1.Yao Evidence and Disclosure Rulings; Robert Shawn Yao — Direct (Continued)/Cross/Redirect
310 linesPROCEEDINGS
JUDGE HANKINSON: Be seated, please, folks. We're here in the State of Florida v. Garcia and Magbanua. Let the record reflect the defendants are present with their attorneys.
when we broke yesterday afternoon, there were two potentially outstanding issues. One was as to Video No. 125. It was my understanding Garcia had withdrawn his request for a Richardson hearing and Magbanua wanted to review the tapes overnight. So where do we stand on that, Mr. DeCoste?
MR. DECOSTE: No issues, Your Honor. Good morning.
JUDGE HANKINSON: All right. So do you withdraw your request for a Richardson hearing on that issue?
MR. DECOSTE: I do.
JUDGE HANKINSON: All right. And then we had Mr. Yao. where do we stand on that?
MR. ZANGENEH: Good morning, Judge. Saam Zangeneh on behalf of Sigfredo Garcia.
I was able to depose Investigator Yao after court yesterday. And I believe, based on his answers, that he's giving an improper opinion with regards to the trajectory of the bullet.
I don't know if the Court has -- was able to get a copy of the transcript, but I could proffer to you that he did indicate that based on the entry wound -- entry location of the bullet --
JUDGE HANKINSON: we're talking about discovery violations. That's what I want to focus on first. Are you talking about an issue on discovery?
MR. ZANGENEH: Well, Judge, with regards to the discovery issue, while the Court by allowing us and the government by facilitating and presenting Investigator Yao, we were able to go over his testimony, or his novel testimony that was substantially different and in addition to the evidence that he gave in his deposition several months ago.
Our issue is this --
JUDGE HANKINSON: All right. So are you requesting a Richardson hearing or not?
MR. ZANGENEH: Yes, Judge.
JUDGE HANKINSON: Okay. we'll hear from the State.
Ms. Cappleman, there's a claim that there has been a discovery violation as to Investigator Yao, I guess, modifying his opinion since the deposition. Let's hear from you on that, please.
MS. CAPPLEMAN: All right. Mr. Yao was deposed by Mr. DeCoste. Mr. Zangeneh was noticed about that deposition, but did not appear. Mr. DeCoste at that deposition gave some hypothetical scenarios to Yao and Yao could not answer the question or didn't know at that time.
On his own, Mr. Yao went and gathered some additional information from the medical examiner which allowed him to then answer Mr. DeCoste'’s question. He called me to tell me that he had come to this -- you know, had this new answer to the question. I advised him to please notify the defense. I did not specify, please notify both defense counsels.
Mr. Yao, in good faith, attempted to contact and did contact Mr. DeCoste, who is the one that deposed him, the one that asked the question, but -- and then just e-mailed me and said: I spoke to the defense, they're not seeking an additional deposition. which when I spoke to Yao, I indicated he probably -- they probably would be seeking an additional deposition just based on it.
But, anyway, that's what happened. I don't think there was any bad faith on the part of myself or Mr. Yao, but Mr. Zangeneh was not made aware. To the extent that I was required to make him aware, I didn't specifically do that.
JUDGE HANKINSON: So why did you just have the witness deal with it instead of you dealing with is it?
MS. CAPPLEMAN: Because I knew that I would be asked 15 questions that I wouldn't know the answer to, challenging Mr. Yao's opinions. So it would be more beneficial, I thought, to resolving the issue to have Mr. Yao make himself available to answer whatever questions it was that they would have about his opinion and maybe avoid the possibility of a second deposition.
JUDGE HANKINSON: And when did Investigator Yao call you?
MS. CAPPLEMAN: I don't know the answer to that, but it would be the same day that he called Mr. DeCoste, probably, and I guess the same day that he e-mailed me. So I could find that e-mail if Your Honor wants to know when that was.
JUDGE HANKINSON: I mean, tell me a week ago, two weeks ago?
MS. CAPPLEMAN: Oh, within the last two weeks.
In addition, I was advised by Mr. Zangeneh that Mr. DeCoste informed him of the new opinion several days ago. I don't know exactly when. we could have conducted the deposition a few -- at least a few days earlier, based on that representation, than we did. But I wasn't aware that Mr. Zangeneh didn't know. And I guess that's -- I'll leave that up to you to decide.
JUDGE HANKINSON: Mr. Zangeneh?
MR. ZANGENEH: That's pretty much a very accurate depiction of what's transpired procedurally.
I will say that when Mr. DeCoste contacted me -- you know, I'm sure the government knows this is a pretty substantial file. And we spent -- me and my team spent time looking for the original deposition and we couldn't find it because one was never ordered.
And so we believed that given the fact that he didn't disclose or make -- do a pro rata [sic] sheet or put us on formal notice, since we are one of the two defense counsels on this case, that his testimony would be isolated to the information that he gave at the original deposition.
what Mr. DeCoste asked was a hypothetical scenario, which would require Investigator Yao to make a lot of speculations with regards to relevant factors in making an assessment that are unknown in real time. And so we believed that his testimony would be consistent with what was in his deposition transcript because --
JUDGE HANKINSON: Let me just make sure, you said that you never had a transcript of the deposition.
MR. ZANGENEH: TI looked for our copy of the transcript, I couldn't find it.
JUDGE HANKINSON: So you did not read a copy of the original deposition?
MR. ZANGENEH: I spoke to Mr. DeCoste, who gave me a general overview of what transpired.
JUDGE HANKINSON: Okay.
MR. ZANGENEH: And then I listened to the witness's testimony. And then I saw that he was, in essence, going to attempt to provide testimony with regards to the novel issue that Investigator Yao was on the precipice of informing this jury.
So here's kind of where I stand. If several months ago, Investigator Yao would have given this information, our team would have potentially 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 percent 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 with regard -- or provide an answer to the hypothetical to the trajectory issue.
And so if we had -- 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 and 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 do so.
JUDGE HANKINSON: Mr. DeCoste?
MR. DECOSTE: No position, Your Honor.
JUDGE HANKINSON: And what remedy are you seeking, Mr. Zangeneh?
MR. ZANGENEH: I think that Investigator Yao 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's gearing towards making an assessment that the purported -- that the shooter in this case was at least 6 feet tall or around 6 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 was -- if there were two people that were involved in the 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.
MR. ZANGENEH: One.
JUDGE HANKINSON: All right. Thank you, sir.
I'm going to deny the request to exclude the testimony. There's been a technical discovery violation. I find it's not a willful violation. The prosecutor asked the investigator to call the attorney. Understandably, he called the attorney who deposed him. I don't know, you know, what the discussion was between the prosecutor and Mr. Yao, whether he was asked to call both attorneys or just the one that deposed him. It doesn't seem shocking to me that he called the one who deposed him and had posed the question to him.
The prosecution should have updated their discovery, did not do so. So there is a technical discovery violation.
I don't find that the defense is procedurally prejudiced. They had an opportunity yesterday afternoon to depose Mr. Yao after he gave the proffer of what he desires to say to the jury today. Garcia had not deposed him before, hadn't reviewed the prior deposition, hadn't deposed any of the other experts, said there's been one deposition taken. I don't find there's any procedural prejudice.
Anything else as to Mr. Yao's testimony?
MR. ZANGENEH: Yes, Judge. At this point, we'd be requesting a Daubert hearing with regards to Investigator Yao's additional testimony.
JUDGE HANKINSON: Have you filed a motion to that effect?
MR. ZANGENEH: Judge, if you can give me -- if we can move Investigator Yao to the afternoon, I'll draft one before lunch.
JUDGE HANKINSON: No, we're not going to do that. Your motion is not timely. We'll move on. Anything else?
MR. ZANGENEH: Well, Judge, at this time --
JUDGE HANKINSON: You can make an argument. we're not going to have a Daubert hearing at this point in time.
MR. ZANGENEH: If the Court will allow me to make --
JUDGE HANKINSON: You may.
MR. ZANGENEH: -- an argument.
JUDGE HANKINSON: I'm sorry.
MR. ZANGENEH: 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 that his conclusion is not based on a scientifically-reliable method because there are too many inconsistent unknown factors that come 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 attempting to elicit, based on the one factor that he knows, which is the fact that the bullet wound -- the entry position of the projectile into the driver's seat window of the Honda Accord was 49 inches, then the only legal -- the only scientific conclusion that he can come to is that the shooter is betweens 5 feet and 6 feet tall.
The other -- by 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 X, Y and Z, me assuming that the shooter was holding the gun in a certain position, without knowing this fact, without knowing a cornucopia of facts, he comes to a conclusion based on variables that he's applying himself that he admits that he doesn't know are applicable in this case.
And so any information that this investigator will give, who has 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 discovery issue.
JUDGE HANKINSON: Let's finish this first.
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.
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. 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. If all these variables were different, then his answer would change. So I don't think that's, you know, attributable to any type of new or novel science.
JUDGE HANKINSON: Mr. Zangeneh?
MR. ZANGENEH: Well, Judge -- very briefly, Judge. Just one factor that I want to put into. Investigator Yao was talking about having a position where he assumed the firearm is at shoulder length. And he says that because that's how you're trained to shoot a firearm. 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 qualified as a witness and he's going to be providing information on a slew of unknown factors.
JUDGE HANKINSON: I'm going to overrule the objection. The methodology and science is not anything novel. The basic explanation is not particularly confusing. It's based on very understandable thoughts of bullets basically moving in straight lines. Experts testify frequently based upon a hypothetical set of facts. That's essentially what we're doing. The variables are also not particularly confusing and can be easily brought out on cross-examination.
I don't see any potential for confusion to the jury. I'll overrule the objection.
You had another issue, Mr. DeCoste?
MR. DECOSTE: Yes, Your Honor. This is something that came up at 8:27 this morning. As Your Honor knows, for three years we've investigated this case. We've 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 and Chuck Collins, as A Witnesses. As Your Honor knows, we swore a jury on Wednesday. we don't have time to now be taking depositions of witnesses.
I do believe that this is a 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.
JUDGE HANKINSON: Ms. Cappleman.
MR. DECOSTE: Your Honor, the case law that we have on this issue, we have 17 S. 3d 766. It's a Fourth District Court of Appeals case. The 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, do you care to 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 suggestion, it's what they told the jury -- by calling these witnesses. 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 both were involved.
MS. CAPPLEMAN: They were both involved.
JUDGE HANKINSON: Sit down, Mr. DeCoste.
MR. DECOSTE: Yes, Your Honor.
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. 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 Tuesday.
JUDGE HANKINSON: Early on Tuesday?
MS. CAPPLEMAN: Yes, sir.
JUDGE HANKINSON: So what are the -- so if this comes up as it was stated in opening, you're going to call both of them?
MS. CAPPLEMAN: Potentially, yes, sir. TI haven't had an opportunity to interview each 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 opening statement about the way questions were relayed?
MS. CAPPLEMAN: Yes, sir.
JUDGE HANKINSON: And what is their availability for the week?
MS. CAPPLEMAN: They have advised that they're available any time we need them for that purpose.
JUDGE HANKINSON: Well, it would seem it might be appropriate to have them deposed before we hear from Mr. Rivera in case -- 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: Tuesday.
MS. CAPPLEMAN: The deposition could be done Monday, would be my suggestion.
MR. ZANGENEH: It's a holiday.
MS. CAPPLEMAN: And then we'll take it up with the Court Tuesday morning. But I would not be able to put on Rivera today so there is a potential for me to run out of witnesses again. I don't think that will happen, but it could happen.
JUDGE HANKINSON: So are you all available to take a deposition Monday?
MR. DECOSTE: No. Your Honor, it's more than just a -- if I can?
JUDGE HANKINSON: You may.
MR. DECOSTE: 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 on it, 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 a time --
JUDGE HANKINSON: You need to go ahead and contact the Collinses. They're attorneys with a schedule, too. we need to work it out whether we're going to do it late this afternoon or do it on Monday.
MR. DECOSTE: There's questions 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, the availability --
JUDGE HANKINSON: we'll give you a few minutes.
MS. CAPPLEMAN: Judge, I can handle the --
JUDGE HANKINSON: Any other issues?
MS. CAPPLEMAN: -- court reporter and the location.
MR. DECOSTE: we would prefer to use our court reporters.
JUDGE HANKINSON: That's up to you, but that's going to delay things. That's the only problem.
MR. DECOSTE: Your Honor, if I can add, because there's more to it.
JUDGE HANKINSON: No. I told you you're going to doa deposition and then we'll hear your objection.
MR. DECOSTE: Understood.
JUDGE HANKINSON: Any other issue?
MR. ZANGENEH: Just for the record, Judge, we're available whenever with regards to the depositions of Chuck and -- Mr. Collins and Mr. Collins’ son.
JUDGE HANKINSON: All right. we'll take a few minutes for a bathroom break and then we'll start with the jury.
Have your witness in, please.
MS. CAPPLEMAN: Yes, Sir.
(Recess taken from 8:56 a.m. to 9:05 a.m.)
JUDGE HANKINSON: Be seated, please, folks.
So when do you want to attempt to do the depositions, Mr. DeCoste?
MR. DECOSTE: I've spoken to the State, to do it at 4:00 this afternoon, if the Court will allow.
JUDGE HANKINSON: Okay.
MR. DECOSTE: Your Honor, if I can just -- and not to make an argument on the case.
So the State Attorney's Office had said that Ms. Kawass had said the word spoon-fed. It's our belief that it was said by co-defendant counsel. So that would mean that co-defendant counsel opened the door to allow the collins father and son to testify in this case against us, prejudicing Ms. Magbanua. we'd renew our motion to sever.
JUDGE HANKINSON: That's denied.
Let's have the jury, please.
(jury returned to the courtroom at 9:06 a.m.)
JUDGE HANKINSON: All right. Everybody be seated, please.
Good morning, folks. Thank you for being back here this morning. We appreciate your attention. Sorry we're a few minutes late, but we've been working.
State your name again for the record, please, sir.
ROBERT SHAWN YAO: My name is Robert Shawn Yao. That's spelled S-H-A-wW-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 -- who's doing this? Ms. Cappleman?
MS. CAPPLEMAN: Yes, sir.
whereupon, ROBERT SHAWN YAO was recalled as a witness, having been previously duly sworn, was examined and testified as follows:
DIRECT EXAMINATION BY MS. CAPPLEMAN:
MS. CAPPLEMAN: All right. Mr. Yao -- is it Mr.? Investigator?
MS. CAPPLEMAN: Mr. Yao. 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 100 times.
MS. CAPPLEMAN: All right. 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.
BY MS. CAPPLEMAN:
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 FS II Maltese, as well as her sketches, as well as obtained the medical examiner's report detailing the injuries to the deceased. And I did -- 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 in 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 --
MR. ZANGENEH: Judge, with all due respect, I object. He's giving speculation.
JUDGE HANKINSON: I've overruled your objection. Your objection is noted.
You can proceed, Mr. Yao.
BY MS. CAPPLEMAN:
MS. CAPPLEMAN: All right. So you say taking into account certain assumptions, the 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 stance, with the arm extended out, with the handgun at the -- 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 or a trajectory analysis, there are certain things that are required. So without using these assumptions, for a 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 has passed 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 6-foot tall shooter and their shoulder is about 59 inches from the ground, and looking a shorter shooter that's about 5'4", that they're at about 48 inches from the ground, and then looking at the angle of the trajectory through the deceased for the bullet paths, you see that there is a slight downward declination. It goes downward into the victim.
So if they're looking out the window, it's -- 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 to 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, it traveled slightly downward?
ROBERT SHAWN YAO: That's correct; right to left, front to back, slightly downward.
MS. CAPPLEMAN: 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 vehicle.
MS. CAPPLEMAN: All right. And I'm going to publish State's Exhibit 8. We talked about the hole -- bullet hole in the window. Is this the bullet hole you're referring to?
ROBERT SHAWN YAO: That is correct.
MS. CAPPLEMAN: So this hole here, if we assume the door was shut -- which we don't really have to assume. we have testimony to that effect; correct?
ROBERT SHAWN YAO: That was made where -- I was not privy to that until recently, that the door was closed. This is how it was when I arrived on the scene.
MS. CAPPLEMAN: All right. But assuming that the door was shut, the height of this hole of 49 inches from the ground, if those assumptions are in place, we've got Mr. Markel seated in his vehicle in a normal seated position, then -- you know, we've got two potential suspects in this case; one about 5'4”" and one about 6'1".
Is it your opinion that if all those things are in place, that it's -- the evidence is more consistent with the 6'1" person having done the shooting?
ROBERT SHAWN YAO: Yes.
MS. CAPPLEMAN: No further questions.
JUDGE HANKINSON: Garcia.
CROSS EXAMINATION BY MR. ZANGENEH:
MR. ZANGENEH: Mr. Yao, how are you, sir?
ROBERT SHAWN YAO: Good.
MR. ZANGENEH: Okay. You stated on your direct examination, 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 pointed is the -- pardon me.
And 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, that the shooter can be between 5 and 6 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?
ROBERT SHAWN YAO: Or leaned over or in a variety of other positions that you can be in within the driver's seat of a vehicle.
MR. ZANGENEH: 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 a normal shooting stance is kind of what you -- if someone wants to go to learn about how to shoot a gun, that's what you're talking about, how you're taught by a firearm expert how to hold and how you should stand to shoot a firearm; correct?
ROBERT SHAWN YAO: Correct.
MR. ZANGENEH: Are there other ways to hold a firearm?
ROBERT SHAWN YAO: There are a variety of other ways. It's all dependent on the individual that 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, 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 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 doa trajectory analysis based solely upon the physical evidence as found at the scene because it's only a singular hole without a connecting point.
MR. ZANGENEH: So the answer is no?
ROBERT SHAWN YAO: well, an analysis cannot be performed, correct.
MR. ZANGENEH: So, right.
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 firearm, 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 wound -- 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.
JUDGE HANKINSON: If you think that's not your area of expertise, please tell us that.
ROBERT SHAWN YAO: Distance determination should be, and stippling patterns as far as how far a weapon, should be answered by a firearms examiner.
MR. ZANGENEH: That's fair, Judge.
BY MR. ZANGENEH:
MR. ZANGENEH: So just to review, to give the analysis that the government gave -- that you gave, that the shooter is more likely to be 6 feet than 5'4", 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?
ROBERT SHAWN YAO: Correct.
MR. ZANGENEH: 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, Judge.
(Attorneys confer.)
MR. ZANGENEH: Give me one second, Judge.
(Attorneys confer.)
BY MR. ZANGENEH:
MR. ZANGENEH: If you may indulge me, Mr. Yao, could you show me what a proper, normal shooting stance is?
JUDGE HANKINSON: Do you want him to stand up?
MR. ZANGENEH: If the Court would afford me that opportunity.
JUDGE HANKINSON: why don't you stand up. They might be able to see you better.
ROBERT SHAWN YAO: A normal shooting stance for somebody that is target shooting or has been taught is usually with your arm extended -- so the supporting arm -- and facing downward like this or bringing the firearm up so that the sight picture comes up level to the eye so that you can obtain a proper sight picture.
Now, there are individuals and places that will teach you to fire without a single hand -- or without the supporting hand where you're firing single-handed. It's not uncommon to see people fire in this manner. But usually it's so that the firearm when it discharges causes the recoil to come up the arm into the shoulder so there's not so much kick.
BY MR. ZANGENEH:
MR. ZANGENEH: So if someone is 6-foot --
JUDGE HANKINSON: Let him sit down.
MR. ZANGENEH: Thank you, Judge.
BY MR. ZANGENEH:
MR. ZANGENEH: Mr. Yao, so if somebody is 6'1", 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 be probably 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 at 49-inches; correct?
ROBERT SHAWN YAO: Correct.
MR. ZANGENEH: No further questions.
JUDGE HANKINSON: Magbanua.
MR. DECOSTE: Yes, Your Honor, very briefly.
CROSS EXAMINATION BY MR. DECOSTE:
MR. DECOSTE: Good morning, how are you?
ROBERT SHAWN YAO: Good morning.
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?
ROBERT SHAWN YAO: I believe so.
MR. DECOSTE: And you were helping me understand better your expertise?
ROBERT SHAWN YAO: Correct.
MR. DECOSTE: If you could help me again here for a minute. And 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 is around 6 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?
ROBERT SHAWN YAO: In order to do a proper trajectory, 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?
ROBERT SHAWN YAO: Correct.
MR. DECOSTE: 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?
ROBERT SHAWN YAO: Correct.
MR. DECOSTE: 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: In an assumption that he's sitting in a normal position, he becomes my second fixed point.
MR. DECOSTE: So we've got two points?
ROBERT SHAWN YAO: Correct.
MR. DECOSTE: 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?
ROBERT SHAWN YAO: That 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 to left.
MR. DECOSTE: So you've got all this information, all these facts and you're saying that it fits?
ROBERT SHAWN YAO: It's more consistent with it being a taller shooter rather than a shorter one.
MR. DECOSTE: It fits with being a taller shooter?
ROBERT SHAWN YAO: Yes.
MR. DECOSTE: You're not here testifying saying that you are 100 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 100 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. And the thing is with a forensic science or any kind of analysis, it requires hard evidence or physical evidence that's present. And in this case, in order to be 100 percent 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 percent, I'm positive that's what happened?
ROBERT SHAWN YAO: Correct.
MR. DECOSTE: Thank you.
JUDGE HANKINSON: Redirect.
MS. CAPPLEMAN: Yes, Your Honor.
REDIRECT EXAMINATION BY MS. CAPPLEMAN:
MS. CAPPLEMAN: Mr. Yao, when you demonstrated the normal shooting stance, your arm was pretty straight. Previously I thought you had said it could be slightly bent -- straight or slightly bent; correct?
ROBERT SHAWN YAO: Yes, it depends on the individual style of the shooter. There are some people that will, and be trained to go ahead and have a little bit of flex to their arms to allow amore 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 shooter could have had -- 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 -- like, when you have the gun like at some weird angle?
ROBERT SHAWN YAO: Correct. It's just 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: And have you had an opportunity to review the photographs of the injuries in this case? I'm showing you State's 31.
ROBERT SHAWN YAO: In passing, yes.
MS. CAPPLEMAN: So would you agree with me, based on the wound that Mr. Markel received 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?
All right. You can step down.
MR. ZANGENEH: Your Honor, if I may recross based on --
JUDGE HANKINSON: No. If there's something outside the scope of cross-examination, you need to make the objection. If you want to recall him as a witness in your case, you may do so. Do you want him subject to recall?
MR. ZANGENEH: No, Judge, that's fine.
JUDGE HANKINSON: All right. 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: All right. we'll keep him under the rule.
Call your next witness.