DAY 3, PEOPLE vs MARIO LOZANO

April 3, 2008. El Dorado Co. Superior Court. People vs. Mario Lozano.
Case # P06CRF0427


Well, today I’m wearing a tee shirt that has a medical cross on it. It says Jesus, Lifeguard, saving lives. Pat, Annie, Doug and Lee are here today.

9:10 I entered the courtroom and council is already present.
9:12 Mario enters wearing the same suite he’s worn each day since jury selection with the same wrinkles in it.
9:18 Atwell states, when we broke yesterday afternoon in light of a scientific experiment… yesterday I objected… today I object. The conditions for the court to consider. (Here he cited a case with book and page number but I only got 1229 page 326.)… area of opinion… photographers attempt to recreate a scene… same area and same time of year… blah, blah, blah… about Kacie’s arm length not known… direction not known… interior measurements not taken as established yesterday… flat footed or not. Mario couldn’t see through walls. How high off the ground was the window? Lieutenant Nida was seated with Gomes standing. Nida is 5’ 10”, Mario is 6’ 2”. Gomes is 5’ 7” with or without shoes. We don’t know relative arm spans… don’t know the specific placement of guns… don’t know if the gun was outside of the trailer… uh muzzle tip… these reasons… um, um… I submit.
Gomes states that this is not a scientific experiment only an illustration… The point of this illustration is, at what distance could a person have a hand on the barrel of a shotgun and get shot. There is some distance where a person can’t touch a barrel… John Younts testimony is of a range of more than 2’ and less than 5’. There is a distance… He uses a tape measure next to his arm and shows 24”, 26” and 36” to the judge. I feel the jury should be able to see an illustration of what 24”, 26” and 3’ looks like.
Atwell says he feels the illustration of using a tape measure is acceptable but attempting to position Gomes and Nida in the courtroom was not. (Yesterday, when Atwell interrupted the illustration, Gomes was standing with a tape measure and Nida was seated in the stand with the shotgun.) Then Atwell carried on about Yount’s testimony and cardboard targets and his estimation leading to more than 2’ and less than 5’.
Judge Keller states that the prosecution should be able to demonstrate, relative to Mario’s statement to Lieutenant Nida. The jury should be able to see this demonstration to see what could have happened. Objection overruled.
9:42 Jury enters and reminded of their duties.
Lieutenant Nida takes the stand.
Gomes starts, lets go back over the cell phone found at the scene. The day before,
on July 25th, did you see a received call. Nida says yes, received and missed. The call came from her landline at 6:10 PM. (This was of one Mario's messages that Kacie was so concerned about.)
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They begin take 2 of the illustration. Gomes receives the shotgun (wearing gloves) and while handing it to Nida (also wearing gloves), Atwell stands up and begins inspecting everything. Gomes takes his tape measure and extends it, showing it to Atwell.
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Gomes states, directing his question to Nida, the defendant claims that Kacie grabbed the barrel and pulled on it. The only reason the first shot was fired was because she pulled on the barrel. She was standing between two seats adjacent to the open window. Did he say she was standing up? Nida answers, yes. She was not on the cushion, standing up.
Gomes continues, in our experiment at the trailer, did I have to lean far forward to grab the barrel? Yes, Nida states, almost with a knee on the cushion.
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Then Gomes gets the shotgun from the bailiff, they take positions in the center of the courtroom. With Nida shouldering the shotgun, Gomes extends the tape measure to 24” and shows it to Judge Keller and Atwell. Then he holds the tape measure to his shoulder and extends it down his arm reaching for the shotgun. With the other end of the tape on the tip of the barrel, he has to twist his body to grab the gun. Atwell is up inspecting the illustration to verify that it’s accurate. Then at 2’ 3”reaching straight on he can’t touch the barrel. Twisting his body about 45 degrees he can only touch the barrel. At 30” he can’t touch the barrel reaching straight on and he can touch it twisting almost parallel to the shotgun. At 36” straight on his hand is 9” from the barrel and twisting, he still can’t touch the gun. Atwell is continually inspecting the tape measure.

Now remember and put together the previous testimonies. Dr. Elizabeth Albers testified that the chest wound was straight front to back with no soot or stippling. Soot residue would have indicated a distance of inches to a couple feet. Stippling is deposited at a distance of 1’ to 2’. The minor dimension of the wound was 1 ¼”. John Yount testifies that the shirt has the same minor dimension as the wound and has no soot on it. His blood spatter interpretation indicates that the 2nd shotgun was either on the floor, upright in Kacie’s hand or propped upright nearby at the second shot. There was no blood on the butt of the gun as should have been if Kacie had it shouldered at the first shot. His cardboard testing showed a distance of more than 2’ and less than 5’. Although 3’to 4’ are closest to the dimension of the wound. His cardboard tests were with the same gun that caused the injury. Lieutenant Nida’s testimony of Mario’s interview reveals that “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 “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.” OK, so with the above illustration, 2 plus 2 equals how much? We hope Mario has plenty of time to study math in the penitentiary.

Gomes then asks Nida, when at the trailer, were the measurements the same? She answers yes.
Gomes says, nothing further.
9:51 Atwell is preparing to question and Nida asks him, will you have me hold the shotgun at all? Gomes responds, no. She removes her gloves.
Atwell asks, when you were called on the case on 7/26… Who determined what was the crime scene… Nida says, the officers…
A what… N residence, trailer and house.
A What was collected as evidence. Nida seems unclear of what he is asking.
A Restates the question. N Nida explains that if there’s a body at the scene, the area, not just the body is the crime scene. Nothing is collected on arrival, numbered placards are placed by evidence.
A Where are these from. N Officer Jordan.
A Were they there when you arrived? N No. Officer Jordan was on patrol and was first on the scene. Then we did a walk through.
A When did he do evidence collection. N about an hour after the examination of the scene.
A Did the walk through include the trailer… house? N No we didn’t walk through the house.
A Did you tell Officer Jordan some things to do? N Yes.
A What did that entail? N Officer Jordan is experienced, we work well together. I did not have to direct him.
A What time did he take part in this action? N What?
A What time… N I don’t know.
A In questioning Lozano… what kind of reports did you have access to during questioning? N We didn’t have any reports. (They were in the process of being made.)
A Approximately how long after that did you question Lozano? N Is it how long after he was custody? A Yes. N about 2 ½ hours.
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A In your interrogation, you mentioned a sub-station? N Yes.
A What is this? N A P.D. sub-station.
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A Ah… What kind of equipment was used for interrogation? N I believe it was DVD.
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A Thank you.
10:04 Gomes asks to retrieve items # 1 and #2, the pistols. He shows Nida both pistols stating, one was Nick Selbman’s and one Kacie Baron’s. They were found inside a safe inside Leslie Beren’s residence? Nida answers, in Mario’s possession, yes.
Gomes asks, Mario indicated that he took these from Kacie’s residence? Nida answers, Yes.
Gomes rests.
10:12 Council is asked to approach the bench.
Judge Keller begins, what we will do at this time while we are waiting for information is being prepared. (Atwell is waiting for a transcription of Mario’s interview to compare text with the video. It is expected on Friday afternoon.)
We will come back on Tuesday morning. All the evidence will be in on Tuesday. We may be able to include instructions (of the jury) and closing, maybe not. He apologizes to the jury saying, these things come up.
10:18 Jury is excused.