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Garcia–MagbanuatranscripttranscriptElizabeth Richey — Direct/Cross/Redirect; Trial Scheduling and Jury-Instruction Issues - Day 4 - Garcia–MagbanuaFDLE firearms analyst Elizabeth Richey testified that two bullets came from the same firearm, but not from the firearm submitted for testing in 2016.
Georgia CapplemanChristopher DeCosteSaam ZangenehJames C. HankinsonElizabeth RicheyJudge HankinsonMs. CapplemanElizabeth RicheyMr. ZangenehMr. DeCostedirectcrossredirectprocedural
Garcia–Magbanua/Day 4/October 2, 2019
8 pages·8 witnesses·5,318 lines
Rivera’s cross-examination concluded as the court ruled on evidence limits, followed by vehicle, travel, and firearms testimony.
Elizabeth Richey - Direct
DirectDirectElizabeth Richey - Direct Elizabeth Richey Georgia Cappleman
13:57:10

whereupon, ELIZABETH RICHEY was called as a witness, having been first duly sworn, was examined and testified as follows:

23:57:24

JUDGE HANKINSON: Have a seat, and slide up to the microphone, please.

33:57:32

DIRECT EXAMINATION BY MS. CAPPLEMAN:

43:57:35

MS. CAPPLEMAN: Please introduce yourself and spell your name.

53:57:42

ELIZABETH RICHEY: My name is Elizabeth Richey, E-L-I-Z-A-B-E-T-H, R-I-C-H-E-Y.

63:57:48

MS. CAPPLEMAN: And do you go by Danibeth as well?

73:57:51
83:57:52

MS. CAPPLEMAN: All right. How are you employed, Ms. Richey?

93:57:53

ELIZABETH RICHEY: I work for the Florida Department of Law Enforcement.

103:57:55

MS. CAPPLEMAN: How long have you worked for FDLE?

113:57:58

ELIZABETH RICHEY: I've worked for FDLE since 2007. I've been in the firearms section since 2009 and in my current position as a crime laboratory analyst since 2012.

123:58:08

MS. CAPPLEMAN: what are your duties as a crime lab analyst?

133:58:11

ELIZABETH RICHEY: My primarily responsibilities are to compare fired components, so things like bullets, cartridge cases, and shot shells, and examine them and compare them to suspect firearms to see if they were fired from a specific firearm. If no firearm is available, then I will try to determine if the components were fired from the same firearm or different firearms.

143:58:33

MS. CAPPLEMAN: And what training and education do you have to perform those types of analyses?

153:58:39

ELIZABETH RICHEY: well, first, to be hired with FDLE, you have to have at least a Bachelor's of Science in some sort of laboratory science. I have a Bachelor's of Science in marine science with Jacksonville University. When I was promoted to my crime laboratory analyst position, I went through FDLE's 18-month training program.

The first 12 months of that program is spent basically in book work, practical exercises, and examinations, and it covers the history and development of firearms, firearms identification, tool mark analysis, ammunition, serial number restoration, and it also included tours of firearms manufacturers as well as a gunpowder manufacturer. The first phase of my training was done, the second phase was six months of supervised casework where I worked actual cases under the direct supervision of a qualified analyst.

163:59:38

MS. CAPPLEMAN: All right. And have you been previously qualified as an expert in a court of law?

173:59:42

ELIZABETH RICHEY: Yes, I have.

183:59:43

MS. CAPPLEMAN: All right. what have you been -- what have you previously testified as an expert in?

193:59:48

ELIZABETH RICHEY: Firearms identification.

203:59:49

MS. CAPPLEMAN: All right. And how many times has that occurred?

213:59:53

ELIZABETH RICHEY: Approximately 55.

223:59:54

MS. CAPPLEMAN: Judge, at this time, I'd tender Ms. Richey as an expert in firearms identification.

233:59:59

JUDGE HANKINSON: Any voir dire?

244:00:00

MR. ZANGENEH: None from Mr. Garcia, Judge.

254:00:02

MR. DECOSTE: None, Your Honor.

264:00:03

JUDGE HANKINSON: You may proceed.

274:00:05

BY MS. CAPPLEMAN:

284:00:07

MS. CAPPLEMAN: All right. Ms. Richey, I want to ask you about some projectiles which were collected in reference to a case involving the death of Mr. Markel, which we've marked as State's Exhibits 167 and 168.

Do you recognize these items?

294:00:28
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MS. CAPPLEMAN: How do you recognize them?

314:00:30

ELIZABETH RICHEY: when I receive evidence, I mark the outer packaging with the laboratory case number, agency exhibit number, and my initials, and those are present on these items.

324:00:40

MS. CAPPLEMAN: Are the items in the same or substantially the same condition as when you analyzed them?

334:00:45

ELIZABETH RICHEY: They appear to be.

344:00:46

MS. CAPPLEMAN: All right. what are the items?

354:00:48

ELIZABETH RICHEY: They are two fired bullets.

364:00:49

MS. CAPPLEMAN: Okay. And what type of analysis did you perform on the two fired bullets?

374:00:55

ELIZABETH RICHEY: I compared them to see if they had been fired from the same firearm.

384:00:59

MS. CAPPLEMAN: How do you do that?

394:01:01

ELIZABETH RICHEY: when I receive bullets in a case with no gun, I will start with doing my general inventory. I will go through the evidence to make sure what I have is matching on our case tracking form, and then I will open it up and I will examine the evidence for class characteristics. Class characteristics are the characteristics that are determined by the manufacturer prior to manufacturing.

So when they go to manufacture a gun, they have to decide what caliber that gun is. They have to decide what kind of rifling it will have, how many grooves that rifling will have, how wide those lands and grooves will be. when a bullet is fired through a gun, it picks up the impressions of the rifling. So I can examine a bullet and determine what caliber class it may be -- may be from, and then I can use the numbers of lands and groves and look at the two items to see if they should be compared to each other.

If those class characteristics match up, then I will move to my comparison microscope. And what that is, is two compound microscopes that sit side by side. There's an optical bridge with a set of eyepieces that allows me to look at two items at the same magnification at the same time so I can examine those two bullets and look for individual characteristics to see if the individual characteristics that come from firing the gun, that come from interacting with the inside of the barrel, match up with bullet one to bullet two, and then I will make my determination based on the level of individual characteristics that I see on my evidence.

404:02:49

MS. CAPPLEMAN: And did both projectiles in State's Exhibits 167 and 168 have rifling characteristics sufficient to conduct this comparison?

424:03:02

MS. CAPPLEMAN: All right. And are you able to tell us anything about the caliber of the bullets in State's Exhibits 167 and 168?

434:03:09

ELIZABETH RICHEY: The caliber class of the bullets would be .38. And what that means is that the caliber class is like a family of calibers. It's kind of like saying a pickup truck and you have a lot of different pickup trucks. The caliber can have different dimensions, but what makes the caliber class the same is if the bullets have approximately the same diameter regardless of what kind of cartridge case it was loaded into. So the .38 caliber class includes .38 Special and .357 Magnum calibers, and I determined that it was either a .38 Special or .357 Magnum, most likely, within the .38 caliber class.

444:03:56

MS. CAPPLEMAN: Okay. And what was your result when you compared the class characteristics of the two projectiles?

454:04:05

ELIZABETH RICHEY: The class characteristics matched up.

464:04:07

MS. CAPPLEMAN: So what does that mean?

474:04:09

ELIZABETH RICHEY: That means that they had the same number of lands and grooves, the widths of those lands and grooves were approximately the same, and the direction of twist of the rifling was the same, and the diameter of the bullet was approximately the same.

484:04:24

MS. CAPPLEMAN: Does that mean your -- it's your opinion that the two projectiles in State's 167 and 168 were fired from the same weapon?

494:04:33

ELIZABETH RICHEY: Yes. But I did not use the class characteristics to come to that determination. I used the individual characteristics that are found within the rifling to come to that determination.

504:04:44

MS. CAPPLEMAN: All right. Tell us a little bit more about that.

514:04:46

ELIZABETH RICHEY: Individual characteristics are the striations on the side of a bullet that come from interacting with defects inside of the barrel. So when a barrel is manufactured, metal is chipped away, and that leaves defects inside the barrel. And because metal is not chipped away in the exact same way from barrel one to barrel two even when you use the same tool to create barrel one and barrel two, there can be microscopic defects inside the barrel that will be unique to barrel one, and there will be microscopic defects that are unique to barrel two.

So when they come out of the factory, they're already microscopically different. And then through use and abuse, depending on how well you care for your firearm, more character, more defects can be added to the inside of that barrel.

So as a bullet passes down the barrel, it is obturating or expanding to fill into the rifling, and the side of that bullet is interacting with those microscopic defects on the inside of the barrel. And what happens is you get scratches on the side of the bullets, and those are the scratches that are unique to that firearm. And I will examine those scratches to determine if a bullet or a set of bullets had been fired from the same firearm.

524:06:11

MS. CAPPLEMAN: All right. And are those scratches that are unique to the rifle -- to the barrel of a particular firearm known as rifling characteristics?

534:06:22

ELIZABETH RICHEY: The rifling characteristics would be the numbers of grooves that are inside a barrel. So if you look down a barrel, you can see high points and low points, and those -- those would be the rifling characteristics, the number of grooves you see, the direction those grooves go, either left or right, and the widths of those grooves. Those are -- those are the rifling characteristics of a firearm.

544:06:49

MS. CAPPLEMAN: So you, in your business, look at the class characteristics, the rifling characteristics, and then also the individual characteristics?

564:06:58

MS. CAPPLEMAN: Okay. And what was your conclusion after looking at all those factors in reference to these two projectiles?

574:07:05

ELIZABETH RICHEY: The two bullets had been fired from the same firearm.

584:07:08

MS. CAPPLEMAN: And what, if anything, can you tell us about the firearm that was used to fire these two bullets?

594:07:14

ELIZABETH RICHEY: when I receive bullets that don't have a gun, I can take the rifling characteristics and enter them into the general rifling characteristics database. At the time, it was a database that was held by the Federal Bureau of Investigation.

And what I do is I would input information into the database -- the caliber class, the numbers of lands and grooves, the direction of twist, and the widths of the lands and grooves -- and the database will give me a list of potential manufacturers that may have fired these bullets.

Now, the list is long -- or the list can be very long, but the database is also not totally -- it's not all inclusive. Not every single gun in the world is represented within that database, but many, many, many are. So it's an investigative tool that I can give to investigators that say it could have been these guns, but don't exclude others if you have -- if you think that it may be another one.

604:08:18

MS. CAPPLEMAN: And what can you tell us in this case?

614:08:21

ELIZABETH RICHEY: In this case --

624:08:22

MS. CAPPLEMAN: well, I guess I should ask you, is it a long list?

634:08:26

ELIZABETH RICHEY: It was approximately two pages long.

644:08:31

MS. CAPPLEMAN: Okay. And were they all .38 Special or .357 Magnum?

654:08:36

ELIZABETH RICHEY: They were both.

664:08:37

MS. CAPPLEMAN: All right. And are they all revolvers?

684:08:42

MS. CAPPLEMAN: No further questions.

694:08:48
704:08:49

MR. ZANGENEH: Nothing from Mr. Garcia.

CrossCrossElizabeth Richey - Cross Elizabeth Richey Christopher DeCoste
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724:08:53

MR. DECOSTE: Yes, Your Honor.

734:08:55

CROSS EXAMINATION BY MR. DECOSTE:

744:09:07

MR. DECOSTE: Last one of the day is always difficult.

This wasn't the only work you did on this case; right?

754:09:10
764:09:12

MR. DECOSTE: Later on in 2016, around September, you did another laboratory analysis; right?

774:09:20
784:09:20

MR. DECOSTE: And what was that for?

794:09:22

ELIZABETH RICHEY: There was a firearm that was found, and they were wanting to see if it was possible if it had been the firearm that fired these two bullets.

804:09:31

MR. DECOSTE: By “they,” you're talking about Investigator Jason Newlin; right?

814:09:36

ELIZABETH RICHEY: Investigator Jason Newlin is who contacted me. I'm not sure who found it.

824:09:39

MR. DECOSTE: Somebody brought a gun to FDLE is what you know?

844:09:42

MR. DECOSTE: Now, once that gun goes to FDLE, it then starts a process in your lab to do a full analysis; right?

864:09:49

MR. DECOSTE: Now, there was no indication that those projectiles came out of the gun that you tested in September; right?

874:09:55

ELIZABETH RICHEY: The bullets were not fired from the gun that I received.

884:09:59

MR. DECOSTE: But nonetheless, you did this full work-up?

904:10:02

MR. DECOSTE: It's not on you to make a decision not to investigate something or to investigate it. You objectively investigate what's brought in; right?

914:10:09

ELIZABETH RICHEY: That's correct.

924:10:10

MR. DECOSTE: Now, I just want to go through the list, and correct me if I'm wrong, if I'm giving these documents a wrong name.

But when you get an item in, specifically a pistol, you end up doing an FRT report?

934:10:21

ELIZABETH RICHEY: The FRT is the Firearm Reference Table, and it's a database that I can use to look up firearms if I do not know what they are. Sometimes guns come in with no markings, and we have to try to determine what they are. So that is not something that I use in every single case that I work.

944:10:41

MR. DECOSTE: All right. But you did in this -- with that pistol? You did an FRT report?

964:10:46

MR. DECOSTE: There was also a NIBIN worksheet? NIBIN.

974:10:51

ELIZABETH RICHEY: There was a firearms/NIBIN worksheet. That's the worksheet that we use to either do a firearms function test, or as analysts, we would also use that worksheet if we were working a NIBIN-only case.

984:11:04

MR. DECOSTE: If you could explain to the jury what NIBIN stands for.

994:11:07

ELIZABETH RICHEY: NIBIN is the National Integrated Ballistics Information Network. And what that is, is if I receive a firearm, I can test-fire the firearm and enter cartridge cases into the database. The computer will take photos of my cartridge cases, and it will bring back possible hits to see if potentially that firearm has been used in other crimes.

And I can review the potential hits to come up with, yes, I think it may have been or, no, it may not have been. If investigators submit just cartridge cases, I can also enter just images of those cartridge cases to see if they hit to other scenes as well.

1004:11:50

MR. DECOSTE: Now, everything you've just explained to the jury, you did that with a pistol that was brought to you by Jason Newlin; right?

1014:11:56

ELIZABETH RICHEY: I did not put this firearm into the NIBIN database.

1024:12:00

MR. DECOSTE: But you did a NIBIN worksheet?

1034:12:02

ELIZABETH RICHEY: I did a firearms worksheet. It's also our NIBIN worksheet.

1044:12:06

MR. DECOSTE: You also took some photographs of the pistol?

1054:12:09

ELIZABETH RICHEY: Yes, I did.

1064:12:11

MR. DECOSTE: Next we have a cartridge worksheet.

1084:12:14

MR. DECOSTE: And if you could explain to the jury what a cartridge worksheet is and what work you do with this pistol.

1094:12:18

ELIZABETH RICHEY: The cartridge worksheet is just the worksheet that I -- that is used to inventory any unfired units of ammunition that I get in.

1104:12:27

MR. DECOSTE: Does that mean if it has bullets in the gun, you do a worksheet for that?

1114:12:32

ELIZABETH RICHEY: when I talk -- when most people talk about bullets, they're talking about a live unit of ammunition. when I say a cartridge, I'm talking about a live unit of ammunition because a bullet is one part of a cartridge. The bullet is the item that is actually designed to hit a target. So when I receive a cartridge, which is an unfired unit of ammunition, often referred to by many people as bullets, I will -- I, at the time, would inventory the cartridges in my case.

1124:13:05

MR. DECOSTE: And you did that with this pistol?

1144:13:09

MR. DECOSTE: Now, there's also a lab -- laboratory analysis electronic packing slip that you have to fill out?

1154:13:16

ELIZABETH RICHEY: I'm not sure which piece of paperwork you're talking about on that.

1164:13:24

MR. DECOSTE: would it help your memory if I showed you the packing slip?

1184:13:27

MS. CAPPLEMAN: At this point, I'm going to object to relevance.

1194:13:30

MR. DECOSTE: Almost done, Your Honor.

1204:13:32

JUDGE HANKINSON: We've gone this far. Let's go ahead and finish. we've been talking about it for a long time.

1214:13:38

BY MR. DECOSTE:

1224:13:40

MR. DECOSTE: If you would take a look at that. Let me know if it helps you.

1234:13:44

ELIZABETH RICHEY: (witness complies.)

That piece of paperwork is not something that is in my case file, and it's not something that I would routinely run. I think that is a piece of paperwork that would come from our evidence section.

1244:13:59

MR. DECOSTE: Something that FDLE would have to produce as part of the process of evaluating a piece of evidence; right?

1264:14:05

MR. DECOSTE: There's also case notes that you -- that you do. These are handwritten notes?

MR. DECOSTE: And almost to the end of the list, you also have a case tracking form for FDLE that you do?

1304:14:17

MR. DECOSTE: You have a headstamp report?

1314:14:20

ELIZABETH RICHEY: For this case, I did.

1324:14:22

MR. DECOSTE: If you could real briefly explain to the jury what a headstamp report is.

1334:14:25

ELIZABETH RICHEY: If I receive a unit of ammunition and I'm not sure who made that particular brand of ammunition or perhaps even ~what caliber it is, I can look up in our headstamp database to try to determine what kind of ammunition it is. It's just a tool that we can use to try to determine something that we're not sure about.

1344:14:45

MR. DECOSTE: If I'm understanding this correctly, with each piece of evidence, there's a -- it's a thorough process. There's a lot of paperwork that gets done, there's a lot of time that you put into it, and it’s done objectively; right?

1354:14:57
1364:14:58

MR. DECOSTE: Nothing further, Your Honor.

RedirectRedirectElizabeth Richey - Redirect Elizabeth Richey Georgia Cappleman
1374:15:00
1384:15:01

REDIRECT EXAMINATION BY MS. CAPPLEMAN:

1394:15:06

MS. CAPPLEMAN: So all the questions that you just answered about the firearm that was submitted, that firearm did not fire the two projectiles?

1404:15:14

ELIZABETH RICHEY: That's correct.

1414:15:15

MS. CAPPLEMAN: No further questions.

1424:15:16

JUDGE HANKINSON: All right. Any juror have a question of this witness? All right.

You can step down.

Be a good place to break?

1434:15:27

MS. CAPPLEMAN: Yes, Your Honor.

1444:15:29

JUDGE HANKINSON: All right. You-all had enough for one day? All right.

You-all know the drill. Don't discuss the case with anyone. Don't let anyone discuss the case with you. Let's be back and ready to go -- let's be back at 8:45, please. Have a good evening.

1454:15:53

(Jury exits the courtroom at 5:10 p.m.)

ProceduralProc.Trial Scheduling and Lesser-Included-Offense Issue
1464:15:58

JUDGE HANKINSON: we are going to stay in session a little while here.

So, how are we doing time-wise, Ms. Cappleman?

1474:16:08

MS. CAPPLEMAN: Okay. I think we're probably about a half-day behind, but we're also considering not calling some of the witnesses we were going to call. So we are close.

1484:16:23

JUDGE HANKINSON: What would be your best estimate of when you would be done with your side?

1494:16:28
1504:16:29

JUDGE HANKINSON: So, midday Monday? End of the day Monday? what's your --

1514:16:37

MS. CAPPLEMAN: I'm guessing midday, is our best guess, Your Honor.

1524:16:48

JUDGE HANKINSON: Okay, all right. So, defense ought to have any witnesses they need available Monday. I don't want to finish up the State's case and sit around waiting on defense witnesses.

1534:17:02

MR. ZANGENEH: Yes, Judge. So we will have our witnesses here Monday morning.

1544:17:04
1554:17:04

MR. ZANGENEH: Is that fine?

1564:17:04
1574:17:05

MR. ZANGENEH: Thank you, Judge.

1584:17:05

MR. DECOSTE: We're pretty much determined on who we are going to call. Of course, it could change with who the Government still calls, but we will make sure to have them here Monday, ready to go.

1594:17:11

JUDGE HANKINSON: Okay. And do you have any better sense, Ms. Zangeneh, how much you are going to have now?

1604:17:20

MR. ZANGENEH: Yes. I would say half-day, if that, with the caveat that if I do put my client on the stand, that could change things.

1614:17:31

JUDGE HANKINSON: Right, I understand.

Magbanua?

1624:17:32

MR. DECOSTE: Same answer, Your Honor. Maybe half-day. That could change, if Ms. Magbanua takes the stand.

Your Honor, one other issue with respect to us calling, and it -- so we had subpoenaed Investigator Isom, Agent Sanford, Investigator Bennett, and a few others, and in our subpoena, we said either show up on September 23rd or contact my office and leave us a means of communication with which we can get in touch with you to come. Nobody showed up on the 23rd. They didn't give us the information. I don't doubt that they will show up when they're needed, but, you know, I have normally gotten assistance from the prosecution on this to communicate with those witness, to make sure they are here when we need them, because I have no direction communication and they didn't fully comply with the subpoena. But, again, they are law enforcement, so I know they will.

1634:18:22

MS. CAPPLEMAN: Nobody has asked me for any assistance in coordinating those witnesses, all three of which were outside of the courtroom just recently, as an hour ago. So I have communication with them and can accommodate that request.

1644:18:35
1654:18:35

JUDGE HANKINSON: well, I think they're all set to testify at some time in the next couple of days, aren't they?

1664:18:41

MS. CAPPLEMAN: Yes, sir.

1674:18:43

JUDGE HANKINSON: So why don't you -- if you would, please, just let them know they need to be available Monday morning once they finish testifying --

1684:18:51

MS. CAPPLEMAN: Yes, Sir.

1694:18:52

JUDGE HANKINSON: -- for the State.

1704:18:54

MR. ZANGENEH: The bonus is the prosecution knows exactly who we are calling so they can prepare accordingly.

1714:19:00

JUDGE HANKINSON: It seems like we need to share the evidence again. Today we went through some lengthier, I need to see the evidence. Let's go through the evidence, make sure we don't have to do that. That's just a waste of the jury's time. You all have seen this evidence before. Ms. Cappleman, if -- let's make sure they've seen what's marked for evidence so we don't have to go through that big charade, acting like they've never seen it before.

I want to start talking about jury instructions probably -- probably tomorrow morning. So let's -- if you haven't printed out the jury instructions or if you haven't read over them, please read over them. We probably want to start talking about them tomorrow.

There is a legal issue. TI don't know whether any of you are going to be seeking the lesser included offenses under the conspiracy and solicitation charge. There's some Fourth DCA cases that say on a case like this, there are no lesser includeds. If you-all think you're seeking lesser includeds, you better do some research on that to show why lessers should be given. The standard tables shows no lessers. The Fourth DCA -- and if somebody wants the cite, I can give you a cite at least to get you started. Anybody interested on the cite on those?

1724:20:53

MR. DECOSTE: Yes, Your Honor.

1734:20:54

MS. CAPPLEMAN: Yes, please.

JUDGE HANKINSON: All right. There are a couple of them, but let me just give you one, and it would tie you into the rest of it. It will be Castro v State, 939 So.2d 306. It's a Fourth DCA case. And they cite to several other cases in the Fourth DCA on that subject.

So anything else from either side we need to resolve?

1754:21:30

MS. CAPPLEMAN: No, Your Honor.

1764:21:33

MR. ZANGENEH: No, Judge.

1774:21:34

MR. DECOSTE: NO, Your Honor.

1784:21:34

JUDGE HANKINSON: All right. we will see you-all at 8:30.

(Proceedings recessed at 5:17 p.m.)

Continue to Day 51.June Umchinda — Direct/Cross/Redirect