“Yes. Correct. I had no reason to think otherwise,” Robert Salvador said.
Before the next witness was called, there was a ten-minute break followed by an argument that started when Lon Arend complained about the defense’s cross-examination techniques. They seemed to be asking questions out of the blue, and not based on facts in evidence, just to place a notion in the jurors’ heads.
Okay, the last witness wasn’t completely candid with law enforcement when he was
first
questioned. How do you get from there to
he killed Lee
?
That was quite a jump.
Jerry Meisner said he had statements to back up his questions, but the only statement he would name was a previous statement indicating Robert Salvador had indeed agreed to meet with the defendant later on after practicing at the gun range.
The implication was that Jerry Meisner was basing his questions for Robert Salvador on statements that had been made to him by Michael King, statements that Meisner did not have to quote in court because of lawyer/client confidentiality rules.
Judge Economou didn’t think this provided adequate foundation for asking if he was a murderer. The defense was, in law school vernacular, trying to walk through a door that hadn’t been opened.
There was no “good faith” basis for asking those questions. The “agreed to meet” statement came from the defendant himself during an early police interview—the same interview in which he claimed that someone shooting from a helicopter murdered Denise Lee.
Meisner said that questioning Robert Salvador about what really happened was allowable once it was established that he’d lied to police, and the defense attorney itemized the differences between his earlier statements and this day’s testimony. There were all sorts of reasons to suspect the witness. He lied about being with Michael King. He lied about ever being in King’s home, and about the extent of their friendship. Plus, there were indications of deception—i.e., he deleted calls from King on his phone. And because his client never admitted anything involving Denise Lee’s death, the defense could question this known liar without contradicting King.
The judge ruled that the questions involving Robert Salvador knowing and killing Denise Lee did not have proper foundation and constituted improper cross-examination.
When the jury was brought back in, the judge informed them to disregard that portion of Robert Salvador’s testimony, and that that portion of the Q&A had been stricken from the record.
Judge Economou read for the jury the specific questions and answers they were to disregard, so everyone would know exactly what they were supposed to forget.
The question and answer regarding whether Robert Salvador and Michael King ever traded guns at the range would be allowed in, however, as it did not imply guilt on Salvador, and the handling of the guns and ammunition during the hours before the murder was clearly relevant and proper cross-examination.
John Romeo, a Florida crime lab supervisor/firearm expert, testified that he had a bachelor’s degree from South Florida, completed a two-year course in ballistics, been tested annually for fifteen years in his proficiency and never failed, and had testified in court about one hundred times before.
After establishing his firearms expertise, Romeo was shown a gun like the one Robert Salvador said Michael King was practicing with at the range. Romeo described the nine-millimeter gun as a semiautomatic pistol made to resemble a Glock. He demonstrated for the court how the gun was loaded, using a detachable magazine. When fired, the gun automatically ejected the spent shell casing, which would go up and to the right, landing about three to five feet from the shooter.
“Would it be possible for an ejected shell casing from this gun to travel ten feet?”
“That is not unheard of.”
Romeo said he’d been given forty-seven shell casings taken from the gun range—near the spot where the two men were practicing—and, for comparison purposes, the shell casing recovered near the burial site. He looked at each shell through a microscope and placed shells next to each other to compare them. He looked for any tool marks, impressions, or scratches on the case.
“Tool mark?”
“The metal of a gun is harder than that of a bullet casing, so the gun makes marks on the casing through all stages, from loading to firing.”
“Tool marks help you identify the weapon?”
“Yes, the tool marks left by every gun are unique.”
Another key method of determining if two shells had been ejected from the same gun was the impression made by the firing pin.
“And what did you discover during your analysis of these casings?”
“I found that four of the casings from the gun range were ejected by the same gun that ejected the casing at the crime scene.”
“Are you certain of this?”
“One hundred percent.”
John Scotese cross-examined the witness. He directed his attention to the four range shells that he’d ID’d as coming from the probable murder weapon. Did he collect those shells? No. Did he bag them? No. Did he have any control of the collection and packaging of the evidence up until the time it was delivered to his lab? No, he did not.
The implication was that this was manufactured evidence, that the fix was in. Michael King was being railroaded.
Scotese induced testimony that various ballistics experts will sometimes use different terminology, and then he used that to imply that there was a subjective component to the witness’s science.
The witness acknowledged that in some cases this might be true, but that there was
always
a great deal that
was
objective. John Romeo admitted that the same gun might not always make the same tool marks on the casings it ejected, and that those marks might vary slightly depending on the manufacturer of the ammunition.
There were also misfires to take into consideration. In some cases, the gun itself proved faulty, in which case the tool marks on an ejected casing might vary from a casing ejected from the same weapon when it was functioning properly.
He also noted that unlike fingerprint analysis in which a certain number of common features officially made two fingerprints a match, no such magic number existed with shell casings from semiautomatic pistols. The number of identical markings that would constitute a match varied from scientist to scientist.
Yes, there could be a situation where one ballistics expert might call two shell casings a match, while another would determine that the evidence was inconclusive.
Romeo fought back, however, emphasizing that it was not the number of identical marks on two shell casings that determined a match, but the uniqueness of the shapes. And the identical nature of two marks’ shapes was very objective and “used scientific principles.” It was very rare for well-trained examiners to disagree.
On redirect, John Romeo said that although it was conceivable that variant manufacturers could hinder a scientific match with two casings fired from the same gun, the various manufacturers of the ammunition in this case did not affect the comparison.
On recross, Romeo said that no, he didn’t know the metal content and composition of the casings he’d compared in this case.
Romeo was excused, and the third day of testimony came to an end.
CHAPTER 18
DAY FOUR
Court began on day four with Jerry Meisner moving for a mistrial because the evidence regarding Robert Salvador had been disallowed. Judge Deno Economou denied the motion.
Lon Arend asked the judge to add to the state’s witness list the name of Robert Salvador’s wife, whom he wanted to question regarding the specifics of Salvador’s alibi.
The state argued that it should be allowed to bolster Robert Salvador’s testimony by calling his wife to the stand. He was where he said he was, and his wife, Betsy, would back him up on that.
The defense didn’t like that idea, arguing that if the state wanted to call Mrs. Salvador to the stand they should have put her on their pretrial witness list. Besides, such an addition to the list would necessitate a delay as the defense would need an opportunity to prepare cross-examination. And thirdly, Mrs. Salvador had been a spectator in the courtroom during her husband’s testimony. By rule, witnesses had to be kept out of the courtroom until after they were done testifying.
Arend argued that because Michael King’s DNA, and only King’s DNA, had been found during Denise Lee’s autopsy, there was no evidence that Harold Muxlow, Robert Salvador, or anyone else for that matter were present when Denise Lee was murdered.
The judge agreed with the defense and ruled that Betsy Salvador should not be added to the list of prosecution witnesses. With that, the jury was brought into the courtroom and testimony resumed.
The prosecution’s first witness of the morning was NPPD officer Todd Choniere, questioned by Suzanne O’Donnell. He testified that at 6:35
P.M.
, on January 17, 2010, he and Pamela Jernigan went to the home of Harold Muxlow, knocked on his door, and found no one home. They canvassed the neighborhood, asking people if they’d seen anything suspicious. They gave the Muxlow property the once-over. Behind the house, there were two structures: a workshop and a storage shed. There were also a couple of vehicles back there on blocks. In the front, an unhitched trailer was parked on the lawn next to the street.
At 6:56
P.M.
, Harold Muxlow returned home in his white Chevy pickup, so the witness and Jernigan questioned him. They talked to him for ten minutes outside, and then they went into his home. Crossed Confederate flags were featured in his decorating, along with the slogan “Git-R-Done.” He had his own slot machine. Choniere took photos.
Harold didn’t bother to hide his weapons. Immediately upon entering, Choniere and Jernigan observed a black nine-millimeter Wesson pistol.
“I told Muxlow not to touch the firearm while their investigation was under way, and Muxlow said okay.” The officers left; and for the rest of the evening, until midnight, the Muxlow house was under surveillance, thus verifying that he and his white truck did not leave.
There was no cross-examination.
Suzanne O’Donnell questioned William Dunker, a twenty-five-year-veteran fingerprint expert with the SCSO. He had received every conceivable training in latent prints, and tested other fingerprint experts in their proficiency. He’d developed and taught a course in South Dakota.
Dunker proudly testified that fingerprints were still the best way to connect a criminal with a crime, and they had been globally used in that capacity for more than one hundred years. Fingerprints, he said, were permanent and remained unchanged. And in history, no two different people had been found to share the same fingerprint. The quality of a fingerprint was variant depending on the amount of oil or dirt or other substance—such as blood—on the fingertip, and the smoothness or roughness of the surface being touched. Another factor was how a touch was made. If the fingertips dragged across a surface, a fingerprint could be smeared.
Dunker went over the methods used to make fingerprints easier to see. Old-fashioned dusting and lifting was still the most common method.
The rules were that a certain number of similarities had to be present before two fingerprints could be called a match, but only one difference was necessary to distinguish them.
During his work on this case, Dunker was provided a set of “known prints” for comparison purposes. He received a set of the victim’s prints made during the autopsy, but eight of the ten fingerprints were inadequate for identification purposes. The victim’s remains had been underground and wet. Her fingerprints were shriveled, but the palm prints were adequate for matching purposes.
He was also provided with a set of the defendant’s prints taken after his arrest. All of these were of top-notch quality, perfect for identifying mystery prints.
Dunker positively matched the defendant’s fingerprints with a left thumbprint found on a box of baby wipes discovered inside the Camaro. A fingerprint found on the cell phone battery pulled from King’s phone and found in the car matched the defendant’s left index finger.
The key piece of evidence was a palm print found on the outside of the driver-side window that matched the victim’s right palm print.
John Scotese cross-examined, picking at the chain and quality of evidence. William Dunker was not there when the crime scene prints were found and lifted. There were prints that could not be matched because they were smeared or prohibitively incomplete. These came from the front door and sliding glass door to Lee’s house, the passenger side of the Camaro, and King’s cell phone.
On redirect, Dunker said that the mystery prints found at the Lee home could potentially be those of the defendant, and those found on and in the Camaro could potentially be those of the defendant.
The state called Kevin Noppinger, the lab director at DNA Labs International. Questioned by Suzanne O’Donnell, Noppinger testified that his lab was internationally accredited and functioned under the guidelines of the FBI. It was audited every two years to make sure it remained under those guidelines.
Noppinger defined DNA as the readable code of a person’s biological makeup, a code provided half by each parent. The DNA in cells from the bottom of a person’s foot is the same as that in his or her hair.
Noppinger had a master’s degree in forensics and received DNA training from the FBI. Noppinger said that he was in on the ground floor of DNA technology, which had only been perfected and used to catch criminals since the 1990s.
For this case, he was given organic material known to have come from the defendant and the victim to use for comparison purposes. He was also given a hair found in King’s Camaro and was able, using DNA, to identify positively that hair as belonging to Denise Lee. He also positively ID’d the blood found on the outside of the Camaro as that of the victim. The odds of another human having a DNA code that matched the victim’s were 1 in 1 trillion.
“Was the bloodstain solely Ms. Lee’s, or did it involve a mixture?”
“A mixture.” But the quantity of secondary blood was insufficient for testing.
“Were the results of your testing such that Mr. King could be excluded as the secondary donor?”
“No.”
All in all, the witness testified, thirteen bloodstains were found on the Camaro. Of those, eight were pure and five were mixtures of the blood from two individuals. None of the blood could be matched positively to King,
but
—and it was a big
but
—jut one dissimilarity in DNA code would have been enough to exclude King as the secondary donor of blood, but no dissimilarities were found.
“What are the odds that King wasn’t the secondary donor?”
“About two hundred eighty to one.”
“Let me now show you a blanket found on the floor of the King residence. Did DNA Labs International do DNA testing on this blanket?”
“Yes.”
“Multiple areas on the blanket were tested?”
“Yes.”
“Was there a bloodstain on the blanket?”
“There was.”
“Sole donor or mixture?”
Noppinger said it was a mixture, and as had been the case with the stains on the car, this one predominantly came from the victim, but the defendant could not be excluded as the donor of the secondary blood. The odds were stronger that the blood was his, however, as the DNA code the lab was able to extract made it a 1 in 600,000 chance that the blood belonged to anyone else.
Noppinger testified that there was also a semen stain on the blanket. The semen
could
be positively ID’d as King’s using DNA technology to the point of certainty. Chances the semen belonged to another man were 1 in 1 quadrillion, which was a 1 followed by fifteen 0s.
The witness was shown the piece of carpet removed from the King residence. It, too, had a semen stain on it, and the odds were 1 in 1.1 quadrillion, an even larger number, that it wasn’t the defendant’s. A small quantity of blood was found on the blanket, a mixture. Odds were 1 in 19,000 that the victim was not a contributor, and 1 in 310 that the other blood didn’t come from King.
A bloodstain on the piece of bra strap, to a strong degree of certainty, belonged to Lee. A stain found on the boxer shorts turned out to be a combination of “sperm cells and regular cells.” Using a chemical process, Noppinger was able to separate the cells and found that the sperm most likely belonged to King while the other cells were probably those of Denise Lee.
John Scotese cross-examined: “When trying to match DNA samples, you use the same database as used by the Florida Department of Law Enforcement, correct?”
“Yes.”
“Could you tell me what PCR stands for?”
“It stands for polymerase chain reaction.”
Kevin Noppinger acknowledged that PCR was a technique used by his lab to “amplify DNA in order to analyze it further.” The process caused the DNA to make copies of itself, so that there was more DNA to test.
“I’ve heard the analogy that PCR is like a copying machine, a biological Xerox. Would that analogy be correct?”
“Yes.” PCR could make a million copies very quickly, Noppinger added.
“Such a technique would be highly sensitive to contamination, wouldn’t it?”
“Yes.” If a contaminant was present, the process would make copies of it as well as of the DNA that the lab was attempting to identify. Noppinger acknowledged that. Though it was highly unlikely that a sample would be contaminated once it arrived at his lab, he had no control over how a sample was handled up until that point.
“In your lab, you use a DNA analysis system known as Identifiler, correct?”
“That’s one of the DNA profiling kits we use, yes.” That system, the witness said, was better because it recognized two more DNA markers than other analysis kits.
Noppinger acknowledged that others had helped with the lab work on the blood and semen samples he’d testified to. Others, for example, had extracted and amplified the DNA samples.
“Isn’t it true that your job today is to testify to results found by other people?”
“No, it is not.”
“Could you explain what a reference sample is?”
“A reference sample is also sometimes known as a ‘known sample’—such as a cheek swab or blood sample taken from a known individual for comparison purposes.”
No, Noppinger’s lab had nothing to do with the collection of the reference samples in this case, and he could not testify to their purity. He also had nothing to do with the DNA analysis of the reference samples, the results of which were e-mailed to him by FDLE and then printed out on a piece of paper. If there were mistakes in those results, he would have no way of knowing it, Noppinger admitted.
“Let’s talk about that bra strap for a moment. If I understand your testimony, you tested that bra strap and found a partial DNA profile, correct?”
“Yes. You cannot exclude Ms. Lee as a contributor to that profile.”
“So you would agree that in that case, there wasn’t necessarily a match, right?”
And on and on, the cross-examination went. Yes, there was a chance that the DNA did not match the victim and the defendant with all of the tests he’d done. But, also in every case, it was a very, very slim chance.
Scotese, making the most of what he had to work with, hoped that the slim chance that the DNA testing was wrong might constitute reasonable doubt in the minds of a juror or two.
“Are you a director of DLI?”
“Yes.”
“You have an ownership interest?”
“Personally, I do not. My wife owns the company.”
“Do you know how much it costs to amplify DNA?”
“I do not. I am on the science side, not the business side.”
He was knowledgeable enough to make an educated guess, saying he figured it cost about $600 or $700 per sample. The witness then acknowledged that in April of 2008, three months after Denise Lee’s murder, he offered Detective Christopher Morales a deal, saying he was willing to do a DNA analysis for free on the shell casing found near the burial site.