DNA can be collected from various surfaces including submerged bodies, foreign DNA, and unexpected locations. The ability to detect DNA from single cells means even minimal contact can yield results. This makes DNA evidence both powerful and challenging to interpret.
Chad Daybell Trial Day 28: Digital Forensics Expert Testimony
Added:Basic principles of mobile device tracking, including cell tower triangulation, GPS data extraction, and call detail records (CDRs).
Fundamental concepts of forensic DNA analysis, including sample collection, contamination risks, and statistical significance of DNA matches.
The legal standard for admitting expert scientific testimony in court (such as the Daubert standard) and the role of cross-examination.
The concept of 'chain of custody' and why maintaining an unbroken record of evidence handling is critical for its admissibility in a trial.
Advanced mobile forensics methodologies, including physical vs. logical extraction and recovering deleted or encrypted data.
Analyzing defense strategies that focus on exposing gaps or inconsistencies in scientific and digital evidence to establish reasonable doubt.
A comparative study of digital forensics' role in other modern high-profile criminal trials (e.g., the Alex Murdaugh trial).
The ethical, procedural, and technological challenges of standardizing digital forensic reporting in the criminal justice system.
65.3K views658likes1:06Original Release: 2024-05-22
e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e all rable Steven W Boyce presiding thank you good morning we've got our jurors lined up I believe so if everyone would just remain standing we'll have them brought in all right here all president C for your honors thank you please be seated all right good morning everyone we're on the record on kcr 22211 1623 state of Idaho versus Chad guy Deo this is continuing with the defense case in Chief the court would note the jurors are all present and accounted for and the court received the Declaration that they followed the Court's admonishing instruction when we broke for the day yesterday so I want to thank the jurors again for continuing to follow that instruction from the court at this time uh the court also notes there's a courtroom conduct order in effect for all of those in attendance and Mr prior I believe the defense is now ready to call a next witness is that correct yes your honor go ahead and call your witness and judge may I have the Court's permission uh to approach the podium yes thank you your honor judge the defense would call Patrick Eller very well and judge while we're waiting for Mr Eller I have exhibits 137 138 and 139 139 being in a plastic uh container my understanding is that the state has no objection to the admission of these exhibits all right the witness is here let's go and have the witness sworn and then we'll take up the matters of the evidence you solemnly swear affirmed that the testimony you are about to give shall be the truth the whole truth and nothing but the truth so help you that yes yes all yeah all right at this time uh I believe as Mr 's being proposed as an expert I don't think the exclusionary order would apply here in this matter so I won't do that line of questioning if you'd like to inquire on Direct you may Mr prior I know you've uh potentially offered some exhibits here if you'd like to start with those to get them admitted if they are going to be admitted we could begin there or you can begin with direct okay and judge 13 um7 would be Mr Eller's report 138 was only for demonstrative purposes as part of the cast evidence that was um what officer stubs and officer balance had testified to and then 139 judge would be Mr Eller's video presentation which I understand the state is I'll let them speak for themselves I guess all right let's take those in turn on the offered first exhibit 137 it's been offered um and who's going to be conducting cross on this witness I will your honor um and I would just inquire if of Mr prior if the issue we discussed previously was taken care of in that EX exit and if it is yes judge then um the state does not have any objection to any of those exhibits okay exhibit 137 exhibit 138 and exhibit 139 are each admitted you can begin with your direct then Mr prior and judge I believe the clerk may have H put the wrong tag onative 1 and 139 my 139 would be the uh the audio presentation so those T need to se all right we'll straighten those out and Mr prior if you could pre-mark exhibits that would be helpful so the clerks aren't required to do that while they've got these their hands fulling other things here during trial please and judge I'm G to ask at some point to be using the uh Elmo device as far as Mr Eller's report but uh with the Court's permission I'd like to proceed with my direct examination all right you can go ahead and get started with direct thank you would you state your name spell your last name for the record for me please yes sir my name is Patrick Eller e l l r and um may I call you Patrick yes we know each other so um you've been retained as an expert in this case is that correct yes I have okay and Patrick um um can you tell me a little bit about what you do for an occupation yes I am the CEO and uh principal digital forensic examiner for a company called metadata forensics LC which is based out of Richmond Virginia and what uh type of business is metadata forensics engaged in so metadata forensics is uh a full service Consulting and training firm uh that does digital forensics uh on devices we do expert testimony we do training for law enforcement attorneys victim Advocates we examine any device that contains data or any data that's turned over to us okay so it's a broad range of anything that's an electronic or digital of any kind you uh your firm uh engages in the investigation discovery and reporting of what findings you find as a result of being provided that data is that right yes that's correct okay can you tell me a little bit about your um education yes so I have a undergraduate degree in criminal justice from Troy and then I have a Master's in science and digital forensics from the University of Maryland uh Global Campus outside of that I have numerous digital forensics uh training courses and certifications over a 15-year period okay okay can you tell me and you talked a little bit about the training can you talk to me about a little bit about your previous experience in in terms of uh uh uh in terms of government affiliations yes so I spent 20 years in military law enforcement for the Army uh throughout that time I served in positions of just a regular uh police officer through criminal investigator through supervisor uh supervising General crimes uh drug crimes and then finally computer crimes uh when I finished my career with the Army in 2019 I was the command digital forensic examiner over the digital forensics program for the entire US Army criminal investigation program okay and in terms of of of of of education training of other entities can you discuss that a little bit yes so throughout my career and even currently under uh my current company we continue to train uh attorneys both uh civilian and Military and we also still train law enforcement both military and uh civilian law enforcement through the national forensics Academy through the United States Army Military Police school and digital evidence and uh all types of crimes are there any certifications that you have that you can discuss today yes so I been previously certified as a digital forensic examiner and computer crimes investigator through the defense cyber uh Training Academy in Lytham Maryland and then I also have multiple vendor certifications as well and if I understand correctly I can't recall if you previously talked about your you running the Gen the general Army's um entire forensics uh examination Department was that discussed yes that's that was my final position uh in the Army so from my the last seven years that I was in the Army I helped build out the digital forensics program for the Army criminal investigation division at quanico and then we spread it across the globe uh building multiple locations out with uh digital forensic support across the Army and then um you mentioned the fact that you um have educated lawyers um um law enforcement other mil uh other um entities are you currently in the business of of teaching and educating uh at this point yes we we do about 25 to 30 classes per year uh for uh legal entities and law enforcement entities in the field of digital forensics investigations and what about uh any professional associations yes so I'm a fellow with the American Academy for forensic science uh in the digital uh and multimedia section and the affiliation there is you know that's a decade worth of work to get to the status of fellow uh I've spent time as the chair of that section and then I've also was Affiliated and have been a previous commissioner for the uh Forensic Science Education accreditation that is the program that accredits the forensic science programs at universities across the country and and engaging in your profession does that require any specialized knowledge or or understand in yes it does can you discuss that with me briefly so with digital forensics the the the use of Digital Data that the average person uses on a daily basis I equate it to the best scenario is the iceberg effect so the part of an iceberg that you would see above the water the 10% of it is the amount of data that individuals would typically deal with on a device any any given day the 90% it below the water that you don't see is the data that we specialize in looking at uh and getting to the metadata in order to do what's called attribution and attribution is just the ability to say what the data actually means or what it doesn't mean or what it shows or what it doesn't show so when you use the term met metadata for someone like me I maybe not even someone like me someone who's at least somewhat educated in phones and and electronics um what is met metadata mean metadata is simply data about data and so as an example if you have a picture you see the picture but the metadata is all the information that made that picture become a picture date like date and time stamps location data information about the device that would have created that image uh information about if the image has been manipulated if it's been changed if it's been filtered if it's been cropped has the date been changed all the information that gets tracked by the operating system when using data is what metadata is now I'm going to get off the subject a little bit and move towards um this concept of of the manner in which you can ident identify certain phones through metadata and what are the different ways that you can identify either a location or find that a phone is in a particular area and and what sources of information do you use so when you talk about locating phones there are multiple sources one being the device itself contains location data uh the other are cellular providers who maintain certain amounts of data about the transmission of information between the device and the carrier that travels through towers and switches that they maintain and then there's also metadata that's maintained by all of the applications on the phone depending on what you choose to share uh as the settings with that application uh there is data that you can request from Google from Apple from meta from Twitter all of the individual applications also store data and if you were to identify the best source of uh information to to identify the location of a phone what source would that be in my opinion the best source would be the phone itself and I understand that there are settings that you can turn on and off with about location data however there's data that is still being tracked within the device Itself by the operating system in the phone that can be retrieved as well that comes down to what they call native location data native location data is data that's populated on the device that is actually showing where a device would be okay and then what other sources can you use to identify the location or at least a close proximity of what the location of a phone is so you can use uh information that is captured by the phone manufacturer or the operating system on the phone uh be it iOS for Apple or Google for most of the other devices that are use across okay now an interesting question I have is what if I have um Verizon and another phone has Apple or T-Mobile does that change whether you can access it through Google uh it does not change it just change what they would store because it depends on what you're using on the device itself so at T can have Android phones and Apple phones Verizon can have Android phones and Apple phones and so if you have an Android device you would have some Google information because you're required to have that Gmail address in order to register the device so in other words regardless of whether you um well I guess I'll rephrase this so in other words by just having an Android device you're required to have a Gmail account and that sense Google can track you regardless of of through your Gmail account correct yes yes they they would have information about you registering the device they would have information about what services you've enabled what services you haven't and then they would have what you're allowing to be stored okay now in terms of disabling a device yes is it as simple as on my phone as just pulling my phone out and saying settings and turning off location so that is one way to uh turn off information but the thing with Google is as far as Google goes is there's also webin activity information there are settings within your Google account that you have to change not just uh turning off location services on the device itself so if someone were even trying to disable their phone uh it's it's more than just flipping to a page and saying disable well you could just turn the device off okay or you do the turn off the location correct okay okay now I want to discuss with you um as part of your uh review do you recall what documents and and and pieces of evidence you observed and and um examined as part of this uh case yes uh there are a lot I mean if you're talking about a specific uh item because there were a lot of devices a lot of data that was uh turned over to be reviewed that was gathered through Google through Apple through devices through other sources okay now you um as part of this uh examination and as part of uh my office asking you to review this information did you have an occasion to review some what is called geofence evidence yes I did talk to me a little bit about in in what would be my term simpler terms about what is geofence evidence so geofence evidence is it's not something that Google intended to even be used in this manner but the point behind that is geofence allows uh you to take a location put a radius around it and submit a search warrant in order to gain information about devices that would have passed through uh that geofence or within a certain proximity of that Geo fence okay and judge before I go any further I I don't have a direct recollection did we admit 137 138 and 139 we did okay thank you judge your honor now you had an opportunity to also um listen to the testimony of off officer stubs is that correct yes that's correct and then officer B balance is that correct yeah agent balance yes agent balance yes that's correct and you had an opportunity to you know examine what their testimony was in terms of what they presented to this jury is that correct yes that's correct can you testify about some of the conclusions you drew from listening to their testimony so well let's objection that's overly broad let's talk about let's talk about their um U location data in terms of um their their their geofence testimony about Alex Cox's phone on let's say September 9th okay go ahead what would you like to know about it well I'd like to know what your your um you took an opportunity to examine the geofence evidence from September 9th and listen to the off testimony of Officer stubs is that correct yes I did did you find anything of interest in terms of his testimony that caused you uh to to con to conduct further review yes so in listening to the testimony uh about how the geofence was done and what was returned as part of the the search warrant uh from Google and the geofence uh I went back and looked at the return data that was given back by Google for the geofence and uh I found that there were more devices than uh what were actually requested to be identified and we've previously marked exhibit 138 and I can put up on the screen and tell me which of these screens we want you to uh examine judge if I could uh use the HDMI yes if you're going to publish I'll let you know when I'm ready judge which exhibit are you publishing 138 and not yet judge it's and judge if we could at this point now you recognize uh this document is that correct yes and that was the document from Sergeant stubs is that correct yes this this was a uh search in uh season search warrant that was uh submitted to Google uh to get the device IDs or excuse me to provide information about these individual device IDs that were returned from the first part of the Google uh geofence search warrant that produces Anonymous device IDs that are assigned by Google okay and then if we look under the words which are right in the middle of the screen premises that's that's addressed to the Google yes it is and then just below that there's a line that starts with the word 11 yes and what does that involve so there what's being requested are uh information about who uh those device IDs belong to now I need you to talk a little bit about that okay about the concept of device IDs that ID doesn't necessarily mean it's a phone number does it no that ID is Google signed Anonymous numbers that only Google can trace that number back to an individual user would would this be properly characterized as a security issue with Google I I don't I can't say why they do that um but this is why they provide when you submit the geofence they provide you a list of these numbers and then you have to submit a second search warrant like this one in order to get information about who the subscribers were that are linked to those numbers so if I I understand correctly and and please correct me if I'm wrong um at this point there was a search warrant issued by detective stubs is that correct yes and it was sent to Google and he identified 11 IDs that he'd like some information on yes that's correct okay and then um and the manner in which um he would choose these 11 IDs would be what so I I can't speak to his exact manner uh based on the testimony that I reviewed it said that they took all the data and put it in a system and attempted to uh identify uh the ones that had commonality okay and when we talk about commonality what does that mean so commonality would mean that based on the review of my understanding of what they did was they were trying to show devices that would have been in multiple places okay okay and the information that they're including is described in a b c and d is that right that is the information they're requesting the information the name the address contact that sort of stuff that's correct okay and then at some point um as we scroll down there is information provided and can you talk a little bit about this information yes so in the far left column where it says device ID that is the device IDs that we were talking about just a few few seconds ago uh further up and then from there the time and date is the de the date and time of when that device ID would have been seen inside of the radius that they provided for their initial search warrant for the geofence and then you'd have the latitude and longitude which would be the location data the source of that uh action or the source of why this was recorded or where was from would be Wi-Fi GPS and then that map display radius is their margin of error okay and judge does he have a um a red you laser pointer yes I think there is one there okay and if you if you really slowly again because just so making sure that we track us could you could I have you go over that again and starting with the device ID with the laser pointer yes so the device ID right there explains that Anonymous number that is assigned by Google that only within their records where they store this information are they able to link this back to an individual device okay the next column over with the time and date that is the time and date of this information here which is the location and the source of that uh information and then the margin of error that was recorded for the information here by those devices to be associated with that initial uh geofence warrant that was submitted for the radius of what they were searching for on that particular day so if I understand we have the device ID on the left which is under the word location one the next would be the date and in this particular screen that officer stubs requested looks like September 9th of 2019 and N at 918 is that correct N I see 919 as the first ent9 oh my goodness I need my glasses 919 38 it looks like is that correct yes that's correct and then when we're talking about the longitude and latitude do you recall what location officer stubs was interested in uh the that would be uh the Chad DeBell residence okay and you reviewed this this data as part of your uh review of this case is that correct yes I did and you reviewed this uh information that officer stubs and um one of the other officers balance testified to regarding this information as well is that correct yes I did okay what what did you uh find in terms of your investigation of of note in this in your review so in my investigation of looking at this information uh in going to not just this paper copy of uh this This Record but looking at the actual return that came back from Google that these records were contained in there was a lot of other devices uh and there was devices prior to 9919 on uh September 9th as well as devices within uh the there there's more there's more records that were actually provided than what you would see here okay so to put this in plain English for me to understand and for everyone else to understand um what this data shows is that these are IDs of of phones that are in the proximity of the Chad daybell property or on the Chad daybell property on 99 of 2019 correct that they're devices yes they devices so this this list of of things that you have front of you include all of the device IDs that somehow registered at or near the Chad daybell property on September 9th this does not include all of them this includes only the ones that they were asking to be identified okay and we're going to get to that in a minute but I want to put this in context a little bit so if a depending on the radius if a phone was either on the Chad dabel property at any time or was near the Chad dayel property depending on the radius you would get an ID of some sort is that correct that's correct and what is the source of that ID where is that ID coming from what does the uh how is that ID arriving is that through the Google app it it is through all of the information that Google Tracks from a device and when they're saying the ID uh that could include someone who doesn't turn off their Facebook uh location is that fair it could be yes that's someone who doesn't turn off their location on their Gmail is that correct yes that's someone who could do something with uh their Twitter or any other app that they have on their phone and they just fail to disengage objection leading sustained would it be that if there's a failure to to disengage any location data on any of the apps that you would get an ID number objection leading sustain what would be the process of obtaining IDs other than turning off the location device on a phone so the this information that's being tracked uh across this for instance if you were to connect to uh a Wi-Fi signal from a device you would also generate a field within this and so it's not just the device itself uh but what the device is doing and what information Google is populating within their records about what's going on on that device okay so when we look at the numbers that are provided here these are all um a series of numbers yes you testified that this wasn't an exhaustive list what do you mean by that so the the full list of uh devices actually it was returned in a spreadsheet format and when sorted uh you would see one by the order uh of time and date because you can see here a lot of these are out of time and date like it's not in time date sequence it's in device ID sequence okay did you engage in any uh attempt to uh format them in a certain way yes I did and what did that involve so I took the spreadsheet that was returned by Google and I filtered the information based on the time and date so that it went in chronological order and I was able to then identify uh the device of Alex Cox based on the information that was provided within their reports and then I was able to take the device IDs that are further up uh in the pages of this search warrant and identify those in those records as as well uh co-mingled with all of the other records that were provided by Google so you recall the testimony of of Officer stubs is that correct yes I do and there was a representation regarding finding Alex Cox's uh ID among these uh searches as one of the uh uh pertinent uh uh phones located as as part of this search warrant is that correct that's correct as part of this search warrant did you recall any comments or do you recall any testimony as to whether or not there was any ID or information to suggest on 99 Chad Dell's phone was also part of the location data I I do not recall uh hearing that it was uh what I recall from the testimony was the results of the Google search non-responsive over world go ahead officer the results of the Google search showed that the only device that they were able to place with the association uh at the Chad DeBell residence was that of Alex Cox and that was at 99 of 2019 that is correct so what we're saying is that on 99 of 2019 with all of this information from and again what was the starting time of this again on this particular 99 the earliest location information believe it was 919 okay it's at the top but and then this went well through uh uh 1158 or 12:00 that day at the very bottom of the screen is that right yeah well this is not in chronological order so uh I can't tell you the exact final time but it was yeah sometime after 12:00 third one from the bottom it looks like I have a 1210 is that what that looks like yes I see that okay okay so if I understand your testimony is that on 99 at approximately 919 through 1210 there is no identification data showing that any device owned by Chad debel is on his property is that correct yes nothing in the evidence showed that okay and again we talked a little bit about the ability to disengage that information and and turn off your phone that's possible correct yes he could have he could have been there and he turned his phone off right yes he could have been there and he turned his location off correct yes uh he also could have taken the time to disengage each and every one of the apps to make sure there's no location data correct yes is this an easy task to do it's it's not easy to turn off all of it other than turning the device itself off okay okay okay did you have an occasion to do further review in terms of um the scope of what you observed in terms of radius on this particular day yes I did and what did that involve so what I did was as part of the filtering of the raw data that was returned by Google not only did I put it in chronological order but you'll see if I can point some of the radiuses that were returned or requested to be identified are showing 4,000 M 8,000 M from the uh radius that was requested as part of the geofence what I did instead going that far out is I went and I filtered it down to 10 m or less throughout this record and identified 19 devices from the Google record 99 that would have been 10 m or less in margin of air radius and that's what the record showed 19 total so 19 devices that appear to be within 10 meters or less of a of a range now we need to talk about the area that we're talking about so when we're describing it it would be like a box would that be correct so the way they did it was a single point of reference uh they just just provided a single uh latitude and longitude and asked for a 250 M radius around that okay and when we're talking 250 meters um if my math is correct that's three feet approximately three feet per meter approximately 750 feet from a certain point yes and where is that certain point on on the daybell property on September 9th do you recall I don't recall the exact point um but I believe it was in the backyard okay okay uh and you recall officer stub's testimony pointing to somewhere in the vicinity of a fire Pitter a pet cemetery yes I do okay so when we're talking about 250 meters we're talking about phones that could that could identify or be in the area uh within 750 ft on on their initial uh uh search is that correct yes that's correct and then you took the liberty of narrowing that down is that correct yes I did and the process of narrowing that down is is that a complicated process or is it a matter of moving numbers yes so it's not complicated uh they they provide you the data in a spreadsheet format and so you would turn on the filters and then select the column and all of the numbers in this Colum column here that show the radius would come up and you would just deselect all and only select the ones that are less than 10 10 or less for the number and then the spreadsheet would readjust and show you only those devices so when you're lowering the the the number and and explain that to me I don't want to get I don't want to suggest anything to you and I want to be educated on this when you're lowering that number you're you're drawing a location closer to that fire pit and that that that fire pit area would that be fair yes it's it's the margin of air so that margin of air the closer the smaller the number the closer to the radius uh it would be okay so when you narrowed the the the margin of error and again what did you narrow it down to 10 meters or less and and again tell me what approximately in feet what 10 MERS is approximately 30 feet okay so approximately 30 feet from the the uh fire pit well it'd be 30 feet from the radius 30 feet from the radius and we don't know and and what would the radius again be 250 meters so so 750 feet that's correct and then within um within 15 feet beyond that that would be where the margin of air 30 feet 30 feet Beyond 10 meters yes that's correct 30 feet excuse me that's why I didn't excel in math or computers so from the radius we then have a a margin of error of of of approximately 30 feet beyond the 250 meter radius around Chad Dell's fire pit is that right that's correct and then what did you find when you narrowed radius down to include the the 30 feet of margin of error 19 unique devices during that time period okay and at that point when you say 19 devices do you know what the phone numbers of those devices are I do not was there further inquiry by Officer stubs regarding that yes there was and how many devices did he pursue of those 19 that were within the tabell radius of his property so according to the testimony uh he stated there were 12 the search warrant that is part of this record that you're seeing on the screen says 11 but then he says that he never got an answer from Google until he finally got a hold of someone from Google and they made him shrink it so he says they dropped off two making it 10 for the return okay and is that a common thing for Google to do so it is common for them to try and shrink your radius on the first search warrant of when they're providing these records but I have not found it common for them to try to shrink uh the the number of devices uh that you're asking for identification on that would be within your uh proximity so when when officer stubs did this warrant your testimony is that there were 19 devices within that radius correct of 10 meters or Les meters and then officer stubs elected to pick 11 of those according to the warrant according to the warrant it says 11 yes so he he excluded eight of those is that right no what did he do with the other Aid Oh you mean excluded uh from from his actual data the actual data yes I I don't know uh they were not submitted those device IDs were not submitted for identification information okay so at this point we don't know what the identification though but officer stubs identified that they were of not of interest do you recall that well he stated that objection mistakes testimony over abuse me go ahead what what I remember of it is that he stated that the we're not not based on the commonality this is what they came to and when he's talking about the words commonality what is he referring to the process that they chose to use to try to place the devices in multiple places uh that were associated with this return okay so and the and the multiple places do you recall which of those multiple places were in this particular return uh the data would have been uh the Chad deel residents and the Lori Val residents so in case there was some commonality in those two residences the other eight were excluded on that basis is that what you're saying I I don't know why he chose to exclude them I just know that they were not submitted as part of this warrant to Google so if if an odd number of the device that wasn't at Lorie Val's residence or whoever ticked off at Lor Val's residence ticked isn't the right word clicked or identified there and it was just an odd vehicle that showed up at Chad Dill's driveway that would not have commonality would that be fair I don't know their method that they chose to do the commonality okay would this be standard practice to do that objection calls for speculation he doesn't even know the comp the reasoning behind what they did it's sustained would in in your practice of evaluating evidence would that be something a practice that you would engage in no it's not why would that be I would have asked for the identifying information for all of them uh in order to identify the individuals that would have been within that proximity and why would you do that as part of investigating the crime to determine exactly who was there well to determine who the information belong to them what they may know yes okay so it's part of of of of expanding the scope of what you're to learn about the case would that be fair that's correct so in other words by ultimately excluding one phone just because it didn't happen to identify at Lorie Val's residence but it identified at Chad deo's residence uh it still could be relevant to this investigation and pride provide information objection leading sustained would the lack of contact with one of the common residences potentially still be useful it could be okay now I want to go above the um the um data that you have and then if you get the pointer out again if you would help me sure at the very top number I can't read the ID number under the blue the very top one you don't need to read it but that's the first entry that you were provided is that correct that is not the first entry in the records okay oh the earliest entry would be what uh I would have to look at the record to remember but it was uh before 919 okay would it have been helpful to have records earlier in the day for any purpose yes and what would the purpose of having earlier requested earlier records than it uh uh sometime at around 9 uh for purpos of evaluation you could also identify devices that would have been there prior to that time so if if for instance if Mr Dell's device was there prior to 9:00 or was identified prior to 9 o'clock that would been one of the devices that you would have been able to locate or at least identify it you would have the device ID and you'd have the ability to submit it to find out subscriber information yes and to your knowledge that wasn't done not to my knowledge okay and to your knowledge again there was no um based on the testimony of Officer balance agent balance and officer stubs there was no identifying information that put Shad dael on the property at 99 20109 is that correct that is correct okay I'd like to move down to um if we can there's I may have the wrong and judge could I just have a moment please and just turn the HDMI off and the light on maybe I can I just have a moment judge I'm having some issues can't get this out of the way and I can't get this other one out right thank you this is a m file so it's kind of like Excel I see what that is of times it's I just need to be I'm ready that's fine I apologize for the delay now we're uh looking at the date of 923 is that correct yes that's correct and again if you have the pointer I can narrow this down again hopefully and again if we can go through the analysis we have the device ID and if you would use the pointer and do that for me if you're able to it's right there that call okay and then the date would be again what 923 2019 and then we have the next would be the longitude latitude the next would be the time [Music] the time I'm sorry and then the uh longitude or the latitude and then the longitude that's correct and then the last one would be the the um the radius you have the source which is GPS or Wi-Fi and then you have the radius okay and then the last column is a column that I added okay so um what's the relevance of of 923 and in terms of this investigation do you recall the relevance that would that have been the day that the remains of JJ Val were found on Chad Dill's property yes that's correct objection misstates evidence that wasn't the day that JJ Val was found there yeah sustain and strike that question in any event the the um the significance of the 923 did you again listen to the testimony of um of um Dave stubs and off an agent bance yes I did and this chart represents what this chart represents the information that was returned by Google for the geofence warrant based on a location at the deel residents for 923 during that time period okay and again what did you find of significance in this uh uh information so this is the non uh filtered radius version but in this information here as uh with the colorcoded the yellow information and this is also not time sorted uh either um but what I did is it was time sorted to chronological order thereby showing the exact uh process by which those IDs would have been near that radius okay and the the source of that information on your yellow it says something about Homer at the very right hand side yes Homer J Maximus and then in parentheses you have a name Alex Cox okay and would it suggest then that the yellow highlighted is the The Source information of Alex Cox's phone on the debel property on 9239 that's the information that's associated with that uh Gmail yes and then in the green what is that uh indicate the green indicates that is information device IDs that were submitted to have requesting information subscriber information provided back as a return uh based on the this information okay and again did you do your analysis in terms of um trying to determine whether this is a complete list of all of the the phones that had contact at that time yes I did and what did you find so this chart should be the complete list okay charts that I placed and provided was the complete chart okay and and what does that mean that it has all of the records that would have been provided by Google at that time okay and at as a review of this was there any further followup as to identify these ID numbers to your recollection only the ones in green and also the one in yellow were there other phone records that for whatever reason were not um included in the search for uh identification of those ID numbers on that chart not phone numbers but device ID devices device IDs Dev device IDs yes and how many of them were there on 923 uh I would have to look uh if this is the entire chart that I provided you would look at the white boxes for The Unique numbers you would have 1 2 3 4 5 6 7 8 9 10 so there were to be 10 other devices that were not included for information to obtain would that be fair that's correct but there were how many if you could count for me in the green that the that they decided to do of of for further inquiry on this particular day uh based on what I'm seeing on the screen there were 1 2 3 4 five six so if I understand correctly there were 16 devices that indicated uh phone location data at or near the daybell property on the 23rd of September is that correct adding in uh the yes that's correct that would include Alex Cox's phone data at that point correct that's correct did at any point you take the uh the task of narrowing the radius to to try to to try to um what I'm not sure what the proper word is narrowing the radius to maybe exclude others that were not as close yes and I correct that including Alex Cox it would be 17 okay so again did you narrow the radius to maybe refine your results I I did what did you find then so as you would see within this chart if you were to remove uh the numbers that are more than 10 you would see 1 2 3 4 5 6 7 oh excuse me 1 2 3 4 okay so there'd be four devices that once you excluded and again the radius that you used to exclude would have been what 10 meters so again 30 feet from the location point is that correct that's correct okay and of those four how many of those within the 10 met were sent for further identification none to my knowledge so when you have four phones that are within the four phones within the 30 feet of the area set by Officer stubs of those four they chose not to try to identify those phones is that what you're saying objection that misstates stub's testimony sustained was there any indication that they pursued the identification of the four phones within the 10 meter radius that you ident just identified no is there any indication through the testimony of Officer stubs or balance that any phone device of Chad debel was located on that property on 923 within the time range you set forth here nothing in the evidence I was provided Ed or reviewed okay I'd like to then judge I think I'm done with the uh uh HDMI if that's okay okay we'll unpublish and I do need the Elmo on Judge uh you prepared a report in contemplation of testimony in this case is that correct yes I did and that was previously um marked and accepted as exhibit 137 judge I was I took the liberty of providing the state with a uh paper copy I'd ask permission that uh I think this Tak can acknowledge that the paper copy is directly identical to the uh the 137 exhibit that I've submitted and has been accepted by the court all right Council I need a sidebar before we get into publishing on that report please e e e e e e e all right the court had a sidebar and we discussed exhibit 137 there are some redactions already in that exhibit however there's going to need to be some additional redactions and so in order to accomplish that before publishing at this point we are going to take a recess to allow for redaction on the exhibit and then once we get those done and redacted you can continue with your direct and publish the exhibit it has been admitted uh but we'll make those Corrections before they're published to the jurors so we'll take a morning recess at this time in order to accomplish that and we'll come back on we'll just let the jurors in the gallery know and we'll be ready to continue please to e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e all right thank you we've got our jurors lined up so please remain standing we'll have them directed into the courtroom please all right thank you please be seated okay we're back on the rec on cr22 21623 state of Idaho versus Chad Guai deel continuing with direct examination of Mr Eller the uh exhibits been taken care of on 137 and admitted so Mr prior if you'd like to continue with your direct humain and judge could I have use of the element may I yes and before we start with that um I just want to recap a little bit you had mentioned that um uh from your review of the devices and the data that was provided that uh Chad daybells there was no indication of a phone associated with Chad debel was indicated on September 23rd 2019 and September 20 September 9th 2019 on the Chad daybell property is that correct that's correct no device ID did you happen to look as part of the and I guess we'll start with this there was a significant amount of data that was provided to you is that correct yes there was and and and in one instance there was a sizable amount of um of data terabytes on in one particular indication right yes I believe it was approximately 10 terabytes and 10 terabytes would fill a room about how what size paper to paper the the the way that you know we've typically described that is if you were to take the Library of Congress if it was all printed just one terabyte would fill it okay so 10 times the Library of Congress is what you reviewing okay as part of your review did you look at the the status of the of any of the devices of Mr debel in in relation to the time of September 9th and September 23rd yes I looked at the return data for the chad.
gmail.com the information pertaining to that uh email account would you be able through that email account to determine whether or not Mr Dell's account was enabled or not enabled I can say yes and when you say yes does that mean that the account was enabled so the account itself was enabled and it lists the services that would have been part of that account okay and when we use the term that it's enabled what does that mean that means it's active does that mean it's receptive to to gathering information yes okay I'd like to switch gears a little bit and go to um the report that you prepared as part of your uh help in this case with me do you recall that report yes I do judge if I could have the Elmo again I'm sorry you may now we're looking at information as it relates to I'm I'll refer first to September 6th of 2019 do you see that yes and what does this information represent it represents uh information that was returned by Google for the Homer Maximus gmail.com uh location data and whose phone would be a signed to the homerj Maximus gmail.com Alex Cox so I start with September 6th of 2019 and it looks like it says 12425 4 um on September 6 and and what is that information uh suggest that information suggest that there was a location Point located in the records for uh the a device associated with that account to be at or near the Chad deal residence uh at that time now at 1242 it says Chad deel residence with that with that longitude and latitude that's correct would that suggest that uh that that device was on the Chad Dao residence on September 6th at that time yes it would suggest it was there on the property and then again at 12:44 yes that's correct and then again at 1251 yes that's correct then at 1253 that's correct now is there any way to determine between those times whether or not at any time between the minutes between those at uh that device left the residence no okay and then at 12:55 the device associated with Alex Cox placed him on the residence or south of the residence that's correct and you put a something called Salem Pines Lane is that right yes okay any information that uh do you have any information to suggest that Chad debel was at that location on September 6th I do not okay um we'll go to September 9th and on September 9th are we still talking about the device associated with Alex Cox yes that's correct and at that point we have a 915543 u it looks like it say south of Chad DeBell residence you see that that's correct and then at 92136 Chad DeBell residence correct yes now I want to go back to the Geo fence and when you talked about the Geo fence and the identifiers uh the indication is this 921 is consistent with what officer stubs it indicated um an officer balance indicated about uh the locator ID on the debel property is that correct that is cor object to that question balance did not testify about the Geo fence sustained officer stubs testify about the geofence yes that's correct okay and then again we show the device at 92250 again indicating the devices at the Chad day Bill residence that's correct and then at 926 there's a indication that the device is at the residence that's correct and then there's a gap between 926 and 1039 between 926 and 1039 is there any indication that the device would still be at the Chad Depo residence there there's no data to show that it was there but there's also no data to show it was not so it's undetermined as to whether or not the the the device was there or not that's correct would it be unusual or there not to be some sort of a ping or indication that the device was there it depends on what's being used on the device or if the device is powered on okay and then we go to 1041 so between 9:21 and 10:39 um well from 9:21 to 9:26 for that five minutes we know the device was at or near the Chad Dao residence correct can you repeat that question between 921 and 926 we know that the device was at or near the Deo residence is that correct yes there were three location points that showed that okay and then from 926 to 9 1039 we can't say one word the other where the device associated with Alex Cox was in terms of that property is that correct that's correct not from this data okay and from 939 to 10:41 um at that point the device at 1041 appears to be in the vicinity of the deell residence that's correct do you recall what vicinity it was in I believe it was is without seeing uh the the the map that associated with this but I believe it was near the front of it okay and then at 1043 again yes that's correct and then at 1057 we're back at the residence is that right that's correct and then from 1057 to 11:39 you have some movement is that correct yes so at 10:57 there's some movement and then 1139 you have it in the vicinity is that correct that's correct and then moving on you have it north of the residence is that right that's correct now I went back with you with the um um in terms of uh Alex Cox's device showing that he's at least partially between 921 and 1057 he was on the property and potentially off the property during that time correct could be okay and are you aware of any Communications between um any Communications in terms of text messages or emails that were um sent from the Chad daybell device yes and with those emails or text messages that were sent would those indicated a a identification number and a location through Google by you by the use of that device they could have yeah and at no point did they indicate that by the sending of a text message through the Chad debel device that he was in the vicinity of the Chad daybell property is that correct no records that I was provided showed that and again September at 2:30 we have um west of the Chad daybell residence is that correct that's correct and then south of the Chad daybell residence that's correct if you don't have a specific recollection it but if you do have a recollection you know how far he was from the residence I I don't remember okay and again we discussed this through your geofence testimony about the um device of the Alex Cox device indicating that uh the device was uh on the uh Chad DeBell residence on September 23rd correct that's correct and on September 23rd you also testified that there is no geofence evidence or indication through Google or any electronic evidence suggesting that on the 23rd of September Chad Dell's device was there as well correct no evidence I reviewed could place him at the residence okay and again we place him at the residence from 1055 to approximately 1012 is that correct that would be 955 I'm I'm sorry I said 10 n thank you for correcting me 955 5 to 1012 is that correct that is correct multiple time points in that time period we then go to the um September 25 2019 do you see that yes and again we have the um indication of uh um Alex Cox's device on the Chad day Bell Residence that's correct and that would have been from 10:05 on the 25th of September is that right that is correct to 10:24 on the 25th of September is that correct that's correct and again uh we're referring to October 9th of 2019 and that would have been the the date of the alleged paintball incident uh the time that we have for Alex Cox we didn't Place him at any time on October 9th on the daybell property is that correct the records did not okay but the records did show that he was south of The Residence at 450 correct yes it did and then South again for someplace at 501 place called Salem Pines Lane that is correct so we have them there for 11 minutes south and east of the daybell property correct that is correct what is the radius for all of these I would have to uh look at it but I believe it's uh 1.4 miles okay so 1.4 miles from the DeBell residence that would be the the marker for what you use to establish contact or lack of contact that's the radius we used around the debel residence to uh associate to whether there was a time point that would be Associated uh with this data now previously you saw from um the uh I believe it was officer stubs they used a 2.6 or three mile radius for theirs in terms of location data for for Mr deel is objection misstates the evidence do you recall what the radius that was used by Officer stubs in his report 250 M 250 M and the significance of going out to a larger radius would have been what it would just capture uh more location points of the device does it affect the um accuracy by just expanding the radius of how far you go out to determine this no so there's nothing in terms of accuracy that changes as a result of just going further out to to try to gain more uh location points for at least for for Alex Cox's phone is that correct that that's correct the the accuracy would be a separate uh reading this was just putting points within a specific radius okay and then we didn't include this on the report but you also reviewed um information as it related to October 19th in regards to the the device of Alex Cox is that correct that's correct and what were your findings in regards to October 19th there was no indication that it was at or near the property based on our findings which is why it's not in our report okay and then when you say add that there is no indication that the Alex Cox device was there on the 19th um that is within a 1.5 mile radius of his property 1.4 1.4 mile radius of his property that's correct I want to talk to you a little bit about the concept of Drive testing okay you heard some testimony previously about the drive testing that was conducted as part of this case do you recall that yes and and in your review did you come to some determinations as to what your understanding of what they did in terms of the drive testing yes I did what did you what did what what indications did you arrive at so the the drive testing that was uh completed um showed the coverage area for multiple Towers surrounding that area what that does is it shows you the coverage area that could be used by a device it does not show you RF signal strength uh or signal strength from a device but also what the coverage area does is from a drive test just allows you to see where you would be able to potentially reach a tower if you were to utilize your device across the cellular network okay so in other words when you're talking about um Towers if there's a certain angle and let's say it's 120 degree angle yes that angle goes out for an extended period of time it does and wherever there may be overlap or otherwise uh the distance that goes out determines a significantly large area for cell tower testing right that that is correct and the difference in listening to the testimony about the drive test uh was when it was discussed about objection this is non-responsive to a question St So based on the testimony that you heard about the drive testing what were your concerns my concerns were the five degrees Beam with difference that was reported between 2019 and 2020 okay and when you say five degrees difference what would that affect well it wasn't explained which way it was 5 degrees so when you look at that sector it's 60 Dees counterclockwise and 60 degrees clockwise and without knowing the five degrees that it was off it could change dramatically that coverage area depending on how far away a device would have been from the tower when it was made from that sector so for the use of drive test would that be and given the what you've just under given what you just stated would that cause a concern about the reliability of Drive testing it wouldn't cause a concern for reliability about Drive testing itself I would just wonder if the five degrees was taken into account uh for the mapping of the drive testing okay for presentation purposes is Drive testing considered a scientific test drive testing is used by the mobile network carriers and providers to test power coverage for signals it's not to be used to determine the location of a device to any extent of accuracy would that be fair the drive test itself can't locate the device it only shows Tower coverage okay there were some discussion about um something called Gladiator forensics you recall that yes and you recall that um I believe it was agent balance talked about the availability of gladiator forensics to the public to test devices yes that's correct did you look into the availability of gladiator forensics for someone like your corporation or the public I did and what did you find uh they responded to me that it is law enforcement and government only so is there any way to to um you to to challenge the reliability of Gladiator forensics or their testing without a law enforcement license to do so not with their tool okay so in other words when some of the testimony regarding data regarding phone coverage regarding all of those things that you wouldn't given that they use the tool of gladiator forensics you would not be able to challenge and we would have to rely on solely what they claim to be the information would that be correct you you can take that data and map it utilizing other tools but that doesn't mean that the algorithms that their tool is using will be the same so the results may or may not show based on what is being set up inside the tool by the manufacturer for the parsing of that data so not testing it with the same Tool uh not necessarily give you a reliable accuracy based on the tool they used okay so if there was a representation that gladiator forensics could be purchased by anyone for use um would that have been an inaccurate statement objection misstates the testimony that was never said sustain do you recall uh officer Blen talking about the availability of gladiator forensics I do and what do you recall him saying he said that their tools are not but the tools that you use to do Drive testing meaning the antennas the signals and uh they talk about it you know being calibrated by roads and sworts uh for the drive test tools um which I also reached out through roads and sworts and through their Distributors and was told that I could not purchase those either so we have to rely on law enforcement's representations as to the total accuracy of anything that suggesting would that be fair yes okay can I can I utilize the Elmo again yes thank you your honor there was some reference here to based on um records that you obtained about Communications do you recall who these communications were you're talking on the screen September 1st October 31st yes like through those dates yes yes did did you detail the uh the communications that took place when Alex Cox was identified to be at the vicinity or in the vicinity of the dille residence I did okay and you identified those by date is that correct yes that's correct so on September 9th there's one voice call is that correct that is correct on September 22nd there were eight text messages one voice call that is correct on September 23rd there was one voice call that is correct and October 9th there's 13 text messages zero voice calls that is correct you didn't identify those could potentially be to a number of different people would that be fair they aren't necessarily Alex Cox calling the same person right they are not okay and that was based on the data that you had at the time is that correct that is [Music] correct and judge at this time I have no further questions all right thank you Mr prior all right Mr Wood Cross examination I can be I can be handed F exhibit 139 yes in your honor uh because of the the digital nature of that it may take me a minute to set up okay and if I could also be handed States exhibit 156 and 229 and 186 all right we'll work on getting those located getting them delivered to you Mr wood thank you and if it's all right I'm going to wait till to start until I have the exhibit so I can do it in a succinct fashion that's fine we'll go ahead and get things located and wait h e e there we go good morning Mr Eller morning sir am I pronouncing that correctly yes sir okay you don't need to call me sir just have it I get it um I want to talk to you about September 9th 2019 and the work you did in this case for that for that date are you aware of the significance of the date of September 9th 2019 yes are you aware through your investigation of the last known sighting of Ty Ryan I am and that was September 8th 2019 correct that's correct in preparation for your testimony you created we just went over a written report you you did you created visual uh uh representations of the data you mapped correct that's correct and your honor may I publish yes which exhibit this would be States exhibit 139 um and in fact maybe we need to have a sidebar about the labeling of this because there's subparts on this exhib there's 14 subp Parts previously admitted yes a 139 defense exhibit okay uh feel free to just continue Mr wood if we have questions we can do that sidebar but if you can for the clarity of the record reference any sub exhibits okay and I would uh I would list this as defense exhibit 139 sub3 and Mr Eller does this look familiar to you yes it does this is the report you created correct this is a slideshow that represents data from the report yes thank you that's that's the more accurate way to say it what does this slide represent as far as what's the data being portrayed on that slide it's just showing uh locations and are these locations related to the homerj Maximus Google account yes and I've clicked on uh is this video there there's a video embedded in this that's correct can you can you tell the jury what this video uh shows yes the the the video would show the time frame represented uh and the point on when they would show on the map during that time frame all right in this slide uh what what time frame does this cover I would have to see the slider for the video if I start playing it would that age you yes I'm gonna play it that entry said 095 okay and is there indeed a label up here that says this is at Chad Dell's residence that's correct I want to go back to earlier in the day what does this video show in is it labeled it says video of all Google location data for September 9th so if we were to play this video it would show all of the homerj Maximus location hits uh that that you mapped out for that date for that date correct for September 9th and did you put any limiting margin of error on these yes okay and was that the 500 meters that's correct thank you so I'm going to start playing this video and I'm going to move it to about two two 2 minutes and 42 seconds I'm going to start at 238 can you make out what that what that data point is it is a Wi-Fi data point okay and where is it located in the vicinity of uh Lori valow and Alex Cox's residence I believe all right and can you pinpoint which residence it is at no not based on the visual representation on the screen right let me ask you this did you locate any data suggesting that the Homer J Maximus account on the morning of September 9th early morning of September 9th went to apartment 175 did I map that out no I don't believe so okay are you aware that a device associated with Homer J Maximus at two was at 107 Apartment 107 Alex's apartment in the early morning of September 9th correct and then in the early morning hours went to apartment 175 that's correct yes and it was there do you know approximately how long it was there uh not without looking at the records okay it was a several hours I believe okay thank you so he was there for some time in the early morning hours that's correct I want to talk about a little bit later in that day you uh you did some work detailing in your honor if I could unpublish for a moment yes phone calls that were made between Chad debel and Alex Cox or numbers known to be associated with the Chad dbel and Alex Cox correct that's correct and honor your honor if I could republish yes this chart this shows a calling number or this shows a phone call at 811 a.m. correct yes it does and the calling number is 20869 9374 correct yes that's correct and that is a number associated with Chad Dell correct yes that's correct and he calls 48 351 9120 that's correct and that is a number associated with Alex Cox and the Homer J Maximus account correct that is correct and and so that's at 811 you recall what time Alex Cox First shows up on Chad Dell's property on September 9th I believe it is approximately 9:21 so if we if we watched this video you prepared it would tell us correct I believe so okay and I'm going to pause one for shows so this data point that appears just south of Chad Dell's residence that's correct and what is the time on that 9:15 all right and what time was the phone call made from Chad to Alex I believe 8 11 yes correct thank you I'm going to play it again and so what time 9:21 does this does this show that Alex Cox's phone shows up on Chad d property 921 and this was also reflected in the cast report correct that you reviewed that's correct so just really quick as we as we do this the cast report used some different parameters than you did correct that's correct so they used a 100 meter uh margin of error and you used a 500 meter margin of error that that's correct there was 100 for that 150 250 500 across all the different reports right and I'm just I'm just speaking about the cast yes that's correct and and for different purposes you might use a different margin of error correct that's correct and at different points in an investigation you might rely on different margins of error depending on what you're trying to do correct yes and so there's nothing invalid about using a 100 meter margin of error or a 500 meter margin of error correct no there's nothing in bid about either and your honor I going to now go to uh States exhibit 156 the cast report and you reviewed this cast report correct could you clarify the exhibit number Mr wood 156 156 thank you it's not you reviewed this cast report correct as part of your investigation yes once I received it so and you recognize this yes I do and this slide shows in general uh some of some of the same data we were just looking at on the slide you presented that's correct and so just again uh on September 9th what you've established and what's also in the cast report is that Chad Dell made a phone call to Alex Cox at 11: a.m. at 811 that's thank you 811 a.m. and then just a little more than an hour later Alex Cox or a phone associated with him or a device associated with him shows up at Chad Dell's property that's correct are you familiar with the burial location of Tyler Ryan based on the testimony and the evidence I reviewed yes and in fact uh did you you mapped that out as well correct that's correct and you would agree that some of these location points for uh Homer for the Homer J Maximus account are in close proximity to both the burn pit on Chad Dell's property and Tyler Ryan and the final location spot for Tyler Ryan yes as part of your your investigation you said you reviewed many devices devices and Records yes and Records okay in fact real quick I want to ask you about that in your report actually I guess it's and can you tell us approximately which devices you reviewed oh is it too large of a number it's a large list I mean it was almost 10 terabytes of data that was turned over okay yeah it massive undertaken correct yes absolutely uh and it's difficult for any one person to get through all of that material correct I spent a lot of late nights over Christmas going through data that was turned over yes okay did you review a cell phone belonging to Tammy debel I don't remember at this time okay that's fine you talked about not having any information any geolocation data from Chad deel that placed him on the property correct that's correct are you aware that he sent a text to his wife that placed him on the property yes but that doesn't Place him on the property are you aware that in his text he talks about burning limbs in a fire pit yes and are you aware that he talks about shooting a raccoon yes and he talks about burying it in a pet cemetery yes and are you aware that there was a pet cemetery on his property yes and are you aware that that pet cemetery is the same location that Ty Ryan was located yes are you aware Mr L that upon finding that text message from Chad deel to his wife and combining that data with the data that you see right now and data that you've mapped as well was how law enfor ment objection speculation and and argumentative I'm asking if he's aware Mr wood first let me make a ruling and before you make response please so the objection is overruled okay I'll ask a question again Mr erer are you aware that upon finding that email or I'm sorry that text from Chad Dell to Tammy Dell sent on September 9th and looking at that data with the data that's placed on the screen right now similar to data you've mapped was how law enforcement found Ty Ryan no would it surprise you that that information was that information was how law enforcement judge I'm an object at this point calls for speculation sustained let's talk about September 23rd in your honor if I could published for a minute you may and I apologize for the pauses there's just a lot of Digital Data to be working with understand I'm going to start with uh what's what would be marked as defense exhibit 139 subpart 13 and if I could publish this point you may Mr er do you recognize uh this chart yes and at the bottom of that chart there's a call deta uh call record that's been uh there's some details provided for yes who is the calling number or I'm sorry let me rephrase that what is the calling number the calling number is 20869 9374 and is it correct that number is associated with Chad Dell yes that's correct and who is the call or what what is the called number 480 351 9120 and is it correct that that number is associated with Alex Cox yes that's correct and what time was that call 0925 and going back to your report on September 23rd you uh the information you were provided placed the Homer J Maximus or device associated with Homer J Maximus on Chad D Bill's property that morning correct yes that's correct and it first showed up up at 9:55 in the morning correct I believe so okay so we have a situation here similar to objection argumentative sustained okay so there's a phone call made from Chad deel to Alex Cox at 9:25 yes or numbers associated with them that's correct at 955 Alex Cox or a phone number or a device associated with him shows up on Chad Dell's property that's correct are you aware of the significance of September 23rd 2019 yes what is that that is the day after the last uh sighting I believe of JJ you're honor if I got un published for a moment you and I will be publishing from defense exhibit uh 139 subpart five and your honor if I could publish youen Mr er do you recognize this this slide yes I do could you read the label of it video of Google location data at Chad Dell's residence on September 23rd 2019 and you you prepared this video by mapping yes that's correct of Homer J Maximus correct that's correct so I'm going to push play and can you describe uh where I just paused what the data being presented is yes that that is a Wi-Fi uh location point with an accuracy of 50 m at on 923 at 0955 and I'm going to push play again and can you describe uh the data being represented here yes that is a GPS location point on 923 at 956 with an accuracy of 4 meters and would you agree that that location is close to the final uh or the the spot where JJ Val's body was found yes in fact is could you point with a year marker I believe you have it marked on that screen could you point to the uh the location of JJ's body okay thank you I'm pushing play again and stopping and what is what's the data here that is a location point from uh Wi-Fi source with 100 meter accuracy on 923 at 957 and so at this point is it is it fair to say that that device could have been located anywhere Within uh that Circle yes I'm pushing play again what is the data being represented here that is a location Point G that's GPS uh on 923 at 10:2 with 3 meter accuracy thank you and I'm pushing play again and is this another spot you mapped we don't need to list out all the details but this was spot you mapped and and this was at 105 correct that's correct thank you I'm pushing play again this was a spot at 10:07 that you mapped that's correct appears to be on the uh southwest corner of the property yes but with it that's a 92 meter uh radius radius yes thank you again one more spot that you mapped at 1012 that is correct so you would you would agree with me that the Homer J Maximus account that you mapped on September 9th show spots close to the location of Ty Ryan's body where it was located correct you said September 9th yes yeah I'm going back to September 9th I'm not trying to confuse you okay going back to September 9th yes and on September 23rd the Homer J Maximus account is located at shows at least two points very close to the location of where JJ body JJ's body was located yes and on both those days within uh close to an hour of when the Homer J Maximus account shows up on Chad Dell's residence Chad DeBell called Alex Cox that's correct or and let me be correct let me be specific a phone number associated with Chad dbel called a phone number associated with Alex Cox that's correct and just to be clear you also for this date you also as well mapped out the whole day of geolocation data correct yes that's correct and I'm not going to play it right now but so that you could actually watch Chad Dell's movements throughout the day judge over judge mischaracterization the question is not done yet so at this stage I'm overruling an objection go ahead Mr wood let me rephrase that either way you can watch on the these videos you you you prepared the location um I'm not going to say in real time because it's in shortened time but of the location data of the Homer J Maximus account that's correct and we we talked about methodologies earlier uh how sometimes in a different investigation you might use one methodology you might use something else someone for another investigation and there's there's valid reasons to be using different methodologies correct yes and and in this case for to determine when you would map out the homerj Maximus account as it relates to Chad Dell's property you drew a 1.4 mile circle around Chad Dell's property that's correct and anytime the Homer J Maximus account showed up in there uh you would make note of that if it well let me rephrase that and I think I think you know what I'm trying to say right um once once the homerj Maximus account showed up in there if it had less than a 500 meter margin of error you mapped it yes that's correct uh Mr defense Council spoke with you briefly about October 9th yes and I would know in your report it's in there that you disagree with the FBI about the number of text messages that were exchanged between Alex and Chad that's correct even uh based on what you found the that's correct yeah and and and based on what you found um you show that 13 text messages were exchanged between Chad dbel and Alex Cox on October 9th that's correct and you're aware that that same day uh Tammy Deo reported being shot at uh by a paintball gun I didn't know that it was shot at that's not what my understanding of it is okay but you're aware there was that incident that's correct okay and at the time of that incident the Homer J Maximus account as far as you can tell was located in Rexburg correct that is well what I can tell is that it was not within that radius okay that's fair so it wasn't in that 1.4 mile radius that's correct so you didn't map out where else it went I I did but it was not not reported for the purpose of that report for that radius around the residence so you did you did you for the purposes of your investigation you mapped it out you just it's not on your report that's correct okay and that's fair are you aware through the Homer J Maximus account where Alex Cox went earlier that day in Idaho Falls I believe so yes are you aware that he went to a Sportsman's Warehouse yes did you review any reports on what he purchased while he was there uh I believe it was in the discovery yes okay now with your 1.4 mile radius that excluded the Homer J Maximus account for October 18th correct that is correct uh but you are you aware or were you aware that the Homer J Maximus account uh was located 2.5 to 2.6 miles just south of Chad D Bill's residence that night at Salem Church yes yes okay thank you and you're aware that multiple text messages were shared between Chad dbel and Alex Cox that night yes and they were on phones they had both activated on October 9th were you aware that yes and is it because of the 1.4 mile radius that you did not include those text messages in your report that's correct really quick on the uh the Geo fence I Mr prior talked with you about detective stub's testimony that uh Google informed him they would only return information on a specific number of Google IDs yes that's correct I was a little confused at first because there's been a bunch of numbers and none of them were the same okay and H it was your testimony that you're not familiar with Google doing that I'm not familiar with them limiting what we're asking them to describe or provide subscriber information for that is correct but that doesn't mean that's not what they said to Mr stubs that's correct I seen no documentation from Google that said that they asked for that either though okay that was based on his testimony correct I'm just saying from the Google responses their returns and the emails that went back and forth through lurs I didn't see anything where they said that they were limiting that okay and again that information is just based on detective sub's testimony correct and you do agree that in that geofence the Homer J Maximus account does show up on Chad Dell's property yes in fact it's similar to these areas you've mapped yes I think identical yes and are you aware of through your review of The Discovery Alex Cox is relationship with Chad dille I believe he's his brother-in-law yeah well he was his brother-in-law correct correct you're aware that Alex Cox is deceased yes sorry no that that's okay did you review any iCloud accounts belonging to Lori bow I did did you listen to any audio of blessings given being given by Chad David this it goes beyond the scope of direct examination sustain may I briefly argue your honor yes go ahead Mr wood I'm asking him about digital evidence he's reviewed which was the substance of his testimony judge that's a broad sweep yeah I think it's outside the scope of anything brought up on Direct Mr wood at this point okay thank you that's fine and you testified you were unable to find any geolocation data for Chad deel that's correct and you're aware through your review that Chad dael used multiple phones yes your honor I have no further questions at this time all right thank you Mr I have multiple uh exib it's here to return to the court very well should to approach the podium you may Mr Eller uh prosecutor wood indicated that there was a phone call at 811 um from Chad Dell to Alex Cox yes do you have any information that the warrant that they obtained from Google would have included data information from that phone call no in fact there was no data information that they investigated regarding that phone call is that correct I believe that there would have been uh a record a cell tower transmission record for the call okay but there would be no identifiable way to say the location of Mr Dell's phone is that right not an exact location no and then that that applies to the 923 as well is that correct that's correct on those phone calls is there any indication in fact all of these phone calls that were referenced is there any indication whatsoever of what was discussed on those phone calls no and again on 99 and 923 during the time that Alex Cox's phone is showing he's at on the Chad Dao property do you have any electronic information or data of any kind to suggest the Chad debel device was on the property at the same exact time no nothing else judge thank you all right that'll conclude the testimony of Mr Eller then are we going to have him remaining under subpoena from the defense no judge he's excluded he's excused thank you Mr Eller for the defense State the state doesn't have him under subp your honor all right thank you that concludes your testimony thank you for appearing and testifying today you go ahead step down yes your honor thank you you're welcome all right the defense may call it's next witness Mr prior and judge I may need an a minute to see if he's arrived okay he's here I've been Poli here may I have again permission to approach the podium judge yes if Corbin allow me when I may proceed yeah judge the defense would call Dr Greg hinki in very well and judge while we're waiting for Dr hink in there was a stipulated exhibit that the court had delayed ruling on the Atria it was a 40 9A it's in the possession of the clerk I'm asking at this point my understanding is it by stipulation the parties that that exhibit would be admitted uh which prosecutor is responding on this I am your honor not ask for a sidebar real Qui sure well e e e e e e all right thank you Council uh after the sidebar I'll suggest still we have the witness take the stand and if there's a proposed offering of an exhibit we'll take that up after the witness has been on the stand and under oath so uh I know they were in the courtroom Dr MP as they go ahead and have him brought in please solemnly swear or affirm that the testimony you are about to give shall be the truth the whole truth and nothing but the truth so help you back morning morning would you state your name and spell your last name for the record I'm Greg g g hampikian ha m is in Mary P is in Peter i k i a n is in Nancy okay and and it's Dr hinkin is that correct yes okay now um in full disclosure we do know each other don't we of from this case yes okay and uh how would you prefer for purposes of this hearing that I address you as either your your first name or was Dr hinki and what you would prefer uh probably given the formality Dr hin of what I'm used to so Dr hinkin can you can you briefly explain to me um your occupation I'm a professor at Boise State University I have a laboratory there we work on a lot of DNA projects forensics viruses um uh cancer and and um I have a joint appointment uh so I'm in the biology department but I have a joint appointment in criminal justice so that I can take on some of their students for projects uh occasionally lecture over there and then I'm an adjunct uh lecturer at the University of Idaho uh College of Law and then I uh also consult on uh cases like this which are private cases and uh I head up something called the forensic Justice project that deals with uh testing DNA in uh cases where people write in and say they're innocent they've been convicted wrongfully and in that regard with your forensics project is that a nationally renowned project or organization it's it's uh it's funded nationally we work right now in I think a dozen states and uh we have a grant from the Department of jce jce they don't endorse anything I say I always have to say that about my funding agencies uh to work in five states in particular uh doing uh DNA reviews of cases okay and there's no particular U distinction you will do work for uh Defense work and you will do work for prosecution work is that fair sure yes and have you testified previously in cases regarding DNA analysis yes dozens of times yeah okay okay and can you briefly explain to me your educational background I have a PhD in genetics a bachelor's in biology a master's in genetics all from the University of Connecticut and stores uh I've had post-doctoral training after that um on a National Science Foundation Grant in Australia working on the Y chromosome the male chromosome and and then more post-doctoral training in Massachusetts in developmental biology and a lot of professional development around forensics and that's mostly done through the American Academy of forensic Sciences or some of our annual meetings is there any special accreditation or or or or academic uh achievements that are recognized as part of your your time doing DNA analysis um you know I mean the most most important things are our Publications that's what we're judged by so these are sent out for peer review if two of the three editors think it's good we might have to fix a few things and then it gets published uh but I I consider that the most important thing and then um we have uh uh certifications to put uh DNA in certain databases there's a y chromosome database uh of course they have tenure at the University which is another hoop so there's lots of lots of Hoops okay we had to go through and this is not uh this is Boise Idaho that we're in but you're an international um um um you're you're um you're sought-after in an International International capacity would that be fair I don't bolster witness all right first of all can't all be talking at the same time to keep clear record when there's an objection made please pause so the court can roll and the court is is going to sustain that objection okay have you had an occasion to work with International police yes uh I've worked with the French police my mother lived in France at the end of her life and uh uh I had good relations with them we actually published a case that we worked on it was a a big national case that had languished for many years was the first time that uh a type of DNA familial searching was used so we published an article and I've worked uh with the Taiwan uh forensic science lab and we also published a case and that was a man who was wrongfully convicted with DNA analysis that we asked to review and um the lab did the the laboratory wetwork at our request and then we wrote a report together and then published an article so not only is your your organization do your own DNA analysis you peerreview others as well would that be fair yeah right now most of the work is review it comes in on computer discs so it's run uh at independent accredited forensic Labs mostly in America a few a few International cases you mentioned the French case would would that have been the Amanda KNX case no Amanda was in Italy and that was um yeah that was a a different case the French case was LOD Kulik did you have any involvement in the Amanda Knox case I did have some involvement in that case I worked on it uh for several years with the defense side uh starting during the original trial where she was convicted and then uh staying with it through to her ultimate exoneration and when you say ultimate exoneration eventually she was through part of your efforts with DNA she was exonerated of the charges is that right yes objection your honor bolstering the Winns oh oh hold on there's an objection I'm sustaining the OB action striking any an came after about how many cases um well before we get to that about how long have you been doing this forensic DNA work since uh about 1989 okay and about how many cases have you worked on uh you know work is a some of these cases take years and years of a lot of work and and some of them are just quick reviews but I'm I'm sure I'm in the hundreds by now okay and you already mentioned that you uh publish your work in peer reviewed uh journals is that correct yes that's required really of uh the academic position and and required the acade as part of being Affiliated in some capacity with Boise stayed I they generally don't let you stay if you're not publishing yeah okay and then I think I mentioned this before but I'll I'll mention it again you you do work with the police on these cases as well is that correct yes uh particularly in cases where the State Labs uh don't have the technology and we have have the technology or they uh haven't yet validated the technology and and uh we can help the police and a lot of what I'd call difficult DNA cases where they're over 20 years old say and uh we're reopening them so we we have a lot of uh officers come to the lab you mentioned that and that was where I was leading next is there are instances where our own State lab doesn't have the facilitators or the understanding to engage in certain testing that you have is that correct I wouldn't say they don't have the understanding uh uh but they they have a very difficult process they have to validate you may have heard from their experts uh all of the techniques I mean it's a public lab and so we're a research lab we can kind of get to the newer technology more easily and uh that's really the reason why I think people would come to us okay and um you have testified in regards to the helping the prosecution in cases as well is that correct I've been listed as a witness here in Idaho didn't testify uh I did testify in Atlanta Georgia and was uh paid by the uh Fulton County to testify as part of your I'm sorry I'll slow down as part of your um uh employment is it part of your employment to train students who work in police forensic DNA Laboratories yes uh I teach the forensic biology course it's the only one at the University and so U several of my students have gone on and gotten jobs uh in forensic science in the labor iies I have a graduate student who uh Works in one of the um uh with one of the police agencies right now so a lot of people come through the lab and end up in forensic science some of them in state laes and in as part of your occupation as well have you had the occasion to uh instruct and train judges on DNA analysis um so judges come a lot of times to the to the naal development that I offer for all lawyers uh but specifically specifically um I was invited twice to Montana to train the judges and then once to Israel to train judges okay and has it had the occasion where you have helped solve what are referred to as cold cases yes I'd say the one I referred to in France is a notable example and then um uh Christopher tap who um was exonerated here in Idaho we worked with the Idaho Falls Police Department to find a new DNA match who eventually uh confessed to the crime that Mr tap had served uh wrongfully for and there's a case now that's going on in Idaho where we helped the the police establish a new match and a uh murder that was many decades old but that's not finished yet okay and so when I make a when I talk about what is called a cold case that means a case that occurred sometime previously it has several definitions uh I like to think them as old cases that you know are just not getting a lot of um movement forward and um some agencies will refer to them as cold cases and there's actually special funding you can get from the Department of Justice that are aimed at solving these cases uh so there're cases where there's no active suspect and um uh methods like genealogy one of the new methods can be used um do you have a DNA Lab at at at at your location yes and is that a fully functioning D DNA lab on on good days it's fully functioning yeah uh uh it's a uh you know it has the equipment that um that's similar to the forensic equipment that the Idaho State Police lab has uh we're not doing active casework though I send any evidence now to uh accredited independent Labs either the state lab or an independent lab uh um and that's mostly because I don't want everybody in the lab to get subpoena to to come and work like something like this and uh it's just easier so for you know uh for somebody writing a check they can take all the responsibility for uh everything that happens handling wet lab items you mentioned the state lab has there been occasions when the state lab has reached out to you to the Idaho State lab has reached out to you to consult you on issues I don't think the State Labs reached out to me we've we've talked and I certainly know some of the analysts but I I can't remember them okay uh reaching out to me and you do teach forensic courses as well at Boise State I teach forensic biology at the law school I teach uh a course called wrongful convictions that looks at how we reopen cases with with DNA so that's kind of a forensics class and uh periodically I'll teach seminars on forensics and would you how often would you say that you testify um you know five six times a year maybe or less okay is there a reason or an understanding as to why you don't testify more often I mean most times if I review a case I'm getting a bunch of data and I can run it through our software and and check on things and I go through all the records and if I'm not contributing something new that someone has hired me to look at they're not probably going to want to pay for more time for me to come and uh sit in a courtroom so often times if I agree with what the lab has done and there's no questions I'm not called to testify and that's probably that's the vast majority of cases i' and and would you describe your profession as a specialized scientific profession yes and it takes specialized knowledge yes and with your Education and Training are there a number of people who obtain your or have your specialized knowledge in this field I mean I get to meet with my colleagues I'm a fellow of the American Academy of forensic Sciences there's a few few thousand people there uh and uh and then I'm I mean I'm going to another professional meeting in June different one and there'll be a few hundred people there hopefully when I get to to speak as well and you're speaking there yeah are there any special certifications that are required to do what you do certifications I mean I have to anytime we do anything at the University there's two oversight boards that we have to apply to they have questions about about our methodology in terms of humans like are we compromizing anybody's rights are we doing any experiments that would uh you know abuse somebody in some way or abuse their rights and then I have to go through the um the biology uh Safety Committee and they also review everything then every year we have to go through all of our training again to be certified uh to continue the research so and in order to do what you do it's important that you maintain those certifications and training is that correct me and everybody in my lab yeah okay okay I want to talk to you a little bit about a concept of transferring DNA can you in in general give me a broad overview of what the concept of transfer of DNA means so transfer is really at the center of DNA um you probably heard of you know latent print evidence it's very hard to transfer somebody's thumb print from you know your glass to say a weapon uh but DNA can move very easily and so we always have to be cautious about making conclusions about how DNA got somewhere so I like to say DNA is really good at telling us something about who may have contributed but the how it got there that's really for the triers of fact for the jury the judge and DN as a DNA analyst I can't tell and the reason I can't tell is because DNA does move uh it's it's how we get it we take a swab it just as a Q-tip you wet it and you rub it on something and then you take a dry swab and you rub it and both of those just like you might clean up a pudding stain or something from a kid on a cloth you know you transfer some of that material to your swabs a wet swab and a dry swab and then you have to get that Material off the swab and it's as easy as putting it in water with a few chemicals and the DNA comes off so DNA moves around uh all the time when we talk about touch DNA a term I really don't like because it implies we know how it got somewhere someone touched with their hand but really the the way we get DNA on our hands what the what the research shows is you touch your face you know you're washing your hands during the day but you touch parts of your body you know you it might scratch your ear whatever and all of those loose cells are transferred to your hands so even what we call Touch DNA is mostly transferred from somewhere else so uh that's why I'm very cautious about speculating how DNA got anywhere I don't know any better than anyone with common sense how DNA got somewhere it's who could have contributed it okay so it's an issue of who contributed as to how it actually got there from me yes that's what I think is the limits of my ability and the fluidity of DNA it can there's a number of manners in which DNA can be transferred is that correct um yeah I mean t we've talked about touch and swabbing with a liquid you could just sweat and some of those cells roll down with the sweat so all the ways you can imagine dust say moving DNA can move so you just mentioned that that the manner in which dust can move would that be the same manner in DNA can move if it's dry and Flaky but DNA can also be in liquids so yeah it's a a it has a variety of ways of transferring so my touching of this microphone potentially I could have placed my DNA on the the speaker of this likely you did whether it would be detected with a single swab or not you know I don't know but yeah we uh on contact our shells our cells sorry are shedding all the time so on contact you're probably leaving a few so when you say something as likely as touching something um if you were to have any kind of contact with any particular item is there a high likelihood or a good likelihood that that DNA would be transferred to that item several levels to that question you know how much when did I wash my hands how how long did I touch it how vigorously am I a shedder do I have psoriasis or dandruff uh and so there's a lot of questions just about me and my contact with something or a person's contact but then there's also the laboratory what technique they're using in my lab we can detect down to a single cell not 100% of the time maybe I 20% of the time or so where we can get DNA from a single cell if we want to and I'm going to jump around a little bit before I get back to the Single Cell analysis uh DNA and the transfer of DNA can be in relation to how much frictions in involved with the surfaces would that be fair yes and talk a little bit about that um just like when you want to rub something off your body or uh exfoliate uh uh the more rubbing obviously the more raw you're going to make the skin and the first thing that comes off is just an outer layer that's a all the dried uh Katen aites they kind of Link together and they give you waterproofing so that first layer goes but if you keep scrubbing you know you'll get down to to tissue you'll get tissue fluid and then you'll get blood and you'll get other bits of tissue so depends how vigorous uh in terms of how many how far down you go how many layers and then also just the the amount of friction just like you'd imagine if you're filing your nails more friction more removal of biological material for those of us that don't have your um significant knowledge in this area uh I would like to talk a little bit about this concept concept of what and if you could put it into some context what is a single cell oh um it's very small you you can't see it uh unless it's a human egg cell you can actually see there big enough to see but the type of cells we're talking about the epithelial cell you have to have a microscope to see uh and so you can transfer hundreds uh or I'm told we transfer pounds of these skin cells so we're leaving a lot of them and they're very small so are and that and you're leading into my next question because you can analyze down to a very minute uh cell that only can be detected with a microscope is that correct yes but as as humans would it be fair to suggest that we are in a constant process of shedding skin and our DNA at all times of the day yes yeah so in all likelihood as I walk around and if I'm shedding my DNA is being placed all over this table right yes and even if I go to sit down in that chair as a human and the fact that we are human beings that are in a constant state of shedding would my DNA also be transferred to that chair by sitting down on it it could or if somebody else DNA is on your pants because you sat somewhere where they you know had their hand down you could transfer someone else's as and in addition if you were to pick up or hold an object of any kind there be a high likelihood a good likelihood is there any way to determine what the likelihood is of how your DNA and what DNA would be on that item that you would pick up in a laboratory setting there's studies that are done we've done them in my lab where you know you hold something quickly you grab it and you uh rub it uh we tried a bunch of different things and I I think it's kind of common sense about the the trends the more friction the more time the more transfer but there are shocking things sometimes somebody handles something a lot you get no DNA sometimes somebody just Taps it and you get tons of DNA so I don't I don't know how to ascribe a likelihood in a you know crime situation or a field situation just those general rules about time and friction are important so if I understand your testimony correctly uh there are a number of ways to transfer DNA onto an object would that be fair yes there would be ways in which you would touch an item and physically have contact with it that's one way correct correct there would be a suggestion that if you were just around the object and you were like many humans shedding your cells your cells would naturally fall on or be present on anything that you might be around they could your hair can fall out and uh uh be on uh um something if you were to do that as well just being in the vicinity yes Common Sense would would uh or if you were doing something rigorous or doing something in the form of an exercise and some of your hair comes out and Falls that's another way to track DNA yeah the hair is shedding like the skin and just more obviously so and if you're around something there is a strong likelihood that your hair is shedding and then you're putting your DN again I could be putting my DNA on that Chair by shedding correct you could and if we looked for what we call environmental DNA I'm sure all of us who've been in this room uh you know have a high likelihood of showing up if the room is sampled really well and aside from DNA that falls off of your hair and falls off of our shedding bodies and skin uh is there possible that DNA could also be transferred through our breath um you know there have been studies that show that and now they're having like swabs outside of zoos and they're detecting all the animals who live in the zoo so there is a a a certain amount of DNA that is transferred in the air uh and that's really an area that people are developing right now okay so in other words the breathing on on some object I'm not talking about any other fluids let's we'll get to that in a second but the breathing on an object or if you're involved in a situation where you're engaging in heavy exertion and as part of that heavy exertion you're breathing onto an object potentially there would be DNA of you on that as well correct potentially yes okay and then we'll go to fluids we can get DNA by way of um um perspiration by sweating yes if you're doing some sort of um physical activity and a drop of your sweat were to fall on an object perspiration that would be another way that you would find DNA on an object as well is that correct and then by way of spitting as much as as disgusting as it might be all of us have been guilty of being involved in situations where fluid comes out of our mouth and places itself on on DNA correct correct and then as far as sneezing or breathing out of our nose knows if we have any kind of a cold or any sort of of of issue with that again that's another way that DNA could be placed on an object is that correct yes so would it be fair to say that there are a variety of ways and manners in which DNA can accumulate on any object that you that you around yes it could be by way of fluid correct correct it could be by way of air through the air yes it could be by way of hair yes it could be by way of having a physical touch with the with the object as much depending on the level of how often you touched it correct correct are there any that I'm missing oh you know I I I'm I mean I've reviewed all kinds of cases people leave DNA in a bite mark of a cheese sandwich and a gum wrapper uh you know there's lots of ways you can you can think of trying to find and I always tell people if they say hey can I get DNA off this thing I'm like we won't know until we try uh and so I've been surprised we've gotten DNA from bodies that have been submerged in water for days uh foreign DNA and that always surprises me you just don't know till you try so would it be fair to say that um uh there's no real way to take any precautions to prevent your DNA from being placed on anything in particular would that be fair oh I think objection argumentative sustain okay I'll rephrase in other words um DNA has a lot of fluidity Mo movement wise yes movement and there are a number of ways and and manners in which your DNA whether you mean it or not inadvertently or intentionally can be placed on items with even the most limited amount of contact would that be fair uh yes it's not old always the case but you test it and you see yes okay and judge at this yeah I apologize we do have a request for a break and judge I was going to do that I I'm gonna be getting into an area that I think maybe we would we could take our break I would ask Dr hinking to please show up again after lunch yes sir okay we're going to go ahead and take the lunch recess at this time we'll recess from 12: to 1 be back on for additional testimony at 1 o'clock thank you all right e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e thank you we've got our jurors lined up so please remain standing we'll have them enter the courtroom all right here offer C for thank you please be seated all right Mr prior you may continue we are back on the record on kcr 22211 1623 state of Idaho versus Chad guy debel we took the lunch recess we're back on the record with additional testimony Dr hampikian is on the stand I'll the witness you're still under oath for your testimony and Mr prior you may continue with your direct if you wish you may good afternoon Dr hinken good afternoon I think where we left off um is I was going to start talking up um the testing procedures that were conducted in this particular uh group of uh of evidence that you were provided um and before we do that can you then identify if to the best of your recollection what evidence you looked at and what did did it did Encompass um I was supplied uh with a number of documents and electronic files the things that are most important to me are the electronic files with the DNA data because we have our own software that we can review that through and do probabilities and interpretations from but I also reive things like you know CVS and laboratory records that uh we review and then a list of evidence a lot of which wasn't tested so I have you know there are dozens of items uh on these lists of evidence and what's uh most important is the things that were tested uh and so for those I have reports of the from three Laboratories a bod Laboratories uh Australia and the Idaho State Police forensic lab and along with those we have electronic records that allow us to reanalyze if we need to if there's any uh problems um and I can't remember what other doc there's a there's a large packet of things that come through but really it's the biological evidence that I pay most attention to and in regard to the state lab uh you were um uh you read a report which described a number of hairs on a a piece of adhesive do you recall that tape yeah there were a lot more than a dozen hairs as I recall but a lot of hairs and do you recall the different colors of those hairs on that adhesive Brown there was uh very short dark hair a blonde hair uh those are the ones I remember and obviously there were a number of the the dark hairs and I think several of blonde hair and at some point the uh as a result of on that tape and those hairs and you said over a dozen hairs on that tape I I don't know if they were all from that tape but there are a bunch of hairs listed and only a few went on to testing so okay and when you say when you talk about that the the state lab is not the agency that's going to test that is that correct uh the state lab uh tests hairs generally when there's a a root on them but some of these other tests where there's there's no root it's just just the hair shaft there are Labs like bod and esta both of the other two Labs that will process those and get really good results from hairs without roots and is it possible to obtain DNA from hairs without roots yeah just about uh you know just a few years ago three four years ago they started advertising this at some of the private Labs that that police agencies use like bod and then a is one of the newer companies uh that specializes in uh particularly in hairs that don't have Roots okay so as far as estrea is concerned the only thing that you have in terms of rest esta is that um of the um the brown hairs the blonde hairs and the short hair the brown hairs were sent over for testing to estraya is that what you recall not all of them but for some reason certain ones were selected and uh as I recall four test hairs went to Australia um and uh their first test is to do a what's called a a you know low depth sequencing so they're basically just going to sequence parts of the three billion bases not the whole thing and that's because it's cheaper and it takes less computer time and they can then tell you if the hairs are sufficient to go on further so from that first shallow sequencing that they do they get uh what they call a mitochondrial hayp they get some information about DNA we get from our mothers and in that short sequencing and the first thing they can do they can tell if if hairs are different from each other and so they did that with the four hairs did they compare those hairs on the ones that they sent to Austria against any U um and I'm not sure what the proper term is people or or um references refer references I'm sorry I struggled for the word so there are three references that were sent to estraya Chad deel uh Lori valow and JJ and so those were the only three references that went through the type of testing that estria does so this is a very particular type of testing uh a sequence testing different than what the state lab does currently and so they could only compare it to those three samples the four hairs that they had they determined from the four hairs that shallow sequence ining that two of the hairs came from possibly the same person uh so they had three different people out of four hairs and then they compared it to the three references they had and all of the reference samples were excluded from each of those four hairs that represent three people so neither Chad deel nor Lorie valow no nor JJ contributed those hairs and then they uh there's further analysis than they did but that's the first Main conclusion is there's three different people who don't match the three reference samples who left hairs that were that were sent to estraya so at this point what was basically sent to estraya U the conclusion is that Chad deel was excluded as providing any of the hairs that were provided to estraya as a positive would that be fair yes did you find any evidence of anything that you provided that were provided to you through these DNA reports indicating that Chad Dell's DNA was present in on anything no I want to talk to you about um conclusions and and you know what type of conclusions someone in your field of D DNA forensics can arrive at and if you would talk a little bit about that I'd appreciate it sure and these common types of tests there's basically three conclusions I can say someone uh is excluded and in other words there there's too many mismatches and I can just say it's clearly not this reference sample that donated DNA to this evidence sample so that's exclusion and sometimes a statistic is provided but it's not required you can just say they're exclud and show the data the other uh option that's informational is that they cannot be excluded so that means they could have contributed that uh uh DNA on the evidence and then we have to supply a statistic is it one out of two people would match it you know what's the coincidental match is it one out of 100 trillion and um uh the third option is you can say it's inconclusive so you can have exclusion cannot be excluded with a statistic inconclusive when is it inconclusive I drop a two lab uh there's nothing in the tube the test doesn't work there's there's not I I doubt the results somehow and uh that that's an inconclusive so those are the three options that we have okay and then when you get a conclusion that it's a negative result what does that mean that's a really bad term uh because it means that what's negated is the hypothesis that was being tested so for example explain that to me when you say what's negated is the hypothesis being tested let's say someone is uh accused of a crime and I swab a handle of a knife let's say I have a reference sample from the accused and really what I'm doing is H hypothesizing that the reference sample matches the evidence sample and I test that hypothesis and a negative result means in in some ways the way a lot of analysts use it means that I've negated that hypothesis it is not this person it is an exclusion so the unfortunate thing is negative result is used when we exclude someone which is a perfectly valid result and it's also used when it's inconclusive sometimes people say it was a negative result that you can think of it like a covid test or a pregnancy test you can be negative for the the pregnancy or the disease uh or the test could not work and some people will sometimes refer to that as negative there was no evidence there's no there's no test but um but in the case of the the labs what they really doing when they have a reference sample as they had in this case they had three reference samples for example at AA they're testing the hypothesis does so what hypothesis in this case are they testing did Lori valow contribute uh the hair did Chad deel contribute the hair did JJ contribute the hair so they tested three hypotheses uh and in each case got a negative a valid very a a sensitive and correct answer that none of those people contributed those hairs so that's that's how negative is used in that and that setting is it used in other settings as well yeah and like I said it's a tricky term the way people use it so I I uh sometimes there's a phrase in our field if I I can say it it Set uh the absence of evidence is not the evidence of absence so you can't prove you weren't somewhere just because they didn't find you there that's sounds like it's true and I've heard experts like myself say it on the stand and years ago I was asked on the stand isn't it true the absence of evidence is not the evidence of absence and then I realize no it is the evidence of absence of course it's the evidence and I know that because in cases where we've done exonerations there's there's evidence that other people did the crime and to say that you know just because there's no uh uh there's no evidence from an innocent person that that's that that's meaningless it is Meaningful things are tested you test sustained sorry sorry so again if I could ask a question yeah um the hypothesis you were talking about is is in regards to the absence of evidence and how it relates to um uh the testing procedures is that correct sometimes negative results are referred to as the absence of evidence and that's incorrect these are well done carefully uh done tests that negate a hypothesis did this person contribute and that's important evidence okay so if I understand you correctly it's not just showing that his his DNA or her DNA is not on anything it's the fact that the hypothesis suggesting that that person in some way contributed to whatever is being tested has been negated and that the hypothesis that that person has been involved in that is negated as well objection argumentative sustained is the hypothesis that the person is present is negated by an absence of evidence objection argumentative over um I I would I would state it this way that every piece of evidence uh can be uh weighed in terms of does it favor one explanation or another and so when we have a test where someone is excluded that some people will refer to as negative when we have a test where someone is excluded it's up to the triers of fact to decide what hypotheses that favors but it's evidence when someone is excluded evidence when someone is included the only thing that's not evidence is the inconclusive you just forget about that one but uh but but positive and negative are important conclusions but would it be fair to say that in this particular case there's an absence of Mr Dell's DNA on any of the items that you reviewed yes there's an absence of his evidence of his of his sample of his DNA and before we finish up I would just like to touch on the fact that were the results that you reviewed in this case were were were they valid yeah we check all their controls and so they you know when any time the lab's running a bunch of tests they have some blank tubes with just the chemicals to make sure nobody's skin cells from the lab or the police got in there or whatever and so the controls that we that we uh use uh in this case were standard controls at all three labs and they all were okay they were fine control so that's trustworthy they follow follow the proper testing procedures they follow the proper procedures and they got good results with their controls they searched for the smallest or tiniest amount of DNA very small amounts of DNA they search for significantly small I mean you know as small as they can go so generally we're looking at just a few cells now so okay you know 20 40 cells is is there any indication that anything went wrong with their testing procedures no and they had all the proper controls yes now I I'd like to talk a little bit about with your familiarity with these testing Labs do you have some sort of familiarity with asria uh yes yeah I I know um Dr Ed green who's helped me on some on a particular case uh his technology I believe helped found that company so I I helped him with his I gave him his first case really you gave him his first case I believe it was yeah it's here in Idaho too and you know bod laboratory I I've been to B bod many time or several times and I uh I was just on a panel or on a DNA panel with people from bod so I know some of those folks who work there and the state police as well I I know the state police folks pretty well I see them at professional meetings I visited the lab on occasion yeah so there so if I understand correctly then you don't have any question about the procedures that they followed is that correct not in this case no what your question is Maybe the range of what they decided to test I don't know who makes those decisions about what's being tested I just know what ultimately gets tested and in this case four hairs were sent to Australia the short very short dark hair it was called and then the rest of them were Brown hairs three other Brown hairs and then the hairs that weren't sent included blonde hairs that's correct okay judge I have nothing else thank you your all right Mr wood when you're ready cross examination good afternoon Dr Hy good afternoon so you you testified you you do run a lab at VSU I do is that an accredited forensic laboratory not for the type of evidence the state police run no okay Mr would I apologize for the interruption could I have a quick sidebar with Council please e e e the court wanted to clarify the matter and I am allowing a brief reopening of the direct in order to address that exhibit and then we'll go back to cross so Mr prior you may approach yes and this relates to the proposed exhibit 49a and judge at this time I'd move and my understanding is by stipulation to the admission of exhibit 49a okay and that's the Astria report does the state have any objection to the admission of exhibit 49a defense no objection okay exhibit 49a is admitted thank you Mr I'm done judge thank you [Music] all right and sorry on this exhibit again do we have a separate 49 and 49a I believe there's a 49 and there's a 49a judge okay well 49a is now admitted which is paper copy of an asria report uh thank you while we sort that out apologies for the interruption Mr would you can commence and begin again or continue where you left off on your cross thank you Dr anpin yes hello again hi uh so you you testified you do run a lab yes uh but for actual testing in a in a criminal case uh you would send that off to someone else we do now yeah was there a time when you tested it yes there was I but and I I believe correct me if I'm wrong you testified this this lab you run that was not a forensically uh or accredited forensic lab anymore or it is not a we never applied for the type of accreditation that b and Australia and the ISP lab have we use the same procedure same equipment but we're an academic lab and so we don't we're not required to do that uh unless we wanted to take in you know paid testing which I I don't want to do and you have a lot of students in your lab uh yeah I think six right now that are the summer Mr prior spoke with you about uh the ISP testing yes and did you review all of the lab reports for that testing I I reviewed all I was given I think I had all the reports yeah okay uh did you re did you review the test identifying the remains of Tyle Ryan yes and you had no issues with that testing no okay did you review the results of the test identifying JJ valow yes and and to be to be fair uh it identified him to his biological father Dennis Trahan correct I believe I can't remember but it was a correct identification and and you okay so you didn't have any problem with that test none at all right uh did you review the testing of what appeared to be genetic material in the eye of a pickaxe yes and did that testing was was it valid to you yes at the on that same pickaxe there was some testing done on what appeared appeared to be a blood spot did you review that testing I believe they referred to it as the H handle or yeah the handle yep and and that testing was fine with you yes it was okay and finally there was some genetic material on the blade of a shovel did you review that testing yes and and that testing was met criteria for you yes and you're aware uh you spoke about the estral lab testing you were aware of the the hair that got sent to Bod Labs yes and do you remember who that hair was tested against I I don't know who was tested against I don't remember it matched Lori valow as I recall okay you wrote a report for this case correct uh I wrote a um a I don't I wouldn't call it a report what I was going to test testify to okay yeah your honor if I may have one moment you may thank you your honor I have no further questions all right thank you Mr wood again permission to yes redirect Mr prior just very briefly Dr hinky And in regards to the axe and the shovel your testimony is that you acknowledge that there was uh valid samples on those for for uh tyly or for tyly on those samples is that correct that's correct but is but isn't it true Dr hinken there is no Accurate Way to determine actually how those samples got on those tools is there not by anything that I can do with DNA okay thank you Doctor yep judge I have nothing else okay that will conclude the testimony of the witness then is he going to remain under subpoena by either the state or the defense Mr prior judge he's me first uh judge he's going to be excused we don't have him under subpoena okay that'll conclude your testimony thank you for appearing and testifying today you can step down and judge could we take a brief sidebar again I apologize [Music] yes e e e e e e e e e e e e all right at this time uh after sidebar with Council we were talking about scheduling again uh what how are we're going to proceed at this point is I am going to have the public excuse from the courtroom we are going to discuss some scheduling matters in the presence of the jury but outside of the presence of the public and so uh we'll take that up next ladies and gentlemen that are here from the public observing thank you for complying with the courtroom conduct order today uh I will note there won't be any additional testimony provided today I am going to discuss the scheduling matter though with the jurors and Council presence with them allowed to make comments as well um so that will conclude the matter as it relates to the public proceedings in court today the jury can remain seated uh if we could have the courtroom cleared of the public please and case agent and the defense uh agent also are permitted to stay for these proceedings on this side of the bar please ride all e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e e thank you please be seated okay we are going on the record now and we are live streaming these proceedings so they are open to public access in that manner however just given the way the day worked out at the conclusion here we've already had the general public exit the courtroom and for efficiency to take these matters up and also for security where the defendant is remaining present here we are going to conduct these hearings on the live stream but not permit Public Access as this will conclude the day as well so what the court has before it is a motion to reconsider State's Motion in limony related to upt insurance quot and quote uh filed May 22nd by the state and it issue is a previous ruling on a motion in limony um I should not the jury is not present for this proceeding they've been excused for the day and so on this Motion in limony the court previously determined that a statement made by proposed States witness Janice Olen about changing the defendant's life insurance or the defendant's wife's Tammy's life insurance policy uh I found it was not admissible in a previous ruling and based on additional testimony now the state is requesting that I revisit the ruling as it concerns the state's potential rebuttal and so I will hear argument on the motion Mr Wixom I understand will argue it and I have allowed the defense and opportunity to review the motion and we'll hear argument in opposition if there is any so Mr Wixom please submit your argument as it relates to this motion to reconsider the motion and limony thank you your honor may may I remain seated yes thank you your honor um I again will'll attempt to be brief um I think the court is very familiar with the arguments made in the prior brief um I do point back to those points of Law and authorities could you pull the mic up a little closer certainly judge much better thank you I beta your hon we're in a situation now where the court has um denied our original request to call Janice Suson as a witness who we anticipate will testify that approximately the five or six weeks or month I I don't have it in front of me prior to Tammy's death that she had lunch at school with Tammy and that Tammy in a passing conversation at one of those lunches had stated to her to the effect of my husband wants me to up my insurance he thinks I should up my insurance then of course uh we have an an admitted exhibit as to a lifemap life insurance policy that did Bear the signature of Tammy and Chad de Bell as I recall the date of that application was the 8th of September of 2019 it increased coverage for from $50,000 up to $130 it added $80,000 of coverage they're also as as I recall may have been some request in it to add Mr deel uh to the policy all right Mr W Wixom though before going back there's a quote in your motion and that was in the previous motion you read the first of that and I I'd like you to go back again with the entire quote in context there because I think the rest of the context does matter in the Court's decision here certainly you bet judge so please review again on the record the comment you're requesting from the beginning to the end of those quotes on the middle of page two we'll do sorry I just have to call up back up here quickly so judge the proposed statement that we would intend to admit would come from Miss Olsen testifying and we believe she would testify to the effect of quote quote she'd just say I think she's referencing Tammy she would she just say um my husband thinks I should up my insurance here at the end of my at the end of my career you know before I retire he's thinking I should up my insurance okay thank you you bet you bet your your honor so so back to that judge uh we know that there's an admitted exhibit now where in fact an application was submitted and insance was upped and approximately five to six weeks after that um Tammy was dead so the court had originally denied our request to have that uh admitted through Miss Olsen what's changed from the state's perspective your honor now is that yesterday I think is when Monday I'm sorry when Emma de Bell was called she was questioned by the defense uh specifically asked a couple of questions that have been included on the transcript uh that we have attached to our motion and in that uh in that transcript it demonstrates for the court that defense Council asked her asked Emma about the meeting that both Emma and Tammy had had with uh I believe it was Taylor Ballard from the insurance company that year about the benefits and he asked her a couple of times very specifically whether or not she knew uh if her mother had had any conversations with her husband about increasing the insurance um I think believe that was asked twice I'm referencing page four and five of the partial transcript um excuse me the question was uh beginning at line seven on page four are you aware as to whether or not your mother consulted with the insurance company with your father prior to upping her insurance on that meeting day with Taylor Ballard Miss Blake objected um calling for speculation the court overruled and then Mr prior again asked are you aware of whether or not your mother consulted with your father on that day to up her insurance M Blake objected uh as to hearsay it was overruled uh and then Mr prior indicated that there could be an answer Emma said we were sitting at a table and filled out the paperwork together we both signed to take out more life insurance on ourselves and we did not consult with our husbands uh next question at that point did you take up the maximum amount of insurance that you could purchase at that point Emma answered I did not because I could not afford it I later did next question okay at the next period answer yes last question from Mr PR on this issue but it's your understanding that without discussing ing it with your father your mother elected to up her insurance to the maximum amount her answer was I saw her check that box on the paper so your honor the state believes that the defense has effectively opened the door to the relevancy of whether or not Tammy did in fact talk to her husband about the need to up the insurance we believe that it's it's now relevant We Believe like we had noted in our motion before her statements would come in over any hairay objection under rule 8033 as a um state- of Mind exception and certainly they've already been allowed to be testified to that this issue has been testified to now by the defense so there won't be any Prejudice on the against the defense and trying to match the evidence because they've already introduced evidence on the issue and called a witness and questioned her about it so without beling further judge unless you have questions we do believe that it's now the do's been opened and the state should be allowed to offer the evidence all right thank you Mr Wixom I don't have any further questions Mr prior if you'd like to offer any argument if there's an opposition judge the there is opposition judge and the context of that is simply the words at the very end before I retire and if we're going to engage in this situation where we're going to be able to recall Witnesses so they can start uh muddying the waters and creating a confus confusion that uh at some point Chad deel talked to Tammy about upping her insurance before her re before she retires there was no indication of when she was going to retire how she was going to retire and quite frankly judge I don't think this falls under the State of Mind exception to the hearsay Rule and the fact is is that it wasn't at the state the present state of mind and there is no indication from that statement that the insurance was going to be upped on that particular cycle there is no indication when she was going to do it and even and you know I I question whether that comment or that discussion ever took place but that's for that's for cross-examination should the court even consider allowing this but judge if we're going to start engaging in a policy where we're going to start saying the state because now there's one minute statement that seems to suggest something other than what they're saying and that's going to allow them to reopen you're going to open the door to the state coming back and and basically retiga their case for another uh you know two or three four days going every little statement that they think they can gain some mileage by doing this and it is not a definitive statement and I think the court properly noted that when it said listen read the entire statement in its context before I retire all right um Mr Wixom I get there's there's of course the initial hurdle of relevancy under rule 401 and I understanding your argument about opening a door and letting this in I I guess one extra question I would have is uh the source of this proposed statement because there's a there can be a profer of here's what we think a witness is going to say and this is a very specific statement uh as if it's quoted from somewhere and so I don't know if that's taken from an interview I don't know where the statement came from and in determining relevancy um and I may have to have an offer or an in well before I get there I just what is the source of this proposed statement that's so specific in in the quotes certainly a judge um the source is one the written report of detective Bruce maddingley who did an interview and there's also a recording of that interview in my prior motion I had referenced an offer to the court should the court want to review that just to avoid any question about what exactly was said by our prospective witness and I'm happy to provide that if the court would wish to to review that okay well I I appreciate you clarifying or clearing that up clarifying it um that that was a long time ago this has been a long trial but I I do recall the issue and again I wanted to determine where that statement was coming from so the courts noted the objections uh as indicated both for hearsay or for relevancy the court would note that under Idaho rule of evidence 401 the standard is pretty broad there evidence is relevant if a it has any tendency to make a fact more or less probable than it would be without the evidence and B the fact is of consequence in determining the ction when I look at this statement um while I still question the weight of that with the comment saying before the end of the career in a place where she had not worked long and there wasn't I agree with the defense there was no testimony about when or if she was planning on retiring I still think this gets past the 401 relevancy test that there may be some tendency to make a fact more or less probable and so with that any tendency language we get past 401 in the Court's view uh the court also looking at the balancing under 403 would determine that there would be some relevancy here if the state believes this is worth bringing the witness in on that statement of course the statement can be cross-examined and the jury would have to determine what weight to give it in terms of the hearsay uh I have looked at that and so it's essentially a hearsay within hearsay statement where the profer testimony would be a person overhearing what Tammy deel said uh Chad was saying and Chad being Mr dbel the defendant so his hearsay gets around the hearsay issue because he is the defendant in this case and it's charged as part of a conspiracy and a statement in furtherance of is what the rationale would be of the state so then the question is is there another exception for uh Tammy's proposed statement of what she told Janice Olen and looking at rule of evidence 803 uh whether or not that is a then existing state of mind I do think it fits within that 8033 and in addition there's the catchall under 8324 of the Idaho rules of evidence that a statement not specifically covered by those others if it has equivalent circumstantial guarantees of trustworthiness is offered as evidence of a material fact and is more probative on the point for which it is offered than any other evidence the proponent can obtain through reasonable efforts and for admitting will best serve the purposes of these rules and interests of just Justice the notice provision of 24 has been complied with here and so with those two bases under 803 the court is going to allow the statement if the witness is called by the state in its case in rebuttal um so the previous ruling then and this is specifically not because anything changed other than what has changed again is the opening of the door through the testimony of Emma Murray who specifically did testify right on point with the issue talking about signing the life insurance and that quote we did not consult with our husbands so I think the state's allowed an opportunity to rebut that now that the issue's been brought up in the defense case in Chief and so looking at the Rules of Evidence under both 400s and 800s with hearsay and relevance the court is going to Grant the motion and will'll permit the witness to testify as to that fact J has an instruction am I to understand that because this is rebuttal the state is limited to the question of what this statement incompasses is that the scope of what they're going to be allowed to delve into well on rebuttal on the scope I I I don't know right now what they intend to get from the witness she'll have to follow the procedure of any any other rebuttal witness and we limit it in scope to what rebuttal would normally allow but this expansion would be uh overturning the previous ruling on the motion in limony to permit that specific statement so I think it may well be limited to just that Mr Wixom thank you at this point um that's all the state intends to do um given unless some other issue comes up with opening the door but we don't anticipate that we we did want to comment on one further thing judge and I apologize as I sit here uh I don't remember I believe that we've left M Olen under subpoena and she wasn't released but I don't know for certain I did want to address that so we don't have a problem with this even assuming for argument sake she has been released and has watched the trial um I would just argue to your honor on this very narrow issue um we' raised this before with the court um it's it's documented the defense has had this the purpose of the exclusionary order is to prevent influence of of testimony but in this situation we all knew a long time ago what she would testify to and so we wouldn't be surprising the defense with it it it's not going to be susceptible to influence rais out with the court and judge that's where I would disagree if Miss Olen has had an opportunity to discuss this and it sounds like at least she's been approached by council with the possibility of testifying that would qualify as tainting the witness and the fact that she has been excused and we're going to allow her to come back uh is problematic for me uh I may have to consider that as she gets here in an in camera interview if she has watched in particular if she watched that testimony of Emma Murray which opened the door and in particular if she's listening now to this hearing which is being live streamed I might tend to agree that uh she may not be permitted to return because of the uh she wouldn't violate the exclusionary order because she's released from the order however I might find it impermissible that uh it could be seen to have influenced potential testimony so I would just have to take that matter up when she's called but um that's probably the first things I'd be wondering and asking is whether or not she's listened in on the hearing we're having right now and whether or not she listened in on Emma's uh testimony which could potentially uh raise the issue Mr priers raised so I won't make any ruling on that at this time so that'll be the Court's ruling as it relates to the filed motion all right moving on then two other potential witness issues the state wanted to raise is it related to Deputy Canon I believe and detective hermoso you know detective heral might be the quicker more quicker issue to deal with the state had released detective herio um I believe the defense did as well we would let the court know the detective hereso has been hypervigilant about not watching any portion of this trial we we feel it necessary now to call him in rebuttal uh as to some testimony that has now came in U but he's going to come voluntarily of course and his representation is to us and we absolutely believe he has not watched any portion of this trial so we wanted to seek leave of the Court given his release from the subpoenas and the exclusionary order to be to call him as a rebuttal witness okay well um I appreciate the parties bringing this up it's not necessarily any type of a motion I guess it's just alerting the court in defense that there may be a return of a released witness and whether or not they're permitted to testify or not again Witnesses who are released from subpoenas and advised they're no longer uh under the exclusionary order not going to be held in violation of the order whether or not there's some kind of motion to exclude based on uh potential tainting of their testimony uh I think it's just an issue we would have to take up but I appreciate the profer Mr Wixom is there any comment on that from the defense Mr prior judge my concern is this is that the very witness they're talking about happens to be a law enforcement officer Who's involved heavily in this case and despite council's assurances that there's been no discussion I'm extremely skep skeptical of the fact that officer herio did not discuss the case in any regard with any of the law enforcement officers that he works with in addition this officer has been excluded and excused for a reason the contemplation is at the time when we do this judge is that both parties are not going to be permitted to call the witness back and and and rehash through the testimony of this witness now what we're having now is putting me in the position where I have a case that I've put in Chief I'm prepared to rest the state had every opportunity with officer herio to come forward and testify and suddenly now during uh after I'm I'm preparing to close my case they're now bringing this witness back who has now been released and they're going to open the door to a number of issues that quite frankly cannot be adequately addressed through cross-examination with officer hereso the advantage is is clearly in in in the the possession of the prosecuting attorney in that I'm putting him in a very very uh unbalanced position by allowing the court to bend the rule a little bit and say well at this point we'll we'll let this witness in they want Colter canon in they want herio in I don't know who else they're going to try to get in judge who's been excused but the minute you open this door you're opening the door for them to rehash their entire case in Chief and at that point judge I don't get the liberty of bringing Witnesses back and saying were they telling the truth unless this Court's going to give me a serbutt which I don't think that's going to be the Court's ruling allowing this to open up creates a number of procedural problems and just the representation of Officer hermoso saying oh no I didn't listen to anything when he's one of the chief officers in this case I'm not buying it okay well I will note that um as if as with any witness Witnesses are placed under oath and it's up to them to tell the truth if they're under oath or not so the Court's certainly not going to draw any kind of inference or conclusion that all ready I'm determining that uh the detective would not tell the truth placed under oath um I understand the concern raised but that does not rise to the level to me that would disallow a witness to return to the stand I guess just procedurally in terms of who gets called back in re um generally you know there are some parameters there and Mr Wixom if you'd like to address the argument of the defense as it relates to detective FAL CEO you may certainly judge just a couple of quick points first of all um we would just remind the court in Council that detective hereso was the case agent in the prior case and sat through all of that trial so he's already heard from the bulk of the Witnesses in this case and their very specific testimony although he has and continues to repres in and the state believes him when he says he has not watched any portion of this trial judge the argument about just calling back Witnesses first of all we've only brought these few witnesses to your attention that we're requesting we anticipate our rebuttal case will take a day and a half perhaps two days it's a very small number of witnesses any defense in any case has to understand and does understand that the prosecution has a rebuttal right we do understand that with that rebuttal right and recalling of witnesses we have to keep it narrow and focused to things that were brought up in the defenses case in Chief which is exactly what we intend to do we have no intention of going outside the scope of what was raised in the defenses case and chief so those are our understood parameters if the court allows this we do believe that detective hermal will testify under oath truthfully he hasn't been influenced and we do intend to keep all of our rebuttal Witnesses isolated to responding to evidence brought up in the case in Chief and and keep it under that scope judge that hasn't been responsive to the Court's inquiry as to the direction he was going to go in on cross-examination well yeah I really think I don't have a uh ripe issue before me to decide at this point if you call somebody and there's a reason to move to exclude or not permit their testimony I'll rule on that I mean motions and limit are helpful in alerting the court to matters that may come up to think about or rule upon to not waste your time uh but I don't think I have that here if he's recalled and there's some reason the defense thinks he shouldn't testify I can hear argument on that outside the jury's presence of course and I will if a motion's made otherwise I'm not prepared to sit here and make a ruling and say he can or cannot testify so that's the Court's uh final comment on the issue on that witness as it relates to Deputy Canon are we just wandering into the same type of what what I think is sort of requesting a provisional ruling without a motion here yes judge he he might be a more difficult situation for the state and so okay well I'll keep that in mind and the best I could say is if there is a specific matter discuss it with the defense and if there's a motion with some specifics or particulars that uh the defense thinks should disallow recall of that witness or any other uh bring it up and I will try to take that up uh outside the presence of the juror so they're not waiting but um I am not inclined to make any other rulings at this point without motions pending before me so uh we'll go ahead and leave off for there for today be back on the record with the proposed schedule we have tomorrow and if there's nothing further then we'll be in recess at this time thank you e
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