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I told you I'm not sure. There’s an irrelevant and negative stigma on his name based on accusations that the late legendary rapper Prodigy put on his name but we are asking all to remove their biases to simply recognize a man who is wrongly imprisoned a for a … Where an item of real evidence is sought to be introduced the offering party must show that the item is identical to that involved in a crime and that it has not been tampered with. [FN75] Counsel argued, inter alia, that by virtue of how close the case was, a proper handling of the GSR evidence by Mr. Walters would have certainly resulted in an acquittal. Failure of Counsel to Make In-Limine Motion to Preclude GSR Evidence She said the small amount of tin recovered after the test firing of the .40 caliber semiautomatic (where no source of tin had been found in the swabbing of the gun itself) could have resulted from two possibilities. Further, he argued that the 9 mm casings identified with the Defendant's gun were on the side of the car where the officers identified the Defendant. The pages have parallel English and French text, so they will be of interest to those parents who come from these two language groups (as I and my wife do), or live in bilingual provinces or countries (such as Quebec or Mauritius). Given these dangers, the Court cannot say that Mr. Walters's decision to not extensively cross-examine Mr. Schwoeble on such issues was error. Mr. Casolaro:Now, you said that you did not call the doctor as a witness, Doctor Kubic, I'm sorry— She also took courses offered by the manufacturers of tools used at the lab and visited various manufacturers. At argument on the instant motion, Defendant's counsel, Mr. Michelen, characterized the trial evidence against Mr. Adams as "paper thin . [FN37], Mr. Walters said that Mr. Schwoeble's contention that his lab had discerned particles which the FBI had not uncovered was not credible. The People also argue that various sections of CPL Article 440 authorize this Court to deny Defendant's claims on procedural grounds. Mr. Nuzzi said that photographs and videotape introduced into evidence demonstrated the police were able to see what they testified to seeing. Mr. Schwoeble stated that in using the microscope he followed proper protocols set forth in his company's laboratory protocol sheet with respect to both his analysis of the samples and the calibration of the microscope. . Though Ms. Lunde stated that she truthfully answered questions at the trial of the unrelated case, she also stated that a misdemeanor charge in Kentucky was pending against her at the time of her testimony in the instant matter. He stated he did not know whether the shooter may have fired using one hand or whether the shooter's arm or arms were extended.With respect to fabric to fabric transfer, Mr. Schwoeble testified that he was preparing to submit for publication a study on the subject which he worked on. [FN36] . 884-920). Mr. Kerr was planning to drive them to the bus station. If I had to do it over again there is no question that I would have brought more expertise to bear then [sic] I would be able to bring to the subject matter. He said with respect to an alleged transfer of particles from the floor to the jacket, "you are talking casual contact from a fabric to a smooth surface". Now, let's assume by some miracle you actually catch a fish. Mr. Walters:That the FBI expert was sufficiently wounded and had backed away from some of her obvious conclusions and R.J. Schwoeble [sic] given his lack of credentials and, of course, always present about the shifting of the burden of proof. This is because a large part of the impeachment material which Dr. Kubic would presumably have been present to assist Mr. Walters with was in fact elicited through Ms. Lunde's and Mr. Schwoeble's testimony. He was at this point interrupted sua-sponte by the Court who said: "Why are you impinging on my area. That affidavit, however, was not only radically different from his trial testimony but also from his testimony at the hearing. In sum, in this Court's view, the People have not presented any controlling authority which would authorize the Court to deny the Defendant's claims on procedural grounds. This raised continuity problems. After all, both juries heard in essence the same exact gunshot residue expert testimony, but they reached very different results."). Defendant claims first that Mr. Walters was ineffective in failing to make an in-limine motion to preclude the admission of GSR evidence on chain-of-custody grounds. He further stated that he had provided expert testimony in the area of gunshot residue deposits on skin and clothing approximately 70 times. She also described the contamination safeguards which were employed in conducting these tests. Footnote 2:Id, ¶ 4. He stated that he brought an affidavit to a notary while he was incarcerated and was shown a copy of it on the stand. In that unrelated case, she said, she testified at a pre-trial hearing, found out information she testified to was incorrect and did not correct her own error at a subsequent pre-trial hearing at which she also testified. - Ms. Lunde said that the proper procedure for testing clothing for the presence of GSR was to take the clothing to a room in which no other firearms examinations are taking place, place the item on a table which had been cleaned with detergent and create a barrier between the clothing and the table with paper prior to testing. Footnote 21: Id. Dr. Kubic did recall that Mr. Walters confronted Ms. Lunde regarding the handling of the jacket prior to it being received by the FBI lab. She stated that she took a total of 13 samples from the jacket. you knew that people are supposed to come into court and tell the truth, didn't you?A: I don't know none of that. Mr. Walters estimated that the gap in time between notification that GSR evidence would be used at Trial 2 and the trial itself was one year. Two guns were recovered from the scene, a 9 mm Glock pistol and a .40 caliber Glock semi-automatic pistol. However, it also difficult to understand why a study which measured the degree to which GSR particles would be transferred from a smooth fabric, like nylon, to a jacket would not have any relevance to how easy it might be to transfer GSR particles from a smooth floor to a jacket. Although Sherm takes rides on the back of his friend Danny Dragonfly, he wants to have his own wings. Of the initial nine samples taken in August, the witness said they contained particles which are components of gunshot residue including lead, barium and antimony. They heard a partial read back of testimony from Ms. Lunde but no read back of Mr. Schwoeble's testimony was requested. 12-14. . In the five or six years preceding his representation of the Defendant he had never introduced expert GSR testimony. The Court also did not fully agree, however, with a number of the conclusions he reached. [FN34] He questioned Ms. Briones, the DNA expert, about the potential contamination of the jacket from being placed on the precinct room floor. The merits of this claim are addressed infra. Dr. Kubic's point about the differences between a floor to fabric and a fabric to fabric transfer are fair enough. The most important evidence which inculpated the Defendant was not the GSR. Defendant also contends that his conviction should be set-aside because of the allegedly ineffective manner in which his trial counsel, Robert Walters, handled gunshot residue evidence ("GSR") introduced by the People at trial. - Mr. Schwoeble acknowledged that: "Any time two objects come in contact, there is particle exchange, depending on the texture of each particle. During the pursuit, Officer Anselmo testified, he lost sight of the Defendant for two seconds. [FN28] Mr. Schwoeble agreed that the American Academy of Forensic Scientists was the top forensic science organization and that he was not a member. Footnote 38: Id, p. 1786, ll. On the other hand, additional cross-examination on this point might have led Mr. Schwoeble's testimony to be even more damaging than it was. After analyzing the samples, Ms. Lunde concluded that there was no source of tin in any of the three cartridges. See People v. Friedgood, 58 NY2d 467 (1983). Aside from introducing himself to Mr. Davis and informing him that he was being taken to the District Attorney's office, Mr. Rice said he had no substantive communications with him. Sherm The Worm. Failure to Move to Preclude Mr. Schwoeble as an Expert Witness Because, He Did Not Have the Requisite Educational Credentials. But the Court also believes that such a claim would have to be denied on the merits. He said that the prosecution had tried to figure out who moved the van and when it was moved but were unable to. The Supplemental Motion made by Mr. Zeno on Defendant's behalf was then adopted by Mr. Michelen. Thus, again assuming that Mr. Walters's conduct was professionally unreasonable, Mr. Adams was also not deprived of the effective assistance of counsel under state law. Justice Torres decided Defendant's initial motion on December 10, 2007 but retired from the bench without ruling on Defendant's Supplemental Motion. [FN21], With respect to the origin of the tin found in the GSR, Ms. Lunde stated that she did not ask the District Attorney's office to provide the weapons fired by the police officers for testing. Ms. Lunde stated that the FBI lab report was peer reviewed by an examiner named Charles A. Peters and that he agreed with her findings. Footnote 26:Id., p. 1091, ll. The company is an analytical laboratory consisting of various departments in forensic sciences, environmental analysis, general materials analysis, chemistry, software development and litigation. They queensbridge og sherm the worm recalls introducing the rapper "shyne" to the blood lifestyle while shyne was serving his ten year sentence for … thots 193 on now. He further added that he had been told that the floor on which the jacket had been placed was a linoleum floor, which would not readily grab particles from the fabric of the jacket. The second general point which must be made with respect to Defendant's ineffective assistance claim is that much of Mr. Walters's alleged deficient performance arose not from his actions but from Justice Torres's rulings. Mr. Michelen: Okay. [This obviously highlighted the contamination concerns related the placement of the jacket on the precinct room floor].- She testified that although her testing of the 9 mm Glock and the jacket was consistent with a person wearing the jacket and firing the gun, it could also be consistent with someone being in the "vicinity of someone that was firing the gun". 17-19. As noted supra, this case involved a shooting of four individuals in a car in the early morning hours of September 13, 1999: Shane Kerr, Lendell Kerr (his brother), Marcus McLaughlin and Zenobia Penn. This would be much more likely to result in a transfer. Similarly, the photograph of the jacket on the floor of the police precinct and the testimony of Ms. Lunde were not provided to him until after the Defendant was convicted. This involved a group of males exchanging looks with Mr. McLaughlin and backing up as if in anticipation of a conflict. Mr. Azziz identified the jacket as belonging to the shooter. Mr. Walters's failure to make those motions, therefore, did not constitute the ineffective assistance of counsel. Mr. McLaughlin was a friend of the two brothers and Ms. Penn's boyfriend. 15-16. He said that Anselmo had believed the shooter had a jacket and had seen him throw something. The delays in this case were not only the fault of the Defendant. He further posits that it was misleading because the transfer of GSR from a smooth surface like the precinct floor would have been more likely than the transfer of GSR from one fabric to another. So you calling me a [*35]liar?Q: Mr. Davis, you said that you testified to something that was untrue, isn't that correct?A: Look, am I done?The Court: No. The Defendant initially failed to stop in response to ten commands which Officer DiCarlantonio testified he gave him. Those two life without parole sentences were order to run consecutively. The instant matter was the first case Mr. Walters tried [*28]in which the People sought to introduce such evidence. Footnote 64:Id., p. 104, l. 6. With respect to his fabric-to-fabric transfer studies, he acknowledged that the studies were ongoing and had not been peer-reviewed. Although Dr. Kubic did inform him of the significance of the charts and educate him "as much as he could" regarding the science of GSR, Mr. Walters felt it was not possible to learn the science in an hour or two. Footnote 35: Id., p. 649-657. He said that one inconsistency identified by Mr. Walters during his summation was simply the result of Mr. Azziz's lack of proficiency in English. Ms. Lunde and Mr. Schwoeble both testified in detail about the steps they took to safeguard the jacket from contamination. He stated that on that date he heard gunfire while in his apartment. Gunshot primer residue is what can be found on the hands of an individual who has fired a weapon. The witness was, however, unsure whether the weapons were cleaned subsequent to such test-firing. Prior to the protocol sheet being received into evidence, on voire dire by Mr. Walters, the witness said he was not sure whether the protocols set forth by R.J. Lee matched those of the International Standards Organization. With respect to ammunition manufactured by Remington Peters, Ms. Lunde stated that tin was not used in the manufacturing of their bullets. Although the Defendant's Supplemental Motion was filed on July 19, 2007, the People apparently did not respond to this motion in any form for three years, until 2010 when the case was assigned to this Court. Prior to being qualified as an expert Mr. Walters conducted a voire dire of Ms. Lunde. In this case live confirmations were not conducted by Mr. Schwoeble with respect to each particle tested, including those from the 9 mm Glock and the .40 caliber handgun. Mr. Lendell Kerr had been shot 5 times and Mr. McLaughlin had fourteen bullet wounds, although testimony indicated some of those could have been caused by fragmented bullets. This Court's view of the strength of the People's evidence and therefore the probability that different decisions by Mr. Walters would have changed the trial result fall between the characterizations urged by the Defendant and the People. Ms. Lunde was not aware of any testing performed on the weapons fired by the police. 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