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State v. Robinson4/14/2004
efendant they performed a routine pat-down, which involved patting from the upper body down to the lower body. Based upon the statements of the detectives, Schwoeble testified that more particles should have been present on the t-shirt than the waistband of the pants if the GSR was transferred from the detectives' contaminated hands to his clothing. Thus, in Schwoeble's opinion, the number and location of the particles were indicative of either a discharged weapon being placed in the waistband of the jeans or contamination by touching the waistband with hands which had recently fired a weapon.
Defendant attempted to controvert Schwoeble's testimony by presenting the testimony of GSR expert Patricia Eddings, who testified that it was common for particles of GSR to remain on a weapon and in the holster after cleaning. Further, testimony elicited at trial also pointed out that defendant was patted down several times by several different law enforcement officers upon his arrest, including Lieutenant Dewayne Fontenot of the Evangeline Parish Sheriff's Office.
In addition to the particles present on defendant's shirt and the waistband of his pants, Schwoeble testified that the heaviest population of particles were present on the right leg of the blue jeans, where there were six particles characteristic of gun shot residue and forty lead rich particles. According to Schwoeble, the fact that the particles were on the right side of the pants was significant because it indicated that if the particles did come from a discharged weapon, it would most likely have been discharged on the right side in a downward direction, which was consistent with defendant, who is right-handed, firing a weapon at Nicholas-- the infant victim.
Defendant contends, first and foremost, that none of the particles discovered on his right pant leg were unique to GSR. Defendant's GSR expert testified that particles characteristic to gun shot residue are common and may be present on clothing without having discharged a firearm. Further, defendant argues that the fact that the particles were found on the right leg of his pants is insignificant because, since he is right-handed, he would naturally pick up more particles characteristic of GSR in his right hand and then transfer those particles to the right leg of his pants.
Further, defendant argues that too great an opportunity for contamination existed to permit the GSR analysis testimony which was presented at trial. He points to the cross-examination of Schwoeble, where he admitted that all of the clothing retrieved from defendant on the day of the murders were placed in one bag. Both Schwoeble and Detective Anthony Ribaudo, of the Rapides Parish Sheriff's Office, testified that proper protocol when dealing with evidence that may contain GSR is to separate the items to avoid cross contamination. Further, Defendant points out the fact that no GSR tests were conducted on his hands and forearms to determine whether he had recently discharged a firearm, even though such testing was common in 1996 when the shootings occurred. In addition, gunshot residue particles were found on the sleeve of a red jacket found at the murder scene, even though the number of particles were too few to indicate that the jacket had been worn by the shooter, and no explicable answer was given by the State's expert for its presence.
However, in addition to evidence of gunshot residue on defendant's clothing, the state also presented DNA evidence which linked defendant to the scene of the murders. Curtis Knox, an expert in the field of DNA evidence, testified that a towel was found in Billy's bedroom bearing a drop of Nicholas Kelly's blood. In addition, two drops of Nichol
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