Evidence Mishandled or Inconclusive

Just as defense attorney J. Tony Serra had earlier raised serious questions about law enforcement witnesses, he also revealed serious problems with the evidence and its handling by authorities. Later, in the defense case, a leading crime scene expert would judge the processing of the Little Valley Road shooting scene as "sub-standard," resulting in the loss of valuable information about what happened.

In order for evidence to be admissible in court, there must proof of a "chain of custody" -- following the evidence from collecting it at the location through how it was marked for identification, who it was transferred to, and so on, until it is presented in court. Serra particularly attacked the chain of custody of the bullet fragments found in the brain of Deputy Davis, showing there was plenty of opportunity for mistakes and confusion.

The prosecution introduced most of its physical evidence through Detective Paul Lozada of the Sonoma County Sheriff's Dept. He specializes in physical evidence collection, but had only one year's experience when he was assigned to process this crime scene. Lozada appeared to be in his late twenties or early thirties, and seemed coached in how to be an effective witness, twisting his head to the left after each question to answer directly to the jurors.

They found at the scene the parked vehicles, spray painted outlines on the ground, a hat, and various groups of spent cartridge shells. Lozada began taking photos from various angles, but that took longer than usual; it was drizzling on and off, and the camera battery was weak due to falling temperatures -- soon there was freezing rain.

He hadn't completed normal measurements needed to precisely locate evidence items before being ordered by his superior, Sonoma Detective Sgt. McKay, to stop and get on with actually collecting the evidence. Although it was daylight and there were as many as 30 officers guarding the perimeters of the shooting scene, they were afraid they might be attacked. Thus Lozada measured distances of evidence only from vehicles, and not to any fixed objects that would document the exact positions.

Lozada photographed some, but not all, of the groups of shell casings before collecting them into bags. He found seven 9mm pistol casings by the driver's side of the Miller/Davis vehicle, and three of the same size on the passenger side, confirming Miller's count of how many shots he had fired in the encounter with Acorn Peters.

He found several groupings of .223 caliber casings. Once he decided there were two different kinds, shiny new "major brand," and tarnished, reloaded "off brand," he collected the two kinds into different bags.

One group of 12 major brand casings was along and just over the shoulder of the road -- about where Miller says he fell. Another group of 24 casings was scattered across the road, in front of where Lucille Lincoln's truck was left. Fourteen of those were major brand and the remaining 10 were off-brand. Seven more off-brand were under the truck.

Not all of the paint circles marked by Allman had casings in them, and Lozada found other casings not in paint circles, meaning that some of the casings had been moved, possibly by people or vehicles moving through the scene. (The importance of documenting the precise location and distribution of shell casings is that they provide a way to deduce the type, location and direction of fire of the weapons involved.)

He collected a single live round of .30-.30 ammunition by the roadside just behind where Lucille Lincoln's truck had been left. Later tests showed it had been ejected from Leonard Peters' rifle.

Lozada noted that the passenger side door of the Miller/Davis vehicle was closed and its window rolled up. The driver side door was open and its window partly down. The radio was on. There was no shotgun in the vehicle. (Miller had testified there was a shotgun in a dash bracket in the front seat. It's not clear what became of the shotgun.)

Lozada examined a .30-.30 Remington lever action rifle (carried by Leonard Peters) and found it loaded with one round in the chamber and four in the magazine. He could not tell if it had been fired. (Later tests showed it hadn't.)

Later, Lozada received the pistols and gun belts of Miller and Davis, and the M-16 used by Miller. (There were only three rounds missing from Davis' gun, all shot in the first round of gunfire; tests showed one of them killed Leonard Peters.)

Search warrants were obtained later in the afternoon of April 15, and Lozada joined others searching Lucille Lincoln's and Bear Lincoln's homes. There they found live and spent .223 ammunition (off-brand reloads, which later ballistic tests showed were fired by the same weapon as the off-brand .223 shells found at the crime scene). They did not find a .223 rifle at Bear's house, but they did find two older .22 rimfire rifles.

Lozada was shown a trail of spots leading away from the shooting scene at random intervals down the center of the road over a half-mile to within 50 ft. of the gate to Bear Lincoln's house. The trail began near the location of the single .223 casing. Lozada collected only four samples from among them.

For the groups of bullet casings, Lozada estimated the center of the group and took a single measurement from there to the vehicle's front and rear bumpers. He admitted that he could not specify a precise location for any of the shell casings or any of the blood spots.

The shell casings and any possible footprints or marks on the ground were disturbed by people walking through the scene -- and there were many, including a SWAT team, the five adults from Lucille Lincoln's truck, plus all the officers at the scene all that fatal night.

Lozada estimated there were about 30 people on and about the scene as he processed it. Although the trail of blood spots continued for over a half mile, with an average of one spot every 20 ft., Lozada wouldn't estimate the number of spots, other than to say there were more than five -- he didn't attempt to count them. (At that interval, there might have been more than 100.)

Lozada had scanty experience as an evidence specialist; he had been assigned that role only a year and had processed only about 10 crime scenes during that time, and only half of those as the principal technician. He didn't take blood samples from Miller or any of the other deputies on the scene the night of the shooting.

Due to rainy weather, he didn't videotape the scene, as he normally would; also, his umbrella was accidentally destroyed when his supervisor slammed it in the van door.

He testified he could hear the police radio in the Miller/Davis vehicle from the point where the unfired .30-.30 round from Peters' rifle was found. The radio was on when he arrived, but he had no way to know if it had been on continuously since being left by Miller the night before, and no way to know whether the volume setting had been changed. Also, there were other police vehicles and officers with portable radios on the scene when he was there, and the radio he heard could have been one of those.

He had received Miller's pocket recorder and tape from Gourley. He had collected Davis' black law enforcement jacket from the ground behind a Chevy Suburban patrol vehicle where Deputies Allman and Craver had taken Davis' body before the ambulance arrived.

Williams tried to show that Burkey, like Lozada, had also failed to take precise measurements of the locations, but all his questions were successfully blocked by defense objections as to relevance.

At this point Judge Golden gave Williams a hint, saying that the evidence at this point in the case should be focused on proving the elements of the charged crimes.

Deputy Shannon Barney, a young Native American who grew up in Covelo, was assigned as a resident deputy there at the time of the shootings. He recognized a black felt hat with beaded hat band and feathers as looking like one he had seen Bear Lincoln wearing. He said Little Valley is very small, with only four or five houses in it, and about twenty residents. He estimated the distance from the shooting scene to Bear Lincoln's gate at about 3/4 mile.

Williams wanted him to use Lozada's photo to determine the location of various objects, but every question asked was successfully blocked by the defense on grounds of relevance.

Frustrated, Williams said "no further questions." The defense had no questions either, and the shocked expert left the witness stand after a mere five minutes, having accomplished nothing more than drumming his eminent qualifications.

Davis suffered two wounds, a fatal one to the head and a grazing one to the right hand. The head wound was to his left side, passing almost horizontally from front to rear and removing some of the scalp, skull and brain. The bullet fragmented into hundreds of tiny pieces, some of them left in the brain, and others exiting toward the rear. The wound was instantly fatal due to massive brain injury.

Davis' hand wound was across the back of the right hand, from the little finger side toward the thumb side, and deep enough to damage the finger tendons. It is possible Davis could still use the hand, and Dr. Jindrich couldn't say if the hand wound would have bled immediately. He did say it is likely it would have bled if Davis had moved about actively after being wounded. One bullet could have caused both head and hand wounds if the hand were in the right position.

In cross-examination of Dr. Jindrich, Serra pointed out that the autopsy report on Leonard Peters contained errors, such as saying that his teeth were natural and in reasonable condition when Peters actually had partial false teeth. Dr. Jindrich replied that the teeth in the area of the wound were natural, but were broken up by the bullet -- and anyway, he wasn't a dentist.

Jindrich conceded that he had no reason to assume that Davis was in an upright position when the bullet struck his head, and therefore he had no way of knowing if the bullet was traveling in a horizontal plane. Jindrich also confirmed that someone's head and upper torso can be turned around considerably from the direction their feet are pointing, implying that the front-to-back head wound did not rule out a shot from Miller's position.

Williams said that the photos weren't the goriest ones he could have chosen, and that they were large only to allow the jury to see them from a distance as Dr. Jindrich pointed out the path of the fatal bullet. He said the photos were needed to disprove the friendly fire theory advanced by the defense. Williams also said he needed the photos because people remember photos better than words.

Judge Golden first agreed the photos were likely prejudicial, but after sleeping on it, said he changed his mind and would allow the photo of Davis' head wound to be used at half the size Williams wanted. He found that the photo, while unpleasant, was not revolting and that it could be assumed that Davis' head was turned toward the direction that firing was coming from, and therefore the photo tended to disprove the friendly fire theory. (One could still argue that Davis might have turned his head toward Miller when Miller was firing.)

Fackler also had examined Deputy Davis' brain and removed from it about 14 fragments from among some 200 visible on X-rays. In his opinion, none of the fragments were of any use for ballistic comparisons to match them to any particular gun. He described them as "essentially flecks of metal." The doctor said he could tell that the bullet direction was from front to back, since most of the fragments were found at the rear of the brain.

In cross-examination defense attorney Phil DeJong successfully blocked the admission of a large color blow-up of the dead deputy's brain. The judge ruled that the photo was prejudicial and its value as evidence was "essentially nil."

In cross-examination by Serra, Gourley said that at the time of the investigation he had only a year's experience as a detective, and the bulk of his previous experience was as a vehicle patrol deputy. As for using another county to investigate the officer-involved killings, Gourley was a Mendocino County deputy for 15 years, had met deputy Davis, and was acquainted with deputies Miller, Allman, Ellis, and Craver. He was the only detective in Sonoma County that had worked 15 years previously for the Mendocino department.

There would later be a statement by Bear Lincoln's nephew Winterhawk Lincoln that he had seen the stolen weapon several times, and knew it was stolen from a person named Stormer. He testified he had never seen his uncle with the gun, but in a taped interview a week after the shootings told Gourley that "Bear got it." Winterhawk repudiated much of the taped statement in his recent trial testimony, saying he told Gourley what he had heard, not what he knew, and that he had told Gourley whatever he seemed to want to hear so as to end the coerced interview.

Haag gave a discourse on rifling, which is the set of spiral grooves cut into the inside of gun barrels to spin the bullet for stability after it leaves the barrel. The number and width of the grooves vary, and the rifling leaves marks on a fired bullet. It is common for crime lab specialists to examine these marks on a recovered bullet as well as its caliber, and then use a reference book to determine the likely make and model of the gun that fired it.

Haag said he found one copper jacket fragment that had a groove that in his opinion was a rifling mark that was .043" wide. Test firing the Miller/Davis M-16, he determined that the corresponding rifling marks were .037" wide. He said his expert opinion was that the fragment could not have been fired by the tested M-16 because of the "significant difference in (groove) width of .006". Haag also fired the two pistols and they produced a width of .075" making it even less likely that either of them fired the fatal bullet.

The defense mounted an attack on the chain of custody of the metal fragments. Since so many different people were involved with the steps of removing the brain, storing it, removing the fragments, placing them in containers, storing them, transporting them, analyzing them, and bringing them to the courtroom, there was plenty of opportunity for confusion and mistakes. Ultimately the fragments were admitted into evidence, but doubts were sown in the jury's minds about possible mix-ups.

Haag also test fired the Miller/Davis M-16 on full-automatic to determine the resulting pattern of ejected casings. He found the casings were ejected at a 45 degree angle toward the back and landed about 6-7 ft. away. He found that the rate of automatic fire varied depending on the temperature of the gun and other factors, but for a typical test the gun fired 12.8 rounds per second. When the gun was "cold and sticky" it fired about 9 rounds per second.

Haag examined some of the .223 shell casings from the shooting scene to see if they were all fired by the same gun. He ruled out all the casings in one group from being fired by the tested M-16, except one. He described it as a shiny one made in "Communist China" that had a harder brass and didn't mark as easily. He also concluded that all of those casings in the group were fired from the same gun, with the possible exception of the Chinese-made one.

Serra drew out the information that the metal fragment with the groove measured about 1/8" in each of its two largest dimensions, that it was originally curved around the outside of the bullet but had gotten flattened, that the copper was malleable so that its dimensions could be enlarged by impact, that the bullet would be too hot to touch when it left the barrel, and that copper was more malleable at higher temperatures.

Haag stuck to his opinion that the groove he had measured was left by the rifling in the gun barrel and was not a "striation" formed after leaving the barrel by impact with a hard substance, such as skullbone. He agreed that the groove was very short but insisted that it was long enough for him to conclude that it didn't come from Miller's M-16.

Serra asked: did Haag know the fragments were previously tested by both the California Dept. of Justice and FBI crime lab? Yes, but Haag didn't recall if he knew about their reports before doing his own study. After Serra had Haag read the conclusion from the state lab report, Haag conceded that "reasonable experts can disagree as to whether or not the (grooves) on the fragments can unequivocally be shown to have or to have not been fired by an M-16."

Haag disagreed with the earlier expert's report saying that the edges of the groove on the fragment were not well defined (and therefore subject to error in measuring the groove width). Haag agreed that the FBI lab is "state of the art," and contains better equipment than his own, but "obviously" disagreed with the FBI examiner's conclusion that "the fragments have no microscopic marks of value for comparison purposes."

Further questioning revealed that Haag was paid $175 per hour for his work and that he had put in about 30 hours to date. His previous work had included being a government witness in the Ruby Ridge case and consulting in the investigation of the FBI crime lab. Haag was not provided Miller's sniper rifle for testing.

Koenig found that there were eight sounds that could be gunshots, all near the end of the brief tape. The first two were consistent with semi-automatic or single-shot gunfire, and the final six were consistent with M-16 full-automatic gunfire. Also, the sound frequency spectrum of the first two were different from each other and from the final six, which all were similar to each other.

On cross-examination by DeJong, Koenig said he could not tell anything about the distance of the sounds from the recorder; he "couldn't tell 5 ft. from 50 ft." Asked if he could tell what kind of gun fired the shots heard on tape, Koenig replied, "No. I can't say these sounds are gunfire; only that they are loud impulsive sounds consistent with gunfire and other sources." Other sources of gunfire-like sound are: a hammer striking hard metal, small firecrackers, and military plastique explosive.