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State v. Garrett12/1/2005
. Cooper in support of his argument:
[From the second trial:]
Q: . . . you took a sample of kerosene from that jug and you put it into a little vial?
A: A vial. Yes, sir.
Q: How did you do that?
A: Very carefully, without spilling on the bedspread.
Q: That vial is about that big, isn't it?
A: Yes, sir. Again, I was able to put some in the vial.
Q: How?
A: I didn't pick the jug up and pour it in. No, sir. Again, I don't know - I am trying to remember. Did I open the mouth and stick it - I don't remember.
Q: It is melted shut. You couldn't get the lid open.
A: I am testifying, sir, I don't remember. But I was very careful. I do remember I took a sample out of that five gallon plastic container containing kerosene and put it in a vial. I do remember that, sir. And I was very conscious of not spilling it on the bedspread.
Q: And how did you collect the bedspread sample? Did you use a pair of scissors? Did you use a knife? How did you get that?
A: I had a knife . . . .
Q: . . . You have already been shown that sample of debris that you took out of the living room, that you said you took from the baseboard?
A: Yes, sir.
Q: And you took a piece of the baseboard?
A: Some of the baseboard. Yes, sir.
Q: And you took other debris - where did the rest of the debris come from? That whole can is full of debris. Where did that other stuff come from?
A: Sir, I took that - that was up against the baseboard. I did not want to disturb the baseboard where the V-pattern, was, the small V- pattern, then you have that wide V-pattern on the baseboard.
Q: Uh-huh.
A: I went ahead and collected what was against the baseboard, put it in the can, then, I took some of the baseboard myself and put it in the can.
The defendant asserts that this testimony demonstrates an inconsistency between the first and second trial testimonies, specifically a discrepancy about who collected evidence at the crime scene, Detective Miller or Mr. Cooper.
In regard to the defendant's assertion that Detective Miller testified falsely at the second trial about the placement of the kerosene-soaked bedspread, the state responds that Detective Miller testified at both trials that the bedspread was located in front of the refrigerator and that he never contradicted himself on this point. Regarding the defendant's assertion that Detective Miller perjured himself by testifying at the second trial that Mr. Cooper collected the evidence at the crime scene whereas he testified at the first trial that he collected the evidence himself, the state argues that the two testimonies are consistent because Detective Miller clarified at the second trial that Mr. Cooper actually collected the evidence and that he assisted Mr. Cooper in his collection procedures. Furthermore, the state argues that any discrepancy in the testimonies can be attributed to the effect that the eleven-year passage of time may have had on Detective Miller's memory of the evidence collection.
We conclude that the defendant has not demonstrated that the state knowingly presented false testimony by offering Mr. Cooper's testimony at the second trial that he collected evidence at the crime scene. The testimony presented by the defendant in support of his argument does not definitively demonstrate the falsity of Mr. Cooper's testimony, and we hold that any discrepancy between the two testimonies is not indicative of perjury but rather may be attributed to an inaccurate recolle
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