April 2, 2008. El Dorado Co. Superior Court, People vs. Mario Lozano.
Case # P06CRF0427 (After lunch)
Did any one notice I dated the last two entries 2007? Have to try to correct that when I post this one. I slept about 8 hours last night and then crashed on the couch about 7:00 this morning. I have been snoozing all day and it’s after 4:00, WOW guess I was whooped. I’ve got to get up if I want to sleep tonight. I’ve got 17 pages of notes to transcribe for the afternoon trial. Well, at least all but one are on the back of the pages with only 2/3 usable writing surfaces. Whew! We begin with Atwell’s cross-examination of John Yount. So, with Atwell’s style of questioning, I’ll continue with an “A” for Atwell and a “Y” for Yount.
1:35 Atwell begins questioning Yount by asking him when he first took the blood spatter class. Y 2001.
A Is it science… art? Y It can scientifically look at a pattern and determine if it fits a single point of origin or multiple points of origin.
A Was that the reason you were called to inspect the trailer in 2006? Y Yes.
A Where was the trailer? Y On city property, at a water treatment plant I think. It had been moved.
Atwell shows Yount a diagram of trailer entered earlier by prosecution and asks, do you remember if any items you examined were still in the trailer? Y No.
A Items examined was a shirt? Y Yes.
A It was sent to you? Y It was sent from a Sacramento lab with documents of the chain of possession.
A Was the package containing shirt previously opened? Y (After reviewing his notes) This is not indicated in my notes.
A Are you aware of the practices of the Sacramento Lab? Y No. It’s the same bureau but different office’s practices are similar but not identical.
Yount explains the process of examining the shirt, removing it, looking at it, folding it and placing it on the table. Then says, the shirt had been cut up the left side by the coroners and there was a hole and blood on the right.
A Did you examine the package for loose particles? Y Yes, crust debris and organic material, a pellet.
A Describe stippling again. Y Stippling would not be applied on the shirt. Stippling is a result on flesh.
A It was determined that the blood on the shirt was mostly from the head wound. A Would it have covered over or soaked up other particles? Y The absence of gun particles means they were not there when I inspected the shirt.
A How did you make a determination of the size of the hole in the shirt… with a ruler in inches? Y On a flat table but not pressed flat. After examining the area with a low powered microscope I use a paper ruler to measure the hole. It was smaller than 1 ¼” and larger than 2 5/8”. The smaller dimension was the same as the pathologists report.
A Did you examine the shotguns for unburned particles of powder? Y No, they had already been processed for fingerprints.
A Did you determine how far inside the barrel the blood was deposited. Y About 3” inside the bore.
A With respect to the dimensions of the defect in the chest of the victim… would the fact that the victim wore a brazier affect the size of the wound… Possible slight compression causing variation of wound? Y Slightly larger.
There are some questions and explanations about shot gasses and the effects of the wadding and characteristics of the shot cup and distances the shot cup might enter the wound… Yount answered that this isn’t known. There might be some possible obscure data available.
A What was the source of the cardboard? Y It’s bought in sheets and cut up into squares.
A Any reason for this cardboard? Y No.
A Any testing done on pigs because the flesh similarity to human flesh… Do you feel cardboard is similar to human flesh? Y No, cardboard tears more than flesh. This is taken into consideration when measuring the shot holes and tears. We didn’t try to find any dead pigs to shoot. The difference between pellets and shot cups are the pellets leave a scalloped hole and the shot cup leaves a rectangular impression.
A Did you identify the shotgun #7? Y Yes, I examined both guns.
A Was the serial number recorded? Y Yes, for both. He checked his notes and gave the serial # for shotgun #7 but doesn’t have the S/N for #15.
Gomes offers information but it is suggested by Atwater that both guns be brought into the courtroom, Atwater inspects the guns quite awkwardly without wearing gloves. He uses one glove like a potholder with one hand but touches the gun with his other hand. Then he brings the gun #7 (again without wearing gloves) to Yount (who did put gloves on) who identifies it as the gun used for testing. He shows Atwater the markings made by the lab that identifies it. Atwater returns the gun to the Bailiff.
A Did you determine what material the shirt was? Y No.
A Did you determine if there was expansion or contraction of the hole? Y No, it was verified with the copy of the pathologists report.
2:15 Gomes redirects asking, could the possibility of wearing a brazier expand or contract the wound? Yount answers, that’s why I compared the pathology report with the size of the hole in the shirt. It’s implausibly that both the flesh and the shirt would be distorted to the same degree. Possible but not plausible.
Gomes asks, is pig testing a reality? Yount says, I have not done it but I have heard of it.
Gomes asks, is it common? Yount responds that more people are using ballistic gel and he gives some explanation as to why. He didn’t feel it was necessary to use gel or pig flesh in this case.
2:18 Gomes calls Linda Senteney and she is sworn in. She is a latent forensalist (I think) for the Department of Justice. She has testified more than 50 times.
Gomes asks, were you called upon to inspect guns #7 and #15 in the investigation of the death of Kathleen Kacie Barron? Senteney answers yes.
Gomes (wearing gloves) shows one of the shotguns to Senteney and directs her attention to thee gray dust covering both guns. Senteney says it’s superglue residue and explains how the glue is boiled and the steam leaves the residue.
Gomes shows her the other gun and asks if the same process was used. Yes she answers. Gun #7 shows prints above the trigger area. One print was not usable and the other appears to be a portion of a palm.
Gomes asks if any steps were taken to compare this with known prints of Mario Lozano. She answers yes.
Gomes asks, were they Mario’s. No, she says, and there were no other usable prints.
Gomes shows her the second gun #15 (still wearing gloves) and asks her if she found any prints. She says yes.
Gomes asks if they were compared to the prints of Mario? She answers yes.
Gomes asks, were they his? She says no.
Gomes shows her and enters into evidence the diagram she made of where the prints were. He asks if it’s common for prints not to be developed on firearms. Senteney explains that prints are made of sweat and oil. They are quite fragile.
A point is made that prints are found everywhere on TV and she responds, that’s TV.
2:21 Atwater declines to question Senteney.
Gomes calls Detective Kim Nida to the stand and she is sworn in. She is a Lieutenant with the Placerville Police Department. She spent 4 years with the Eldorado County Sheriffs Department and has been with the Placerville Police Department 5 years. In July of 2006 she was a detective and was assigned to the case for Kacie Barron. She was called at 6:20 the evening of the 26th and responded to the office to pick up her equipment. The focus was on Mario because he was not to be found and Kacie’s car was missing.
Gomes asks, was anything found around the house tying Mario to the scene? Nida answers, Nick testified that Mario had been staying with Kacie and that he had been in Hawaii.
Gomes asks if there was any indication of Hawaii at the scene. Nida states that a construction hat with Hawaii or Kauai on it was found. A letter to Mario from Kacie was found and a necklace, common everywhere in Hawaiian gift shops, was hanging inside the door.
Gomes asks, what attempts were made to locate him? Nida answers, they attempted to call him on a cell phone with no answer. A phone message identifying this phone number as Mario’s during the investigation was used. They visited several friends in the area and didn’t find him.
Gomes asks, did you check Kacie’s bank records? Yes, she answers.
Why? Gomes asks. She says that Kacie’s purse was missing. On the date of the 26th at 2:05 PM her ATM card was used at a station in Markleeville.
Gomes asks, did you respond to the station? She answers, yes.
Gomes asks how long did it take. She said no, it was about 70 to 75 miles though.
Gomes asks, did the station have videotapes? She says yes.
Gomes asks, did you obtain them? She answered yes and explains that a white car resembling Kacie’s pulled up to the pumps and a male subject got out of the car and fueled up the car. We couldn’t determine the color of the clothes because of the quality of the tape. Then he got in the car and headed southbound towards Hwy 88.
Gomes then enters a CD into evidence and asks permission to publish after a short break. He states, so we see a car similar to Kacie’s and a subject similar to Mario fueling it up.
Gomes asks how they located Mario. Nida explains that they came up with the name of a male, Leslie Berens, living in Mammoth. (they traced Leslie Berens with emails Mario made on the hard drive of the computer I left for Kacie to use) They contacted the local officials to check for Mario. On August 11 they didn’t locate the vehicle. On August 12 they located the vehicle at a trailer. This is a small town and a local Police Officer talked to Leslie at another location. He verified Mario’s presence. At 7:21 PM Mario was apprehended.
Gomes asks, did you get to talk to Mario? Nida answers yes.
Gomes asks, does he look different now? Yes, Nida says, he has long hair now and a beard plus about 50 lbs. She is corrected by defense, 60lbs. Ok, she says, must be the jail food.
Gomes asks, after advising him of his rights was he willing to talk? She answers yes.
Gomes asks, did he? She says yes.
Gomes asks if he was comfortable. She says yes.
Gomes asks, did he seem to understand why you were there to talk to him? Nida answers. Yes, at first I established a rapport with him with small talk. You don’t want to appear shocked at anything he might say. If you appear shocked he might clam up. The entire conversation was more of an interview than an interrogation. When asked what happened, he was very calm during the complete conversation. He started of telling that when he came into California it wasn’t what he expected. He called it a crank infested inferno. He had come over from Hawaii. He would not have returned to California if he knew what was here. He spent all of his money getting here and had sent money to Kacie expecting her to have the money.
Gomes asks, did he talk about other plans with Kacie? Nida says yes, they planned to go to Arizona for a month. He found the trailer torn up and the truck too large, a gas hog. (I remember Kacie being excited about the trailer and HER plans to travel. She had sold a ’69 Olds Cutlass that had been in the family since new to buy it. A friend’s father was retiring from the racing circuit and he was going to let Kacie use his '84 Chevy, big block, 4 door dually if she licensed and insured it. Kacie’s plans were to travel and visit friends before her back disabled her.) He indicated he disliked that Kacie didn’t have the money and he felt that the money was wasted on drugs. He did not indicate the relationship was romantic but it was assumed. He believed she had another boyfriend.
Gomes asks who was it? She says, He thinks it’s the pill guy. He was unhappy about that.
Gomes asks, in reference to July 26th, any mention of that? She answers, he thinks Kacie stayed with the pill guy at a hotel the night before. He said you can get a lot of information with computers. He believed he and Kacie would be together when he returned from Hawaii and wasn’t happy with what he found.
Gomes asks, what happened at the trailer? Nida states, he said they both had shotguns. She pointed one at him and he pointed one at her. She said, you want to play? And she pulled his gun. His finger was on the trigger. He described the second shot as the “kill shot”. He described the first wound as a “gut wound” and that he had seen people suffer with gut wounds. He didn’t want her to suffer so he leaned in and shot her in the head. He just wanted to leave and would leave but he wanted his bags in the trailer and she wouldn’t give them to him. He stated she had the trailer door locked. She was always paranoid and locked the door. (When I dated her she was paranoid because a previous ex-boyfriend came in the back door of her house and broke her fingers while they were arguing. Legal proceedings were still pending and her ex was pissed about it.)
Gomes asks, how did he get the 2nd shotgun. She recalls, after she showed her shotgun to him and he clarified not pointing it at him, he went into the house and gets the 2nd shotgun. Then he goes outside and waits for her to get off the phone. They both argue and then both shotguns were pointed at each other.
Gomes asks if he indicated how the screen got knocked out. (It was inside the trailer on the couch cushion.) Nida answers, no. He stated that she was standing on the floor in the trailer and he was standing on the ground outside. Then he states that she said do you want to play and grabbed the end of his gun with her left hand holding her shotgun to her right shoulder. He stated he gut shot her and she walked toward the kitchen. He said she was not looking at him when he leaned in the window and shot her in the back of the head. He then climbed inside and watched her take her last breath. Then he retrieved a lockbox and got 2 handguns out of it and left through the window, not the door.
3:26 Court continues with Gomes questioning Lieutenant Nida about the interview with Mario. Then he grabbed the lock box containing the guns and left. He didn’t get his bags? She says, he didn’t know why he didn’t grab his bags. He was asked if he thought about calling 911 after the first shot. He said no. Had he thought about giving her medical attention. He said no.
Gomes asks if he knew who’s guns the 22’s were. She says he did know that one was Nick’s and the other Kacie’s.
Gomes asks, did you attempt to re-create Mario’s version of the event in the trailer? Yes, in storage. I’m 5’ 10” and Gomes is 5’ 7” in this re-creation Gomes played Kacie. I played Mario with the shotgun pointing in the window standing on the ground. Gomes was standing on the floor between the couch cushions.
Gomes asks, did you observe when pointing the shotgun in the window, my efforts to grab the gun? Nida states that he could not reach the gun without leaning on the cushions.
Gomes asks, assuming it was possible to grab the shotgun, did you take reference to the distance of the barrel of the gun to my chest?
Atwell objects to this line of questioning.
Gomes continues, clarifying his question. With Lt. Nida outside the trailer pointing the shotgun inside the trailer and Gomes’ hand on the barrel did you measure the distance from the muzzle to the shoulder? Nida answers yes.
Atwell objects and it’s sustained.
Gomes asks, did you use a tape measure? She says yes.
Can you read a tape measure? Yes.
What was the measurement?
Atwell objects again and council is called to the bench.
Gomes asks, Ok, Lt Nida. What did the tape measure read with my arm fully extended? Nida responds, 2’ 3” with arm fully extended, I’m not fully sure. We may need to recreate it.
Gomes says, we took two measurements, one at the point when I can’t grab the barrel. Nida says she believes at 1 ½’.
Gomes says we need to recreate this.
Gomes then wants to talk about the cell phone Officer Jordy found in the trailer. He enters the cell phone into evidence and asks Nida if she recognizes it. Yes, she answers, it was on the cushion in the trailer.
Gomes asks if she checked the call history, She says yes.
Gomes says, July 26th 2006? Nida answers correct. At 12:07 PM a dialed call out to 911.
Atwell objects. Overruled.
Gomes asks, was there another call chronologically in history. Nida states the next call was at 12:09 to Gary.
Gomes asks, did you talk to Gary and verify this was his phone number?
Atwell objects, lack of foundation.
Gomes asks, did you ask Gary if this was his phone number? Nida says yes. The next call was to Mike N/M at 12:10 PM
Atwell begins objecting and confusing the judge. Gomes clarifies that he is talking about calls out.
Gomes asks, were there any more calls out after 21:10 She said no.
Then Gomes asks what was the last received call? She says at 12:11 from Mike N, 10:15 in the evening from Gary. Back from 10:15 the next call was at 12:11 from Mike N, the same day.
Gomes says, back to the gas station video. When in the video did the car enter? She says at 4 minutes 20 seconds.
Gomes then shows the video from 4 minutes. The white Olds pulls up. (With a Tony Stewart 20 in the back glass and a frayed flag on a leaning aftermarket antennae like Kacie’s car.) A man resembling Mario gets out and pumps gas without going inside. (Wearing sandals, remember Nick’s testimony of a sandal print on the chair.)
Gomes asks, does that appear to be Kacie’s missing car? Nida says yes.
Gomes asks, the car at the residence he was apprehended at? Nida says yes.
Gomes asks, does the man resemble Mario without the beard and with short hair? Nida answers yes. Mario was clean shaven at that time.
Gomes asks, it (the video) was taken at a station approximately 75 miles from Placerville? Nida says yes.
Gomes states he has no further questions.
Atwell asks to review the material before he cross-examines and it’s granted.
4:03 Jurors excused.
It's way after midnight again, so I'll post Thursdays notes tomorrow.