Yao Evidence and Disclosure Rulings; Robert Shawn Yao — Direct (Continued)/Cross/Redirect
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MR. ZANGENEH: As we've been able to hire a firearm expert that specializes in trajectories and would be able to dispute Investigator Yao's testimony because of the late add-on and the fact that — and I 100% believe Ms. Cappleman, through no fault of the State Attorney but through error on Investigator Yao — he precluded me from the information saying that he was going to add new information and change his testimony, or provide an answer to the hypothetical, to the trajectory issue.
MR. ZANGENEH: And so if he would have called us and put us on notice, then we would have obviously explored, through our own specialized expert, whether or not — you know, getting a firearm expert and having him analyze the evidence that is tangible and usable in this case — whether or not Investigator Yao's assessment is accurate or not. And because we weren't given that opportunity, because of the short time crunch and all the other factors that go into a death penalty case, because as everybody here knows, only one side of the defense table is under the auspice of the death penalty, we were not able to use it.
JUDGE HANKINSON: Mr. DeCoste?
MR. DECOSTE: No position, Your Honor.
JUDGE HANKINSON: And what remedy are you seeking, Mr. DeCoste?
MR. ZANGENEH: The investigator now should be able to testify in accordance with what was in his deposition. This novel suggestion or opinion that he's going to be giving should be excluded because we haven't had an opportunity to provide an alternate theory to a jury. The trajectory is a huge issue in this case. As you can see, he is gearing towards making an assessment that the purported shooter — that the shooter in this case — was at least six feet tall, or around six feet tall. My client fits that description, whereas Luis Rivera is substantially shorter, and the inference that he would give would suggest that if there were two people that were involved in this shooting, and one was around the height of my client and one was around the height of Luis Rivera, that my client is in fact the shooter.
JUDGE HANKINSON: How many depositions have you taken, Mr. Zangeneh?
MR. ZANGENEH: In this case?
JUDGE HANKINSON: Yes. All right.
MR. ZANGENEH: Thank you, sir.
JUDGE HANKINSON: I'm going to deny the request to exclude the testimony. There's been a technical discovery violation.
JUDGE HANKINSON: I find it's not a willful violation. The prosecutor asked the investigator to call the attorney.
JUDGE HANKINSON: Understandably, he called the attorney who deposed him.
JUDGE HANKINSON: And what the discussion was between the prosecutor and Mr. Yao — whether he was asked to call both attorneys or just the one who deposed him. It doesn't seem shocking to me that he called the one who deposed him and had posed the question to him.
JUDGE HANKINSON: The prosecution, however — he did not do so, so there is a technical discovery violation.
JUDGE HANKINSON: I don't find that the defense is procedurally prejudiced. Had an opportunity out just to say to the jury today, Garcia had not deposed him before and reviewed the and deposed you filed a motion to that your Motion's not timely. We'll move on. Anything else — you can make an argument. We're not going to have a Daubert hearing.
MR. ZANGENEH: If the Court will allow me...in Investigator Yao's testimony yesterday the premise of what he wants to testify to is based on speculative fact after speculative fact. The only concrete evidence he has is that 49 inches from the ground is where the projectile entered the window. There is a slew of unknown factors, including the decedent's body location, the angle of the firearm, the way the firearm was positioned, the height of the firearm, just to name a few. And his conclusion is not based on a scientifically reliable method because there are too many inconsistent, unknown factors that are coming into play. If the court allows this man to testify, what he's going to do is he's going to confuse the jury based on supposition and only one concrete factor. And that's what he elicited yesterday in his deposition — that he would take into account a slew of unknowns to make the assessment that the government is trying to make. Based on the one factor that he knows, which is the fact that the entry position of the projectile into the driver's seat window of a Honda Accord was 49 inches, then the only scientific conclusion that he can come to is that the shooter is between five feet and six feet tall. The other factors, which he clearly says he doesn't know, he takes into account and says, based on supposition and based on me believing XYZ, me assuming the shooter was holding the gun in a certain position — without knowing this fact, without knowing the cornucopia of facts, he comes to a conclusion based on variables that he's applying himself, that he admits he doesn't know are applicable in this case. And so any information that this investigator will give, who's already been qualified as an expert, will materially mislead this jury.
JUDGE HANKINSON: Mr. DeCoste, do you wish to be heard?
MR. DECOSTE: Not on this issue. It's on a different discussion.
JUDGE HANKINSON: Let's finish this. Ms. Cappleman, do you want to respond?
MS. CAPPLEMAN: Judge, the science and methodology involved in assessing the path of a bullet between two fixed points is well established. There's nothing new or novel about the science or methodology, or how it was applied in Mr. Yao's opinion.
MS. CAPPLEMAN: It's just that you have to make a couple of assumptions in order for this opinion to be his opinion. And he's going to make that very clear to the jury, and it's fair game for cross-examination.
MS. CAPPLEMAN: The shooter has to be assuming a normal shooting stance, and the victim has to be seated normally in the vehicle. And there's — you know, at the deposition, it was thoroughly explored. What if, what if, what if?
MS. CAPPLEMAN: If all these variables were different, then his answer would change.
MS. CAPPLEMAN: So I don't think that's attributable to any type of new or novel system.
JUDGE HANKINSON: Mr. Zangeneh, go ahead.
MR. ZANGENEH: Well, Judge — Investigator Yao was talking about having a position where he assumes the firearm is at shoulder length.
MR. ZANGENEH: And he says that because that's how you're trained to shoot a firearm.
MR. ZANGENEH: He also went on to say that he doesn't know if the shooter was shooting — and his own words were — gangster style. Our position is that Luis Rivera is a gang member and potentially shoots gangster style. So there's a slew of factors that, even if the court allows me to cross-examine this witness, his opinion is going to taint the jury, because he's been providing information on a slew of other factors.
JUDGE HANKINSON: I'll overrule the objection. The methodology and science is not anything novel. The basic explanation is not particularly confusing.
JUDGE HANKINSON: It's based on understandable thoughts of bullets basically moving in straight lines.
JUDGE HANKINSON: Experts testify frequently based upon a hypothetical set of facts. That's essentially what we're doing.
JUDGE HANKINSON: The variables are also not particularly confusing and can be easily brought out on cross-examination.
JUDGE HANKINSON: So I don't see any potential for confusion to the jury.
JUDGE HANKINSON: I'll overrule the objection.
JUDGE HANKINSON: You had another issue, Mr. DeCoste?
MR. DECOSTE: Yes, Your Honor. This is something that came up at 8:23. For years, we've investigated this case, done a whole bunch of work on it. At 8:27 this morning, the State Attorney's Office listed Luis Rivera's attorneys, David Collins discovery violation. I have not received — we have not received anything from the State Attorney's Office saying that there was a recent change in testimony of Luis Rivera. I believe that this is just a late decision by the State Attorney's Office trying to put together their case, but unfortunately it came too late. The case — all that we have on this issue — we have 17 So. 3d 766. It's a Fourth District Court of Appeal case: trial court did not abuse its discretion in excluding exculpatory testimony of a defense witness who was not disclosed as a witness until after jury selection.
JUDGE HANKINSON: Ms. Cappleman, respond?
MS. CAPPLEMAN: Judge, in the defense's opening, they indicated that the attorneys for Mr. Rivera were engaged in some misconduct with the prosecution during the proffer of Mr. Rivera, in that information was spoon-fed to Mr. Rivera. It was alleged that Mr. Rivera's initial statement did not include Ms. Magbanua. That is not correct. It was alleged that information concerning Magbanua was spoon-fed through the attorney to the client so that he could change his testimony to add in Ms. Magbanua. That is not correct. I think I'm entitled to rebut that — more than suggestions — what they told the jury, by calling these witnesses.
MS. CAPPLEMAN: It was not known to me that that would be the defense in this case until opening statement was made.
JUDGE HANKINSON: Who do you plan to call? I didn't understand.
MS. CAPPLEMAN: Both were involved.
MS. CAPPLEMAN: They were both involved.
JUDGE HANKINSON: Sit down, Mr. DeCoste.
MR. DECOSTE: Yes, sir.
JUDGE HANKINSON: So at what point in time would you anticipate calling one or both of them?
MS. CAPPLEMAN: Possibly after the cross of Mr. Rivera. I haven't really gotten that far yet.
MS. CAPPLEMAN: I just knew we needed to list them after I heard that in opening.
JUDGE HANKINSON: I'm sorry?
MS. CAPPLEMAN: I just knew we needed to list them after I heard that in opening. I would need to see what was done on the cross of Mr. Rivera. I would think it would come after that.
JUDGE HANKINSON: And when are you anticipating we'll hear from Mr. Rivera?
MS. CAPPLEMAN: Possibly at the end of today, more likely early on —
JUDGE HANKINSON: Will you on Tuesday?
MS. CAPPLEMAN: Yes, sir.
JUDGE HANKINSON: So, if this comes up as it was stated in opening, you're going to call both of them?
MS. CAPPLEMAN: Potentially, yes, sir. I haven't had an opportunity to interview each of them. I know David Collins was present at the first meeting and Chuck Collins was present at the second meeting, so it might be prudent to call both to dispel the notion that either of them engaged in that type of conduct.
JUDGE HANKINSON: And it would be simply to deal with what came up in the opening statement about the way questions were relayed?
MS. CAPPLEMAN: Yes, sir.
JUDGE HANKINSON: And what is their availability?
MS. CAPPLEMAN: They have advised that they are available anytime they need them for that purpose.
JUDGE HANKINSON: It would seem appropriate to have them deposed before we hear from Mr. Rivera, in case that — that would seem to give the defense more opportunity to know where they're going with Mr. Rivera.
MS. CAPPLEMAN: Yes, sir. My thoughts then would be to schedule that for Monday. I can work on that this morning.
JUDGE HANKINSON: The deposition could be done Monday, would be my suggestion.
MS. CAPPLEMAN: And then we could take it up with the court Tuesday morning.
MS. CAPPLEMAN: But I would not be able to put on Rivera today, so there's a potential for me to run out of witnesses again. I don't think that'll happen.
JUDGE HANKINSON: Are you all available to take the deposition Monday?
MR. DECOSTE: No.
MR. DECOSTE: Your Honor, it's more than just — if I can, Your Honor. It's more than just a deposition. There's investigation that needs to go into this. This is no surprise to the State Attorney's Office. This is trial by ambush. They knew from our questioning in many, many of the depositions that one of the issues that we had was the way that they did the questioning of Luis Rivera. This questioning was given to Luis Rivera—
JUDGE HANKINSON: Before I rule, I'm going to give you an opportunity to take a deposition. It's a matter of when. Mr. DeCoste, when do you want to do that?
MR. DECOSTE: If we can give you an answer by noon today. We've got to figure out, you know, we need to go ahead and contact Collins, their attorneys, with the schedule too. We need to work it out whether we're going to do it late this afternoon or do it on Monday. That's a question that I can't answer right now, as to reporters, as to location. If Your Honor can just give us a few minutes to figure that out.
MS. CAPPLEMAN: I can handle the court reporter and the location.
MR. DECOSTE: We would prefer to use our court reporters.
MS. CAPPLEMAN: I mean, that's up to you, but that's going to delay things. That's the only problem.
MR. DECOSTE: Your Honor, if I can — if I can add, because there's more to it—
JUDGE HANKINSON: I told you you're going to do it. Do that, and we'll hear your objection.
MR. DECOSTE: Understood.
JUDGE HANKINSON: Any other issues?
MR. ZANGENEH: We're available whenever.
JUDGE HANKINSON: Anything else?
JUDGE HANKINSON: All right. We'll take a few minutes, have a bathroom break, and we'll start with the jury and have your witness in.
JUDGE HANKINSON: So when do you want to do the deposition, Mr. DeCoste?
MR. DECOSTE: Spoken to the State...[unintelligible] Your Honor, if I could just end not to make an argument on this. So, if the State Attorney's Office had said Ms. Kawass had said it said that it was, I believe it was said by co-defendant's counsel.
MR. DECOSTE: So that would mean that co-defendant's counsel opened the door to allow the Collins, Fodder, and Sitton to testify in this case against us, prejudicing Ms. Magbanua. We would renew our motion to sever.
JUDGE HANKINSON: That's for now. Let's have the jury, please.
BAILIFF: All rise for the jury.
JUDGE HANKINSON: Everybody be seated, please.
JUDGE HANKINSON: Good morning, folks. Thank you again for being here this morning. Appreciate your patience. Sorry we're a few minutes late, but we've been working.
JUDGE HANKINSON: State your name again for the record, please, sir.
ROBERT SHAWN YAO: My name is Robert Shawn Yao, spelled S-H-A-W-N, last name Y-A-O.
JUDGE HANKINSON: We interrupted Mr. Yao's testimony the other day. You remain under oath, Mr. Yao. You may proceed, Ms. Cappleman.
MS. CAPPLEMAN: Yes, sir.
MS. CAPPLEMAN: All right, Mr. Yao. Is it Mr. or Investigator?
ROBERT SHAWN YAO: Mr. Mr. Yao.
MS. CAPPLEMAN: Yesterday we discussed a little bit about your background, and I think you told us you did this type of work for 19 years at FDLE, and then how many years at TPD?
ROBERT SHAWN YAO: This will be my sixth year at TPD.
MS. CAPPLEMAN: All right. And did you indicate that you had previously testified as an expert in the area of bullet path documentation?
ROBERT SHAWN YAO: Yes, I have.
MS. CAPPLEMAN: How many times?
ROBERT SHAWN YAO: I really don't know how many times. I've been declared as an expert in forensic crime scene analysis over a hundred times.
MS. CAPPLEMAN: Judge, at this time I would tender Mr. Yao as an expert in the area of crime scene analysis and also bullet path documentation specifically.
JUDGE HANKINSON: Either side wish to voir dire?
MR. ZANGENEH: No, Judge.
MR. DECOSTE: No, Your Honor.
JUDGE HANKINSON: All right, you may proceed.
MS. CAPPLEMAN: All right, Mr. Yao, do you recall giving a deposition in this case?
ROBERT SHAWN YAO: Yes, I've done two depositions in this case.
MS. CAPPLEMAN: A couple of depositions. Okay, I was actually referring to the first one. Were you given a hypothetical to answer some potential questions?
ROBERT SHAWN YAO: Yes, I was.
MS. CAPPLEMAN: All right. And as a result of those questions that were posed to you, did you do some follow-up work?
ROBERT SHAWN YAO: Yes, I did.
MS. CAPPLEMAN: What did you do to follow up after being asked certain questions at deposition?
ROBERT SHAWN YAO: I pulled the report that was generated by FS2 Maltese, as well as her sketches, as well as obtained the medical examiner's report detailing the injuries to the deceased. And I read both of those to do a comparison between information from the crime scene report as well as the medical examiner report.
MS. CAPPLEMAN: And is that something that I asked you to do, or something you did on your own?
ROBERT SHAWN YAO: I did it on my own.
MS. CAPPLEMAN: All right. And as a result of that work, did you — I guess, what new information did you learn that was important to affecting your decision or your opinions in this case?
ROBERT SHAWN YAO: The medical examiner report I had not seen before, nor was I privy to the information with regards to the injuries the deceased had. In looking at the crime scene report and the report from the medical examiner, and referring to the questions and the hypotheticals posed by defense counsel during the deposition, it was my opinion that using those assumptions, that it was more consistent with a taller shooter rather than a shorter shooter, having—
JUDGE HANKINSON: I've overruled your objection. Your objection is noted.
JUDGE HANKINSON: You can proceed, Ms. Cappleman.
MS. CAPPLEMAN: All right, so you say taking into account certain assumptions, this evidence in this case is more consistent with a taller shooter.
ROBERT SHAWN YAO: That's correct.
MS. CAPPLEMAN: And what are the assumptions that have to be in place to render that opinion?
ROBERT SHAWN YAO: That the victim was sitting upright within the driver's seat, the door was closed, that the shooter was standing in proximity to the doorway of the car, and that they were standing in a more normal shooter's stance, with the arm extended out with a handgun in the hand, pointed toward the victim.
MS. CAPPLEMAN: All right. And is there anything — I guess, tell the jury a little bit about the science that allows you to reach the conclusion that you did based on those assumptions.
ROBERT SHAWN YAO: In a scientific analysis for trajectory analysis, there are certain things that are required. So, without using these assumptions, for trajectory analysis you need two intervening points or two connecting points in order to determine the angle of impact — or how a projectile enters into, or how it travels. So an entry point and then a subsequent termination point, or some other point that the bullet passes through, or that the item that the bullet passes through is of significant thickness to show the direction of travel, or that the hole is complete so that you can do a mathematical computation of angle, similar to bloodstain pattern analysis. In this case, those things are not present. There is only a partial hole in the window. So using the only physical evidence that is there, and the information as to the height of the suspects or potential shooters, and then assuming that the victim is sitting upright, that the hole is 49 inches from the ground, and that you look at a six-foot-tall shooter and their shoulder is about 59 inches from the ground, and looking at a shorter shooter that's about five foot four, that they're about 48 inches from the ground — and then looking at the angle of the trajectory through the deceased for the bullet path, you see that there's a slight downward declination. It goes downward into the victim. So if they're looking out the window, a shorter shooter would be more parallel; the bullet would have passed through the deceased at a more flat line. If it went through the left cheek, you would expect it in approximately the same position in height at the back of the head, with no declination. In this case there is declination, which is more indicative of somebody being taller and aiming downward toward the victim from outside the car.
MS. CAPPLEMAN: And when you say declination, you're referring to the angle that the bullet traveled through Mr. Markel's head from front to back?
ROBERT SHAWN YAO: It traveled slightly downward. That's correct — right to left, front to back, slightly downward.
MS. CAPPLEMAN: Okay. And that suggests that the bullet came from above him.
ROBERT SHAWN YAO: Yes, at a higher angle than where he's sitting in the view.
MS. CAPPLEMAN: All right. And I'm going to publish this.
ROBERT SHAWN YAO: That is correct.
ROBERT SHAWN YAO: That was made where I was not privy to that till recently, that the door was closed. This is how it was when I arrived on the scene.
MS. CAPPLEMAN: Those assumptions are in place. We've got Mr. Markel seated in his vehicle in a normal seated position.
MS. CAPPLEMAN: Then, you know, we've got two potential suspects in this case. One about five-four and one about six-one. Is it your opinion that if all those things are in place, that the evidence is more consistent with the six-one person having done the shooting?
ROBERT SHAWN YAO: Yes.
MS. CAPPLEMAN: No further questions.
JUDGE HANKINSON: Garcia.
MR. ZANGENEH: Mr. Yao, how are you, sir?
ROBERT SHAWN YAO: Good.
MR. ZANGENEH: You stated on your direct examination that to accurately determine trajectory you need two fixed points, correct?
ROBERT SHAWN YAO: That is correct.
MR. ZANGENEH: And in this case we only have one, right?
ROBERT SHAWN YAO: That is correct.
MR. ZANGENEH: And that one fixed point is the — that one fixed point is the entry location into the window of the Honda Accord, correct?
ROBERT SHAWN YAO: That is correct.
MR. ZANGENEH: And that's at 49 inches, right?
ROBERT SHAWN YAO: Yes.
MR. ZANGENEH: And you testified before that with that one piece of known information, the shooter can be between five and six feet tall. Is that correct?
ROBERT SHAWN YAO: Using only that particular piece of information, yes.
MR. ZANGENEH: And that's because that's the only real piece of information that you have, right?
ROBERT SHAWN YAO: That I can link together at the scene, yes.
MR. ZANGENEH: The other factors that you're talking about with regards to how Mr. Markel was seated — you're assuming that he's seated upright, correct?
ROBERT SHAWN YAO: That is correct.
MR. ZANGENEH: He could have been slouching down, right, or leaned over, or in a variety of other positions that you can be in within the driver's seat of a vehicle. And we don't know exactly what position Mr. Markel was in when he was shot, correct?
ROBERT SHAWN YAO: That's correct.
MR. ZANGENEH: Now One of the things that you spoke about and that you discussed was a normal shooting stance, correct?
ROBERT SHAWN YAO: Yes.
MR. ZANGENEH: Okay. And the normal shooting stance is kind of what you're taught — if someone wants to go learn how to shoot a gun, that's what you're talking about. How you're taught by a firearm expert to hold and how you should stand to shoot a firearm, correct?
ROBERT SHAWN YAO: Correct.
MR. ZANGENEH: Okay. Are there other ways to hold the firearm?
ROBERT SHAWN YAO: There are a variety of other ways. It's all dependent on how the individual decides to shoot the weapon.
MR. ZANGENEH: Is there a shooting style called gangster style?
ROBERT SHAWN YAO: There is a colloquial called gangster style for a style of shooting that has been portrayed both in movies, TV, and video games.
MR. ZANGENEH: And can you show me what a gangster style position is?
ROBERT SHAWN YAO: That type is usually associated with somebody standing and the weapon turned sideways, extended from their body, not in a normal shooting style.
MR. ZANGENEH: Correct. It's not what they would teach you at a shooting academy, correct?
ROBERT SHAWN YAO: That is correct.
MR. ZANGENEH: Did you see a sketch of the position of the deceased at any point?
ROBERT SHAWN YAO: No, I did not.
MR. ZANGENEH: Did you take into account the height of the chair, of the seat in the vehicle?
ROBERT SHAWN YAO: No, I did not.
MR. ZANGENEH: Do — Do you believe, without knowing the position of the decedent at the time of the shooting, that you can give an accurate depiction and give an accurate opinion as to the height of the shooter?
ROBERT SHAWN YAO: What I can say is there is no ability to do a trajectory analysis based solely upon the physical evidence that's found at the scene, because it's only a singular hole without a connecting point. So the answer is no.
MR. ZANGENEH: Well, then the analysis cannot be performed.
ROBERT SHAWN YAO: Correct. Right.
MR. ZANGENEH: Could you determine what the position of the shooter was at the time of the shooting?
ROBERT SHAWN YAO: I'm sorry, could you be more specific?
MR. ZANGENEH: The person that expelled the fire — do you know the position that they were in at the time of the shooting, where they were spatially in terms of the garage? Were they directly in front of the window? Could you tell that based on the bullet hole?
ROBERT SHAWN YAO: Based upon the hole that was in the window, it could be anywhere between the A and B pillar on the driver's side of the vehicle. It's not like they were toward the hood or toward the trunk. It had to have been in close proximity to the driver's side door with it closed.
MR. ZANGENEH: There are two entrance wounds to the victim, correct?
ROBERT SHAWN YAO: Yes.
MR. ZANGENEH: The entrance wound to the nose area of the victim has stippling on it, correct?
ROBERT SHAWN YAO: Yes.
MR. ZANGENEH: At what distance would you expect to find stippling?
ROBERT SHAWN YAO: That's a firearms question or a medical examiner question. Stippling — it's dependent upon what creates it.
MR. ZANGENEH: If you think that's outside your area of expertise, please tell us.
ROBERT SHAWN YAO: That distance determination in stippling patterns, as far as how far a weapon should be, should be answered by a firearms examiner.
MR. ZANGENEH: That's fair. So just to review: to give the analysis that you gave, that the shooter is more likely to be six feet than five foot four, we would have to assume that the victim is standing upright — I'm sorry, that the victim is sitting upright.
ROBERT SHAWN YAO: Yes.
MR. ZANGENEH: That the door was closed, correct? And that the shooter was in the normal shooting stance, correct?
ROBERT SHAWN YAO: Correct.
MR. ZANGENEH: If any of those variables are altered or different than the ones that were given in your hypothetical, would that change your analysis?
ROBERT SHAWN YAO: Any alteration may cause slight deviations in the consistency of my opinion. The more variations, the more discrepancy or deviations you'll see.
MR. ZANGENEH: Give me one second.
MR. ZANGENEH: Give me one second.
MR. ZANGENEH: If you may indulge me, Mr. Yao, could you show me what a proper normal shooting stance is?
JUDGE HANKINSON: You want him to stand up?
MR. ZANGENEH: If the court would afford me that opportunity.
JUDGE HANKINSON: Once you stand up, they might be able to see you better.
ROBERT SHAWN YAO: Normal shooting stance for somebody that targets or has been taught is usually with the arm extended. So it's extended and facing downward like this, or bringing the firearm up so that the sight picture comes up and level to the eyes — that is obtaining a proper sight. Now, there are individuals that place a single hand or without the supporting hand.
MR. ZANGENEH: So if someone is six foot — Thank you, Judge.
MR. ZANGENEH: Mr. Yao. So if somebody's six foot one, would it be fair to say that their shoulder roughly the height from the floor to their shoulder would be around what, 60 inches?
ROBERT SHAWN YAO: It's about 59 inches. 59 to 60 inches would probably be a good ballpark.
MR. ZANGENEH: And the entry wound — the entry location, not the entry wound, strike that — the entry location into the window was 49 inches, correct?
ROBERT SHAWN YAO: Correct.
MR. ZANGENEH: No further questions.
JUDGE HANKINSON: Magbanua.
MR. DECOSTE: Yes, Your Honor. Very briefly.
MR. DECOSTE: The questions that you were asked during deposition. That was me that asked you those, right?
ROBERT SHAWN YAO: That's correct.
MR. DECOSTE: And that was in July of 2019, I believe. And you are helping me understand better your expertise, correct? If you could help me again here for a minute — I just want to make sure that I'm clear on it. So the testimony that you're giving, the opinion, what you're talking about is that someone who's around six feet tall, if they're holding it consistent with a normal firing pattern, that you're extending from the tip of the barrel of the gun through fixed points of reference in order to do a proper trajectory.
ROBERT SHAWN YAO: Yes. It would be through the window and then have some subsequent strike point or penetration that you can link the two together to show the angle of how the bullet actually passed through.
MR. DECOSTE: You need to have two fixed points, though, correct? So you have the hole in the window, right?
ROBERT SHAWN YAO: Yes.
MR. DECOSTE: And then you have Mr. Markel seated in the vehicle, correct? So those are your two fixed points.
ROBERT SHAWN YAO: No. Mr. Markel is not a fixed point.
MR. DECOSTE: Well, for the purpose of your opinion, you're assuming that he's sitting in a normal position.
ROBERT SHAWN YAO: With an assumption that he's sitting in a normal position, he becomes my second fixed point.
MR. DECOSTE: So we've got two points, correct? So what you're doing with your opinion, you're saying that point one, point two, and the arm of the shooter — that it's a straight line, and then it would be in line or consistent with the bullet traveling through the window into Mr. Markel, the victim, at a downward angle, slightly right and left. So you've got all this information, all these facts, and you're saying that it fits — it's more consistent with it being a taller shooter rather than a shorter one.
ROBERT SHAWN YAO: It fits with being a taller shooter, yes.
MR. DECOSTE: You're not here testifying saying that you are a hundred percent positive, right?
ROBERT SHAWN YAO: That's correct.
MR. DECOSTE: When you're looking at this information, you're unbiased, you're objective. It fits, but it's not enough for you to say a hundred percent, I'm positive that's what happened.
ROBERT SHAWN YAO: That is correct.
MR. DECOSTE: You have doubts.
ROBERT SHAWN YAO: Well, I don't have sufficient information, because — and the thing is, with forensic science or any kind of analysis, it requires hard evidence, or physical evidence to be present. And in this case, in order to be 100% sure to do the analysis, there are missing points and we're using a lot of assumptions.
MR. DECOSTE: Just because it fits doesn't mean that you can say 100%, I'm positive that's what happened.
ROBERT SHAWN YAO: Correct.
MR. DECOSTE: Thank you.
JUDGE HANKINSON: Redirect.
MS. CAPPLEMAN: Yes, Your Honor.
MS. CAPPLEMAN: Mr. Yao, when you demonstrated the normal shooting stance, your arm was pretty straight.
MS. CAPPLEMAN: Previously, I thought you'd said it could be slightly bent — straight or slightly bent.
ROBERT SHAWN YAO: Yes. It depends on the individual style of the shooter. There are some people that will be trained to go ahead and have a little bit of flex to their arms to allow a more comfortable shooting stance. So it does vary between fully extended and slightly back.
MS. CAPPLEMAN: All right. So taking the assumptions that we already talked about into account, for your opinion to be valid, the taller shooter could have had either straight arms or slightly bent arms.
ROBERT SHAWN YAO: Correct.
MS. CAPPLEMAN: All right. And this gangster style of shooting that you mentioned on cross — that's like when you have the gun at some weird angle, correct?
ROBERT SHAWN YAO: This is not a normal shooting stance. It's something that individuals utilize because of modern media and things that they have seen.
MS. CAPPLEMAN: And as a general proposition, does the gangster style of shooting increase or decrease the accuracy of the trajectory of the bullet to the target?
ROBERT SHAWN YAO: Decreases.
MS. CAPPLEMAN: All right. And have you had an opportunity to review the photographs of the injuries in this case?
ROBERT SHAWN YAO: In passing, yes.
MS. CAPPLEMAN: When Mr. Markel received it right between the eyes — that's a pretty accurate shot.
ROBERT SHAWN YAO: Yes, it is.
MS. CAPPLEMAN: No further questions.
JUDGE HANKINSON: Any juror have a question of this witness?
JUDGE HANKINSON: I think — there's something outside the scope of cross-examination, you need to make the objection. Do you want to recall him as a witness in your case? You may do so.
JUDGE HANKINSON: Do you want him subject to recall?
MR. ZANGENEH: No, Judge.
JUDGE HANKINSON: You can step down. Do we want to keep him further?
MS. CAPPLEMAN: I'd like to keep him under the rule, Judge.
JUDGE HANKINSON: Okay, we'll keep him under the rule. Call your next witness.