not have a lot 24 similar surface on these fibers. 25 Q. Are you an expert in bloodstain pattern analysis? 1692 1 A. No, ma'am. I'm not trying to say I am. 2 Q. Now, at some point you said you were looking 3 through slides and that's how you noticed some material 4 that was overlooked? 5 A. Yes. After I done "A" through "L" I was 6 collecting or taking the cuttings from the "A" through 7 -- I think it's about "G" and "H" there. I was taking 8 those cuttings off and placing them on a slide. 9 Underneath the slide that set on top of the coveralls, I 10 noticed through the slide there was some other dark 11 stains that I had overlooked. They're smaller stain. 12 Q. So you sat a slide on top of the coveralls? 13 A. Sure. A sterile slide. 14 Q. And looking through the slide you saw other 15 stains; is that what you're saying? 16 A. Just smaller droplets than the ones I was 17 finding. I think my notes -- you got a copy of my 18 notes. The stains that are found, particularly with "P" 19 they're all basically one two to millimeters. They're a 20 lot smaller in size than any of the spots I've looked 21 at. 22 Q. Did you have a magnification slide? 23 A. Magnification slide? 24 Q. No such thing, right? 25 A. You have that for a microscope, but not on a 1693 1 stereomicroscope. I had a scale that I used. 2 Q. Why did the slide show the stain up? 3 A. The level of where I'm taking the cuttings from 4 was probably a different height than where I had the 5 slide because of the nature of the material. After I go 6 to the slide to take the cutting to the slide, I would 7 have to readjust my focus and some time I would 8 overshoot my focus and go through the slide, and that's 9 when I observed the darker material underneath the 10 slide. 11 Q. And you did say you can't determine the timing of 12 any deposit of any substance? 13 A. No, ma'am. I can't tell you when this material 14 was placed on there. 15 Q. So at this point, as far as you know, we can no 16 longer source the DNA profile back to any one particular 17 spot; isn't that right? 18 A. All I can tell you is that whatever they get 19 derived came from the combination of all those 20 materials. 21 Q. Right. So the question is we cannot source the 22 DNA profile back to any one particular spot? 23 A. No, ma'am, cannot because they were combined. As 24 far as I know they were combined. I was told they would 25 be combined. 1694 1 MS. SAVAGE: Court's indulgence. 2 Q. Now, you said that you could notice some white 3 fibers from the phenolphthalein test; is that right? 4 A. I noticed a discoloration, a light discoloration 5 to the area on "H". From what I observed, it looks like 6 that was the one that Agent Deaver probably wipe because 7 of the condition of the material on the surface. 8 Q. There's no way of knowing whether or not that was 9 due to a phenolphthalein test that was purportedly done 10 now in 2004 or from the two phenolphthalein tests that 11 were done back in 1993? 12 A. As I say, there's an area that -- from the 13 information that I received of the two areas, that was 14 the one that was more than likely wiped. I can't tell 15 you what time it was done. I wasn't there. 16 Q. Are you aware that in Defendant's Exhibit Number 17 66, which is the laundry bin of all the evidence, that 18 there's a vial with blood and the stopper's off the top 19 of the blood? 20 A. I understand that's in a zip-lock bag, a plastic 21 bag. 22 Q. So someone told you that there was a vial of 23 blood -- 24 A. Yes. I asked about it. 25 Q. Okay. 1695 1 A. It was inside a sealed bag. 2 Q. But nobody could tell you -- now, you heard 3 testimony that this evidence went through four trials, 4 right? 5 A. I don't know about how many trials. 6 Q. You heard testimony that this evidence was seen 7 and touched by many, many people, right? 8 A. I would assume it has if it's been through that 9 many trials. 10 Q. So you don't know whether or not at any point -- 11 you don't know at what point that vial was put into a 12 plastic bag and sealed? 13 A. All I can say is that with cautions that court 14 personnel and officers take, that they would not open 15 the vial of blood in court. I've never seen anybody 16 open a vial of blood in court. That's usually going to 17 be kept in its original container just for health 18 hazards. I would assume that was -- the conditions were 19 followed. I haven't trailed the evidence, so I can't 20 tell you what has been done with it. But it's 21 reasonable to assume that it has not been opened unless 22 you can show an event where it did. 23 Q. The top is off. You'll agree with that? 24 A. That's common. They'll upon off, yeah. 25 Q. Actually, when it pops off, you get a spray, 1696 1 don't you? 2 A. I would assume that if it popped off in the bag, 3 that it should have been maintained by the plastic. 4 Q. But you don't really know. You're making an 5 assumption. You don't know when it popped off, do you? 6 A. No, I don't. 7 Q. Okay. And when you say how evidence is kept, 8 have you ever seen it kept like this before? 9 A. I have not been to the evidence room after that 10 post-trial. 11 MS. SAVAGE: No further questions, Your 12 Honor. 13 THE COURT: Is there any redirect? 14 MR. MCNEILL: One moment, Your Honor. 15 REDIRECT EXAMINATION by MR. MCNEILL: 16 Q. Agent Bendure, have you ever seen the vials in 17 question that you were just asked about? 18 A. No, sir. 19 Q. I'm showing you what's been previously marked as 20 State's Trial Exhibit 86. What does that appear to be? 21 A. It appears to be a zip-lock bag with label on the 22 front that says "known blood samples" with bubble wrap 23 inside and two vials of blood present, one with a 24 stopper in and one out. 25 Q. Is there any indication by your examination of 1697 1 these two vials that there was any blood leakage from 2 the vials? 3 A. Nothing that I can vision -- 4 MS. SAVAGE: Objection, Your Honor. This 5 goes beyond the scope of his expertise. 6 THE COURT: Sustained. 7 MR. MCNEILL: Your Honor, I would submit 8 that this is a -- was opened on cross-examination. She 9 was asking him about the possibility of blood coming 10 from these containers. All I'm doing is asking the 11 witness, and I'll hand it up to the Court for the Court 12 to examine. 13 MS. SAVAGE: And, Your Honor, I would say, 14 you know, molecules of blood might not be seen with the 15 human eye. There's no way except with an expert. I'm 16 not even sure an expert can determine whether or not 17 there are any molecules of blood that have been let out 18 of the tube in the lab. I mean, he obviously knows when 19 you open a tube you get sprayed, but that doesn't mean 20 you actually see molecules of blood. 21 THE COURT: Okay. The objection is 22 overruled. She asked him about the vials. I'll allow 23 the State to ask him about the vials. 24 Q. Agent Bendure, if you will take a moment to 25 examine State's Trial Exhibit 86. 1698 1 A. Okay. 2 Q. And you're examining it just by your naked eye; 3 isn't that correct? 4 A. Yes. 5 Q. Through the plastic bag and container? 6 A. Yes. I got two tubes of blood. As I said, one 7 with the stopper out and one with the stopper in. 8 Q. Just to the naked eye, your examination here in 9 court today, does it appear to be any type of leakage 10 from the containers, the vials that are contained in 11 State's Exhibit 86? 12 A. Not to the naked eye. I couldn't say anything 13 beyond that unless I looked at the surface of the wrap 14 inside, but it seems to be sealed up in bubble wrap. 15 Q. Does it appear that the blood samples that are 16 contained in State's Exhibit 86 are dry or liquid? 17 A. It appears the one that has the stopper in is in 18 a liquid form. There's some liquid there that you can 19 see going back and forth. The one that's open appears 20 to be dry. 21 Q. Now, I ask you to examine State's Exhibit 87 also 22 for the same purpose? 23 A. It's hard to determine on these. There may be a 24 little blood in there. I can't really tell looking at 25 these. But they both appear to be sealed with stoppers 1699 1 in place. 2 Q. Would State's Exhibit, Trial Exhibit 87, does it 3 appear to be any leakage? 4 A. No, sir. Not to the naked eye. 5 MR. MCNEILL: Your Honor, I'm going to hand 6 these up to the bench if you care to take your own 7 examination of these two exhibits. 8 THE COURT: Thank you. 9 MR. MCNEILL: And then I'll be glad to 10 return them to the evidence bin. And with that, Your 11 Honor, we have no further questions of Agent Bendure. 12 THE COURT: Any recross? 13 MS. SAVAGE: Yes, Your Honor. 14 RECROSS-EXAMINATION by MS. SAVAGE: 15 Q. You're not sure who, if anybody, opened the 16 packaging, took the vials out, put them back, are you? 17 A. I couldn't give any statement about where the 18 vials have been. I wasn't there. 19 Q. Right. And you don't know when the blood dried? 20 A. No, ma'am. 21 Q. And you've seen them typically more full than 22 they are now, right? 23 A. What do you mean, typically more full? 24 Q. Well, someone took a sample out of those tubes at 25 some point, right? 1700 1 A. I would assume so in the laboratory, yes, but I 2 don't know. 3 Q. So looking at them now is really nothing you can 4 say that can help us with whether or not there's leakage 5 into the bag or not. There could have been leakage if 6 the tube was out of the bag; isn't that right? 7 A. I think you would have to ask the serologist or a 8 DNA person that handled the evidence in the lab whether 9 they were opened up not. I don't know. 10 Q. Well, you don't know if the attorneys opened up 11 the bag? 12 A. I don't know. 13 Q. And looked at the vial? 14 A. I wasn't there 15 THE COURT: Without any further questions, 16 I'm going to accept the fact that he doesn't know the 17 history of those vials or that blood. 18 MS. SAVAGE: Then I have no further 19 questions. 20 THE COURT: You don't have to probe that any 21 further. All right. 22 Anything else, Mr. McNeill? 23 MR. MCNEILL: No, Your Honor. I'll be glad 24 to retake the evidence. 25 THE COURT: Appreciate that. You can step 1701 1 down, Agent Bendure. May Agent Bendure be excused? 2 MR. MCNEILL: By the State, yes. 3 THE COURT: How about by the defendant? 4 MS. SAVAGE: Your Honor, he did say he would 5 have the CV back to us so that we can take a look at 6 that. 7 THE WITNESS: I'll go back this afternoon 8 and I can actually update it for you and send it to you. 9 You got a fax number here I can use? 10 THE COURT: Mr. LOCK will give you one. 11 I probably should have told you this 12 earlier. I think our schedule today will probably be 13 lunch 12:30 to 1:30. I'm told that might accommodate 14 the people out on the metal detector a little bit better 15 than waiting until 1:00. So that's where I'm headed in 16 my thinking unless there's some reason not to do that. 17 MR. LOCK: Your Honor, that would certainly 18 be fine. There is one thing I need to let the Court -- 19 at 2:00 I am slated to appear in Judge Jenkins' 20 courtroom next door. I have a fairly brief extradition 21 matter involving a defendant by the name of Martha 22 Grimesly wanted by the State of Virginia. A Governor's 23 warrant has been served on her. Judge Jenkins gave her 24 lawyers until today to file a petition for writ of 25 habeas corpus. As of this morning, they had not done 1702 1 that, but they may still do it between now and 2:00. 2 I conferred with Judge Jenkins over the 3 morning recess and he told me he would still like to 4 hear the matter at two and thought it would take no more 5 than about 15 minutes. I am the only one in my office 6 who is familiar with that. I will be examining the next 7 witness who is Brenda Bissette. We may not be through 8 her testimony by then. So if we really convene at 1:30, 9 that's fine. But at 2:00, I may need to be excused for 10 about 15 or 20 minutes. 11 THE COURT: We'll accommodate what's needed. 12 MR. LOCK: Thank you. And before I forget, 13 Your Honor, I have reviewed the Clerk's file, in 14 particular the evidence list from the trial of State v. 15 Eugene DeCastro and have satisfied myself that the 16 coveralls and combat boots identified as belonging to 17 George Goode were not introduced by the State into 18 evidence during the trial of Eugene DeCastro, and indeed 19 was not introduced by either party. 20 THE COURT: All right. Thank you. 21 All right. The State may proceed. 22 MR. LOCK: Thank you, Your Honor. May I 23 have one moment to retrieve some evidence? 24 THE COURT: With further information you've 25 given, Mr. Lock, I think we'll do our lunch break from 1703 1 1:00 to 2:00. The sheriff will just have to let the 2 metal detector guys know that. At any rate, we'll 3 probably go from 1:00 to about 2:15. 4 MR. LOCK: All right. Very good. 5 THE COURT: 1:00 to 2:15. But I don't want 6 you to think that imposes a time limit on you of 2:15. 7 If you're a few minutes over that next door, do what you 8 need to do to get that finished and then join us. 9 MR. LOCK: Thank you, Your Honor. I'll have 10 one of my senior assistants appear with me. And perhaps 11 get into a traffic matter, he can fill in for me over 12 there. Thank you. 13 Your Honor, the State calls Brenda Bissette. 14 ******** 15 BRENDA BISSETTE, being first duly sworn, was examined 16 and testified as follows during DIRECT EXAMINATION by 17 MR. LOCK: 18 Q. Please state your name and your occupation for 19 this court? 20 A. Brenda Bissette. I am employed by the State 21 Bureau of Investigation Crime Laboratory in the DNA unit 22 at the present time, and prior to that have been in the 23 forensic biology section my entire career. 24 Q. If you would just relate for the jury in summary 25 fashion your educational background and your 1704 1 professional training and experience since joining the 2 State Bureau of Investigation? 3 THE COURT: Let me stop you there just a 4 second. I believe we had done that at earlier hearing. 5 MR. LOCK: I believe you're right. 6 THE COURT: And that she has been accepted 7 as an expert and in the field of -- you folks remember 8 exactly? 9 MR. LOCK: Your Honor, I believe it was 10 forensic serology the last time. I certainly will be 11 tending her to the Court as an expert in forensic 12 serology and DNA analysis. I also have a CV which might 13 expedite matters a little bit by way of qualification 14 questions. 15 THE COURT: All right. Does the defendant 16 wish to be heard or contest her ability to testify in 17 those areas or her qualification to testify in those 18 areas? 19 MS. SAVAGE: Your Honor, do you recall what 20 she was qualified -- we don't recall her testifying. 21 MR. LOCK: I recall her testifying. 22 THE COURT: I certainly recall her 23 testifying. I think at the time it probably was 24 forensic serology because we weren't into DNA at that 25 point in the hearing. So it may be that I was crossing 1705 1 over a little bit from the last subject matter to this 2 and maybe this is -- why don't you go ahead with your 3 questions, Mr. Lock. 4 MR. LOCK: I will try to expedite matters a 5 bit. 6 Q. Ms. Bissette, have you brought with you to court 7 today a CV or resume summarizing your educational 8 background and your professional training and experience 9 in the areas of forensic serology and forensic DNA 10 analysis? 11 A. No, I did not. I was not aware that I needed to. 12 Q. Do you know that the SBI maintains such a CV in 13 your personnel file? 14 A. Yes. 15 MR. LOCK: May I approach the witness? 16 MS. SAVAGE: That's been given to us. 17 THE COURT: All right. 18 Q. Agent Bissette, I'm going to hand you what has 19 been marked for identification purposes as State's 20 Exhibit MAR 39, and I'll ask you if you can identify 21 that document? 22 A. Yes, I can. 23 Q. And what is that? 24 A. This particular document is a statement of my 25 educational background and qualifications regarding my 1706 1 employment with the SBI. 2 Q. And is the information set forth in that document 3 true and accurate with regard to your educational 4 background and your professional experience? 5 A. Yes. 6 MR. LOCK: Your Honor, move to introduce 7 Exhibit MAR 39 into evidence. 8 THE COURT: It is admitted. 9 (State's Exhibit MAR 39 admitted into 10 evidence.) 11 Q. Now, Agent Bissette, I believe you testified in 12 the original trial of State v. George Goode as an expert 13 witness in the field of forensic serology; is that 14 correct? 15 A. To the best of my recollection, I do not believe 16 that I testified in the George Goode trial. It was 17 during the death of my mother and agent -- another agent 18 within the section testified on my behalf. 19 Q. Did you testify during the trials of 20 co-defendants Eugene DeCastro and William Christopher 21 Goode as an expert witness in the field of forensic 22 serology? 23 A. Yes, I did. 24 Q. And do certain ABO blood grouping work in 25 connection with the case now before the Court? 1707 1 A. Yes. 2 Q. Particularly, I believe you examined certain 3 coveralls identified as belonging to the defendant 4 George Goode; is that correct? 5 A. That's correct. 6 Q. And over the course of your career, approximately 7 how many times have you been qualified and testified as 8 an expert witness in the field of forensic serology? 9 A. Over 200 times. 10 MR. LOCK: Your Honor, at this time I tender 11 the witness to the Court as an expert in the field of 12 forensic serology. 13 THE COURT: She will be allowed to testify 14 as expert in that area. 15 Q. Now, Agent Bissette, since beginning your 16 employment with the SBI, have you also received training 17 in the field of forensic DNA analysis? 18 A. Yes, I have. 19 Q. When did you first begin doing forensic DNA 20 analysis? 21 A. In the latter part of 1996. 22 Q. Describe for the court the training you received 23 in forensic DNA analysis. 24 A. I took some graduate level courses at North 25 Carolina State University in Molecular or Genetic, and 1708 1 in addition underwent a training program at the 2 laboratory. 3 Q. And what sort of training did you receive at the 4 SBI laboratory in forensic DNA analysis? 5 A. It involved the actual testing of various types 6 of samples, both single source, fixed samples, 7 forensically challenged samples as well as a competency 8 test in addition to written test concerning DNA 9 analysis. 10 Q. Now, if you would, tell us first, what DNA is and 11 then tell us what forensic DNA analysis is? 12 A. Well, basically, DNA is the blueprint of life. 13 It's found in any number of areas in the body. It can 14 be either nuclear, which are in the cells of the body, 15 or it can be mitochondrial or it could be any number of 16 other places. It's basically is what accounts for the 17 physical features and physical functions of the body. 18 Forensic DNA analysis is an examination of 19 areas of DNA primarily for the purposes of 20 identification. The large majority of human DNA is 21 exactly the same from person to person and the remaining 22 is where variation exist between individuals. A 23 forensic examination is actually where you want to look 24 for unique characteristics of, say, a body fluid, such 25 as blood and make a comparison of those characteristics 1709 1 to known samples that may be obtained from individuals 2 involved in a particular case. 3 Q. Is DNA, by the way, an abbreviation or acronym 4 for some longer word? 5 A. Yes, it is. 6 Q. What is that? 7 A. Deoxyribonucleic acid. 8 Q. Now, what is meant by the term forensic DNA 9 profile? 10 MS. SAVAGE: Your Honor, this seem to be -- 11 I didn't -- maybe I missed it, but did Your Honor rule 12 that she's an expert in DNA? 13 MR. LOCK: I haven't tender her yet. 14 MS. SAVAGE: Well, then, these questions 15 seem like they're out of the proper routine. She's 16 already given opinions without having been tendered as 17 an expert or accepted as an expert. 18 THE COURT: If that's an objection to the 19 question, it's overruled. You may proceed. 20 A. Could you restate your question? 21 Q. Yes. What is meant by the term forensic DNA 22 profile? 23 A. Well, a forensic DNA profile is a profile that is 24 obtained from, say, a blood sample that is found on some 25 article of clothing of the suspect or at a crime scene. 1710 1 Some type of DNA profile from an incident where a body 2 fluid may have been shared. 3 Q. Now, are there different types of forensic DNA 4 analysis? 5 A. Certainly. 6 Q. Have you been trained in different types of 7 forensic DNA analysis? 8 A. I am trained primarily in PCR and STR analysis 9 looking at certain genetic areas. The term is short 10 tandem repeats. 11 Q. And would you describe what you mean by PCR and 12 then STR methods of forensic DNA analysis? 13 A. Well, PCR is just a part of the overall process 14 that is used in the generation of a genetic profile in 15 which, once DNA has been extracted and quantitated, then 16 the area that you really want to test or the specific 17 STR areas which are a broad category of DNA that deals 18 with a repeat sequence, let's say basically for a repeat 19 sequence, is used to actually amplify the areas and to 20 generate the overall genetic profile. Now, the genetic 21 profile can be made up of actually anywhere from 13 to 22 16 STRs. 23 Q. Now, what sort of proficiency testing was 24 involved in your training as a forensic DNA analyst? 25 A. Well, my training involved looking and extracting 1711 1 DNA from a large number of samples, both single source, 2 mixed samples, forensically challenged samples in 3 addition to competency tests. And since completion of 4 my training, I regularly take proficiency tests and 5 follow the recommended federal guidelines for DNA 6 analysis for forensic laboratories. 7 Q. And how often are you subjected or is your work 8 subjected to either competency or proficiency testing? 9 A. Approximately every 180 days. 10 Q. And what has been the result of your proficiency 11 testing since you began doing forensic DNA analysis 12 within the SBI lab? 13 A. That I have passed the proficiency tests which I 14 have taken both during my training and completion of my 15 training and to the present day. In addition to only 16 proficiency testing, there are educational requirements 17 that the federal standards dictate, and I have also 18 maintained those educational standards. 19 Q. Now, prior to this date, have you ever been 20 qualified and have you ever testified in a superior 21 court of North Carolina as an expert witness in the 22 field of forensic DNA analysis? 23 A. Yes, I have. 24 Q. Approximately how many occasions? 25 A. Over a hundred times. 1712 1 MR. LOCK: Your Honor, at this time I would 2 tender Agent Bissette to the Court as an expert witness 3 in the field of forensic DNA analysis? 4 THE COURT: Any questions on behalf of the 5 defendant? 6 MS. SAVAGE: Yes, Your Honor. 7 VOIR DIRE EXAMINATION by MS. SAVAGE: 8 Q. Did you also do what's called RFLP at any time? 9 A. I did not. 10 Q. What about capillary electrophoresis? 11 A. No. At the present time I'm doing gel 12 electrophoresis. 13 MS. SAVAGE: No objection, Your Honor. 14 THE COURT: All right, sir. You may 15 proceed. 16 MR. LOCK: Thank you. 17 BY MR. LOCK: 18 Q. Now, where in human body is DNA found? 19 A. Well, I think it is relevant to what type of DNA 20 that you're talking about. In reference to this 21 particular case and the STR, it's nucleus DNA. So, it 22 would be within any cell in the body that has a nucleus. 23 Q. Is DNA found in body fluids, human body fluids? 24 A. Certainly. Any body fluid that has some type of 25 nuclear material, whether it's an epithelial cells on 1713 1 the skin or a white blood cell or a sperm cell or any 2 other type of cell that's nucleated. 3 Q. Turning your attention particularly to human 4 blood, is DNA found in any blood cells? 5 A. The white blood cells. 6 Q. So in performing forensic DNA analysis of human 7 blood, is it fair to say that you are looking at the 8 white blood cells? 9 A. Yes. Red blood cells or nonnucleated. 10 Q. Now, thus far, in the science of forensic DNA 11 analysis, have any two human beings on the face of the 12 earth ever been have found to have the same identical 13 forensic DNA profiles? 14 A. Well, identical twins would. 15 Q. Anybody else? 16 A. Only identical twin or a sibling. 17 Q. Now, Agent Bissette, during this calendar year, 18 have you been asked to do or perform certain forensic 19 DNA analysis of items of evidence in the case now before 20 the Court, State v. George Goode? 21 A. That's correct. 22 Q. And at the completion of all your work in this 23 case, did you prepare a written report summarizing your 24 work? 25 A. I did. 1714 1 Q. And did you also or have you attached to the 2 written report, which you generated, your bench notes 3 and other documentation of the work you performed? 4 A. I believe in this particular case all that 5 material has been provided. 6 MR. LOCK: May I approach the witness? 7 THE COURT: Yes, sir. 8 (State's Exhibit MAR 40 marked for 9 identification.) 10 Q. Agent Bissette, I'm going to hand you a document 11 which has been marked for identification purposes as 12 State's Exhibit MAR 40. I ask if you to examine this 13 document and identify it for us if you can? 14 A. State's Exhibit MAR 40 is the SBI file as well as 15 my report in addition to the laboratory notes in 16 reference to this particular case that I was asked to 17 perform this year. 18 Q. So is this document a copy of your entire case 19 file with regard to the work you performed in this case 20 this year? 21 A. Correct. 22 MR. LOCK: Your Honor, at this time I move 23 to introduce MAR 40 into evidence. 24 THE COURT: It's admitted. 25 (State's Exhibit MAR 40 admitted into 1715 1 evidence.) 2 Q. When did you begin your work in this case this 3 year? 4 A. On April 22. 5 MS. SAVAGE: I'm sorry. I didn't hear. 6 THE WITNESS: April 22. 7 Q. On that date, did you receive any particular 8 items of evidence from Special Agent John Bendure, the 9 last witness in this case? 10 A. I actually received evidence from Agent Bendure 11 on May 14. There had been some evidence previously 12 submitted on April 22 as well as April 26. 13 Q. Going to turn your attention at this time to two 14 manila envelopes which have been received into evidence 15 as State's Exhibit MAR Exhibits 29 and 30, and I'll ask 16 you if you can identify these objects or items. 17 A. Yes, I can. State's Exhibit MAR 29 is a manila 18 envelope which was identified as potentially containing 19 a bloodstain from Margaret Batten. Upon opening this 20 envelope, I found there was no bloodstain present. 21 State's Exhibit Number MAR 30 is a manila envelope which 22 was submitted in April, and here again was thought to 23 contain bloodstains of Leon Batten. And upon opening 24 this, bloodstains were found not to be present. 25 Q. Now, after discovering that these two manila 1716 1 envelopes were empty and did not contain the bloodstains 2 of Margaret Batten and Leon Batten, did you make any 3 particular request of any investigating agent in this 4 case? 5 A. Yes. That a cutting needed to be obtained from 6 the clothing of each of these two individuals to be used 7 as a DNA standard for comparison purposes. 8 Q. And from your own work in this case back in the 9 early 1990s, did you remember or did you review your 10 file and learned that such clothing existed? 11 A. That's correct. 12 MR. LOCK: Counsel, Exhibits 31 and 32. 13 (State's Exhibits 31 and 32 marked for 14 identification.) 15 Q. At this time, Agent Bissette, I'm going to hand 16 you two paper bags and their contents, which have been 17 marked for identification as State's MAR Exhibits 31 and 18 32. Handing you Exhibit 31 first, I'll ask you to 19 examine this item and tell us if you can identify it. 20 A. Yes, I can. State's Exhibit MAR 31 is a brown 21 paper bag. It bears my markings. This particular bag 22 contains the bra of Margaret Batten. 23 Q. And what is State's MAR Exhibit 32? 24 A. State's Exhibit MAR 32 is a brown paper bag also 25 bearing my markings which contains a tank top shirt that 1717 1 was identified as being from Leon Batten. 2 Q. Now, were these bags sealed or unsealed at the 3 time you obtained custody of them from John Bendure? 4 A. I actually did not receive those items from John 5 Bendure. They were submitted to the laboratory and to 6 me, and they were sealed at the time I received them. 7 Q. I'm going to turn your attention first to State's 8 Exhibit MAR 31, which you have identified, if I recall 9 correctly, as the bra of Margaret Batten. Would you 10 remove the contents of this exhibit? And as you're 11 doing so, would you tell us what, if anything, you did 12 with this bra upon taking it into your custody there in 13 the lab? 14 A. There is a second bag contained within the larger 15 bag. This particular bag at this present time is 16 sealed. You wish me to open it? 17 Q. Yes. Now, was that second bag, which you said at 18 this time sealed at the time you took it into your 19 possession in the lab on or about April 26, 2004? 20 A. Yes, it was. It also bears my markings and the 21 date that it was submitted. Could I have a pair of 22 scissors or something to open the bag? 23 Q. Prefer scissors or a knife? 24 A. Either. Contained within the bag is the bra of 25 Margaret Batten. This is the item that I did a 1718 1 phenolphthalein test on and took a cutting to be used in 2 the DNA standard for comparison purposes. 3 Q. Now, I believe there is a significant amount of 4 evidence before the Court for phenolphthalein as a 5 presumptive test for the presence of blood; is that 6 correct? 7 A. Yes. 8 Q. What was the result of the phenolphthalein test 9 that you performed on the bra? 10 A. That it was phenolphthalein positive. 11 Q. And can you show us precisely where on this bra 12 you took the cuttings which you made for forensic DNA 13 analysis? 14 A. There is a notation on the bra where the cutting 15 was actually taken and there's also a hole where the 16 cutting has been removed. 17 Q. And how did you choose that particular location? 18 A. I just chose that location because it was near 19 where one of the stab wounds were in this particular 20 item and felt that that was an appropriate standard for 21 Margaret Batten. 22 Q. You may replace that item, both the inner bag and 23 the outer bag. I'm handing you now State's Exhibit MAR 24 Exhibit 32. If you would remove the contents of that 25 bag, and I believe it also contains another paper bag 1719 1 which, for the record, is sealed at this time; is that 2 correct? 3 A. That is correct. And this is the bag which I 4 also received on the same date. It bears my markings 5 and it contained the shirt. 6 Q. For the record, I believe you are breaking the 7 seal on that bag; and would you remove its contents and 8 identify for us if you can? 9 A. This is the shirt that was identified as being 10 from Leon Batten. It bears my markings and the location 11 of the stain that I took to be used as the DNA standard, 12 and I did a preliminary phenolphthalein test on this 13 particular stain. 14 Q. What was the result of that phenolphthalein test? 15 A. That it was positive. 16 Q. And how did you decide from where to take the 17 cutting from this T-shirt? 18 A. Here again, it was on the front of the shirt 19 located in an area where there was a vast amount of 20 bleeding, and I felt it to be the appropriate standard 21 for the blood of Mr. Batten. 22 Q. All right. If you would just replace the T-shirt 23 into the inner bag and replace the inner bag into the 24 outer bag. 25 (State's Exhibit MAR 35 marked for 1720 1 identification.). 2 Q. Also going to hand you an item which has been 3 received into evidence as State's MAR Exhibit 35, and 4 I'll ask you if you can identify this item. 5 A. Yes, I can. State's Exhibit MAR 35 is a plastic 6 container with a knife. This particular knife, I did 7 receive from Special Agent Bendure on May 14, 2004. 8 Q. And what, if anything, did you do with that knife 9 on taking possession of it from Agent Bendure? 10 A. I swabbed the blade of this knife with the intent 11 of performing DNA analysis on the blood that was present 12 on the blade. 13 Q. How did you perform this swabbing of the blade? 14 A. I merely just took a sterile swab and applied 15 into distilled water and removed any stain that was 16 present. 17 Q. Now, did you subject any part of this knife to 18 any phenolphthalein test? 19 A. That had actually been done at an earlier time in 20 1992. 21 Q. Now, at some point, Agent Bissette, before 22 performing your forensic DNA analysis of any of these 23 items, did you meet with defense counsel and/or a 24 defense counsel expert? 25 A. Yes. 1721 1 Q. When and where did you do that? 2 A. I don't recall the exact date. It was in the 3 conference room of the laboratory at defense counsel's 4 request. 5 Q. And what was the purpose of that meeting as you 6 understood it? 7 A. Just to discuss this particular case. 8 Q. Did the defense expert make any particular 9 request of you with regard to your work in this case? 10 A. Only to answer certain questions that she asked. 11 Q. And did you explain to the defense expert the 12 type of work which you anticipate performing in this 13 case? 14 A. To the best of my recollection, I believe that 15 meeting occurred prior to any requests being made for 16 DNA analysis. 17 Q. Now, on or about May 14, 2004, did you receive 18 additional items of evidence from Special Agent John 19 Bendure? 20 A. I did. 21 Q. What did you receive from him or what else did 22 you receive from him? 23 A. I received some samples that he removed from the 24 left boot of George Goode which he placed into a test 25 tube as well as a number of samples which he removed 1722 1 from a pair of coveralls. And here again he placed 2 those into the test tubes. 3 Q. Now, before receiving these items of evidence 4 from the possession of Special Agent John Bendure, had 5 you discussed with him the manner in which these items 6 of evidence were to be packaged by him and delivered 7 over to you? 8 A. Yes. There was a discussion that occurred 9 between us as well as within any other members of the 10 DNA unit as well as the section supervision in reference 11 to the handling of these particular samples. 12 Q. And what discussions had you had with Agent 13 Bendure regarding the handling and packaging of those 14 items of evidence for your forensic DNA work? 15 A. That Agent Bendure would isolate and also place 16 the particular samples in the test tubes which would 17 later be processed for DNA. 18 Q. And did you have any discussion with him in 19 particular regarding the co-mingling of the various 20 cuttings which he prepared? 21 A. He was aware that that would be done and that 22 discussion had also occurred between other individuals 23 both within the lab as well as the section supervisor as 24 to how these samples would be packaged and that they 25 would be combined for a single extraction. 1723 1 Q. And when you say that you had discussions with 2 other individuals within the lab, are you talking about 3 the molecular genetics or forensic DNA section of the 4 lab? 5 A. I'm specifically talking about those individuals 6 that did forensic DNA analysis. 7 Q. Which other individuals did you discuss this 8 issue with? 9 A. That would have been discussed with Mike 10 Budzynski who is the SAC of the session and also does 11 DNA analysis as well as Special Agent Mark Boodee and 12 Special Agent David Freeman. 13 Q. And SAC, for the record, is special agent in 14 charge of the section? 15 A. Yes. 16 Q. I believe Special Agent Dave Freeman actually 17 later did -- 18 MS. SAVAGE: Objection, Your Honor. The DA 19 is now testifying. 20 THE COURT: Sustained. 21 Q. Did Agent Dave Freeman later do work in this same 22 case? 23 A. Yes. Special Agent Freeman is both the technical 24 leader for DNA and also he does case work on occasion. 25 Q. And is Agent Dave Freeman in the courtroom at 1724 1 this time? 2 A. Yes, he is. And he also did some analysis in 3 this case. 4 Q. And can you explain how you in consultation with 5 these other agents made the decision to co-mingle the 6 cuttings or samples taken by Special Agent John Bendure 7 from the coveralls and boots identified as belonging to 8 George Goode? 9 A. Once Special Agent Bendure had isolated the 10 samples, myself as well as Agent Budzynski and other 11 agents from the DNA unit actually observed the samples 12 and found them to be quite small. 13 MS. SAVAGE: Objection, Your Honor, as to 14 what other people observed. 15 THE COURT: Just a moment. I understood her 16 testimony to be what she observed. You may continue 17 with your observations. 18 A. And it was felt that these samples should be 19 combined in order to obtain sufficient DNA to generate 20 a genetic profile. 21 Q. Now, how many packaged samples of material did 22 you receive from Agent John Bendure on or about May 14, 23 2004? 24 A. I was actually present when this -- when these 25 samples were actually placed into the test tubes. And 1725 1 what I received was a test tube that contained cuttings 2 and scrappings from the left boot in additional to seven 3 test tubes which contained single fibers or portions of 4 fabric that were isolated from the coveralls. 5 Q. So when you say you were present when they were 6 packaged, do you mean when they were packaged by Agent 7 Bendure who did the test tube? 8 A. Yes. We actually were present. I labeled the 9 tubes and he placed the samples in those tubes. 10 Q. Were the tubes thereafter sealed or stopped up 11 and delivered to you? 12 A. Well, I was present. So I had custody of them at 13 the time they were actually placed into the tube. 14 Q. Did you also look at the garment, the coveralls, 15 from which he had taken the various cuttings? 16 A. I did observe the garment, yes. 17 Q. And did you also look at or examine the boot from 18 which he had obtained certain cuttings? 19 A. I did observe the boot. 20 Q. And, do you know from which area of the garment 21 of the coveralls, which areas were placed into which 22 tubes? 23 A. I do in my note make reference to the particular 24 areas that Agent Bendure assigned to the various 25 cuttings and to which areas were placed in which tube. 1726 1 Q. Can you please relate for the Court what you 2 observed with regard to the -- which areas were placed 3 into which tubes? 4 A. In the first tube that was removed from the 5 coveralls, single fibers taken from areas A, B, C, D, E, 6 I, K and L. Second tube was fabric isolated from A, B, 7 C. The third tube contained fabric from D, E and F. 8 The fourth tube contained fabric from G and H. The 9 fifth tube contained fabric from I and J; the sixth tube 10 contained fabric from K and M and the final tube 11 contained fabric from N, O, P, R, S, T, and U. 12 Q. And how many tubes did you receive from Agent 13 Bendure containing cuttings from the boot, the left 14 boot, identified as being that of George Goode? 15 A. One. 16 Q. Agent Bissette, what did you thereafter do with 17 the cutting you had prepared from the bra of Margaret 18 Batten or with the cutting you prepared from the tank 19 top of Leon Batten and from the cuttings you had 20 received from Agent Bendure prepared from the coveralls 21 of George Goode, the left boot of George Goode, and what 22 did you do with the swabbing that you had taken from the 23 knife which you had received into your custody in 24 connection with this case? 25 A. I extracted DNA from each of these items. I 1727 1 quantitated how much DNA was present from each of these 2 particular items; and then I attempted gel 3 electrophoresis in the generation of the genetic profile 4 from the DNA extract of the coveralls as well as the 5 standards from Margaret and Leon Batten. 6 Q. How did you extract the DNA material in this 7 case? 8 A. Well, it was just an organic extraction. 9 Q. Tell us how you did it. 10 A. Basically, you just add some chemicals and an 11 enzyme that breaks open the cells and releases the DNA 12 and then you clean it up through an organic extraction 13 to the point where you've isolated the DNA. You do a 14 simple quantification looking for the presence of human 15 DNA, and you know that it is human specific. And at 16 that point, the standard testing for eight genetic areas 17 was performed. 18 The result of that testing failed to give a 19 result for the coveralls in that particular case. And 20 rather then exhaust any more samples, it was later 21 transferred as well as the samples from the boots and 22 the knife to Special Agent David Freeman for the purpose 23 of doing capillary electrophoresis. The advantage of 24 that particular testing was that it required less sample 25 and it was a single amplification as opposed to two 1728 1 separate amplifications which would be involved in the 2 gel electrophoresis. 3 Q. Did you form any conclusions or opinions with 4 regard to the DNA which you extracted from the bra of 5 Margaret Batten and the T-shirt of Leon Batten? 6 A. That it was human DNA. And I did receive a 7 genetic profile for eight loci that I basically didn't 8 have any forensic unknown to make the comparison to. 9 MS. SAVAGE: I'm sorry. I didn't hear that 10 last thing. Could you repeat that for me, please? 11 A. I generated a genetic profile for eight loci for 12 Margaret and Leon Batten. However, I made no comparison 13 because the sample that I tried gel electrophoresis on 14 from the coveralls gave no result. 15 Q. And did you reach any conclusions or form any 16 opinions with regard to the DNA extracted from the 17 swabbing you made of the knife in this case? 18 A. That human DNA was present. 19 Q. And did you form any opinions with regard to the 20 DNA extracted from the boot cuttings you examined in 21 this case? 22 A. Yes. That human DNA was present. 23 Q. And did you form any opinions with regard to the 24 extraction of DNA from the coveralls? 25 A. Yes. 1729 1 Q. You examined in this case? 2 A. Yes, I did. Human DNA was present on the 3 coveralls. 4 Q. After forming those opinions, did you yourself 5 perform any additional forensic DNA testing in this 6 case? 7 A. Only those that I've previously stated. 8 Q. What did you thereafter do with the various items 9 of evidence about which you've testified today? 10 A. The item, primarily the extracted DNA, the 11 cuttings from the bra, the tank top, and any remaining 12 raw material was all transferred to Special Agent David 13 Freeman. The only item he really did not receive were 14 the empty envelopes as well as the bra and the shirt 15 itself. 16 Q. Now, Agent Bissette, other than looking at the 17 coveralls while they were in possession of John Bendure 18 and the lab this year, did you perform any other 19 examination or analysis of those overalls this calendar 20 year? 21 A. I did not. 22 Q. Turning your attention to the examination of 23 those coveralls which you performed and -- was it 1992? 24 A. Correct. 25 Q. Tell us what you did with regard to looking at 1730 1 those coveralls back then. 2 A. I made a visual observation of those coveralls 3 and I did a phenolphthalein test; and I found that test 4 to be negative. 5 Q. Did you look at coveralls under any microscope or 6 other means of magnification? 7 A. To the best of my recollection, I did not. 8 Q. Describe for us how you performed phenolphthalein 9 examinations or tests on the coveralls back in 1992. 10 A. Well, basically, you take a piece of filter paper 11 and you fold it. You rub randomly the item that you 12 want to test and then you apply the various chemicals 13 looking for a color change. 14 Q. Did you make notes back in 1992 to particular 15 areas in which you applied phenolphthalein filter paper, 16 areas of the coveralls? 17 A. No. It was just a random sampling of the 18 garment. 19 Q. Did you run the phenolphthalein filter paper over 20 every inch of the coveralls back in 1992? 21 A. I can't say with a hundred percent certainty that 22 I did. I do generally try to test the entire area. 23 Q. When you examined the garment--that is, the 24 coveralls back in 1992, describe for the Court what 25 observations you made with regard to any stains or 1731 1 apparent stains on the garment? 2 A. That the garment was soiled and there were some 3 grease-like stains. 4 Q. And I take it you received training in 5 phenolphthalein testing prior to 1992, have you not? 6 A. Yes. 7 Q. And how many times would you estimate you have 8 performed phenolphthalein tests prior to your work in 9 this case in 1992? 10 A. Thousands of times. 11 Q. Based upon your training and experience, you know 12 whether or not grease or dirt can affect the validity of 13 phenolphthalein testing? I'm talking about grease or 14 dirt on a garment on an area being tested. 15 A. Grease and dirt in and of itself will not produce 16 a positive phenolphthalein reaction. Now, is it 17 possible that this could be present on a garment and you 18 rub over the areas where the grease and dirt are and at 19 the same time possibly run over some type of stain and 20 not detect the presence? That is a possibility. All I 21 know is that there was soil and grease on this 22 particular garment. I did a random testing and a 23 phenolphthalein test and found that result to be 24 negative. 25 Q. Was this garment or any part of this garment, the 1732 1 coveralls, subjected to any forensic DNA testing back in 2 1992? 3 A. No. In '92 the type of DNA testing that was 4 being offered was RFLP analysis that required a rather 5 large sample. In addition, it also required that a 6 appropriate standards from all the individuals involved 7 in the case be submitted prior to that type of 8 examination. Once, if the appropriate standards were 9 available, it was then evaluated by the special agent in 10 charge as to whether it would be performed or not. 11 Q. In 1992 did you examine the boots in this case 12 which have been identified as belonging to George Goode? 13 A. I do not recall examining any boots from George 14 Goode. I examined some sweat pants, the overalls, some 15 shorts and a hat. 16 Q. Thank you very much. 17 MR. LOCK: That's all I have of this 18 witness, Your Honor. 19 THE COURT: Cross-examination. 20 CROSS-EXAMINATION by MS. SAVAGE: 21 Q. Agent Bissette, you recall it was actually just 22 Lisa Miles and myself that met at the SBI? We didn't 23 have an expert with us. Does that ring a bell? 24 A. Yes. 25 Q. So the expert -- you just misspoke before when 1733 1 you were thinking an expert was with us at the SBI lab? 2 A. That's correct. I'm sorry. 3 Q. And it was yourself and Jed Taub? 4 A. Correct. 5 Q. And Jerry Richardson? 6 A. Correct. 7 Q. Who is the director? 8 A. Correct. 9 Q. And Mr. Budzynski; is that his name? 10 A. Correct. 11 Q. Myself and Lisa Miles? 12 A. Yes. 13 Q. And that was prior to any DNA testing? 14 A. Yes. 15 MS. SAVAGE: Court's indulgence. 16 Q. Agent Bissette, do you remember what date you 17 were asked to do DNA testing? 18 A. I know there was a court order issued in 19 reference to the DNA testing. I don't recall a specific 20 date. 21 Q. Okay. But when we were meeting that day, did you 22 have knowledge that they were going to seek DNA testing? 23 A. No. 24 Q. Okay. 25 MS. SAVAGE: Court's indulgence. 1734 1 Q. All right. Now, in this case, you performed 2 something call gel electrophoresis; is that right? 3 A. Yes. 4 Q. And that's been done in the lab for a number of 5 years, correct? 6 A. That's correct. 7 Q. And that procedure has gone through internal 8 validation, right? 9 A. Yes. 10 Q. And prior to the initiation of DNA typing 11 procedures, correct me if I'm wrong, but the following 12 studies were conducted by your laboratory: One, the 13 procedure was tested using known samples, correct? 14 A. Yes. 15 Q. The procedure was tested using nonprobative 16 evidence, right? 17 A. Correct. 18 Q. The lab used a nonhuman DNA control to monitor 19 and document the reproducibility and precision of the 20 procedure? 21 A. Yes. 22 Q. And that's important because the results are 23 meaningless if you can't reproduce them, right? 24 A. Certainly. 25 Q. And results are meaningless if you can't identify 1735 1 how precise the procedure is, correct? 2 A. Yes. 3 Q. And before introduction of a method into forensic 4 case work the, examiner is supposed to complete a 5 qualifying and competency test, right? 6 A. Yes. 7 Q. And prior to the initiation of new body fluid 8 typing procedures, studies will be conducted by your lab 9 to insure reproducibility, correct? 10 A. Yes. 11 Q. Okay. And the procedure will be tested using 12 known samples that may include the following tests: 13 One, reproducibility. You've already said yes, right? 14 A. Yes. 15 Q. Sensitivity? 16 A. Yes. 17 Q. Species study? 18 A. Yes. 19 Q. And species study, would you explain species 20 study. 21 A. It's basically testing DNA from various nonhuman 22 sources as well as bacteria or other types of DNA. 23 Q. And sample stability? 24 A. Yes. 25 Q. And STR, short tandem repeats, went through a 1736 1 period of validation in your lab for over a year before 2 it was used; isn't that right? In fact, you testified 3 in another case, State v. Lockler that that was the 4 case, right? 5 A. Yes. 6 Q. Now, according to your report, there was no DNA 7 produced. There were no bands on the coveralls, 8 correct? On gel electrophoresis we see no bands -- 9 A. Correct. 10 Q. On the coveralls? And gel electrophoresis is a 11 quite sensitive DNA procedure, is it not? 12 A. Well, gel electrophoresis is just a method of 13 actually generating the genetic profile once the sample 14 had amplified. Whether or not you actually get a 15 profile or not is somewhat depended on the sample 16 itself. In this particular case, I did quantitate DNA 17 to be present and I amplified what I thought was an 18 appropriate amount to amplify. I did note during the 19 extraction that there was a dark coloration to the 20 extract and that possibly a second clean-up procedure 21 should be used and possibly more DNA should be amplified 22 in order to obtain a profile. As I stated earlier, 23 rather than exhaust any more of the samples and the 24 other samples in this particular case from the knife and 25 the boots were quite limited, that that particular type 1737 1 of analysis would be more appropriate to be done on 2 capillary electrophoresis because it requires less 3 sample and gave more information. 4 Q. Do you recall testifying in State v. Lockler 5 where you told the court, or the jury I guess in that 6 case, that capillary electrophoresis and gel 7 electrophoresis are just two tests that are different 8 ways of arriving at the same answer? Do you remember 9 saying that? 10 A. And that's entirely correct. It really has to do 11 with the instrument that you use for visualizing the 12 genetic profile. 13 Q. And gel electrophoresis will certainly pick up 14 traces of other types of material, right? 15 A. I'm not sure what you mean by other types of 16 material? 17 Q. Well, if you contaminate the plate that you're 18 running the gel on, you may see bands. 19 A. I'm not familiar with contaminating the plate. 20 Q. Okay. But you do sometimes see extra bands on a 21 gel after the electrophoresis, right? 22 A. By extra bands -- I'm not sure that these extra 23 bands are produced as a result of the gel itself. I 24 think they're more depended upon the sample. 25 Q. Well, you do -- 1738 1 MS. SAVAGE: Court's indulgence. 2 THE COURT: Ms. Savage, I'm going to 3 interrupt you at that point. Make a mental or physical 4 note about where you are in your examination and come 5 back to that area if you wish, but we're going to go 6 ahead and take our lunch break at this time. And we'll 7 be back at 2:15. And we'll see if Mr. Lock is finished 8 next door by that time and we'll start up as soon as 9 he's available from his hearing next door, hoping 10 they're on time in getting started and moving on okay. 11 But at any rate, nobody here has to be back to court 12 until 2:15. 13 (Lunch recess 1:00.) 14 THE COURT: I understand they're through 15 next door. We should see Mr. Lock shortly. 16 MR. MCNEILL: Your Honor, if I could, one 17 housekeeping matters concerning one of our possible 18 witnesses. Given this afternoon and Agent Bissette's 19 continued cross-examination this afternoon, we would 20 anticipate -- hopefully being able to reach and at least 21 begin, if not complete, the testimony of Agent David 22 Freeman. We did have one other witness we were prepared 23 to have here this afternoon, Professor Chris Batsen. It 24 was just a call that I had to make as whether or not to 25 have had him to come this afternoon. My best guess was 1739 1 we would not reach him late this afternoon. So I 2 contacted him over the recess and advised him to be here 3 in the morning. 4 THE COURT: Sounds great. 5 MR. MCNEILL: And first thing. So we will 6 be able to continue with him either as the first witness 7 in the morning or when we finish up with Agent Freeman. 8 THE COURT: Sounds very good. 9 MS. MILES: And one other matter, Your 10 Honor. I think there needs to be a correction to the 11 records earlier when Agent Bissette took the stand, the 12 Court recognized that she had previously testified in 13 these proceedings and had previously been qualified as 14 an expert in these proceedings. Upon speaking with 15 Agent Bissette, we confirmed that what Ms. Savage and I 16 believe to be correct that she had not previously 17 testified. I don't know if I should ask the Court what 18 the Court remembers she must of previously testified to, 19 because I'm a little concerned about that, but she did 20 not testify before. 21 THE COURT: Okay. 22 MS. MILES: Thank you. 23 MR. LOCK: Your Honor, I agree with defense 24 counsel's recollection after talking briefly with Agent 25 Bissette myself. 1740 1 THE COURT: I must have seen her in another 2 trial somewhere. 3 MR. LOCK: I believe she was here for most 4 of that hearing and under subpoena, but she never 5 testified. 6 THE COURT: All right. Ms. Savage, you can 7 proceed. 8 BY MS. SAVAGE: 9 Q. I think right before lunch we were talking about 10 the gel electrophoresis and extra bands that were seen. 11 A. Yes. 12 Q. Remember that? And referring you to item 6-1 and 13 item 7-1, do you know what those items are? 14 A. Those are the cuttings that were taken from the 15 bra and from the shirt that we used as standards. 16 Q. Okay. And your results of the gel -- do you have 17 your original gel pictures with you or only a copy by 18 the way? 19 A. I have the original. 20 Q. May I take a look? 21 A. Sure. 22 MS. SAVAGE: Excuse me, Your Honor. I'd 23 like to show these to my expert. 24 THE COURT: Okay. 25 Q. Now, on lane 6-1 and 7-1, do you agree there are 1741 1 extra bands? Do you know what an extra band is? 2 A. Well, on these two samples, there are stutter 3 bands. I'm not sure. Extra bands could be different 4 from stutter. 5 Q. Well, why don't you describe what you think 6 stutter is? 7 A. Well, stutter is what I've denoted stutter as 8 being on this particular scan. I believe I've marked it 9 and noted it as stutter. 10 Q. Can you be more specific what is the definition 11 of stutter? 12 A. Stutter with would N minus 4 band or four-base 13 pairs below a major band. 14 Q. So, if you see bands that are less than N minus 15 4, that wouldn't be stutter, right? 16 A. It may not be. In some instances when you run 17 gel electrophoresis, they're primers are flourescently 18 labeled and occasions there may not be clean separations 19 between Channel 1 and Channel 2 based on the wavelength 20 differences. Sometimes you may have bleeds through 21 bands from Channel 2 and Channel 1. 22 Q. Well, based on the standards that you ran in K-5, 23 6-2 and MJB, doesn't look like you have that problem, 24 does it? 25 A. What problem? 1742 1 Q. What you just said. 2 A. Bleed through or stutter? 3 Q. Bleed through. Weren't you just talking about 4 bleed through? 5 A. Yes. No, I don't see any, no. 6 Q. So it's unlikely if you don't have bleed through 7 in the first couple of lanes, you're not going to have 8 bleed through on the gel on the last two lanes, are you? 9 A. Well, that doesn't have anything to do with that. 10 Stutter and/or bleed through can be caused by a heavy 11 sample that's on the gel. 12 Q. I understand that. But in this case -- I'm going 13 to approach you and point out a band that's on lane 7-1 14 where you have a star, and it's your third X actually on 15 lane 7-1. Do you see that? Do you see where you made a 16 third star on lane 7-1. You made that star, didn't you? 17 A. I made the star, correct. I'm not sure what 18 you're calling a third star. I only see two. 19 Q. I'm counting. 20 A. Oh, from the top? 21 Q. One, two three. 22 A. Okay. 23 Q. You see that? 24 A. Sure. 25 Q. And do you see a band that would not be stutter? 1743 1 A. I see a weak band, yes. 2 Q. Okay. And then going down a little further where 3 you have the fourth X, do you see a band also? 4 A. I see something, yes. 5 Q. That might not be stutter? 6 A. Possibly. 7 Q. Okay. Now, is that first time looking at it now 8 that you've noticed those bands or did you see those 9 when you finished the electrophoresis? 10 A. I saw them. 11 Q. Okay. And they could be from contamination, 12 right? 13 A. In my opinion, no. 14 Q. And those, what I'm calling extra bands that you 15 agree may not be stutter, that's on the lane of 7-1, is 16 that right? Just so the record is clear, We'Re talking 17 about lane 7-1? 18 A. Yes. 19 Q. And notice before when you took out from the 20 packages the bra and the T-shirt, you had a pair of 21 gloves on; is that right? 22 A. Yes. 23 Q. And you did not change gloves between handling 24 the bra and handling the T-shirt; is that right? 25 A. I believe that's correct. 1744 1 Q. So, basically, you transferred DNA from the bra 2 to the T-shirt; isn't that right? 3 A. I don't think we know that to be true, no. 4 That's supposition in that if you just touch something 5 you arbitrarily transfer it. 6 Q. So you've read no journals that talk about how 7 easily DNA is transferred? 8 A. Well, I've read quite a few journals, but the 9 mere touching of something does not automatically mean 10 that it's transferable to the point that it's 11 recoverable. 12 Q. So, now, you're basically saying you transfer it, 13 but you may not transfer enough to recover it through 14 analysis? 15 A. I'm not saying anything. You're implying that 16 the mere touching of one object and touching another 17 automatically transfers DNA. 18 Q. Well, there's a reason why you change gloves when 19 you go from sample to sample; isn't that right? 20 A. I'm not arguing that. 21 Q. Okay. And that's so you don't contaminate the 22 sample; isn't that right? 23 A. That's one reason. 24 Q. And DNA testing today is very sensitive, more 25 sensitive now than it was, let's say, when RFLP was 1745 1 being done, right? 2 A. Well, that's true. Your sensitivity is not to 3 the point that you arbitrarily just want to test 4 background material all the time. 5 Q. Well, when you say background material, you 6 certainly have to run a blank to make sure that you're 7 not getting any background material; isn't that right? 8 A. Not necessarily, no. 9 Q. Now, before you do DNA testing, proper procedure 10 in your lab is to do serology testing first; isn't that 11 right? 12 A. For the most part, that's correct. There are on 13 occasions some samples that we analyze that have no 14 serology testing. 15 Q. Well, in this case, the knife certainly went 16 through serology testing, didn't it? 17 A. Yes. 18 Q. And at least the -- you did the phenolphthalein 19 on the coveralls back in 1993 and -- you did that. 20 We've established that, right? 21 A. Yes. 22 Q. And procedure is that if you come up with a 23 negative in phenolphthalein, you don't go further; isn't 24 that right? 25 A. For the most part, that's correct. 1746 1 Q. Now, this past spring you saw the condition of 2 the evidence that is in Defense Exhibit 66, the laundry 3 bin in this courtroom, did you not? 4 A. I was present in the courtroom when the evidence 5 was here. I didn't closely inspect it. 6 (Defendant's Exhibits 69, 70 and 71 marked 7 for identification.) 8 Q. Okay. I'm going to mark for identification 9 purposes Defendant's Exhibits 16 -- it's 69, 70 and 71. 10 I'm going to show you what I've marked as Defendant's 11 Exhibit 69, 70 and 71, and tell me if you recognize 12 yourself -- if you recognize these pictures. 13 A. Well, I recognize the ones that I see myself in. 14 I don't believe I see myself in Defendant's 69. 15 Q. Is that not you standing there? Isn't that the 16 shirt you're wearing? 17 A. Okay. I recognize the shirt, yes. 18 Q. Okay. And that's the same shirt you have on in 19 Defendant's Exhibits 70 and 71? 20 A. Yes. 21 Q. And can you tell me what the picture is? 22 A. Well, these are photographs of the day that I 23 came to court to examine certain items of clothing to be 24 used as standards for the victims in this case. 25 Q. Okay. And in that picture, the bin that's 1747 1 sitting in the courtroom now is within, would you say, 2 two inches from your body? 3 A. Sure. 4 MS. SAVAGE: Move these into evidence, Your 5 Honor. 6 THE COURT: They're admitted. 7 (Defendant's Exhibits 69, 70 and 71 admitted 8 into evidence.) 9 Q. So standing next to that bin of evidence, you 10 were able to see the condition of the evidence, right? 11 A. Yes. 12 Q. And you do know that the protrusion out of the 13 evidence bin is what was a bloody tailgate from a truck? 14 A. Yes. 15 Q. And you see that that bloody tailgate is in the 16 same bin as the clothing and other items of evidence? 17 MR. LOCK: Your Honor, I'll stipulate to 18 this red blood-like substance on the tailgate is blood. 19 It's dry. It's always been dry since time of trial. 20 MS. SAVAGE: Objection, Your Honor. He's 21 now testifying again. Move to strike. I mean, he's not 22 even a witness. I mean, do you strike someone who is 23 not even a witness? 24 THE COURT: The stipulation is stricken. 25 MS. LOCK: Well, Your Honor, in that event, 1748 1 I would object to the form of the question alleging that 2 this is blood on the tailgate. 3 THE COURT: You want to be heard about that? 4 MS. SAVAGE: I think the record will show 5 that a test was done and it was shown to be a mixture, 6 that there was, I believe -- 7 MS. MILES: Your Honor, it sounds like Mr. 8 Lock's disputed what's already in the record from the 9 trial. There's already been evidence introduced at 10 trial that there was blood on this tailgate. There's 11 never been any question that there was blood on that 12 tailgate. There's been no evidence presented by anybody 13 as to what the condition of the blood on the tailgate 14 was when it went into that bin, whether it was wet, or, 15 evaporated, whatever. But there's never been any 16 question that there was blood on that tailgate. Your 17 Honor has stated all along that the Court would take 18 judicial notice of everything already contained in the 19 court file, in the court file from the previous 20 proceeding, that there was blood on that tailgate. 21 THE COURT: Any dispute about that, Mr. 22 McNeill or Mr. Lock, That there's prior evidence in the 23 trial of these proceedings that the material on the 24 tailgate is about blood? 25 MR. LOCK: Your Honor, there's no dispute 1749 1 that blood was detected on the tailgate by Ms. Bissette 2 prior to the first of four trials in this case and 3 there's no dispute from the State that the substance -- 4 one of the substances on the tailgate is in fact dried 5 blood. There's also fingerprint powder and dirt, grease 6 and grime, and any number of other items on the 7 tailgate. 8 THE COURT: We'll proceed on that basis. 9 Q. And showing you item, Exhibit 70, Defendant's 10 Exhibit 70, will you agree with me, looking at the 11 picture, the evidence, when you were standing next to 12 it, had more pieces of evidence without bags than it 13 does now today even? 14 A. I'll agree with that. 15 Q. Okay. And you stood next to this evidence 16 before DNA testing, correct? 17 A. Yes. 18 Q. Okay. 19 MS. SAVAGE: I'm going to hand these 20 exhibits in evidence to the Clerk. Thank you. 21 Q. When you got to the lab, did you inform anyone at 22 the lab of the condition of this evidence? 23 A. No. 24 Q. And you're aware of contamination concerns, are 25 you not? 1750 1 A. Yes. 2 Q. And you're aware of the necessary steps to avoid 3 contamination, are you not? 4 A. Correct. 5 Q. According to your training manual of the SBI, you 6 need to be able to explain the main type of 7 contamination and the way contamination can be 8 minimized; isn't that right? 9 A. Certainly. 10 Q. And one of the main ways is to not keep evidence 11 as it is in this bin; isn't that right? 12 MR. LOCK: Well, objection. 13 THE COURT: Objection's overruled. You may 14 answer. 15 MR. LOCK: Your Honor, may I be heard 16 briefly on that? 17 THE COURT: Yes, sir. 18 MR. LOCK: There's no requirement under AOC 19 policy or more importantly under law that evidence be 20 kept in such a manner as to prevent cross-contamination 21 or anything of that sort post-trial. Hence, I think the 22 question's improper. 23 THE COURT: Objection's overruled. She can 24 answer as it relates to DNA analysis if she has an 25 opinion about what she's been asked and if she 1751 1 understood the question. It may need to be repeated. 2 MS. SAVAGE: Would you read back the 3 question, please, Madam Court Reporter. 4 (REPORTER: And one of the main ways is not 5 to keep evidence as it is in this bin; isn't 6 that right) 7 A. When evidence comes into the laboratory, I really 8 don't have any idea of what happens to it before it's 9 presented to me. For the most part, when it is 10 presented, it's generally within a container and it's 11 sealed and it's packaged separately and it's dry. 12 However, having no knowledge of what may have occurred 13 prior to that, I really can't answer. As to the 14 conditions in this bin, the way I observed it the day 15 that I was here, is there were a number of items that 16 were not packaged. However, what I was asked to do was 17 perform a test and not pass any type of judgment on 18 anything in reference to how it was in that particular 19 bin. I was merely requiring what the court order asked, 20 and that was to do testing. 21 Q. But you're a scientist, are you not? 22 A. Yes, ma'am, I am. 23 Q. And you work in a lab that's accredited by an 24 accrediting organization called ASCLD, right? 25 A. That is correct. But as I stated, we respond to 1752 1 the needs of law enforcement and evidence is presented 2 to us in various manners. We try to accommodate 3 whatever the request is as it is presented at the time 4 the request is made. And in this particular case, the 5 request was made that DNA testing be performed, and I 6 was here for the purpose of obtaining standards for the 7 individuals in this case. And it is true they were in 8 that bin and there were a number of items that were not 9 packaged, but it's not my job to say whether I'm going 10 to analyze it or not. I'm merely responding to a 11 request; and in this particular case a court order. 12 Q. Well, a few minutes ago you said that most of the 13 time you don't know what happens to the evidence? 14 A. I never know what happens to the evidence. 15 Q. But in this case you stood next to it and you saw 16 it, didn't you? 17 A. I saw it, correct. 18 Q. Okay. And you know that as a scientist evidence 19 should be packaged separately to avoid contamination? 20 A. Ideally, yes. 21 Q. It's actually, according to the technical 22 procedures manual from the SBI, it's your responsibility 23 to be aware of potential -- of possible contamination; 24 isn't that right? 25 A. Yes, it is. 1753 1 Q. And when the evidence got to lab, the three or 2 five pieces of evidence was -- they were individually 3 wrapped in sealed containers, right? Someone repackaged 4 it here and sent it to the lab in packaged containers, 5 sealed containers? 6 A. Correct. 7 Q. Did you inform Agent Bendure that those packages 8 weren't the original packages, that you had seen the 9 evidence in the bin prior to the repackaging? 10 A. I did not. 11 Q. Did you make any note of the original storage 12 condition or the condition that you saw in the bin prior 13 to the repackaging? Did you make any note? 14 A. I did not. 15 Q. As a a scientist, were you not concerned with 16 ASCLD's reaction to finding out that as a scientist we 17 took evidence from a bin that looks like here in the 18 courtroom, Defendant's Exhibit 66? 19 MR. LOCK: Objection. 20 THE COURT: Overruled. You can answer the 21 question. 22 A. As I stated earlier, I responded to a request. 23 How the evidence was stored prior is beyond my control 24 and not of my concern. I responded to the request to 25 perform this type of analysis, and that's what I did. 1754 1 Q. So you told nobody in the lab, no supervisor in 2 the lab of the condition of the items before they 3 accepted it? 4 A. No, I didn't. And I don't know that I've ever 5 done that. 6 Q. You know what a substrate control is, right? 7 A. I do. 8 Q. And isn't it procedure to collect not only from 9 the garment the particular sample you're trying to get, 10 but also from a portion of the garment that doesn't have 11 -- that doesn't appear to have anything on it? 12 A. And what procedure are you referring to? 13 Q. Isn't it standard procedure when you're going to 14 try to do, for example, serology testing? 15 A. Serology testing, yes. 16 Q. What about DNA? 17 A. It's not part of our procedure, no. 18 Q. Now, DNA comes from a variety of sources; isn't 19 that right? 20 A. Yes. 21 Q. Could be from hair? 22 A. It could. 23 Q. It could be from saliva? 24 A. Correct. 25 Q. It could be from skin? 1755 1 A. Correct. 2 Q. It could be from from urine if the epithelial 3 cells are present, right? 4 A. Correct. 5 Q. It could be from tears? 6 A. Possibly. 7 Q. Dander? 8 A. Possibly. 9 Q. Sweat? I'm sorry. I didn't hear your answer to 10 that, sweat. 11 A. It could be from any nucleated cell in the body, 12 from any body fluid that has nucleated cell. 13 Q. What about sweat? 14 A. Yes. If there's epithelial cells, yes. 15 Q. Semen? 16 A. Some of the body fluids are sterile body fluids, 17 yes 18 Q. Vaginal material? 19 A. Certainly. 20 Q. And you know that it's important to collect 21 evidence in a manner to keep it from being contaminated 22 with DNA from other evidence and other sources; isn't 23 that right? 24 A. Yes. 25 Q. As a matter of fact, you have testified to that 1756 1 in other cases just exactly that, right? 2 A. Certainly. 3 Q. Now, I want to go back to what you said about the 4 reason why you -- you said, according to your testimony 5 today, that you recovered DNA from items 3-1, 4-1, 5-1, 6 and also 6-1 and 7-1; is that right? 7 A. Yes. 8 Q. Okay. Now, let's -- 3-1, so the record is clear, 9 is cuttings and scrappings from the left boot of George 10 Goode; is that what your report says? 11 A. Correct. 12 Q. Okay. Now, when you say you got DNA from those 13 items, what you really mean to say is that all you found 14 was human DNA based on your quant blot sample location 15 work sheet, but you didn't type it; is that right? 16 A. Yes. 17 Q. But you couldn't type it? Your gel 18 electrophoresis, could not type it? 19 A. I did not attempt to type it, correct. 20 Q. And the reason you said for that was because you 21 didn't want to waste a sample; is that right? 22 A. That is part of the reason, yes. 23 Q. Right. But really, in gel electrophoresis and in 24 capillary electrophoresis, all you need is about one 25 nanogram of DNA; isn't that right? 1757 1 A. Yes. 2 Q. And one nanogram is one billionth of a gram; is 3 that right? 4 A. Yes. 5 Q. And just so we understand what a gram is, would 6 you agree me a Sweet 'N Low package has a gram in it? 7 A. I think that could be correct. I'm not 8 absolutely sure. 9 Q. So if a gram of Sweet 'N Low, one billionth of 10 that would be only -- the small amount you need to do 11 the DNA testing, right? 12 A. Well, that's giving a lot of supposition here. 13 First of all, you don't know the quality of the DNA. 14 You don't know that it's amplifiable. That's the target 15 region that you try to amplify is one nanogram. Now, 16 you can attempt to amplify a nanogram and receive 17 actually no result at all, which the DNA could be 18 totally degraded. So just merely stating that you have 19 a nanogram doesn't predict whether you will generate a 20 profile or not. 21 Q. All right. It has to do with quality and 22 quantity, right? 23 A. Yes. And a number other factors as well. 24 Q. But quality and quantity are two of the key 25 factors? 1758 1 A. Yes. 2 Q. And as a matter of fact, the knife, from what it 3 looks like on your quant blot sample, that had the 4 poorest quality, isn't that right, even though it looked 5 like it had the most substance? 6 A. Correct. 7 Q. Now, can ask I you -- 8 MS. SAVAGE: Your Honor, can I ask her to 9 show you what I'm referring to? 10 THE COURT: Sure. 11 MS. SAVAGE: When I say that it has -- the 12 knife has the most you could see but the least, you 13 know, the band was the lightest. 14 Q. Could you please show His Honor what we're 15 talking about? 16 A. Sure. This is where we quantitate the amount of 17 DNA. And what you see on the side here is an actual 18 kind of calibration. And these are the samples, 19 dispersed sample I believe was -- 3-1, that was -- what 20 was that? -- the boot. The second sample is actually 21 the one from the coveralls; and the last sample is from 22 the knife. And these are the two standards, the cutting 23 from the bra and from the tank top. And what you merely 24 do is make a comparison to what you see in the 25 calibrators. And what she's making reference to is the 1759 1 sample from the knife appears slightly weaker than the 2 sample that was taken from the boot. 3 You do this to get an estimation of how much 4 DNA you should try to amplify. And like she said, you 5 try to target one nanogram. Now, even though you may 6 target one nanogram, that does not necessarily tell you 7 or this test does not tell you that the DNA is not 8 degraded. So it may or may not be amplifiable. 9 Q. In other words, you can't really go by looks 10 because the knife looks like it's got the most substance 11 on it, yet a very small amount of DNA could be from 12 degradation, right? 13 A. Well let me just refer -- I think perhaps on the 14 knife there was also some soil which kind of has the 15 same type of coloration as the blood possibly. 16 Q. Well, I think at the trial you tested the knife. 17 You did testing to the knife as shown as human blood on 18 it, right? 19 A. Yes. 20 Q. Okay. And what I'm saying is looking at 21 something, you can't just tell by looking? 22 A. Certainly not. 23 Q. And the coveralls, that band represents the 24 combination of the 22 samples that Mr. Bendure, Agent 25 Bendure rather, cut and you extracted the DNA from the 1760 1 22 samples, correct? 2 A. Yes. 3 Q. You did not extract DNA, for example, from spot 4 "H" separately? 5 A. Not solely, correct. 6 Q. And you didn't extract -- well, when you say not 7 solely, you know, since they've been combining those 8 areas, there's no way to figure out where the DNA, if it 9 was even in any those spots, which spot it came from, 10 you co-mingled the samples; isn't that right? 11 A. That's correct. 12 Q. Okay. But going back to why you didn't go 13 further after 4-1, the coveralls failed to give you a 14 profile. And the difference between a profile and an 15 identifying DNA -- I want it to be clear -- is 16 identifying DNA just means there's human DNA present. 17 You cannot say who it came from and what probability it 18 came from. You can't attach it, any weight to any 19 specific person, right? 20 A. Correct. 21 Q. And the profile is from where you start 22 generating numbers from, right? 23 A. Yes. 24 Q. And the coveralls had no profile DNA on them in 25 your gel electrophoresis? 1761 1 A. That's right. And I think I stated earlier that 2 the extract was slightly brown, which kind of exhibited 3 the fact there were some inhibitors present, and that 4 there could have been some additional steps taken to 5 clean the sample up so it would be more amplifiable. 6 Q. Can you point me in your protocols where it says 7 to reextract a sample if it looks like it might have 8 inhibitors in it? 9 A. There is -- if you'll look and read the 10 procedures manual, there is a phenol cork on cleanup and 11 that makes reference to that. I'm not sure exactly 12 where is, but I know it's present. 13 Q. And when you're saying -- is that in the -- 14 A. In the technical procedure manual. 15 Q. From what year? 16 A. I have no idea. I think it's always been there 17 ever since we've been doing PCR. 18 Q. Now, when you extract DNA, your sample is 19 probably what, about 50 microliters? 20 A. I'm not sure what you're asking. 21 Q. Well, you used -- for the gel electrophoresis of 22 the coveralls, you used four microliters of DNA -- I'm 23 looking at your sample amplification work sheet, 24 PowerFlex 1.1. Okay. 25 A. Sure. 1762 1 Q. According to that, on the DNA amount for the 2 coveralls, you used four microliters; is that right? 3 A. Yes. 4 Q. It doesn't say what the sample -- how much the 5 sample had in it before you took out four microliters, 6 and I'm asking was it about 50 microliters that you 7 wound up with? 8 A. No. 9 Q. How much did you have originally? Where is the 10 number on your report? Can you show me? 11 A. If you'll refer to page 8 where it says "final 12 volume" at the top, I think you'll see a 28. 13 Q. 28. So that was your amount, 28 microliters? 14 A. That was initial amount of the sample. Now, it 15 requires five microliters to quantitate the sample. 16 Q. So that's 5 minus 28 gives you 23, right? 17 A. And then four that I used to amplify it. 18 Q. So that's 19 left, right? 19 A. Correct. 20 Q. Okay. And in order to amplify it -- in order to 21 repeat your test, you would need four microliters again 22 because that's what you used the first time, right? 23 A. No. Probably when you don't get amplification 24 the first time, it could be an indication of any number 25 of things. The first is that you didn't amplify enough 1763 1 DNA to begin with. It could also mean that the DNA 2 degraded to the point that you can't amplify it. So, 3 initially, if I were going to attempt, maybe thinking 4 that the DNA was degraded and I needed to amplify more, 5 I may amplify as of much as 13 1/2 microliters. 6 Q. But it only takes one microliter to do the 7 capillary electrophoresis, right? 8 A. It only takes one sample to run it on a capillary 9 instrument. We're talking about amplifying the DNA. 10 Q. But you did the amplification, right? 11 A. I did the amplification for gel electrophoresis. 12 The capillary amplification was done by Special Agent 13 Freeman because it was run on a different format with 14 different primers. And where he takes a sample and is 15 able to get 16 results, for me to do that it would take 16 me two separate amplifications. 17 Q. And how many microliters would you use for each 18 -- I'm looking at your amplification sheet that says you 19 used four microliters. Would you be changing that 20 number? Is that what you're saying? 21 A. I started with four microliters. When you don't 22 produce a result with four microliters, you either 23 increase your DNA or you try to do something different 24 to produce your result. And generally, what we do would 25 increase the amount of DNA that you're amplifying. 1764 1 We're not talking about how much you're loading on the 2 gel. We're talking about trying to amplify extracted 3 DNA. And as I told you earlier, the fact that you can 4 extract it, does not necessitate whether you'll be able 5 to amplify it or generate a profile. 6 Q. And generally when you can't get a profile, you 7 end it there, don't you? 8 A. Not necessarily. I just stated that you could 9 try other things, and one of which is using more DNA. 10 Q. Well, in your lab do you always do gel 11 electrophoresis and then capillary electrophoresis on 12 samples that come in? Is that common practice in your 13 lab to do both gel electrophoresis and capillary 14 electrophoresis when you've gotten -- well, leave it at 15 that. Is that your practice to do both? 16 A. At the present time it is. 17 Q. To do both. And is it not my understanding that 18 this was the first time capillary electrophoresis was 19 done in a case? You remember hearing the 20 representations from the Attorney General's Office that 21 this was the first case that they could employ capillary 22 electrophoresis in? 23 A. This was the first case that our laboratory did. 24 And it's only because we went through a period of 25 validation for the instrument to be able to do this. 1765 1 There always has to be a first case. Capillary 2 electrophoresis is not unique or new to STRs. In fact, 3 I would say the vast majority of STRs are performed by 4 capillary electrophoresis. 5 Q. It's new in your lab? 6 A. It's new in our lab, but it's not new to 7 forensic. And I have had other cases that I've 8 personally worked that capillary electrophoresis has 9 been performed on as it was in this particular case, but 10 not necessarily in our laboratory. 11 Q. Oh. But in your lab, my question was is it 12 standard procedure to do gel electrophoresis -- I mean, 13 capillary electrophoresis. You said it was, didn't you? 14 A. At the present time, we have both formats in the 15 laboratory. 16 Q. Are the samples that are coming in for DNA 17 testing, are both being tested, the gel electrophoresis 18 and capillary electrophoresis? 19 A. What dictates the format at the present time is 20 the sample itself. In those particular cases where 21 there is minimal DNA -- and what you have to understand 22 is when we're working on subject cases, we want to be 23 able to obtain a profile and search it against the 24 database, and that requires what's known as the 13 core 25 loci. Now, in the present gel format that we've had, 1766 1 that required two applications, two separate 2 applications, which requires more sample than a single 3 amplification on capillary electrophoresis. So the 4 amount of DNA that's extracted from the sample at the 5 present time may dictate which format the sample is 6 actually processed on. 7 Q. So, who decided to do the gel first and then the 8 capillary? Why didn't you just go to capillary 9 electrophoresis? 10 A. In this particular case? 11 Q. Yeah. 12 A. In this particular case, I was asked to attempt 13 it on gel by my special agent in charge, Mike Budzynski. 14 Q. And was he person then who said let's try again 15 since you didn't get anything. Let's try again to see 16 if can we get it with a different procedure? 17 A. I think in this particular case because we had 18 both formats available that -- it wasn't necessarily the 19 fact that he said let's try again. It's just that this 20 format and this technology existed and there were 21 already some other samples in the case that -- to get 22 the most information, capillary was the most appropriate 23 way to do the test. 24 Q. Well, to get the most information, you wouldn't 25 have co-mingled the samples because then you would have 1767 1 had information on every single spot; is that right? 2 A. Well, you know, I think the overall thing here 3 would each individual one had yielded a result, probably 4 not. We wanted a result. 5 Q. Well, it could have been in good practice to 6 maybe to take six of them and try that; and if you 7 didn't get a result add more to them. You just threw 8 the whole wad in the first time, right? 9 MR. LOCK: Objection to form. 10 THE COURT: Overruled. She may answer. 11 A. I did with consultation of other DNA analysts, 12 what we felt was the most productive to give us a DNA 13 profile for this particular case and for those samples. 14 Individually, they would not have yielded a DNA profile. 15 Collectively, they did. 16 Q. Well, you say collectively they did. You cannot 17 say what stain the DNA came from because they're mixed. 18 You can't say "H" has a DNA -- 19 THE COURT: It's repetitious. You've 20 already asked. She's already answered it. 21 MS. SAVAGE: oh, I'm sorry. Court's 22 indulgence. 23 Q. You're not saying that you can say on the witness 24 stand there was DNA in every -- were in A, B, C, D, E, F 25 G, H, I, J, K, L, M, N, O, right? You can't say that? 1768 1 A. I don't think I did say that. 2 Q. Right. Okay. I just wanted to make sure. 3 MS. SAVAGE: Court's indulgence. 4 Q. So, who ultimately decided that capillary 5 electrophoresis would be done? 6 A. Well, I don't know who ultimately decided. It 7 was discussed among any number of individuals. 8 Q. Is that the way you generally discuss what 9 testing to be done on samples in the lab? 10 A. Yes. There is discussion among the DNA analysts 11 about cases and samples and different approaches that 12 they may take to analyze some different types of 13 samples. 14 Q. Do you have any idea where the missing known 15 referenced bloodstains for Mr. & Mrs. Batten are right 16 now? 17 A. I do not. 18 Q. Is there any notation in the case work that 19 you've seen anywhere as to the disposition of that 20 evidence? 21 A. There's not. 22 Q. Do you know who's responsible for recording that 23 kind of information? 24 A. No. 25 MS. SAVAGE: Court's indulgence. 1769 1 Q. Now, you can have DNA on an item and not see it, 2 right? 3 A. I don't know how to answer that. I mean, I can't 4 see DNA on anything. I mean, if I see a bloodstain, I 5 know that blood has DNA. 6 Q. And you know it's a bloodstain because you've 7 done a confirmatory test that it is, in fact, blood, 8 right? 9 A. Well, I think I can recognize blood without 10 having to do a confirmatory test. 11 Q. Well, you might be able to recognize it, but it's 12 proper procedure to do a confirmatory test before you 13 say something is blood, right? 14 A. And what test are you talking about, Takayama? 15 Q. Do you do confirmatory tests when you have to 16 confirm something is blood or do you just say I think it 17 looks like blood as a scientist? 18 A. In '92 we did do Takayama. At the present day, 19 we do phenolphthalein testing and we pretty much do DNA 20 analysis. 21 Q. And you do phenolphthalein testing which is only 22 a presumptive test, but you do DNA analysis if the 23 phenolphthalein test is positive; isn't that right? 24 A. For the most part, that's correct. But as I said 25 earlier, there are some things we test for DNA where a 1770 1 body fluid is not identified, such as saliva on a 2 cigarette butt. We don't waste the cigarette butt to 3 test it for saliva when it's obviously got to be saliva. 4 Q. And you cannot say that the mere touching of an 5 object would not transfer DNA, can you? 6 A. I can't. But, you know, you talk about 7 transferring something and then you talk about being 8 able to obtain a profile. I know that we have tested 9 objects like light switches and not gotten genetic 10 profile, and that's something that's touched all the 11 time. So the implication that the mere touching implies 12 that you can recover and generate a genetic profile are 13 kind of like talking about apples and oranges. 14 Q. But by touching a cigarette butt with your lips, 15 you know you're transferring DNA even though you can't 16 see it, right? 17 A. Well, I didn't dispute anything about seeing DNA 18 or not touching DNA. But, you know, you're talking 19 about repeated contact and you're talking about saliva 20 and you're talking about a cigarette butt; and then 21 you're implying that if I just touch this bench top and 22 I come by behind it and I swab it, then I can get my DNA 23 profile. And I think that's very misleading that that's 24 the case. 25 Q. Ms. Bissette, why do you think that I'm implying 1771 1 anything with my question? Has the prosecutor told you 2 that defense counsel do that? 3 MR. LOCK: Objection. 4 THE COURT: Wait a minute. 5 Q. Where do you get that? 6 THE COURT: Sustained. 7 Q. Have you and I talked about your testimony, what 8 questions I would ask you? 9 A. Based upon the nature of what your question seems 10 to be right now, it seems to allude to that. 11 Q. Really? Do you not think I consulted with a DNA 12 expert who's sitting behind me? 13 MR. LOCK: Objection. 14 THE COURT: Sustained. 15 MS. SAVAGE: That's all we have. 16 THE COURT: Is there any redirect? 17 MR. LOCK: Yes, Your Honor. Have just a 18 moment, Your Honor. 19 REDIRECT EXAMINATION by MR. LOCK: 20 Q. Agent Bissette, turning your attention again to 21 the knife in this case, which is now State's MAR Exhibit 22 35, I believe. Do you recall what sorts of tests or 23 analyses you had subjected this knife to back in 1992 or 24 '93, whenever it was examined by you? 25 A. Yes, I do. 1772 1 Q. What sort of analyses did you subject it to? 2 A. I did a phenolphthalein test. I confirmed it to 3 be blood, and I did a species test to determine it was 4 human blood. 5 Q. And how did you confirm the substance to be 6 blood? 7 A. By a microcrystaline test which I observed the 8 formation of heating crystal. 9 Q. And what effect would those tests that you 10 conducted on the knife in 1992 or '93 have upon your 11 ability to extract DNA from this knife in 2004? 12 A. Well, I don't really know that it would have any 13 effect on the ability to extract the DNA. It just would 14 have used up some of the sample. 15 Q. In your opinion was there enough of a blood 16 sample present on the knife to have conducted an RFLP 17 type of DNA analysis back in 1992 or '93? 18 A. There was not. 19 Q. I want to turn your attention again to the manila 20 envelopes which have been received into evidence as 21 State's MAR Exhibits 29 and 30. I'll ask you to open 22 those up and remove the contents. Had you seen the 23 inner manila envelopes, which I believe, for the record, 24 are marked as item numbers 19 and 27? Had you seen 25 those before today? 1773 1 A. Yes, I have. 2 Q. When had you first seen them? 3 A. I had first saw them in 1992, March 12. 4 Q. What was in those envelopes back in 1992? 5 A. There were autopsy blood samples. 6 Q. And in what state or condition were those autopsy 7 blood samples in 1992? 8 A. They were dried and they were collected at the 9 time of the autopsy. And initially, they were also used 10 in some additional testing that was performed. 11 Q. What sort of testing are you talking about? 12 A. In this particular case in '92, we were doing ABO 13 testing and electrophoresis testing. And in looking at 14 the samples from both of these individuals, we were 15 trying to find some enzyme systems that could identify 16 one or the other of these individuals. Initial testing 17 was performed on the liquid bloodstains that I prepared 18 from the blood that was collected at autopsy. At a 19 later time, there was some additional testing that was 20 done; and it was felt that the autopsy samples might 21 actually give more beneficial result in that they were 22 prepared at the actual time of the autopsy. At the time 23 that we did this testing in '92, we didn't necessarily 24 retain nor return the bloodstains that were either 25 prepared at autopsy or prepared in the laboratory from 1774 1 the liquid samples to the investigating agent. They 2 could have also been consumed in the analysis that was 3 performed during that time. 4 MR. LOCK: Thank you. That's all I have. 5 THE COURT: Any recross? 6 MS. SAVAGE: Just one question. 7 RECROSS-EXAMINATION by MS. SAVAGE: 8 Q. But there's no record of any of this? 9 A. Records today are not what records were in 1992. 10 Every time that we're inspected, either ASCLD inspected 11 or DNA inspected, we constantly make improvements to our 12 recordkeeping and everything else. And no, you're 13 correct, there are none from 1992. However, having 14 worked in the laboratory and knowing what we did at that 15 time, it was just not our policy to return bloodstains 16 to investigating agencies. Now, since DNA has come 17 along, that's a little bit different. And as I said, 18 each and every time we go through an inspection, there's 19 always constantly changing, including note taking and 20 improvements, they're continually being made. 21 Q. So your answer is no? 22 A. I believe I stated that. 23 MS. SAVAGE: No questions further. 24 MR. LOCK: Nothing further, Your Honor. 25 THE COURT: You can step down, Agent 1775 1 Bissette. 2 May Agent Bissette be excused? 3 MR. LOCK: Fine with us, Your Honor. 4 MS. SAVAGE: I'm sorry. I didn't hear you. 5 THE COURT: May Agent Bissette be excused? 6 MS. SAVAGE: Yes. 7 THE COURT: Thank you. 8 You may proceed. 9 MR. MCNEILL: Your Honor, at this time the 10 State would call Special Agent David Allen Freeman. 11 ******** 12 DAVID ALLEN FREEMAN, being first duly sworn, was 13 examined and testified as follows during DIRECT 14 EXAMINATION by MR. MCNEILL: 15 Q. Would you please state your name again for the 16 record? 17 A. David Allen Freeman. 18 Q. And what is your occupation? 19 A. I'm a special agent with the State Bureau of 20 Investigation currently assigned to the crime laboratory 21 in the forensic biology section. 22 Q. And what is your title? 23 A. I am an assistant special agent in charge for 24 Forensic Biologist III. 25 Q. And, do you go by Agent Freeman or Dr. Freeman or 1776 1 what is your -- 2 A. Agent Freeman, however. That will be fine. 3 Q. Agent Freeman, could you please relate to your 4 the Court your academic background? 5 A. I have a bachelor's of science in biochemistry 6 from North Carolina State University, a master's and a 7 Ph.D in microbiology from North Carolina State 8 University. 9 Q. And could you -- and I believe you've indicated 10 you work in the molecular science section at the State 11 Bureau of Investigation? 12 A. Yes, sir. It was originally the molecular 13 genetic section, but it's now called the forensic 14 biology section. And I specifically work in the DNA 15 unit. 16 Q. And what is your role there in the forensic DNA 17 unit? 18 A. I'm assistant special agent in charge, which 19 means I have several agents that work under me. I just 20 administratively take care of their paper work. I'm 21 also the technical leader in the laboratory. I am 22 working with the special agent in charge, work with the 23 technical procedures and quality control. I'm also one 24 of the training officers that trains individuals in this 25 STR technology. 1777 1 Q. And in that capacity, is it my understanding that 2 you do DNA analysis; is that correct? 3 A. Yes, sir. I also perform DNA analysis in 4 forensic cases. 5 Q. And what kind of course work prepared you to 6 perform forensic DNA analysis? 7 A. Besides my extensive studies in genetics at NC 8 State University, I attended numerous conferences and 9 training seminars. Specifically, I have heavy course 10 work in the areas of biology and genetics and molecular 11 genetics and biochemistry. 12 Q. In connection with your work as a forensic 13 geneticist there at the lab, have you had occasion in 14 the past to prepare a resume or statement of your 15 qualifications? 16 A. Yes, sir, I believe I have. 17 Q. Showing you what's marked as State's Exhibit 41, 18 can you identify that, please? 19 A. Yes, sir. This is a CV that is kept on file at 20 the Bureau in my personnel file. 21 Q. And does it list your education, other training; 22 is that correct? 23 A. Yes, sir, it does. 24 Q. Professional affiliations and employment history; 25 is that correct? 1778 1 A. Yes, sir. 2 Q. Now, to my early question about the course work 3 for DNA, you mentioned a genetics course; is that 4 correct? 5 A. Yes, sir. 6 Q. What other type of course work have you been 7 involved in? 8 A. Biochemistry, forensic biology, genetics classes 9 and also statistics class. 10 Q. Have you engaged in any continuing education? 11 A. Yes, sir. As required by the federal guidelines 12 for DNA analysts, we are required to have yearly 13 training in the field of DNA. I've attended numerous 14 conferences on both gel electrophoresis as well as 15 capillary electrophoresis, attended workshops on 16 statistics as well as forensic sciences in general. 17 Q. On State's Exhibit 41 under other training, it 18 indicates see attached SBI transcript. Do you know what 19 that refers to, Agent Freeman? 20 A. That is maintained by our training section, and 21 that lists all the training activities in the Bureau; 22 when I went to the Special Agent Academy, any time I'll 23 first-aid training, respirator training, fit test 24 training. Just any small little training that happens 25 within the Bureau, that is listed on that form 1779 1 maintained by training. And it's updated each time I go 2 to training. That's why it's not attached in my 3 personnel file to this document, State's Exhibit 41, 4 because it's ongoing, currently being updated 5 Q. And a request was made to you and your office to 6 furnish a resume or a statement of your qualifications; 7 is that correct? 8 A. Yes, sir. 9 Q. And, do you know if that attached SBI transcript 10 was furnished to myself? 11 A. I do not. Because it was my understanding that 12 special agent in charge took care of getting my CV and 13 qualifications together and giving that to you. 14 Q. Do you recall from memory any type of -- the 15 workshops that you participated in that qualified you 16 for your forensic DNA analysis? 17 A. I have attended numerous workshops and training 18 courses. Particularly, some of interest, would be the 19 ABI-3100 training at Foster City. That is not on this 20 because this is not current as of today. I've attended 21 -- I've also had in-house training in the 3100 capillary 22 electrophoresis by Applied Biosystems Company 23 representatives, their field technicians who have 24 trained me and other agents in this area. 25 Q. And when you refer to the 3100, what is the 3100, 1780 1 Agent Freeman? 2 A. The 3100 is a machine that is manufactured by 3 Applied Biosystems, Incorporated. It is a machine that 4 uses capillary electrophoresis to separate out DNA 5 fragments, and it's used widely in industry. It is a 6 machine based on capillary electrophoresis and based on 7 their machine called the 310. 8 The 310 is a genetic analyzer that has been 9 used for many years. It a capillary electrophoresis 10 unit as well. It is very widely used. In fact, in the 11 United States, it's more widely used than doing gel 12 electrophoresis. And what the company did was to get 13 higher through put, they created the 310 -- I'm sorry, 14 the 3100. The 310 would allow you to analyze one sample 15 at a time. The 3100 uses the same technology, but it 16 allows you to look at -- or analyze 16 samples at one 17 time greatly increasing your through put and your 18 ability to move samples through the laboratory. 19 Q. And you refer to capillary electrophoresis here. 20 Could you explain to the Court what that is? 21 A. Well, as Agent Bissette testified to earlier, 22 what we're looking at are differences of individual's 23 DNA and we're looking at those STR areas. And the main 24 differences come between individuals are the sizes of 25 the -- or the number of those repeats which equals the 1781 1 size of the fragments. 2 So if I look at your DNA at one genetic 3 area, you may have seven repeats. I like to think of it 4 as seven beads on a string is a good way to visualize 5 it. But if I look at my DNA at the exact same genetic 6 area, I may have seven beads on my string as well, seven 7 repeats. At that one genetic area, we would be the 8 same. If I looked at the second genetic area, you may 9 have 11 repeats or 11 beads on your string and I may 10 have 13. That would be a difference between us. But if 11 I had 13, that string is going to be a little bit 12 larger. 13 So we use capillary electrophoresis to look 14 at those size of fragments and to separate them out. 15 And by separating out those bands based on size, we 16 develop DNA profiles. Those DNA profiles from forensic 17 samples are then compared to DNA from known individuals 18 within a case and matches or nonmatches are made based 19 on those comparisons. 20 Q. And as a DNA analyst with the SBI, you have 21 utilized the gel electrophoresis in the past too; is 22 that correct? 23 A. Yes, sir. I was originally brought in to the 24 Bureau in 1995. They were validating the STRs using the 25 gel electrophoresis. I helped do the validation on that 1782 1 system when we were looking at simply three genetic 2 areas. I've been involved in the validation of what we 3 now currently use, which is a PowerPlex system from 4 Promega Corporated which looks at least eight genetic 5 areas, PowerPlex 1.1; and then 2.l which looks at an 6 additional number of genetic areas. 7 Q. For the benefit of the court reporter, could you 8 spell Formega? Didn't you refer a Formega? 9 A. I'm sorry. 10 Q. You said the PowerPlex -- 11 A. From Promega. 12 Q. I'm sorry. Promega. 13 A. That is the company that we use to buy the 14 primers from. And so, for that system I was involved in 15 validating that system, and also involved heavily in 16 validating the 3100. 17 Q. In your capacity with the SBI, have you 18 previously testified in court? 19 A. Yes, I have. 20 Q. And have you been previously qualified as an 21 expert in DNA analysis in court? 22 A. Yes, sir. 23 Q. Approximately how many times have you been 24 qualified as an expert in DNA analysis? 25 A. Over sixty times. 1783 1 Q. What kind of professional affiliations do you 2 have, Agent Freeman? 3 A. I'm currently a member of the Scientific Working 4 Group on DNA Analysis and Methods. I am -- that is a 5 group of scientists that has been brought together by 6 the FBI, which this group of scientists will look at 7 current trends in forensic science, specifically DNA, 8 will make recommendations for quality, for training, as 9 well as validations. I currently serve on the Quality 10 Assurance Subcomittee of that group. 11 Q. Are you a member, a previous member of American 12 Society of Microbiology? 13 A. Yes, sir, I am. 14 Q. Prior to coming with the SBI crime lab, have you 15 been employed before that? 16 A. Yes, sir. I was employed with AMSCO Scientific. 17 I was a senior scientist. My job was performing 18 validations of medical devices pending FDA approval. 19 Q. Are you the author of any patents? 20 A. Yes, I am . 21 Q. And what is that patent? 22 A. This patent was a rapid biological reader, which 23 once an item has been -- once material has been 24 sterilized in an autoclave or in any type of situation. 25 In industry, specifically pharmaceutical industry and 1784 1 hospital, before that equipment can be used it has to be 2 insured that it's sterile. So, therefore, AMSCO made 3 biological indicators. Typically, these biological 4 indicators took up to a week to grow out. So, if you 5 could imagine that equipment has to sit there for a 6 week. I help devise a patent where this material could 7 be read in a matter of hours sometimes, but possibly a 8 day or two. That way this material with expensive 9 equipment wouldn't have to sit around waiting for the 10 biological indicators to grow up. They could go ahead 11 and rapidly use those materials for surgery or for 12 whatever need they had for them. 13 Q. Have you been a speaker or presenter at 14 professional organizations in your field? 15 A. Yes, sir, I have. I have spoke on validation of 16 some of our systems, have spoke on use of forensics in 17 DNA to other DNA scientists, nonforensic scientists, 18 just as information. So many times I've gone to 19 colleges, to professional meetings other than forensic 20 meetings just to present what it is the SBI does and how 21 it uses DNA in forensics. 22 Q. Have you done any other continuing education with 23 the FBI? 24 A. I went to the FBI mitochondrial school for a 25 two-week class which we learn mitochondrial DNA analysis 1785 1 and interpretation. 2 Q. Have you given any presentation at any 3 international forums? 4 A. Yes, sir. I was a presenter at the Eleventh 5 International Symposium on Human Identification where I 6 discussed our validation of the CTT system, which was 7 first -- when we first brought online, started doing 8 these STRs and our current technology. This was 9 relatively new. So, I had a presentation there of our 10 validation. 11 Q. Are you a member of any working groups in your 12 area of expertise? 13 A. I'm a member of the SWGDAM, Scientific Working 14 Group on DNA Analysis Methods. 15 Q. Have you -- are you published in your area of 16 expertise? 17 A. Yes, sir. I have been part of two publications. 18 One is the -- one was a publication -- it was the middle 19 frequencies for 14, STR loci of the PowerPlex 1.1 and 20 2.1 multiplex systems and Penta D for Caucasians, 21 African Americans, Hispanics and other populations of 22 the United States of a America and Brazil. The second 23 one was a 2000 publication of the characterization 24 validation studies of PowerPlex 2.1, a nine-locus short 25 tandem repeat, STR, multiplex system and Penta D. Both 1786 1 of these were published in the journal of forensic 2 science. 3 Q. And what years were they published, Agent 4 Freeman? 5 A. In 2000. 6 Q. Okay. 7 MR. MCNEILL: Your Honor, at this time, we 8 would tender Agent Freeman as an expert in molecular 9 genetics and DNA analysis. 10 MS. SAVAGE: Court's indulgence. 11 THE COURT: You wish to ask any questions on 12 voir dire? 13 MS. SAVAGE: No questions, Your Honor. 14 THE COURT: You may proceed. He's accepted. 15 MR. MCNEILL: And, Your Honor, before I 16 forget, I would like to move the admission of State's 17 Exhibit 41 which was Agent Freeman's statement of 18 qualifications. 19 THE COURT: It is admitted. 20 (State's Number Exhibit 41 admitted into 21 evidence.) 22 Q. Agent Freeman, you mentioned the 3100. That's a 23 -- 24 THE COURT: Tell you what, actually, to 25 break up the afternoon and to some reasonable segment, I 1787 1 think we'll go ahead and take our break before you start 2 into that. It looks to be about twenty till, so take a 3 break until five minutes to four. 4 (Recess 3:40.) 5 THE COURT: You may proceed. 6 BY MR. MCNEILL: 7 Q. Did there come a time when the SBI acquired the 8 Applied Biosystems 3100 Capillary Electrophoresis 9 system? 10 A. Yes, sir. There were actually two 3100 capillary 11 electrophoresis systems which were obtained from a grant 12 from then special agent in charge, Mark Nelson. Those 13 machines were probably obtained by the Bureau back in 14 around 2001, around that time frame, 2001, 2002. Those 15 units were going to be used by the DNA database, which 16 would look at -- which would type the DNA from convicted 17 offenders to go into our database as required by law. 18 These machines were set up -- they were 19 going to be validated and then there was some turnover 20 within the section. We lost a couple of members of our 21 DNA database unit. Therefore, that validation was -- it 22 was stopped. It was then picked up a little bit later 23 on, completed for forensic -- it was being validated for 24 forensic case work using the PowerPlex 16 at the time. 25 Subsequently, the individual who was working with that 1788 1 machine, she left the Bureau. So, those machines were 2 not used. 3 Also at the same time, because of the 4 presence of DNA initiative, there was a lot of federal 5 monies available for outsourcing those DNA samples or 6 convicted offender samples. In other words, the bloods 7 that come in to the SBI for North Carolina convicted 8 offenders were then -- bids were placed and then outside 9 agencies, private laboratories, then did those testing. 10 So there was no need at that current time for using the 11 3100s. 12 In that time, because of the current 13 situation, we would lose individuals. It takes an 14 individual approximately a year to be DNA trained and go 15 through the SBI Academy, sometimes even longer. Because 16 as agents, even though we're in the lab, we're required 17 to go through basic law enforcement training in North 18 Carolina as well as the SBI Special Agent Academy which 19 takes up to 23 weeks. It varies from academy to 20 academy. Therefore, because of that lag and just the 21 need for training, sometimes additional courses are 22 needed. There's a lot of training that has to go on 23 before we can let people do DNA. Because we, through 24 attrition, in losing people for various reasons, our 25 backlogs have increased to a very, very large levels. 1789 1 We are probably, in some cases, a year or two behind. 2 We still have DNA cases from 2002 that are in our 3 laboratory because we don't have the agents there to 4 work those cases. 5 That is the reason we started to get the 6 3100 on line to increase the through put. Because of 7 the conferences and seminars I have attended and others 8 in our section, we know that the 3100 is a high capacity 9 machine. In other words, you can put more samples on it 10 if you compare the 3100 to gel electrophoresis. If you 11 run one gel, you can run approximately 16 to 18 samples 12 depending upon how you load that gel. If you load a 13 complete tray, you can load 80 or 90 samples at one time 14 on that machine and then run them. So the through put 15 is much greater. That was the impetus for us wanting to 16 perform the validation. 17 Once we started looking at the machine, we 18 realized that the machine, the output of the data going 19 out, is more sensitive. I had heard that in conferences 20 and seminars, but didn't really quite understand why. 21 One of the reasons is because if you take the same 22 amount of DNA and put it on -- 23 MS. SAVAGE: Objection, Your Honor. He's 24 now -- he's way beyond -- the question was do you have a 25 3100? He's way beyond the question. 1790 1 THE COURT: It's overruled. You can proceed 2 with your answer. 3 A. We decided to use it because it's more sensitive. 4 Because if you have a electrophoresis gel, you're 5 putting -- you're actually hand pipetting DNA into a 6 well, if you will, which is approximately half a 7 millimeter by four millimeters. So, therefore, the 8 surface area that the DNA travels is larger than inside 9 of a capillary which is approximately the size of a 10 human hair. So, therefore, the detection is more 11 sensitive because you're looking at that same amount of 12 DNA through a smaller area. That is why we chose to go 13 through and to continue using 3100 for validation. 14 Q. And when did your specific training on the 3100 15 begin? 16 A. It was in the spring of 2004. I don't remember 17 the exact dates. Although I had attended numerous 18 seminars that showed data from the 3100, how the 3100 19 works, I specifically remember many seminars -- excuse 20 me. I remember three seminars that Margaret Kline from 21 NIST, the National Institute of Standards and Technology 22 or testing, she gave seminars on the -- how either the 23 3100 or the 310 worked. So, I had a good background 24 knowledge of how this machine worked. My specific 25 training on our 3100 machines began the fall of this 1791 1 year when I went out to Foster City in California and 2 attended a one week's school from Applied Biosystems, 3 Incorporated. 4 MS. SAVAGE: I'm sorry. I didn't hear when 5 that was. 6 A. Approximately some time in the spring of this 7 year, 2004. And I went -- they went over DNA testing, 8 DNA extraction, PCR setup, DNA quantitation. And then 9 they got into actual physically using the machine, how 10 to set the machine up, how to clean the machine, and 11 then how to perform the runs. After they did that, we 12 went through the software, very detailed how to use the 13 software. However, because of a previous subpoena, I 14 believe, I had to come back a day early. So I missed 15 part of that software training. 16 After that training, once the field 17 representative came into our lab and our application 18 specialist came in, I received additional training which 19 was primarily more hands on and then it was heavily 20 involved in using the computer software, the GeneMapper 21 ID. And basically, the application specialist sit down 22 with me and another agent and we went over actual 23 samples, learned how to use the machine. She helped us 24 develop all our procedures and protocols, and that was 25 over about a three or four-day period. 1792 1 Q. And was this specialist that came in to work with 2 you at the SBI lab; is that correct? 3 A. This was at the SBI lab using the machine that 4 we're currently using and the machine that was used on 5 this case. 6 Q. And when you say the machine, you're referring to 7 Applied Biosystems 3100; is that correct? 8 A. Yes. 9 Q. And this application specialist was from Applied 10 Biosystems; is that correct? 11 A. Yes, sir. She is an application specialist 12 designed specifically to set up the instrumentation. 13 She is involved in the training as well as 14 troubleshooting the machine. 15 Q. And is this the typical training that goes on for 16 any lab that has Applied Biosystems 3100? 17 A. To my knowledge, yes, sir. 18 Q. Okay. And what kind of -- you referred to 19 validation work. What is validation work? 20 A. Validation is a series of tests to look at the 21 performance of the machine that you're specifically 22 using or a system that you're currently using. It is 23 designed -- a validation allows you to look at the range 24 that your machine should be used at as well as 25 performance criteria. 1793 1 In our specific case, we looked at 2 repetition, how repetitive it was from sample to sample. 3 In other words, if you inject the same sample in all 16 4 wells time after time after time, are you going to get 5 the exact same result every time? So one was a 6 repetition study. One was a sensitivity study where I 7 took DNA from various sources and did one to two serial 8 dilutions. In other words, I had ten nanograms and then 9 I'll have -- then I would step down to five nanograms 10 and 2.5 to a very low level; and then run those on the 11 machine and look at where the cut off -- where you will 12 start -- where you'll see bands, how high those bands -- 13 excuse me -- how high those peaks may be, or where you 14 start seeing partial profiles, where you start losing 15 the peaks. What's your lower level of sensitivity on 16 the machine? And also what's your higher level? What 17 happens when you put in a lot of DNA? We performed 18 those tests. We did a mixture study where samples were 19 mixed at known ratios and then run on the 3100 to look 20 at the affects that the mixtures will have on your peak 21 heights. 22 As part of that one study where we did the 23 dilutions -- and backing up one second -- where we did 24 the dilutions, we're able to get a lot of information 25 about peak height ratios, about stutter as well as 1794 1 looking at what we call heterozygous imbalance. And 2 those are the types of testing that we did. There were 3 several tests -- 4 Q. Let me interrupt you there. Are all these tests 5 that are precursors to actually using the 3100 in a real 6 case? 7 A. Yes, sir, they are. If I may, SWGDAM, which is a 8 scientific work on DNA analysis methods, has formulated 9 a set of guidelines. These guidelines were approved by 10 the FBI and they're known as the federal standards. In 11 the federal standards, there are certain criteria that 12 are required for validation prior to implementation of 13 case work; and these are the studies that I'm talking 14 about. 15 Q. And the studies that you were performing, the 16 repetition, the sensitive, the mixture studies, what 17 kind of results did you receive from those studies? 18 A. Looking at these studies -- first of all, we were 19 able to determine that the optimum range of sensitivity 20 is approximately around half a nanogram of DNA. You can 21 certainly inject more DNA and you can certainly inject a 22 lot less. Part of our validation showed that you can 23 get a full profile using approximately .1 nanogram. 24 Now, that doesn't happen all the time, but that's going 25 to be -- but these are using clean samples. These 1795 1 aren't using what I would call forensic samples. These 2 are known DNA -- known DNA samples that were provided to 3 us from the manufacturer. So these aren't -- 4 Q. Let me interrupt. In comparison to gel 5 electrophoresis, how does that compare? 6 A. With our data, we were able to see DNA profiles 7 down to around point -- full DNA profiles down to around 8 -- I believe .25 nanograms. In some cases, we were 9 actually able to go lower on the 3100. Because in terms 10 of sensitivity, the 3100 did prove to be more sensitive 11 than the gel electrophoresis. 12 Q. As compared to gel electrophoresis, how much of a 13 nanogram would be required to obtained a profile? 14 A. We get optimum results used in the gel 15 electrophoresis using one nanogram of DNA. We get an 16 optimum -- this is using a current DNA quantitation 17 method. We get optimum results in the 3100 using half a 18 nanogram or .5 nanograms. However, our study showed 19 that as you went down lower, you would routinely see 20 full profiles at .1 nanogram and even lower. If you 21 went down to the lower picogram levels of DNA, which is 22 a trillionth -- one trillionth of a gram of DNA, you 23 could still see partial DNA profiles. In other words, 24 sometimes you would see the peaks from those 25 individuals, sometimes not. Whereas, as current study 1796 1 showed, that if you went to that low on the gel 2 electrophoresis, you would probably not see bands that 3 low consistently like we were seeing them from the 3100. 4 The thing about is, it's just different ways of looking 5 at the various sizes of fragments. It doesn't change 6 the DNA any, it doesn't alter it. It's just a different 7 way of looking at those STR sizes. 8 Q. And again, back to the validation for 3100, in 9 addition to the studies that you conducted on the 3100, 10 the machine that you actually have -- you actually have 11 two of the 3100s at that lab; isn't that correct? 12 A. We actually have three now, but only one is 13 validated. 14 Q. And are you in the process of validating the 15 others? 16 A. No, sir. 17 Q. Not yet? 18 A. No, sir. We have far too much case work to do. 19 We're concentrating on case work right now. 20 Q. And in addition to validating the machines, I 21 take it that there has to be some kind of competency or 22 proficiency training for the operator's themselves; is 23 that correct? 24 A. That is true. 25 Q. And could you describe that for the Court? 1797 1 A. During my testing the machine, we performed -- we 2 looked at the machine initially and then we performed 3 the validation. One of the last tests that we did, we 4 took proficiency tests that we have previously run. 5 Because once we receive proficiency tests from outside 6 vendors, co-vendors, all those samples will not be 7 consumed. And so, we took samples from our old 8 proficiency tests and we ran them in the 3100, and that 9 was our competency test that we were going to use prior 10 to implementation of machine. 11 At the time of this case, I had not taken a 12 proficiency test because the vendors have not -- at that 13 time had not given a proficiency test to be sent off. I 14 have -- I'm currently in the middle of taking one, and 15 it it will be turned in this week after I get back from 16 court, but it's not completed yet. 17 Q. Okay. 18 MS. SAVAGE: Your Honor, at this time I move 19 to strike all his testimony and any future testimony. 20 He just said on the witness stand at the time he took 21 this test he was not proficiency tested at the time. 22 State v. Pennington. 23 MR. MCNEILL: Your Honor, if I could have a 24 couple of follow-up questions, it may eliminate what you 25 need to make your decision. 1798 1 THE COURT: Hold your objection in abeyance 2 for a moment. Let you ask a couple of more questions. 3 Q. Agent Freeman, when you speak of proficiency 4 testing, what is proficiency testing? What's the 5 purpose of that? 6 A. The purpose of a proficiency test in a laboratory 7 is to examine the analyst to see if this person can 8 extract the DNA, quantitate it and obtain results that 9 are concordant with those known samples. It's not that 10 I wasn't proficiency tested in DNA or STRs because I did 11 take it -- in the spring, I did take a proficiency test. 12 I did pass that test. It's just at the current time 13 another proficiency test had not been given to us from a 14 vendor, from the current vendor that we are using. So, 15 therefore, an old proficiency test was given that -- I 16 did the analysis, completed my analysis, got a DNA 17 profile and it was scored. I got the same DNA profile 18 that I obtained earlier which I know was correct. 19 Q. Are you saying, in other words, that you passed 20 proficiency test; is that correct? 21 A. I passed the competency test that was an old 22 proficiency test. To count as a proficiency test, it 23 must be graded by an outside vendor and it must -- and 24 the results must be a known to count as a proficiency 25 test. As a competency test, the results can be known 1799 1 in-house. I just have to prove that I get the same DNA 2 profile. 3 Q. Okay. And were there also some written testing 4 that was required or are you talking about the written 5 testing? 6 A. No. There was no written test for this 7 methodology. There was some written work sheets that we 8 had to complete up in Foster City, which I've completed 9 all of those. In terms of a written test, currently, 10 the training that we currently have does not include 11 written tests because this is just a different way of 12 looking at STR fragments. It's not a new technology. 13 It's not novel. It's just a different way of looking at 14 those areas. And in terms of the physical manipulation, 15 the 3100 is actually easier to use in my opinion. 16 Q. Was there a qualifying test though to be able to 17 operate the 3100? 18 A. Qualififying tests and competency tests are the 19 same thing. 20 Q. Did you have occasion to also work a series of 21 older cases? 22 A. We did not have any older cases in-house because 23 the SBI has a policy of sending all those case back. 24 So, we looked at many of our old proficiency tests 25 dating back to 1998, I believe. We looked at a series. 1800 1 I believe it was five or six proficiency tests that we 2 had looked at before. We chose to use those in lieu of 3 adjudicated cases. Because in adjudicated cases, we 4 don't know what the real answer is because they're 5 unknowns. With old proficiency tests, we do know what 6 the answers are because we have those tested and graded 7 before and we have the answers from the vendors. 8 Q. Okay. So is it your testimony that the 3100 9 machine that you currently have at the SBI, that one of 10 those machines, the one that you used in this case, has 11 been validated; is that correct? 12 A. Yes, sir. 13 Q. Okay. And that you have taken proficiency 14 testing on that 3100 machine; is that correct? 15 A. I'm in the middle of taking a proficiency test. 16 I've taken competency tests or qualifying tests on that 17 machine which were in fact old proficiency tests. 18 Q. And you have passed those competency tests; is 19 that correct? 20 A. Yes, sir. 21 MR. MCNEILL: Your Honor, I hope that 22 explains for the Court what we believe to be his 23 qualifications to be -- to have conducted the DNA 24 extraction analysis and ultimately running the DNA test 25 on the 3100 machine. 1801 1 THE COURT: I understand what you have asked 2 of me. Let me see if Ms. Savage has any questions that 3 she wishes to ask on this point or if she wishes to be 4 heard on her objection. 5 MS. SAVAGE: I'll ask him questions first. 6 THE COURT: All right. 7 VOIR DIRE EXAMINATION by MS. SAVAGE: 8 Q. You were never -- you did not do a proficiency 9 test. You were not proficiency tested at the time you 10 did this particular test in this case; is that right? 11 A. That's right. 12 Q. And you have never been given a blind proficiency 13 test in this case? 14 A. Not to my knowledge. 15 MS. SAVAGE: That's all, Your Honor. Same 16 argument. 17 THE COURT: Okay. You made some reference 18 to a Pennington case. You want to amplify on that any? 19 MS. MILES: Your Honor, if I could address 20 that I cited that to the Court earlier. 21 THE COURT: Sure. 22 MS. MILES: We would just renewal our 23 similar objection. Pennington stood for the proposition 24 and held, in subsequently cases following Pennington, 25 the Supreme Court of our state said DNA is not 1802 1 automatically admissible; and that two of the grounds 2 that are subject to attack for admissibility, not it's 3 weight, are contamination and proficiency of the 4 tendered expert. 5 I would submit we have more than 6 demonstrated contamination prior to any DNA tests that 7 were conducted in this case. We've got an expert on the 8 for the State who is clearly very smart, highly trained 9 person. He just has not demonstrated proficiency in 10 this particular case for this particular testing 11 procedure. And on both of those grounds, I would -- we 12 would first move to exclude this expert's testimony as 13 to the DNA result. Again, I've cited the Court 14 Pennington and cases cited thereafter. And just to make 15 our record clear, because I'm not sure we did this 16 earlier, but again move to strike the testimony of Agent 17 Bissette and Agent Bendure on the same bases; that the 18 contamination is before the Court and now we have before 19 the Court the fact that this witness is not proficient 20 in this particular test. 21 We're not impugning whether this witness is 22 an educated and qualified person. He has not 23 demonstrated proficiency in this test, and that's one of 24 the basis for the Court to consider when determining 25 admissibility of DNA results, not weight, Your Honor. 1803 1 It does say specifically it's goes to admissibility. 2 THE COURT: All right. You have the 3 Pennington case there or any other case that you cite 4 following that? 5 MS. MILES: Could I have just a minute, 6 please? 7 THE COURT: Yes, ma'am. 8 MR. MCNEILL: Your Honor, it's at 327 N.C. 9 89. 10 MS. MILES: I can hand it up. I do not have 11 copies of the subsequent citing cases. 12 THE COURT: Okay. 13 MS. SAVAGE: Your Honor, may I add 14 something? 15 THE COURT: Yes, ma'am. 16 MS. SAVAGE: Okay. I also want to cite the 17 the Court to the Quality Assurance Manual that we were 18 given, the CART (sic) Quality Assurance Manual on disk, 19 the 1.2.13, that says insure that our analysts are 20 competent in performing the testing and interpreting the 21 results through a series of proficiency tests. So the 22 ASCLD standards and their own internal protocols and 23 procedures require that they're proficient. 24 I'd also like to add, Your Honor, even 25 though we requested validation studies and proficiency 1804 1 tests, we haven't seen any of that either. This is the 2 first time we're hearing -- we were under the 3 impression, based on representation by the State, that 4 we had gotten everything in that category. 5 THE COURT: All right. Thank you. 6 Agent Freeman, help me to understand the use 7 of this ABI-3100. In laymen's terms, what does it do? 8 THE WITNESS: In laymen's terms what it 9 does, is it able to take a test tube that has various 10 size fragments of DNA, long ones and short ones, and it 11 separates them out based on size. Smaller ones are 12 going to come out first and then the larger ones come 13 out later. And they're going to come out in that order, 14 small ones to large ones. 15 Now, before you inject it into this machine, 16 you add what's called an internal lane standard. It's a 17 series of sizes of fragments given by the manufacturer, 18 which they're known sizes. So as your fragments start 19 to come off, some of your internal lane standards are 20 going to be -- you may have one of those internal lane 21 standards come off of a known size and then a couple of 22 fragments, and then maybe another internal lane standard 23 and then a few more fragments and so on. So you can 24 compare those internal lane standards to known sizes 25 back to your unknown size fragments; and the computer 1805 1 can give them very precise sizes. 2 So like I was testifying to earlier, if 3 you've got one genetic area where someone is an 11-13, 4 it's going to come off at a certain area as it's going 5 through that capillary. By comparing those two 6 fragments to those size standards, you're going to know 7 exactly what size they are. So you generate a DNA 8 profile based on those various sizes of fragments for a 9 forensic sample. And then you do the same thing to your 10 known standard and you're comparing them to see if 11 they're exactly the same. 12 THE COURT: Now, in forensic work like we're 13 involved with here, what is the danger of somebody who 14 is not fully trained in the ABI-3100 attempting to use 15 that equipment? 16 THE WITNESS: The main danger is going to be 17 someone is not going to be able to interpret the data. 18 That's the biggest thing, the interpretation of data of 19 the size fragments. However, the computer software does 20 a lot of that work for you. The GeneMapper ID Software 21 actually is used to compare the fragments from those 22 internal lane standards and your ladder, which is a 23 separate sample, and it generates those numbers for each 24 genetic area for you. 25 The danger would be if you -- number one, 1806 1 you may call something that's a band, you may say it's 2 not a band. Or if you see some type of artifact, you 3 may call that a band. You could, but the probability is 4 you're going to call something incorrect and not make it 5 a match because you're going to be calling different 6 size fragments. But also, you could choose to ignore 7 certain bands that you do need to look at. So it is 8 important to go through the proper training. It's 9 important to understand the machine, the limitations of 10 the machines, and also some of the things that can go 11 wrong with any machine. 12 THE COURT: All right. Anybody else got any 13 other questions? 14 MR. MCNEILL: I have a couple of follow-up 15 questions for him. 16 THE COURT: Okay. 17 BY MR. MCNEILL: 18 Q. The proficiency test that you said that -- the 19 older proficiency test that you said you took, is it 20 correct, Agent Freeman, that that was a reanalysis of 21 the earlier proficiency test that you took in 2004? 22 A. Yes, sir, it was. 23 Q. Can you explain that? 24 A. The difference between a proficiency test and a 25 competency test in our field, the competency test is 1807 1 given to someone -- is a qualifying test to make sure 2 they can perform the work. It's like an in-house test. 3 A proficiency test in forensic is given from an outside 4 vendor. It comes into the lab, no one knows what the 5 answer is. You perform the work, you generate a DNA 6 profile, you write the answers down, and then you mail 7 it back to the manufacturer. They score it and they 8 tell you whether you're right or wrong. 9 Back in 19 -- back in 2004, the first of the 10 year, we took a test which was given by the College of 11 American Pathologists. This test was used for my 12 qualifying test. I took that test earlier using the 13 gel-base system, generated DNA profile, sent it back, 14 and we have received those back; and I scored a hundred 15 percent proficiency. So, I am proficient in DNA testing 16 and STR analysis. 17 With the 3100, we haven't had the 18 opportunity to take one because the vendors haven't -- 19 they only put out two a year. The second one just came 20 out, and I'm in the middle of taking that right now. 21 It's not saying I'm not proficient in using that machine 22 because my qualifying test and all the training I have 23 learned to use it through this training and through just 24 the repetitive use. The competency test that I used in 25 2004, I used for this -- was proficiency test 2004, got 1808 1 the same results. So therefore -- 2 Q. Again, so, you took the earlier proficiency test 3 in 2004 using the gel electrophoresis? 4 A. Yes, sir. 5 Q. Then did an in-house retake of that test using 6 the capillary electrophoresis; is that correct? 7 A. Yes, sir. 8 Q. And what was the result of that? 9 A. With the genetic areas that we're just saying 10 between the two, I got concordant results. I got the 11 same results. 12 Q. Okay. Are you aware of any requirement that you 13 -- in order to conduct DNA testing which involves 14 analysis on the Applied Biosystem 3100 Machine that 15 requires you to have taken and passed a proficiency test 16 by the vendor in order to testify in a court of law? 17 A. Not by the SWGDAM guidelines, no, sir. There's 18 no such requirement. 19 MR. MCNEILL: No further questions. 20 THE COURT: Any further questions on this 21 point? 22 MS. SAVAGE: Yes, Your Honor. 23 VOIR DIRE BY MS. SAVAGE: 24 Q. You said that you just learned how to do the 25 capillary electrophoresis in the spring. Can you be a 1809 1 little more specific when that occurred? 2 A. To go back to what I testified to earlier, I have 3 been to numerous seminars, numerous training sessions, 4 both through SWGDAM, both going through the Promega 5 International workshops and going through workshops 6 sponsored by the Applied Bio Group which will have 7 presentations based on capillary electrophoresis, based 8 on the 3100 and based on the 310, numerous. So, 9 therefore, the background -- 10 MS. SAVAGE: Can I -- 11 THE COURT: Let him finish his answer. 12 A. So, therefore, I understand the system. I 13 understand -- before I even started the training, I 14 understood the system and understood how it was used. 15 It was in the spring that I started the specific 16 training on the software, on actually physically 17 hands-on--taking the machine apart, cleaning it, filling 18 it with polymer, changing the capillary arrays, cleaning 19 the laser. So, therefore, that was the actual hands-on 20 training I started in the spring. That was continued 21 once the field application engineer came in and 22 continued the training. Since then, I've had numerous 23 opportunities to talk with our application specialist, 24 and she's answered any and all questions that I've had. 25 Q. Well, let's talk about at the time you did the 1810 1 test, which was like May 28, 2004; is that right? 2 A. Yes, ma'am. 3 Q. So the spring, did you learn it in April? Is 4 that when you got the hands-on training, April or early 5 May? How much hands-on training did you have before you 6 actually performed this the first time in this case? 7 A. Oh, in this case? 8 Q. Uh-huh. 9 A. It was very early spring. 10 Q. Are you talking about April? 11 A. I don't know specifically. 12 Q. Do you have any records? 13 A. I would have records. And it would probably be 14 in the transcripts from the SBI, that I thought were 15 given as part of this record. I didn't know that they 16 were not given to you. 17 Q. The transcripts that you said though were really 18 related to other types of things like -- 19 A. Any SBI training, which the Bureau sent me to 20 that training in Foster City. So that would probably 21 also be on there. I can look up specific dates if you 22 need me. I don't recall what they are right now. 23 Q. Well, assuming it's April, so for about a month 24 you were training, were you running samples every single 25 day? 1811 1 A. I would not assume that it's April. It could 2 have been much earlier than that. It could have been 3 the very first of the year. I just recall it being 4 early, early on in this year. It may have been the 5 winter of this year. Once I started validation and 6 started training, I ran numerous samples every day, some 7 weekend work looking at -- working at samples, analyzing 8 data, reinjecting, looking at data and performing 9 various studies. A great number of hours went into this 10 validation of this machine. Once it was validated, then 11 we ran a series of tests looking at old proficiency 12 tests, analyzing the data and coming up with correct DNA 13 profiles. 14 Q. Validating machine is different than proficiency 15 of a person operating the machine; is that right? 16 A. If you are not proficient at using the machine, 17 then you're not going to be able to analyze the data. 18 You're not going to able to actually, physically work 19 the machine to get the bubbles out, to perform the 20 injections so there's adequate data obtained. 21 Q. Validating a machine is different than being 22 proficient is what my question was. There are two 23 separate issues here: One is validation of the machine, 24 and two is making sure the person using the machine is 25 proficient; isn't that right? 1812 1 A. I'll agree. 2 Q. And you don't allow the machine to be used until 3 it's validated, right? 4 A. Correct. 5 Q. And yet you're saying that it's okay to let an 6 analyst analyze something before they're proficient? 7 A. Well, someone comes in the lab and I start their 8 training by giving them a proficiency test, they would 9 probably fail it. You have to learn the machine first. 10 You have to go through the training such as I did in 11 Foster City. You have to go through the hands-on 12 training. You have to work with the machine, then once 13 you're proficient -- excuse me -- once you become very 14 knowledgeable with the machine, then you can perform the 15 validation; then you can do your competency test. We 16 could have taken this competency test earlier on. What 17 the issue is is that I had been competency tested. I 18 have many hours of hands-on time with this machine, 19 performed the validation, and I have received training 20 in the use of this machine in forensic analysis. 21 Q. But you didn't take a proficiency test until 22 after you performed capillary electrophoresis in this 23 case. And you're not suggesting that when you come to a 24 court of law in a forensic case, that it's okay not to 25 be proficient in the test before you talk about the 1813 1 result; is that your testimony? 2 A. We're talking apples and oranges. Because you're 3 saying -- if you are suggesting that I'm not proficient, 4 if you take that competency test and you don't pass the 5 competency test, then I would say you're not proficient 6 at using it. Every sample that I tested with the -- of 7 the old proficiency tests, I got the same result. One 8 additional test, the difference between taking those 9 series of -- looking at that four or five sets of old 10 proficiency tests plus my competency test, taking one 11 more test is not the difference between proficiency -- 12 proficient and not proficient. The proficiency test is 13 given by an outside vendor and it does -- it is required 14 by SWGDAM and ASCLAD. What is not required by those 15 agencies is that that person just has to sit around and 16 wait for that next proficiency test to come. As long as 17 they are well trained, as long as they can demonstrate 18 competency with that machine by performing competency 19 tests, then that person can perform case work just like 20 in training. And part of the SWGDAM requirements of 21 training are that the individuals are proficiency tested 22 as soon as they can be. That does not preclude them 23 from working cases, that does not preclude them from 24 testifying in court. They can perform their competency 25 test whether it's hands-on and/or written. Then those 1814 1 individuals can work forensic case work as soon as -- as 2 long as they demonstrated competency. The proficiency 3 test can come later as long as it's within the 4 prescribed period of time by SWGDAM. 5 Q. But we don't even know if you're proficient 6 because we still don't have the -- besides you not 7 having been proficiency tested prior to doing the 8 particular tests, we don't even know if you're 9 proficient in the test that you took subsequent to doing 10 the test because we don't have the test results. That 11 would be the objective answer whether or not you're 12 proficient, not you just saying it, right? 13 A. That's you saying that. 14 Q. Well, what's the point of proficiency test and 15 then waiting for the result if you can have someone say 16 I'm proficient, take my word for it? 17 A. They don't just say they're proficient, take your 18 word for it. They've taken a series of competency 19 tests. They've passed their training. If you were to 20 come into my laboratory and wanted to be trained in the 21 3100, I wouldn't say here, take this proficiency test 22 and then once you pass the proficiency test you can 23 start your training. The training must come first, then 24 you have a competency test; and it's a long series of 25 tests that you have to go through. You have to have 1815 1 knowledge of the machine, you have to go through 2 classes, you have to understand the DNA, STRs, PCR, 3 quantitation. Once you go through that, then you're 4 going to have hands-on training. You'll to learn how to 5 take the machine apart. You're going to learn how to 6 put it back again. You're going to learn how analyze 7 all those fragments. 8 Once you do that, I'm going to give you a 9 series of samples which you're going to run, which we're 10 going to look at the results. After that, and you feel 11 like you're competent and I do as a training officer, 12 then I'm going to give you a series of competency tests. 13 Once you pass those competency tests in terms of ASCLD, 14 in terms of SWGDAM guidelines, as long as you pass those 15 series of well-defined tests, you can start case work. 16 Now, it may be a month or two before those proficiency 17 tests come out. Once those proficiency tests come out, 18 yes, you have to take those and you have to pass those, 19 but it does not preclude you from working case work as 20 per SWGDAM guidelines or as per ASCLD. 21 Q. You testified that if you're not proficient, you 22 may incorrectly analyze the data and the results of your 23 proficiency whether or not you can analyze that data are 24 now outstanding; isn't that right? 25 A. You're talking about one test. I'm talking about 1816 1 being proficient in something involves a series of 2 training, well-defined training and a series of tests 3 which shows that you are proficient. You can be 4 proficient to take proficiency tests. 5 MS. SAVAGE: Your Honor, if I might approach 6 with the proficiency test with him. 7 Would would you like for us to go further, 8 Your Honor? He has already admitted he wasn't 9 proficiency tested prior to the time he took this test 10 and that the competency exams are based on proficiency 11 from the gel. He's not proficiency tested in capillary 12 electrophoresis or he was tested after he did this and 13 are waiting for the results. But at the time of this, 14 he clearly wasn't proficiency tested. 15 THE COURT: You have made the point. I 16 don't think you need to make any further with another 17 examination about a proficiency test. He's explained to 18 you his difference of opinion between proficient and 19 proficiency test. That's been adequately covered. So, 20 I don't think you need to go into the proficiency test. 21 MS. SAVAGE: Court's indulgence. 22 Q. Were you given random samples and blind samples 23 or did you test yourself? 24 A. No. These were graded. These were grade tests. 25 I can't remember if my special agent in charge graded 1817 1 those or if another analyst graded those. But I took 2 that test and then they gave results. 3 Q. When did you take that test? 4 A. I believe those were done the end of April. 5 Q. Is there any paper work on those tests? 6 A. Yes. 7 Q. Do you have them? 8 A. I do not have them with me. 9 Q. Did you give them to the Attorney General's 10 Office? 11 A. I did not personally. It was my understanding or 12 -- it was my belief that the special agent in charge had 13 the train records. 14 Q. So if the records that we have had were given to 15 us about the Attorney General has your last proficiency 16 test, not the capillary electrophoresis, but for other 17 things on 12/31/03, that's wrong? Is that what you're 18 saying? 19 A. There would be one that was given the first of 20 this year. 21 Q. 12/31/03, and then there would be one at the 22 first of the year in one month? 23 A. 12/31. Because I've taken the Cap A Test which 24 was probably due some time around March. I believe that 25 to be correct, March or April. 1818 1 Q. And there's paper work on that somewhere? 2 A. Yes, ma'am. 3 Q. But that wasn't the capillary electrophoresis? 4 A. No, ma'am. 5 MS. SAVAGE: Court's indulgence. I have 6 nothing further, Your Honor. 7 MR. MCNEILL: Your Honor, at the appropriate 8 time I would just like to address the issue briefly. 9 THE COURT: The objection to the testimony 10 about the capillary electrophoresis test by Agent 11 Freeman is overruled. He will be allowed to testify. I 12 do find that he is well-trained, competent and 13 proficient to perform capillary electrophoresis testing 14 with the ABI-3100 as part of his expertise in the field 15 as an expert in the molecular genetics and DNA analysis. 16 MS. SAVAGE: Your Honor, if I might just ask 17 then, when he comes back tomorrow, can we have the 18 competency test and the proficiency test on the 19 validation studies that we didn't receive. We asked for 20 them and we were told we had everything, so. 21 MR. MCNEILL: I asked for everything, Your 22 Honor, and I've turned over everything. I have not seen 23 any additional papers other than what they've seen. 24 THE COURT: We'll ask Agent Freeman to 25 follow-up on that and see if he can find anything else 1819 1 in the line of what Ms. Savage has asked about here or 2 anything related to it. 3 And I'm inclined, given the hour of the day 4 and a full day, to recess until 9:30 tomorrow unless 5 anybody has any other brief housekeeping or 6 administrative matter that we need to address. 7 MR. MCNEILL: Nothing from the State, Your 8 Honor. 9 MS. MILES: Nothing. 10 THE COURT: All right. We'll be at ease 11 until 9:30. 12 (Overnight recess 4:55.) 13 14 15 16 17 18 19 20 21 22 23 24 25