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CAUSE NO. 8701 ~~"~~3
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THE STATE OF TEXAS
VS.
RODNEY REED
XXXXX
IN THE DISTRICT COURT OF
BASTROP COUNTY, TEXAS
21ST JUDICIAL DISTRICT
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REPORTER'S RECORDJURY TRIAL
GUILT/INNOCENCE
MAY 7, 1998
AFTERNOON SESSION
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VOLUME 50 OF 691
ORIGINAL
FILED IN.COURT OF CRIMINAl, APPEALS
SEP 9 1998
Troy C. Bennett, Jr., Clerk
Volume 50 of 69
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1 On the 7th day of May, 1998, ~he
2 above entitled and numbered cause came on for
3 hearing before said Honorable Court, Harold R.
4 Towslee, Judge Presiding, and the following
5 proceedings were had:
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GUILT/INNOCENCE PHASE
(PAGES 1 THROUGH 172)
1 APPEARANCES:
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For the State
Mr. Charles PenickDistrict Attorney, Bastrop County804 Pecan StreetBastrop, Texas 78602SBOT #015748500(512) 321-2244
Mr. Forrest SandersonAssistant District Attorney804 Pecan StreetBastrop, Texas 78602SBOT #17610700(512) 321-2244
Ms. Lisa TannerAssistant Attorney GeneralP. O. Box 12548Austin, Texas 78711-2548SBOT #19637700(512) 463-2170
For the Defendant
Mr. Calvin GarvieAttorney at Law22 N. Bell St., P. O. Box 416Bellville, Texas 77418SBOT #07714300(409) 865-9781
Ms. Lydia Clay-JacksonAttorney at Law700 N. San JacintoConroe, Texas 77301SBOT #04332450(409) 760-2889
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CHRONOLOGICAL INDEX
WITNESS
APPEARANCES
EXHIBIT INDEX
AFTERNOON SESSION
WILSON YOUNG (CONTINUED)
CROSS-EXAMINATION BY MR. GARVIE
REDIRECT EXAMINATION BY MS. TANNER
RECROSS EXAMINATION BY MR. GARVIE
RECESS
MICHAEL BOWEN
DIRECT EXAMINATION BY MS. TANNER
CROSS-EXAMINATION BY MS. CLAY-JACKSON
REDIRECT EXAMINATION BY MS. TANNER
STEVE SPENCER
DIRECT EXAMINATION BY MR. PENICK
RECESS
MICHELLE LOCKHOOF
DIRECT EXAMINATION BY MS. TANNER
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CROSS EXAMINATION BY MR. GARVIE
REDIRECT EXAMINATION BY MS. TANNER
RECROSS EXAMINATION BY MR. GARVIE
FURTHER REDIRECT EXAMINATION BY MS. TANNER
FURTHER RECROSS EXAMINATION BY MR. GARVIE
FURTHER REDIRECT EXAMINATION BY MS. TANNER
COURT ADJOURNED FOR THE DAY
COURT REPORTER'S CERTIFICATE
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EXHIBIT INDEX
VOLUME 50
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No. Description *Mrkd Idnt'd Ofrd Admit
S-93 Large Aerial Photo 43/7 79 79 79
S-93a Small Aerial Photo 43/7 78 78 78
S-94 Large Aerial Photo 43/7 79 79 79
S-94a Small Aerial Photo 43/7 78 78 78
S-96 Autoradiograph 43/7 122 123 123
S-97 Autoradiograph 43/7 122 123 123
S-99 Autoradiograph 43/7 122 123 123
S-100 Autoradiograph 43/7 122 123 123
S-101 Report 43/7 141 141 142
S-102 Report 43/7 146 146 147
3 * All State's Exhibits used in Guilt/Innocence
4 marked in Volume 43, Page 7.
5 (Volume No./Page No.)
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1 (Day 24, Afternoon Session, May 7, 1998, Cause
2 Number 8701, The State of Texas versus Rodney
3 Reed.)
4
5 WILSON YOUNG, the witness, after having
6 been previously sworn, resumed the witness stand
and continued testifying upon his oath as follows:
In this picture there is a Texas A&M cap.
Yes, sir, there is.
Did you test that item at all?
No, sir, I did not.
Do you have that item?
No, sir.
Did you ever receive that item?
Not to my recollection, no, sir.
With respect to State's Exhibit lOS, the items
found in the back of the truck, did you test
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CROSS EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. I am showing you what is marked as State's
Exhibit 66. You notice in this picture -
well, let me hold it up the right way -
actually this is the seat here.
Yes, sir.
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any of those items?
No, sir.
State's Exhibit Number 73, by your testimony
you said that was an earring, correct?
Yes, sir.
And you found that in the truck when you
examined the truck?
Yes, sir.
Did you find its companion?
No, sir.
So you did not find another earring in that
truck?
No, sir, I did not.
Was another earring given to you, that matched
that one?
No, sir.
So as far as you know, that earring is
missing?
Yes, sir.
Do you have any recollection of what happened
to the stuff that was in the back of the
truck, and/or the cap?
I do not have any recollection as to the cap.
The -- I believe, again to my recollection,
that the items in the back of the truck were
in both demonstrations?
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collected and given to Ranger Rocky Wardlow.
I may be mistaken. I could be proven to be
mistaken.
But what you're testifying to is that you
never actually saw those?
I never analyzed those, no.
You said that you did a demonstration with
Karen Blakley in the vehicle?
Yes, sir, I did.
And you attempted to pull her from the
driver's seat of the car?
Yes, sir.
And she was in the driver's seat, not the
passenger's seat?
That is correct, sir.
And you
Yes, sir.
Because there were two, one from the driver's
side and one from the passenger's side?
We never attempted it from the passenger's
side, no.
You never attempted it from .t h e passenger's
side?
No, sir, just from the driver's side.
I'm referring to -- just so we're clear, I'm
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referring to the demonstration of how you
thought someone could have been pulled from
that car?
Yes, sir.
And you, yourself, you were involved in that
demonstration?
Yes, sir.
And Karen Blakley was involved in the
demonstration?
Yes, sir.
Was there another individual involved?
I believe Ranger Rocky Wardlow was involved
also.
So he was basically assisting you?
No, he, by himself, had tried an attempt, and
then myself also, but never the two of us
together.
Okay. And that was only from the driver's
side?
That is correct.
There was no attempt made to do that from the
passenger's side?
No, sir, there was not.
Okay. And she did not assist you in any way,
did she?'
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No, sir, she did not.
She was simply seated in the driver's seat?
Yes, sir.
With respect to the -- and I'm referring now
to your report of May 27.
Yes, sir.
And I guess for reference purposes, the
easiest way to say it would be to say let's go
to page 9.
Okay.
With respect to William Barton, do you know
how tall he is?
No, sir, I do not.
Gregory Conner, do you know how tall he is?
No, sir, I do not.
Jimmy Fennell?
No, sir.
Mike Kirby?
No, sir.
Jon Colgin?
No, sir.
Charles King?
No, sir.
Jeremiah?
No, sir.
1 Q. Jose Coronado?
2 A. No, sir.
3 Q. Monty Kellam?
4 A. No, sir.
5 Q. Carl Lloyd?
6 A. No, sir.
7 Q. Jeremiah Smith?
8 A. No, sir.
9 Q. George Branham?
10 A. No, sir.
11 Q. John Conwell?
12 A. No, sir.
13 Q. Wana Hammett?
14 A. No, sir.
15 Q. David Lawhon?
16 A. No, sir.
17 Q. Glenn Pierce?
18 A. No, sir.
19 Q. Robert Campion?
20 A. No, sir.
21 Q. John Cook?
22 A. No, sir.
23 Q. Warren Hartgrave?
24 A. No, sir.
25 Q. Edward Selmala?
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And for that matter, David Hall or Rodney
Rodell Reed, right?
One being DQ-Alpha?
That's correct.
And the other one being the DS180?
DlS80, yes, sir.
The testing that you have done in your lab, I
believe you were explaining earlier that in
the first instance, in the PCR testing you use
a machine; is that correct?
I'm sorry?
You mentioned two different types of PCR
testing?
Yes, sir.
No, sir.
Henry Young?
No, sir.
Gerald Glenn Wright?
No, sir.
John Lastovica?
No, sir.
Diogenes Johnson?
No, sir.
Or Bryan Haynes.
And the first testing, do you use a
That is correct.
DlS80.
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And how long have you had those two machines?
machine?
There is an instrument called a thermocycler
that is used for those two tests.
Is that a computerized machine?
No, sir well, it is computerized only in
that there are microchips in the instrument
that help with the regulation of the
temperature.
And who is the manufacturer of that particular
machine?
Perkin-Elmer.
And do you have a copy of their warranty?
It is at the laboratory.
Do you know how long their warranty is?
I'm not sure about a warranty, but they also
have a maintenance schedule that is followed.
And with respect to the DIS80, do you also use
a machine in that particular type of testing?
A thermocycler much like the one used for the
DQ-Alpha is used in that instance as well.
But it has the same type of computerized
parts?
We have two of them.
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Yes, sir, it does.
instrument.
It's the exact same
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having a hard time hearing you, I didn't
They have -- one of them has been with the
laboratory since the beginning of DNA type of
analysis, and that would have been back in
'93, and I believe the other one was
purchased, as my recollection serves me, in
the fall of '95.
And, I'm sorry, you've already indicated that
you don't know what the warranty is on that
machine?
That's correct.
Are those machines only sold to law
enforcement agencies?
No, sir.
Have you ever used a computer?
Only for word processing type of stuff, kind
of like a modified typewriter is all I really
use a computer for.
Have you ever had one fail on you?
To my recollection, no.
Have you ever heard of one failing?
Yes, sir.
Do you have the actual autorads with you?
I did not produce any autorads.
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THE COURT: I'm sorry, I'm
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understand what you asked.
MR. GARVIE: I'm sorry.
The autorads that you were talking about, and
I guess that would be the D1S80 testing, dQ
you have those with you?
We do not produce autorads with the D1S80 or
with the DQ-Alpha. That is strictly for the
RFLP technique.
The RFLP?
Yes, sir.
I stand corrected.
And in the D1S80 testing, that is the
testing that you used the gel?
That is correct.
And in a sense it travels down lanes?
Yes, sir.
And depending on how far it goes down a
particular lane, you mark that down?
When comparing that with the ladder, which is
our measuring stick for how far the entire
amount of samples on that gel have traveled.
Were you present -- getting back to the
vehicle again. When there was fingerprint
testing being done on the vehicle, were you
present?
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complex, and we have an auto body shop whereby
we can take it inside and work on it in that
facility.
And what time did you receive that vehicle?
When the vehicle was first brought to the DPS
complex, that would have been on April 23rd,
Yes, sir, I was still in the presence of the
vehicle when Ms. Sandifer was dusting the
vehicle.
Just for information purposes and
clarification, you received the vehicle at the
lab, is that correct -- not at the lab, but it
wasn't at the scene where it was found?
going to process the truck, and they proceeded
to go down to the auto body building at
approximately three o'clock in the afternoon
on the 23rd of April, 1996.
Let me make sure I understand you correctly.
Your particular agency, you did not receive
the truck until three o'clock in the
afternoon?
That is when the team first went to look at
That is correct. It was brought to the DPS
I do not know an exact time that
The team that was assembled was first
the vehicle.
1996.
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DQ-Alpha portion of the frequencies that we
published, as well, in the "Journal of
Forensic Sciences."
generated come from a database that has been
produced by an individual at the FBI by the
name of Dr. Bruce Budowle.
How many people are a part of that database?
I do not know, sir.
Do you have any independent recollection of
how the database was collected?
No, sir, I do not.
Do you know how many African/American samples
are in that database?
And that has been
And that is for the
Do you want to spell that
The DIS80 frequencies that are
B-U-D-O-W-L-E.Okay.
Hold on a second.
last name?
name of Ed Blake.
generate.
the vehicle arrived at our complex.
And during your particular type of testing, do
you use a database?
We use a database to generate the frequencies
that we report.
Where does that database come from?
That database is from an individual by the
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Yes, sir, we also have kits purchased from
Perkin-Elmer for the D1S80 as well.
And when you're trying to do this particular
type of testing, is the first thing that you
No, sir, I do not.
But, again, this database is not produced by
you there at DPS?
That is correct.
And just for information purposes, the kit
that you used to do this testing, is that all
produced by you there at DPS?
No, sir, it's not, we buy manufactured kits.
And who do those kits come from?
We buy them from Perkin-Elmer.
Perkin and Elmer?
Yes, sir, it's two words, Perkin and then
Elmer.
Does that kit come to you already assembled?
Yes, sir, all the necessary materials are
present in the kit.
And is that kit also sold to other than law
enforcement agencies?
Yes, sir.
And is that with respect to both types of
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testings? Do you have kits for both of them?
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do is break open the cells themselves, the
For example, if you were testing
The first step, as far as trying to
isolate DNA for a semen stain, is to a break
open those epithelial cells that are present
to release their DNA, and then we separate
that from a pellet that we make of cells by
spinning the two in a centrifuge so the pellet
goes to the bottom.
And the DNA is then suspended in the
liquid portion, and any cells that remain then
are in a pellet at the bottom of the tube. So
we then separate the two, take the liquid off,
clean up the pellet so that if there is any
DNA that carne from the epithelial cells still
in there, we then try to get rid of that from
stain.
item, if I may.
Sure.
We take the stain from that item, it's been
tested positive to a presumptive test, as has
been mentioned for semen, and then we try to
determine that that stain truly is a semen
stain by looking for spermatozoa in that
sperm cells?
sperm?
What do is, going back to the beginning of an
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from the one stain, one from the epithelial
cells and then one from the sperm cells.
once we've done the cleaning of that pellet,
then we lise, go through the process again and
break open the sperm cells to release their
much DNA is in those particular samples?
Yes, sir, we do try to quantify the amount of
DNA that's present in those samples.
And what kind of test do you use for that?
It is again, a kit manufactured by
Perkin-Elmer that they call the Quanta-Blot
kit.
have, perhaps, cells from a victim and you
have, perhaps, other cells that are sperm
cells, and that's what you're testing, right?
That would be correct.
And, of course, you're assuming it's sperm
because you can't really see it at that point,
can you?
No, we actually go through on a semen stain
and look for spermatozoa.
And then
And then you do a test to determine how
And at that point in the testing you
So now we have two separate fractions
Okay.
Okay.
being present in the sperm portion.
DNA.
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Is that the same thing as a Slot-Blot kit?
Yes, sir.
It's just another name for it?
Yes, sir.
And then what do you do with it then?
Once we determine the quantity of DNA, the
manufacturer has a specific range of amounts
of DNA to be applied to the tube for
that we gather from determining how much DNA
is present in that extraction tube, then we
can determine how much DNA we're going to add
to the amplification tube, and in that
quantity then go into amplification and
produce the amplified product at the end.
So what you're telling us, you don't produce
that range? That range comes from somewhere
else?
That is correct.
Do you know how the manufacturer goes about
coming up with that range?
Through research and development. Just
through testing various amounts, and so forth.
And you have no independent knowledge of what
they do there in their particular facility, do
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amplification. And so from that information
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you?
That would be correct.
You're simply relying on the data that they
have passed on?
Yes, sir.
And at this point now, you are basing it on a
range, and then where do you go from there?
Once we have determined how much, we put it in
the amplification tube, place that
amplification tube with the reaction mixture,
as I have showed you on the chart, that goes
into the thermocycler, which is the instrument
that raises the temperature to split the DNA
apart, and then brings the temperature back
down so that the primer can attach to its
recognition sites, places it on the DNA it
recognizes as being complimentary, and then
raises the temperature up slightly so that the
new section of DNA can be made, that goes
through a series of several amplification
cycles, and so at the end of that what we have
is more product of the specific region that
we're looking for.
By the way, what does PCR stand for.
PCR stands for Polymerase Chain Reaction.
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that the DNA is going to stick to the probe
that it's complimentary to, we have to again
raise the temperature so we split it apart so
we have what we call single stranded DNA, so
that the molecule from the sample can then
find the probe on the strip that it fits to,
and then the two of them then bind together.
And so once those are found, that is
a procedure we call hybridization, and then
And that's being -- that's because it's based
on the reaction of some sort in the testing
process, the last part of the --
Yes, sir.
And you're in the stage now where you're doing
the amplification process, and that's to make
it clearer, to make it easier to see?
You get more copies, therefore, yes, you can
better see what the product -- or what the
alleles present in that sample are.
And then what?
Depending upon the system, for DQ-Alpha.that
DNA is then taken to a procedure whereby we
use a nylon strip that has probes that are
complimentary to the alleles for DNA that
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we're looking for. And in order to make sure
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once that occurs, then we go through a process
of trying to getting rid of the abundance of
DNA that did not stick to the probe on the
strip, and then we also go through a procedure
that's called a stringent wash in which the
strip is washed at a higher temperature in
order to, again, make sure that the DNA that
did not stick is no longer present, just the
DNA that stuck to the complimentary probe is
present on the strip. And then it goes
through one more wash, and then it goes
through a wash of a PH change, and then
ultimately an enzyme is added that has a kind
of a chemical flashlight, if you may, that
attaches to the DNA that is on the probe, and
then we bring another chemical in that will
then as I may turn the chemical flashlight
on, so what we get then is blue dots on the
areas of the strip where the DNA specifically
stuck. And so that's how we determine the
DQ-Alpha types from those strips.
And what is that phase called? What type of
test is that?
That is called hybridization when we determine
that.
THE WITNESS:
H-Y-B-R-I-D-I-Z-A-T-I-O-N.
(BY MR. GARVIE) And does the, so-called,
reverse dot-blot test come in at that point?
Yes, sir, that is the reverse dot-blot.
Reverse meaning that rather than having the
DNA from the sample affixed to the membrane,
and then the probe applied to it, it's just
the opposite. The probe is on the membrane so
the DNA is applied there and the DNA sticks to
the probe on the membrane.
Similar to the road analogy you were giving
earlier, about the addresses on the road?
Yes, sir, something to that effect.
And are you finished with the process at that
point, or is there anything else you have to
do?
Once the blue dots have been developed, then
you interpret the strip, based upon the dots
that you see on a particular strip, and you
use one strip per sample, be it maybe a blood
sample. You would only use one strip for a
known blood sample. If it is, say, an
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THE COURT REPORTER:
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samples at that stage?
Each one would have its own membrane for which
because we have gone from one stain to two
fractions, being an epithelial and a sperm
fraction, we have two different samples that
we need to try to find out the DQ-Alpha
alleles present in those, so we use one strip
for the epithelial fraction and then one strip
for the sperm fraction.
And let's say at that stage you're doing
extraction of a semen stain from a vaginal
swab, there would be one strip for the
epithelial cell portion and then a second
strip for the sperm portion.
Is that with each -- let's say each sample
from each individual is on a different strip,
or are you talking about the control samples
now?
No, I'm talking about -- for instance, if I
were to do my blood, I would have one strip
for my blood; and then if I were to do, say, a
blood stain from this podium, there would be a
second strip that I would use for that blood
multiple samples. How would you do multiple
And in the instance of a semen stain,stain.
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the sample would be applied~
So you would make a lot of the same samples
that you were testing from -- well, I guess
the easiest way to say it, let's say you have
a vaginal sample?
Yes, sir.
That's a so-called known sample.
Okay.
And you're doing comparisons with individuals
from that particular sample.
Yes, sir.
What I'm asking you is, with each strip, each
sample that comes from, say, the same person
that the vaginal sample carne from, would each
sample have a different strip?
Yes, sir, each sample gets its own strip.
And those comparisons are made one by one?
Yes, sir.
And at that point you indicate that you are
ready to read those samples?
Yes, sir, once the blue dots have been
developed on the strip then we can interpret
what DQ-Alpha alleles were present in that
sample.
The kit itself, does it have DNA or noes it
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have things to make DNA?
It has the primers that will produce the
second strand of DNA from the template, that
is the sample that we put, say, from a known
blood sample that we put into the
amplification tube. It has those building
blocks to be able to make the complimentary
strand for each side, as it were of the DNA
ladder. The kit also has what is called a
control DNA sample, and that sample is always
run through the amplification process and is
always hybridized; that is, you always use a
strip to also check the DQ-Alpha alleles
present in that sample. They're always the
same, and you use that to show that the system
was working properly.
And if you didn't do that, what would happen?
If you did not run the control DNA from the
kit along with the samples, you could not make
an interpretation.
Have you ever known anyone to get a bad kit?
When I first arrived in Austin I was having an
apparent problem, and I presumed it was the
kit. When I got a new kit, there was no
problem with the other kit. But that is
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something that can be detected.
And at this point is there one individual
doing this entire process, or are there
several individuals?
There is one individual doing that.
And if this was a day, say, the individual was
doing multiple samples, would that one
individual be doing all of those samples that
day?
Yes, sir.
Now, what do you look at to determine the
loci?
We look for -- in the DQ-Alpha, we look for
the blue dots and their arrangement position
on those nylon strips that we use, and
position being then according to the number
that's next to the dots.
Are those strips photographed?
Yes, sir, they are.
Do you have a copy of the strips in this case
with you?
I do not have a copy of the strips. I have
Xerox copies of the photographs of the strips
that were taken, with me today.
Do you have them up there?
31
There is a second interpreter that
independently looks at the results on the
strips and makes an interpretation of those
results as well, and then they -- and I am
also a second reader for other individuals.
We put down initials and dates of when we
actually observed those strips.
Do they rerun the entire test?
No, sir, they do not.
So they simply interpret the data that you or
Yes, sir. The original photographs of the
strips are in a notebook that I keep at the
lab.
And this is the type of testing you testified
to that you did in this particular case?
Yes, sir.
And, again, we're talking about, at this
point, the DQ-Alpha test?
Yes, sir.
And you went on to say that -- and at this
point, by the way, in the process you have the
results?
Yes, sir.
Is there a checking mechanism for those
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results? Do you run them more than one time?
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someone else has handed them?
That's correct, independently of the first
person that actually performed the analysis,
in the case of the DQ-Alpha to get the blue
dots that are present on the membranes.
But they may not have seen the individual go
through the actual testing process?
That would be correct.
They would only see the end product?
Yes, sir.
And then they would simply verify what the end
product looked like?
Yes, sir.
·And just so I'm clear, you're saying they do
no rerun the test themselves?
That is correct.
So there is doublechecking of the results but
not doublechecking of the entire process?
That would be correct.
And with respect to the D1S80, you indicated
that you use a similar type machine for that
type of testing?
Yes, sir, a thermocycler is also used. A
thermocycler is the instrument that is
typically used for the peR process.
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And this is the process that involves the gel
and lanes?
Yes, sir, that's correct.
And, as you said, that comes also in a kit
from this particular company; is that correct?
Yes, sir.
Does the kit require any assembly by you?
No, sir.
So when you receive it, everything is
together?
Everything that is needed for analyses is
present in the kit.
And you indicated one time that you had a kit
that you thought may be bad?
That was for DQ-Alpha, yes.
But it is possible to get a kit for D1S80 that
is bad?
I would assume if you could get one for
DQ-Alpha you could get one for D1S80, too,
yes, sir.
The D1S80, how many stages are there to that
process?
It follows the same line as far as DQ-Alpha is
concerned, in that you go to the thermocycler
and then you have amplified products at the
34
you're going to go faster than you do if you
is different between the two.
And do you at your company determine the
end of the amplification process, but it's
from that point then the detection systems are
different; that is, to determine what alleles
are present is what is different.
With the DQ-Alpha you're looking -
you have a probe to the specific area of the
Instead, we're using something like the RFLP
in that we amplify a section of the DNA, like
DQ-Alpha, but that section has a bunch -- as I
mentioned previously, of like little boxcars.
And the differences between individuals is not
the stuff in the boxcars but the number of
boxcars, and so in order to be able to test
that, we put that into a gel and that gel then
separates the DNA, based upon its size.
As I mentioned, if you thought about
the boxcars being trains, the shorter trains,
having fewest boxcars, go further down the gel
than those that have the most number of
So the detection method
With DIS80 we're not using a probe.
So if you have, say, 20 boxcars,
have forty boxcars.
boxcars.
DQ-Alpha.
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number, or does the company that you buy the
kit from determine the number that are going
to be in there?
Through research and development from the
Perkin-Elmer Company, as well as others around
the country, the DlS80 sizes have been
determined, and then the kit that we buy has
what we call ladder. It looks kind of like a
on that ladder we can determine the size of
the alleles that are present in the sample
that we run on that gel.
And once you load the gel -- what I started to
ask you is, before you get to the point where
you input the gel, how do you get to that
point?
You go through the same amplification as you
do with the DQ-Alpha, but because we're
looking at a different area of the DNA, the
probes that try to find their specific sites
are different than the probes that are used
for DQ-Alpha. We don't want probes for
DQ-Alpha in a kit with the DlS80. We want
probes that are going to find the areas that
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has predetermined sizes in it.
the gel that
And so based
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are on the outsides, if I may, of the area of
D1S80, find those areas and then produce
copies of all the DNA that it sees in that
DlS80 region.
So the kits are different in that
respect in that they're looking for different
systems. And then because the DlS80 involves,
again, the analogy of the boxcars, you use a
different detection system, being a gel for
DlS80 and being the strip for DQ-Alpha.
And at that point are you ready to input the
gel?
The gel has already -- once you go from an
amplified product, that is having a whole
bunch of copies of DNA, you're ready then to
apply those samples to the gel.
And in this process of measuring and comparing
samples -- let me back up a minute. You don't
know anything -- I asked you earlier about the
database that's used for DQ-Alpha, and you
mentioned that a different database is used
for DlS80i is that correct?
Yes, sir.
Do you know how many people are in that
database?
37
does not use the number 15?
When they originally produced that ladder,
I believe
You simply
And, again, why did you say the companyOkay.
they had not seen the 15 allele.
collected their information.
And, again, your point is that you simply
don't know how many samples at all they used
that were African/American, or for that
matter, any other particular race?
Yes, sir, that's correct.
In your direct examination, you mentioned
something about them not using the number 15?
Yes, sir.
database or anything like that?
use their database, right?
I was not present to know for sure how they
No, sir, I do not.
Do you know how that database was collected?
No, sir, I don't.
Do you know how many African/American samples
are in that database?
No, sir, I have no personal knowledge of any
of that.
So you really don't know what they're
comparing it to, how they collect their
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now that it has been reported to -
individuals have seen the 15 allele, but
because they started out without it, they have
just continued not to put that allele into
their ladder.
So what you're telling me is you don't even
look for a 15?
No, the 15 -- in the charts there was a space
between the 14 and the 16, so if something
falls between those two, then it would be
interpreted as a 15.
But it was the company's opinion at that time
that it didn't exist?
Not necessarily that it didn't exist, but that
they had not seen a sample with a 15 allele in
it, when they were producing the ladder.
Are there things that we still don't know
about this kind of testing? I mean, do we
know everything there is to know about DNA
testing?
Probably never will. The Good Lord may tell
us one of these days, but I don't believe
while we're here on earth we'll ever fully
know.
Did you indicate, and I just want to make sure
39
Except for the computer chip that would
control the heating and cooling of the
thermocycler.
Let me go to your report of May 27th, 1997.
from the ladder present in the gel.
And so you don't use a computer at all in this
process?
No, sir, not in this process.
Yes, sir.
No, sir, that is determined by the position on
the gel, based upon the ladder, based upon
research and development of that ladder to
know what the specific number is for each one
of those bands that appears in the ladder, and
then based upon samples run in that gel with
I'm clear, in your direct examination, and
correct me if I'm mischaracterizing it, but
because, quite honestly, you were going kind
of fast. Did you indicate that the lengths
were determined by a computer?
No, sir, I did not.
Are you talking about the length as
far as the DIS80 alleles are concerned?
Sizes are called
Except for -- to heat the --I'm sorry.
that ladder in that gel.
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With respect to the submission -- I'm sorry,
page 4, at the bottom, your last submission,
and that would have been done on May 30th,
1996?
Yes, sir.
You inventoried a vehicle belonging to a
Charles King?
Yes, sir.
Is that correct?
Yes, sir.
And these are all items that you took from
there?
Yes, sir.
Basically you did a tape lift of the seat
also; is that right?
That was not myself that did that. I believe
Mr. Gene Lawrence was a part of that team and
collected that tape lift of the seat.
Did you do any of the tape lifts on this
collect any of the items on this particular
vehicle?
No, sir, I did not.
And I noticed that you have a Big Red gum
package?
I'm sorry, sir?
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You have on this list a Big Red gum package?
Yes, sir.
Is that the same one you referred to earlier,
or is that a different one?
Referred to earlier in the report?
Yes. I guess what I'm asking you is, were
there two that you handled, that DPS handled?
One from the vehicle that, for want of a
better phrase, the Fennell vehicle, and one
from the vehicle belonging to Mr. King?
Let me go back through my notes. I don't
personally recall having seen one in the small
red vehicle, the Fennell vehicle. (Witness
looking through notes.)
Maybe it was in Karen Blakley's report?
In looking back at the notes that we took
during the time of the investigation, there
was a pack of Big Red gum that was collected
from the small red pickup that belonged to, I
believe, Mr. Fennell. But that would not be
the same Big Red pack of gum that was found in
the vehicle that we were informed was the
vehicle of Mr. Charles King.
In other words, you didn't just write down the
same thing twice? This was actually a
42
Those two individuals in your three samples?
were brought in that day doesn't mean they
were tested that day?
of blood from that tube and we dry it onto
sterile cotton cloth so that we can preserve
that by freezing it and conduct further
to the laboratory in a liquid state in a blood
tube, and then from that blood tube we as
analysts, when we examine it, perform tests on
You're on page 4?
So just because they
They are usually brought in
What we do is we take a sample
I was the one to conduct the
It would be submission 17, I'm sorry.
that sample.
That is correct.
When was your -- okay.
On which submission now?
analysis on those items.
And on June 12th, it appears that there were
three individuals tested that day?
The samples were brought in on that day, into
the laboratory from three individuals, yes.
Yes, sir.
Yes.
separate pack?
Yes, sir.
The testing that was done on May 30th, and I'm
looking at page 4 now, did you do all of that
testing?
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and store it in that fashion and then take a
sample from that dried speciman to do our
examinations.
Blood lasts longer or is preserved
better when it is dried onto a material and
then frozen. If we were to freeze it in its
liquid state, because of the water that's
present in there, it would lice the cells and
could then potentially damage any result that
least, after having received it before we
would be able to do any kind of analysis on
it.
So do you recall when you did the actual
testing of these samples?
I have it in my notes as to when I did it. I
don't personally, off the top of my head,
recall when I did them.
Maybe a shorter way of asking it is simply, do
you remember doing more than one sample on a
particular date?
More than one individual?
More than one individual?
Yes, sir.
we might get from it. So we dry the sample
So it would be a few days, atanalysis on.
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Do you recall whether it was three or four or
five or what?
of my head, as many as four individuals on a
particular day. Again, I don't know the exact
numbers.
And you would have been doing, basically,
blood and saliva. You would not have done
hair samples; is that correct?
individual involved that was from our trace
evidence section who examines hairs and fibers
and that kind of evidence, I would not have
been the one to do any kind of hair
comparison.
Have you done hair comparisons before?
Yes, sir, I have, and I've testified in court
to them as well.
How many times have you testified on hair
samples?
Once, maybe twice, in my tenure with the
Department.
Have you done a lot of hair testing?
Yes, sir, I've done my share anyway, I
It could have been. Again, just off the top
Because we had another
My primary job is doing the testingsuppose.
That is correct.
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Were you told that-- you indicated that --
that you did not know anything about the race
of the individuals, right?
same report dated May 27th, '97?
Yes, sir.
That is that large listing of samples, and
also the suspects.
Yes, sir.
of the biological fluid, but there is also
instances where hair has to be compared
microscopically, and I have been trained and
perform proficiencies in that area, in that
aspect of forensics.
How many years have you done hair testing?
I started out in my training being trained
when I came on with the department eight and a
half years ago being trained in that aspect as
well, so I've done it throughout my career
with the Department.
And you've indicated on at least one occasion
testifying in court?
Yes, sir.
When you were testifying earlier -- well, let
You indicated
Page 9 on the
I'm sorry, let me rephrase it.
me ask you this, first of all.
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That is correct.
And you also said you didn't know anything
about their professions?
That is correct.
And is that also true with regard to Edward
Selmala, or did you know that he was a cop?
I did know that he was a police officer, yes.
But every other one I did not know. And I
have not personally worked with Mr. Selmala,
so it was only from having been told that he
was a police officer that I was aware of that.
Were you told that David Hall was a police
officer?
No, sir, I was not.
And were you told that Jimmy Fennell was a
police officer?
Yes, sir, I did know that.
Who told you that, if you recall?
Having been told about Mr. Fennell's occupancy
was Ranger Rocky Wardlow. And, also, Ranger
Rocky Wardlow also informed me that Ed Selmala
was also a police officer.
Are you usually told the occupations of the
people you're going to be testing?
No, sir.
47
And 24 on the D1S80?
Yes, sir.
Yes, sir.
Because you didn't do the D1S80.
May I approach
Yes.
Looking at this list, along
MR. GARVIE:
THE COURT:
Okay. Let me grab something here.
Okay, with respect to Mr. Coronado,
on the DQ-Alpha only.
Yes, sir.
Basically the same as John Cook here?
Mr. Cook has a 22, 24, so he has a 22 allele
that Ms. Stites does not have.
with the individuals, I notice that Ms.
Stites's characteristics according to you was
1.2, 4 DQ-Alpha?
Yes, sir.
Which would have been this one?
(BY MR. GARVIE)
the witness?
And, quite honestly, so that there is no way
that you could ever be accused of not being
objective, you really don't want to know that
before you do the testing, do you?
That's correct, yes, sir.
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20
21 Q.
22
23
24 A.
25 Q.
48
Yes, sir.
Yes, sir.
That is the same, actually, as Ms. Stites; is
that correct?
Mr. Johnson, Diogenes Johnson, the DIS80 is
24, 24.
Yes, sir.
And that is the same as Ms. Stites?
And the DQ-Alpha is 3 and 4?
Yes, sir, that's correct.
Those are all the individuals that you tested?
Yes, sir.
So you didn't test any of the -- in other
words, obviously, you didn't test the whole
Bastrop County or anything like that, just
these individuals that were given to you?
Yes, sir.
And there are basically, on this list, two
Some of the
With respect to
Johnson, you have a 3
24, and that 24, 24
THE COURT:
jurors can't see.
(BY MR. GARVIE) I'm sorry.
Yes, sir.
And with respect to Mr.
here, a 4 here, and 24,
I'm sorry.
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You don't know how that is collected?
before -- as you indicated before, you don't
know where the database comes from that they
use African/Americans, so you?
No, sir.
And as I said
which is basically
Stites, right?
let's go to the last
DQ-Alpha, and 24, 24 DIS80,
the characteristics of Ms.
Yes, sir.
That the percentages when you worked them down
and you reduced them to numbers, amounted to
page of your report. In your assessment of
the combination, I'm referring to the last two
full sentences, slash, paragraphs before
disposition of evidence?
Yes, sir.
You generated some statistics?
Yes, sir.
And with respect, for example, to 1.2, 4
No, sir.
On your statistics on
individuals that were African/American?
That's --
You don't know?
That's correct.
But there could have been.
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one in every 66 members of the Caucasian
population?
Yes, sir.
And basically one in 104 of the black
population?
Yes, sir.
And one in 111 of the Hispanic population?
Yes, sir.
And it's fair to say that that particular
grouping is more common in Caucasians?
Yes, sir.
With respect to the combination of DQ-Alpha
1.2, 3 and D1S80 22 and 24, you indicate on
your testing that the values, using just
strictly the numbers, one in 8 -- 438 of the
Caucasian population?
Yes, sir.
One in 407 of the black population?
Yes, sir.
And one in 203 of Hispanic population?
I believe that is 1203 of the Hispanic
population.
Oh, 1203; I'm sorry.
Your testing -- excuse me just a
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25 second. These samples were all kept in your
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51
lab?
Yes, sir.
Were they kept in the same room, same general
area?
They were kept under the same case file for
all the frozen samples. I collected samples
from each of the individuals, and as I
mentioned, I dried blood samples and packaged
them separately and made sure that there was
not the possibility of cross-contamination,
and then kept those in the same area for the
particular case so that I would have easy
access to the samples.
And in your -- you've already stated that
those were the samples that you tested on that
particular date? Those were the samples?
There were no others that you tested?
All of those that were listed in my report are
the ones that I tested, yes.
Also in your report, if I might refer to it
once again, you ran a test for the presence of
semen in the anal area, did you not?
Yes, sir, I did.
You didn't find any semen there, did you?
No, sir, I did not.
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Any spermatozoa?
No, sir.
And that would be on page 8 of your report?
Yes, sir.
What is the concept of drainage?
Like from the vaginal walls?
Yes.
Females normally produce vaginal drainage, and
that even occurs after intercourse. And in
the instance of, say, having had intercourse,
if a female does not clean up right after
intercourse, there is a possibility, then,
that the seminal fluid can drain from the
vaginal vault, depending upon the position of
her body. It could, because of gravity if
she's standing be deposited into her panties;
and if she's lying down, say, on her back, it
could drain from the orifice and drain toward
the anal cavity. If she were laying on her
stomach, then it would drain from the cavity
toward the pubic region.
And basically that can also happen in
transport, can't it? If you're dealing, for
example, with a body?
Yes, sir. Just over time there is vaginal
53
REDIRECT EXAMINATION
QUESTIONS BY MS. TANNER:
Q. With regard to the issue of drainage,
typically drainage into the anal cavity, do
you know what the touchstone is, or the thing
Yes, sir.
Not a combination of individuals?
That is correct.
And it is possible to have similar results
from a combination of individuals; is that
correct?
Yes, sir, it is possible.
drainage that occurs.
So if the body is laying flat on the slab,
even, that can happen?
Yes, sir.
If a body is laying on it's back?
Yes, sir.
Your conclusions in this report are
essentially based on the premise that whatever
you found came from one individual; is that
correct?
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witness.
MR. GARVIE: Pass the
(, . 54
the hair.
Yes, ma'am.
Were you successful?
Okay, and why was that?
You had
And did you do that in this case?
by doing DNA analysis.
Yes, ma'am, I attempted to extract DNA from
hair, we try to confirm the microscopic match
available and can get DNA from the root of the
microscopic match to an individual. And
I was asked to perform a DNA extraction on one
In that vein did you make any attempts to
I believe because it had been reported to be a
hair, yes, ma'am.
extract DNA out of any hairs in this case?
I have several questions for you.
through the time that you've been at DPS?
indicated that you did some para-analysis
usually -- now that we have DNA technology
is there from drainage or is there from some
that you look for primarily to determine if
not know.
sort of penetration?
any kind of seminal fluid in the anal cavity
No, ma'am, I'm not a medical examiner so I do
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55
Yes, ma'am.
Yes, ma'am.
And half a fishing pole?
There was no DNA that I could quantitate that
I got from that hair.
MS. TANNER: May I approach"
Sure.THE COURT:
Were those in the truck at the time it was put
under the alternate light source?
We only used the alternate light source on the
interior of the truck. We did not use the
the witness?
(BY MS. TANNER) With regard to State's
Exhibit Number 105, the items that were in the
back of the truck, on your evidence log does
it reflect that you-all collected the two
ropes that were in the back?
As I recall, we did collect them. Let me
doublecheck my notes. (Brief pause; Witness
checking notes.)
Yes, ma'am, we did collect those.
So when you're talking about the things in the
back you didn't collect, we're talking about
cleats and balls and baseball gloves and
things like that?
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56
light source on the bed of the truck at all.
Was the hat and the things that were not
collected, were they inside the truck at the
time the alternate light source was used?
I believe everything that was laying on the
floor or whatever had been removed from the
vehicle by the time the light source was used.
You said with regard to pulling Karen from
underneath the seatbelt, that Rocky Wardlow
did it separately and then later you did it?
Yes, ma'am.
Okay. Do you know whether or not Rocky
Wardlow pulled Karen Blakley out the passenger
door?
There were no attempts made to have Ms.
Blakley sit in the passenger seat and then
someone pull her from the vehicle. The
vehicle was received with the lap belt and
shoulder harness of the seatbelt in place on
the driver's side, so our synopsis, if you
will, that we tried to play out when we had
the vehicle was to see if the victim could
have been still within the restraints of that
belt and could have been pulled from that
belt.
57
that are used in DlS80 that are similar to
such it was like the RFLP, where you can take
the DNA from the gel and transfer it to a
membrane, the membrane is preserved much
being dried out and so forth; plus, with the
DlS80 system we do not use a probe to stick to
the DNA, so we don't have to transfer the DNA
photographed, and the second individual to
look at the result of an analyses looks at, in
that particular instance, looks at the gel.
You-all do not
If the procedure was
The gel is subject to
However, the gels are
Mr. Garvie asked you about the charts
to a membrane.
longer than the gel is.
It is produced on a gel.
Okay.
autoradiographs such as this.
produce these type charts for distribution,
correct?
That is correct.
Why is that?
Distribution in court?
Distribution in court or anywhere else?
Do you know whether or not Ranger Wardlow
pulled her from the driver's, up from under
the seatbelt and out the passenger door?
I don't recollect.
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Yes, ma'am.
Yes, ma'am.
When a computer crashes, do you generally know
it?
and about whether computers can sometimes
crash, right?
Mr. Garvie asked you about computers
No, ma'am, none whatsoever.
Did the controls pick up the fact that there
was a problem here?
Yes, ma'am.
Is that the very basis for having controls?
Yes, ma'am, all of the controls that we put
into place indicated that something was amiss
and, therefore, I had to resort to using a new
Okay. It's not something that's going to
happen and you not have a clue that something
has gone wrong, right?
That's correct.
Now, with regard to the kit that you got that
you felt like that there was a problem with,
did you end up reporting any results from that
kit?
Okay.
Sometimes it is the photograph that is
produced.
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59
kit in order to show that everything was
working properly and that results could be
interpreted from that.
At the time that someone does an independent
second read of a DQ-Alpha strip or a D1880
chart, does that person know what your results
were?
is, of course, second readings, and you
indicated they were independent second
readings?
Yes, ma'am.
that Mr. Garvie asked you about, is part of
the lab at DP8, as part of the accreditation,
does that include making sure that that
thermocycler is in proper working order?
And with regard to the thermocycler
And you indicated that another control
Okay.
Okay.
They see those in front of them, yes.
They see what the dots are, but do they know
what your interpretation of the result is?
Yes, ma'am, they do.
And they're going back and checking your work
to make sure it' right?
That is correct, and if there is a discrepancy
then they bring it up.
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Yes, ma'am, we have logs to indicate that
there were tests performed on the instrument
and that it was working properly. If the
instrument fails those tests, then it is taken
out of service and the manufacturer is called
to then find -- they bring out somebody or
send out somebody to try to repair the
instrument or it is shipped to them, in order
to make repairs.
And Mr. Garvie also asked you about whether
y'all do second tests on DQ-Alpha and D1S80
before you call a result. Do you know of any
protocol or any accreditation standard that
requires you to do second tests before you can
make a determination?
No, ma~am.
Your report reflects that you had submitted to
you blood, hair, and saliva from a number of
suspects.
Yes, ma'am.
If a suspect was excluded by the DNA, by your
results, did you send them on for further
analysis, or was that enough?
If I excluded them, that was enough.
Let me show you what has been marked State's
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61
Exhibit Number 113 for purposes of
identification and ask if you can identify
that?
Yes, ma'am, I can.
And'what is that?
Within State's Exhibit Number 113 is a
purple-topped tube container. On the label of
the container is the name Rodney Reed, and it
also possesses the unique laboratory case
number in this instance and my initials.
And did you receive a number of very similar
samples just like this from a variety of other
suspects?
Yes, ma'am, I did.
And we have not introduced those for purposes
of time and biological hazards, but are they
much just like this?
Yes, ma'am, they were purple-topped tubes.
And my recollection is that most of them were
packaged into a biohazard plastic bag.
With regard to the rectal swab that Mr. Garvie
talked to you about -- I'm not going to get
the easel, I just want to point this out
you indicated that you did not find the
presence of spermatozoa on that?
62
Exhibit Number 90a?
No, ma'am.
Yes, ma'am.
that Charles King has the same DQ-Alpha as
Stacey?
Mr. Garvie pointed out to you the fact
And would the 3 be inconsistent or
The 3 that's here listed on State's
Okay.
Okay.
Okay.
Yes, ma'am.
He is, however, inconsistent on the D1S80,
correct?
That is correct.
Could Charles King in any way, shape, or form
have left this semen sample?
consistent with the defendant's DQ-Alpha
makeup in this case?
The 3 allele is also an allele that the
defendant possesses.
That is correct, I could not personally
identify spermatozoa.
However, did you find an allele within the
rectal swab that was foreign to the victim?
Yes, ma'am, I did.
And which allele is that?
That would be the DQ-Alpha 3 allele.
1 A.
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63
And he also pointed out to you, I believe,
that John Cook, he is also similar to Stacey
with regard to the or the same as Stacey
with regard to the DQ-Alpha correct?
Yes, ma'am.
Could he in any way, shape, or form have left
this semen sample?
Being 1 --
I'm sorry-- 1.2, 4?
Okay. And then also a D1S80 of 22, 24. If
there had been one semen donor, he would be
excluded.
And you haven't seen anything on here to tell
you otherwise?
No, ma'am.
Mr. Garvie asked you if you tested everybody
in Bastrop.
He alluded to that, but chose not to.
Well, that was the implication, though,
right? You tested 28 different people in this
case, right?
I tested 28 different males, yes.
And when you tested 28 different males, when
you got to a match or one that you could not
exclude, did you stop?
64
some information that three of the individuals
No, ma'am.
Yes, ma'am.
Yes, ma'am.
Just out of curiosity, in the course of your
eight years at DPS, have you ever had a case
where you have excluded so many people?
I'm currently working on one right now where
I'm excluding quite a few individuals.
Have you gotten up to this kind of a number
yet?
Yes, ma'am, I've gotten pretty close to that.
Okay. Is this a bit of a rarity, however?
And you indicated that you had receivedOkay.
Okay, and how was that reflected on State's
Exhibit Number 90b?
The last individual at the bottom of that
list, the samples were analyzed after having
analyzed the sample from Mr. Reed, and it
appeared that Mr. Reed, the alleles possessed
by him were consistent with the alleles that I
was picking up in the semen fractions that I
was analyzing. But, again, Mr. Haynes'
samples were analyzed after that.
Just to be on the safe side?
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65
Q. Did you, up until today, know that the
defendant in this case and you happened to be
the same identical height?
RECROSS EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. Again, these assumptions are based on there
being a single sperm donor; is that correct?
A. That's correct.
No, ma'am.
whose blood you tested were police officers?
My records say it was just two, Mr. Fennell
and Mr. Selmala.
Did that knowledge in any way affect your
results?
No further
No further
MR. GARVIE:
Reserve the right to recall.questions.
questions.
No, ma'am, I did not.
MS. TANNER:
No, ma'am.
And you mentioned earlier that you don't know
the race or the occupation of anyone. As
you're going through these results, do you
know their height?
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afternoon break, about 10 or 15 minutes.
sir, you may step down.
You know how to get in touch with
him, don't you?
(At this time a recess was
taken. )
(Whereupon the witness was
excused from the stand.)
No further
Yes.
Who is the next
Please be
That will be all,
Let's take an
MS. TANNER:
MS. TANNER:
THE COURT:
THE COURT:
THE COURT:
THE COURT:
(Whereupon the Jury returned
to the courtroom and the
following proceedings were
had in open Court.)
Thank you very much.
questions.
seated.
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67
witness?
MS. TANNER: Mike Bowen.
THE COURT: Sir, will you
come up here before the bench. I need to
swear you in before you testify.
MICHAEL BOWEN, the witness, after having
8 first been duly sworn, assumed the witness stand
9 and testified upon his oath as follows:
10
11 DIRECT EXAMINATION
12 QUESTIONS BY MS. TANNER:
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A.
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Could you state your name, please.
Michael Bowen.
And it's pretty obvious, but how are you
employed?
Police officer, City of Bastrop.
And how long have you been so employed?
Five and a half years.
What is your current assignment as a Bastrop
police officer?
Parole.
Have you been on patrol pretty much the whole
five years you've been here?
Yes.
68
you're a patrol officer, right?
MS. CLAY-JACKSON:
Objection, Your Honor.
THE COURT: Sidebar.
(BY MS. TANNER) When you're doing the night
patrols, what is one of the main things you
keep your eyes open for?
Burglary patrol~ suspicious persons; just
anything out of the ordinary.
And as a patrol officer with the Bastrop PD,
do you work varying shifts?
Yes.
Are there occasions when you work the night
shift?
Yes.
And what are the hours of that shift?
Night shift is 5 p.m. to 3 a.m. or 7 p.m.
9 p.m. to 7 a.m.
There's are two different night shifts?
Yes.
And when you are working either of those two
night shifts is part of your job patrolling
the City of Bastrop overnight?
Yes.
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Okay. That is kind of a no-brainer since
What do you mean1 Q.
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69
You said suspicious persons.
by that?
If you see somebody out at an odd hour, you
consider it suspicious, and you might want to
check and see who they are.
So you keep your eyes open for folks at night?
Yes.
If you see people out on the streets at what
you characterize as odd hours, do you try to
identify them?
Yes.
Why is that?
In case there is a burglary or something that
happens, the next day I say I saw so and so
out at this time.
Through the course of being a patrol officer,
do you become familiar with certain faces and
certain names, things like that?
Yes.
Do you know the defendant in this case, Rodney
Reed?
Yes.
And when I'm referring to the person Rodney
Reed, do you see him in the courtroom today?
Yes, I do.
70
Can you point him out for us?
He's sitting over there in a blue suit, blue
tie and white shirt.
Probably from 1995 to early 1997.
And you indicated that you would see him
mostly on the night shift?
Yes.
So what kind of hours specifically are we
talking about?
Probably 9 p.m. to 3 a.m. or 4 a.m. in the
morning.
defendant within the City of Bastrop?
Yes, I have.
Would that be on few or many occasions?
Many occasions.
And give me a time frame what you're talking
about, when it is that you saw the defendant
in Bastrop on many occasions?
It would usually be during the night shift
between 9 p.m. and 3 or 4 in the morning
sometimes.
back up and ask you this. Did you make a
And how often, approximately -- let me
And are we talking -- what years?
And have you had an occasion to see the
Okay.
Okay.
Okay.
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notation every time you saw the defendant out
in those kind of hours?
No, I didn't make a notation
objecting to this line of testimony in that it
is violative of Rule 403 and that it is
irrelevant to any issue in this particular
case. There is no Penal Code aberration
against -- abolishment against walking in the
city.
THE COURT: Those objections
are overruled. Go ahead with your witness.
MS. TANNER: Thank you.
(BY MS. TANNER) During that timeframe that
you've talked about already, somewhere between
'95 through the early part of 1997, give me
an idea how often it would be that you would
(Whereupon the following
objection was made outside
the hearing of the jury.)
Judge,
We are
Yes, ma'am.
MS. CLAY-JACKSON:
THE COURT:
BY MS. CLAY-JACKSON:
may we approach?
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72
see the defendant out in the late hours, early
morning hours at night?
Almost every night I would work the night
shift I would see him.
Okay. I want to show you what's been marked
State's Exhibit Number 2 and let you take a
look at this. Does this appear to be a fair
and accurate representation of a portion of
the City of Bastrop?
Yes it does.
Okay. And specifically I would like to ask
you -- let's go ahead and put this up. Come
on down here. You stand on that side and I'll
get on this side.
On State's Exhibit Number 2, let me
ask you, do you know where the defendant's
primary residence was during the timeframe
we're talking about?
Yes, it's right here (indicating on diagram.)
THE COURT: Some of the
jurors can't see it.
MS. TANNER: I'm sorry, I'll
just scoot it over some. If you'll just kind
of roll back behind it as best you can.
(BY MS. TANNER) You indicated on Martin
73
Luther King Street?
Yes.
And is there anything already denoting that
residence?
. Yes, there is red mark that says "Reed
residence" on it.
When you would see the defendant late at night
in the City of Bastrop, tell us the primary
place you would see him at?
The place I saw him most often was Little
Long's Convenience Store on South Chestnut.
That's going to be right here by the railroad
crossing.
over again. We can't hear.
Okay. You're going to have to speak up
because we're opposite of the court reporter.
The place I most often seen him at night would
be around Little Long's Convenience Store on
Chestnut Street.
I'm going to hand you a dot labeled Long's
Star Mart. Would that be the same convenience
store name you're referring to?
Yes.
And if you will take the red dot and place it
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THE COURT: You need to start
74
on State's Exhibit 2a, the transparency, where
the Long's Convenience Store is located.
(Witness complies.)
proximity to the railroad tracks?
About 500 feet from the railroad tracks.
And that would be where you would most often
see the defendant?
Yes.
Now, give me an idea of boundaries, going east
would patrol overnight, did you ever see the
defendant on the other side of the river, that
being on the west side of the river?
I never recall seeing him on the west side of
the river.
How far to the east have you seen him?
One night in particular I saw him almost
(indicating on diagram) right here on Highway
21 East, probably about 500 feet west of the
split-off on 150 East, by the Rodeo Inn.
And the Rodeo Inn is already designated on the
map as a red dot?"
Yes.
And what was the defendant doing when you saw
And you put that how close is that in
Did you ever, during the time youto west.
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was?
him?
He was walking eastbound on 21, on the side of
the road.
And do you have any idea approximately how far
east of the four-way stop at 95 and 21 that
Going north-south, and what -- what are the
two dots that are kind of the outside
boundaries of north-south things you just
talked about?
It would be the railroad intersection by
Chestnut Street and the upper boundary would
It was probably about 1,000 feet west of the
Rodeo Inn on 21.
And I would like to ask you as well, have you
had an -- and if you haven't just let me know
-- have you had an occasion to see the
defendant walking north-south, specifically,
along the railroad tracks?
Yes, I have.
And would that be on more than one occasion?
Yes.
Okay. Show the jury what sort of an area
you're talking about?
This area right here.(Indicating. )
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MS. CLAY-JACKSON:
be the high school.
Street and ask you to place that on the map on
girlfriend resides?
Yes.
I'll overrule it.THE COURT:
I hand you a red dot lanelled 1503 Farm
Now are you aware where the defendant's
Okay.
Okay.
You may answer it.
(BY MS. TANNER) And where does she live?
2204 Hill Street. This red dot right here.
And in that regard, did you see the defendant
walking up towards her residence as well?
Yes, I have.
Okay. Do you know where the defendant's
grandmother lives?
Yes, I do.
Where?
She lives at -- right here, 1503 Farm Street.
Do you know what her last name is, by the way?
No, I don't.
What's the address?
1503 Farm Street.
Objection, Your Honor, it assumes facts not in
evidence; plus the fact it's leading.
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77
this transparency, on 2a.
(Witness complies.)
Now, along Chestnut well, let me back up
and ask you this. For purposes of the record,
is Chestnut Street outlined in red?
Yes, it is.
Along Chestnut, between the river and the
four-way stop at 95 and Highway 21, are there
any stoplights?
Yes, there is a stoplight on the Pecan Street
intersection.
Where is that?
(Indicating.) Right here. There is a
flashing red light at the Main Street
intersection also.
Okay. And let me get you to put on the Pecan
Street side that says stoplight.
(Witness complies.)
And then you said there is a flashing red
light. Does that make it a stoplight?
Yes, ma'am, it does.
And that would be on Main Street?
Main Street at Chestnut.
And if you will put another one on there that
says stoplight?
78
MS. CLAY-JACKSON: No
MS. TANNER: The State would
offer State's Exhibit 93a and 94a.
(State's Exhibits Nos. 93a
and 94a were offered into
evidence.)
(Witness complies.)
You can go ahead and have a seat.
I want to show you what has
previously been marked into evidence as
State's Exhibit 93a and 94a, and ask you does
each of these depict an aerial photo of a
specific area of the City of Bastrop?
Yes, that's the City of Bastrop.
Okay. And do they fairly and accurately
depict what that area looks like?
Yes, it does.
They are
(State's Exhibits Nos. 93a
and 94a were admitted into
THE COURT:
admitted.
objection.
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offer State's Exhibits 93 and 94.
(State's Exhibits Nos. 93 and
94 were offered into
evidence.)
(BY MS. TANNER) Let's start out by looking at
State's Exhibit Number 93. You indicated this
is an aerial photo of a particular area of the
evidence. )
(BY MS. TANNER) I show you what has been
marked for evidence as State's Exhibits 93 and
94. Are those fair and accurate blow-ups of
each of the photographs you just looked at?
Yes, they are.
No
The State would
They are
MS. TANNER:
MS. CLAY-JACKSON:
THE COURT:
(State's Exhibits Nos. 93 and
94 were admitted into
evidence.)
objection.
admitted.
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80
City of Bastrop?
Yes.
Is Chestnut Street reflected on State's
Exhibit 93?
Yes, it is.
And can you point that out to the jury?
(Witness complies.)
Is the Long's Star Mart also reflected on
State's Exhibit 93?
Yes, it is.
If you will for me, circle what we're
referring to as the Long's Star Mart?
(Witness complies.)
And is the defendant's residence also
reflected on State's Exhibit 93?
Yes, it is.
And can you point that out for us and circle
it?
(Witness complies.)
And -- oh, by the way, is there a railroad
cross -- you indicated there is a railroad
crossing close to the Long's Star Mart. Can
you point that out for us?
Right here.
I show you what has been introduced into
this also show -- can you see it now? Does
that also reflect a particular portion of the
City of Bastrop?
Yes, it does.
And does this also show Chestnut, however,
going in a different direction?
Yes, it does.
Point that out for us, please.
Yes, Chestnut is right here.
And does it also reflect the railroad tracks
that we've talked about?
Yes, it does.
From top to bottom on this photo?
Yes, north to south.
Does State's Exhibit 94 reflect, again, Long's
Star Mart?
Yes, it does.
Can you circle that for us?
(Witness complies.)
And just off the bottom of State's Exhibit 94,
would that be where the defendant's residence
would be?
Yes.
And does State's Exhibit 94 reflect where the
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evidence as State's Exhibit Number 94.
81
Does
) ,
I
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82
high school is?
Yes, it does.
Can you point out that general area for us,
and then I'll have you circle specifically.
Right here.
Specifically, just circle the general area
where the vocational building of the high
school is.
MS. CLAY-JACKSON:
Objection, Your Honor. There's no it
hasn't been established that he knows what
she's talking about.
(BY MS. TANNER) Do you know where the
vocational building of the high school is?
Yes, I do.
Can you circle where it is.
(Witness complies.)
So it's right along the bend in the railroad
tracks?
Yes, it is.
Do you have any idea how far the high school
vocational building area you just circled is?
How far that is from the defendant's
residence?
It's six-tenths of a mile.
CROSS EXAMINATION
QUESTIONS BY MS. CLAY-JACKSON:
Q. Officer Bowen, you said that you have been
with the Bastrop Police Department how long?
A. Five and a half years.
Q. And prior to Bastrop, where were you?
A. What job did I have?
Q. Correct.
I worked in Austin as a car salesman.
Is there a -- what is the population of
Bastrop?
It's about 4500 people.
Would it be a fair assessment in that you have
been here five and a half years and served the
people of the City of Bastrop that long that
you know a vast majority of people who live
here?
Yes, I do.
And you know them personally?
I have met some of them.
Would you say that you know many people,
personally, in Bastrop?
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questions.
MS. TANNER: No further
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84
Yes.
By virtue of the fact that you have served
them for five and a half years?
Yes.
Okay. Would you say that you know many people
personally? You know many people on sight by
virtue of the fact that you have served them
the last five and a half years?
Yes.
So it would not be uncommon, then, for you to
know the citizens of Bastrop; isn't that
correct?
Correct.
In fact, you would not be doing a very good
job if you didn't know most of the 4500
hundred people that lived here; isn't that
correct?
Correct.
Now, there is absolutely no prohibition in the
Texas penal code for walking in the city, is
there?
Correct.
Or walking in the country, is there?
Right.
And there is no prohibition about walking at
85
I'm sure you.'re aware, have as their motto,
"Protect and Serve," correct?
to mind, was it?
No, it wasn't.
I'm not from here so I don't know what
midnight, is there?
No.
No prohibition about walking at noon, is
there?
No.
You said your primary reason, for a -- I don't
your reason for stopping people at night when
you're doing the late shift is so you could
determine whether or not they were involved in
a burglary the next day, correct?
Or to identify them in case something had
happened the night before.
But not to help them?
Also to help them.
You said
Some jurisdictionsOkay?
Is there -- does the City of Bastrop
But that wasn't your primary reason,
That wasn't the first reason that came
Yeah.
Okay.
you-all's motto is.
want to put words in your mouth.
Okay.
right?
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86
city to say that you're going to patrol this
particular area, and the other office who's on
patrol that night will patrol the other area,
or do you just criss-cross?
have a curfew for juveniles?
Yes, it does.
And what time is that?
Twelve o'clock on regular nights and one
o'clock on weekends.
Has there ever been an occasion say between
the years -- when did that curfew come into a
effect?
couple of years.
Have there been occasions where between the
years of 1995 and the early part of 1997 that,
in fact, there were juveniles out at two,
three, twelve o'clock at night?
Yes.
And you stopped them also?
Yes.
Do you recall everyone that you stopped then?
No, I don't.
I can't remember exactly. It's been in for a
a city of 4500, do you-all,
cordon off the area of the
Because Bastrop is
as a patrol unit,
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Yes, we have sections.
officers are assigned to late night patrol?
Generally, just one, from 9 p.m. to 7 a.m.,
So it
And, generally, how many
If you're the only officer on, you
So you aren't criss-crossing with any
other patrol officer?
Correct.
Are you familiar with the home residences and
relatives -- are you familiar with the home
residences of all the 4500 citizens of
Bastrop?
Right.
anyway?
can't be criss-crossing in tandom, can you?
You can, you know, trade off areas if you want
to and you can criss-cross.
If there is only one patrol officer on duty,
there cannot be any criss-crossing, can there?
You need to explain that a little better. I'm
not sure what you're getting at.
Well, it's simple.
If there is one patrol officer on duty, he's
going to drive allover the city.
and there is one from 5 p.m. to 3 a.m ..
overlaps partially.
So essentially there is no way to criss-cross
You have sections.
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88
No.
Are you familiar with where all the other 4500
relatives live?
No, I'm not.
Were those juveniles that you stopped -- have
you stopped other people other than juveniles
at 12 at night?
Occasionally, yes.
Have you stopped other people other than
juveniles at one o'clock in the morning?
Occasionally, yes.
Now, for those people that you stopped
occasionally, do you know where their
relatives live?
No.
On these occasions, from 1995 through 1997
that you have testified to, you actually spoke
to Rodney Reed on all those occasions?
No, I didn't.
Did you -- since you didn't actually speak to
him, that means you didn't stop him; is that
correct?
Sometimes I spoke to him.
But since you did not actually speak to him on
all those occasions, that means you didn't
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89
actually stop him; isn't that correct?
Correct.
On those occasions at late night, what would
you -- were they -- would you see him in areas
that were well-lit?
Sometimes well-lit, sometimes not.
And did you see him -- you saw him, as you
testified, in neighborhoods; isn't that
correct?
Correct.
And sometimes the neighborhood lighting,
especially where you indicated, the lighting
isn't bright; isn't that correct?
Correct.
So you're seeing people with shadows; isn't
that correct?
Ma'am, the patrol car has a light on top, it's
called an alley light, so you turn it on and
you see where you're looking.
So it's your testimony then that you're
referring to is that every time you saw him
you put the highlight on him if you couldn't
see him?
Yes, if I couldn't see, I would put it on him.
Every time?
90
REDIRECT EXAMINATION
QUESTIONS BY MS. TANNER:
Q. Were there occasions when you simply made a
mental note to yourself that you had seen this
man out again?
Yes, ma'am.
MS. CLAY-JACKSON: No
further questions of this witness.
And would you testify that it was common or
uncommon to see him out in the middle of the
night?
It was common.
Nothing
No further
MS. CLAY-JACKSON:
MS. TANNER:
questions.
Yes.
Every time?
Yes, if I needed it.
And you have -- you did not make a notation
do you carry a log with you at night?
Yes.
Okay. And do you put notations of who you
stop and who you see at night?
No, I don't.
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91
(Whereupon the witness was
excused from the stand.)
STEVEN SPENCER, the witness, after having
first been duly sworn, assumed the witness stand
and testified upon his oath as follows:
DIRECT EXAMINATION
QUESTIONS BY MR. PENICK:
Q. State your name, please.
A. My name is Steven Spencer.
Q. And how are you employed?
A. I'm employed with the City of Bastrop as a
patrolman.
further.
The State would
Who is your next
Please have a
That will be all,THE COURT:
You may be excused.
THE COURT:
MR. PENICK:
call Steve Spencer.
THE COURT:
witness?
seat.
sir.
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there is six different rotation spots, and
there's two days, two evenings and then two
And how long have you been employed in that
capacity?
Approximately two and a half years.
Did you work as a police officer before you
came to the City of Bastrop?
I worked for Travis County Sheriff's office,
in the jail.
How long did you work there?
About two years.
And what are your duties here with the police
department?
Performing the basic patrol function, public
safety of the streets, answer calls.
Basically a patrol officer.
And I guess "patrolling" means patrolling the
streets of Bastrop?
That's correct.
Do you have a rotation type shift that
sometimes you work the night shift?
Correct.
Okay, and how often do you do that?
four ten-hour shifts, and
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We rotate every 28 days.
ten-hour shifts
It ranges. We work
93
graveyards.
Okay, and what are the two graveyard hours?
From 9 p.m. to 7 a.m.
Okay. And that's -- are you the only officer
on duty or is there more than one officer on
duty?
Sometimes there is more than one, after two or
three in the morning, depending on the day of
the week, after two or three in the morning
there is just one person on.
Okay. And while you're patrolling the city at
night, what are you looking for?
During the entire evening?
Just a regular patrol of the city?
During the graveyard shift our primary
function is to try to intervene in criminal
activities, as far as burglaries or burglaries
of motor vehicles. At the Department it's
what we call it burglary patrol, and that's
where we're checking buildings and driving
around with our headlights off and basically
just -- if there's something there, just
trying to be in the right place at the right
time.
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Q. Okay. And if you see people that are walking
94
out on the street, do you try to identify
them?
conversation with them and see if I recognize
them, and if I don't know them, I may ask them
their name and just so I can write it down on
a notepad and keep it in case something turns
up the next day.
And that's the reason for checking on the
people that are out at night?
Correct.
Do you know the defendant in this case Rodney
Reed?
Yes, sir, I do.
Would you identify him, please?
The gentleman sitting behind the table over
there on the far right, on my right.
What is he wearing?
He's wearing a -- I think it's a blue overcoat
with a white shirt, and looks like a blue tie.
And have you had occasion to see him in
Bastrop, the City of Bastrop?
Yes, sir, I have.
Have you had occasion to see him late at night
in the City of Bastrop?
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Yeah. The way I do it is I try to strike up a
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railroad tracks cross Chestnut?
Correct.
Did you see him any other places in Bastrop?
Occasionally, I would see him down by, I think
Yes, sir, I have.
Would you classify seeing him as frequent or
infrequent or what?
It would be unusual not to see him at night.
And what time of the night are we talking
about?
It would range from anywhere from five in the
or five in the morning.
All right, so five in the evening to three,
four or five in the morning?
Right.
Where would you -- is there a place that you
would most frequently see him over in other
places?
Yeah, there's Chestnut and Hazel, there at
Long's Star Mart is the place that I normally
saw him at.
evening to three or four. I mean, it
I think it's called All
Sometimes you would see him at four
And that's fairly close to where the
it's Speedy Save.
Okay.
depends.
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be all, sir, you may step down.
(Whereupon the witness was
excused from the stand.)
Star Grocery now on Chestnut and Pecan.
Basically, it was just the immediate area
there around Chestnut and one or two blocks
south of Chestnut.
Did you ever see him on the railroad tracks?
Yes, I have.
Okay. But mainly around Chestnut, around
where Long's Star Mart is, and Chestnut and
Pecan Street?
Yes.
Is there a traffic light on Pecan and
Chestnut?
Yes, sir, there is.
Pass the
Pass the
May I
That willOkay.THE COURT:
MR. PENICK:
MS. CLAY-JACKSON:
Judge, please?
THE COURT: Sure.
MS. CLAY-JACKSON:
witness.
have a moment,
witness.
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THE COURT: Who is your next
witness?
(At this time a recess was
taken. )
THE COURT: To get set up?
MS. TANNER: Yes, sir.
Ma'am, before you
Let me give you a
THE COURT:
(Whereupon the Jury returned
to the courtroom and the
following proceedings were
had in open Court.)
THE COURT:
testify will you raise your right hand and let
me swear you in.
MS. TANNER: Your Honor, we
are going to need just a couple of minutes for
logistical stuff before we start with the next
witness.
short break, it probably won't be long. We'll
take a short break, probably not more than
five minutes.
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MICHELLE LOCKHOOF, the witness, after
having first been duly sworn, assumed the witness
stand and testified upon her oath as follows:
DIRECT EXAMINATION
QUESTIONS BY MS. TANNER:
Q. Would you state your name for the jury,
please.
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My name is Michelle Lockhoof.
And how are you employed?
I'm employed with the Texas Department of
Public Safety in the crime laboratory.
Which portion of the crime laboratory are you
employed in?
I work in the DNA section, and currently now
I'm located in the CODIS Section.
What is the CODIS section of the DNA
laboratory?
That's where we work on blood samples from
convicted offenders of sexual assaults to
build up a state database.
Okay. How long have you been in the CODIS
section?
Since March of this year.
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able to work as an undergraduate research
assistant where I learned some of the same
techniques that I use in the laboratory now
for DNA testing.
And through your time with the DPS, have you
had an opportunity to receive specialized
training with regard to DNA and serology?
And prior to that, where did you work?
In the forensic DNA section of the crime
laboratory.
And how long have you been, or were you in the
forensic DNA section of the laboratory?
Since September of 1992.
So how long, total, have you worked for the
DPS laboratory in Austin?
Almost -- a little over five years, September
'92 to currently.
Did you work in any forensic settings prior to
that?
No, I did not.
Can you tell the jury your educational
background that got you to that point?
I graduated from the University of Texas in
Austin in May of 1992 with a Bachelor of Arts
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degree with a major in biology. I was also
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and description was before you went to the
CaDIS Section?
I was a forensic DNA analyst. I was
classified as a criminalist, but my specific
title was Forensic DNA Analyst.
And what did that entail?
What I would do is look at evidence primarily
associated with sexual assault and homicide to
look for a question stain, whether it be semen
or blood, and to look at that question stain
and then compare it back to blood submitted
Yes, I have. I've received additional
schooling from the University and I've also
had some classwork and course work
specifically for DNA analysis with forensics.
Okay. And in your five years working in the
DNA field, have you had the opportunity to
testify in court in this state regarding DNA
analysis?
Yes, I have.
Would that be on few or many occasions?
Many occasions.
Have you testified in Bastrop before?
No, I have not.
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Okay. Now, tell the jury what your job title
101
from a victim or a suspect.
Now, we've already talked with this jury about
the general concepts of DNA, but I want to ask
you, are there two basic types of DNA testing?
Yes, there are.
And what are they?
The two basic. types of DNA testing are PCR and
RFLP.
And through your work with DPS, do you or have
you done PCR testing?
Yes.
Okay. Is that the primary emphasis that you
did, or was RFLP?
I would say equal emphasis on both types of
testing.
So through your time with DPS you have also
had the opportunity to do RFLP DNA testing?
Yes.
Okay. And you have received specialized
training with that specific type of testing?
Yes.
A good bit of training?
A good bit of training and a good bit of case
work.
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Q. Okay. Now, I want to ask you before we start
102
typing of the semen stain that was found in
her body?
My former co-worker, Karen Blakley.
And do you know who did any PCR testing in
that regard?
Yes, my co-worker, Wilson Young.
And so the only thing you looked at was the
previous known sample?
talking about this RFLP DNA testing, I want to
ask you, did you have an opportunity to do any
PCR type DNA testing with regard to this
defendant Rodney Reed?
Yes, I did.
Okay. Did you have the opportunity to do PCR
testing on a known sample that was already on
file at the DPS of this defendant Rodney Reed?
Yes, I did.
And what was the purpose for that?
The purpose was to compare that to a semen
stain that was collected in the case I'm
testifying to here now.
And the semen stain was collected from the
body of Stacey Lee Stites?
Yes, it was a vaginal swab.
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Okay. Now, who did the work in making the
103
objection is overruled and request denied.
The previous known sample and also the vaginal
swab in this case.
sample, what type DNA testing did you do?
I conducted PCR testing --
(Whereupon a brief discussion
was held off the record.)
The
I move for a
For the record,
May we
Okay.
Sure.
MR. GARVIE:
THE COURT:
MR. GARVIE:
And with regard to the previous known
(Whereupon the following
objection was made outside
the hearing of the jury.)
MR. GARVIE:
I would object to any references to previous
known samples and any of the testimony of this
witness, and I would request that the Court
move to strike any prior testimony in that
regard.
Okay.
approach, Your Honor?
THE COURT:
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It's denied.
was the sample
or included?
It could not be
What type of PCR testing did
THE COURT:
mistrial.
And was that known sample
from that person excluded
It was an incl~sion.
excluded.
Subsequent to that, did then Mr. Young take
over the remainder of the PCR testing?
In the Stites case, yes, he did.
(BY MS. TANNER)
you do on the sample of the defendant?
I conducted DQ-Alpha testing and DIS80
testing.
And in that regard, what was your conclusion
with regard to the DQ-Alpha type of the
defendant based on that sample?
That sample was determined to be a DQ-Alpha
type 1.2, 3.
And what was your conclusion with regard to
that known sample as to the DIS80?
The DIS80 was a 22, 24.
And did you compare that to the semen stain in
this particular case, in the Stacey Stites
case?
Yes, we did.
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softspoken, so I ask that you speak up or we
won't be able to hear what you have to say.
This is a summary of the RFLP analysis that I
did in this case. What I was working with was
a semen stain, which is, for example, what you
see with the spermatozoa or the sperm right
here in this picture. So I was working with a
Okay. And did he, in fact, do additional PCR
testing with regard to the blood of this
defendant? Or do you know?
I do not know.
Okay. Then I'll withdraw the question.
Have you had an opportunity in this
case to do RFLP testing?
Yes, I have.
And did you bring with you a number of visual
aids -- or, a visual aid to help explain your
testimony to the jury about what RFLP testing
entails?
Yes, I did.
If you will get that visual aid and come on
down here so you can explain that process to
the jury.
(Witness complies.)
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THE COURT: You're really
106
the DNA from the two referenced blood samples,
and we're going to do some comparisons to see
if any of these individuals could be
contributors of the DNA on that vaginal swab.
And when you talk about referenced blood
samples, you're talking about a blood sample
of the victim and a blood sample of the
semen stain on a vaginal swab, and I was also
working with a known reference blood sample.
So the very first step that I have to do is I
have to actually separate out the semen on
this vaginal swab, because it's a mixture. We
have DNA contributed from the individual that
the swab was taken from, and we also have DNA
step is to actually physically separate these
two, the sperm from the semen donor and the
DNA from the woman that it was taken from.
Is it possible to fully and completely
separate those two out?
No, it's not uncommon to not be able to
separate the two completely.
So after we have separated out the
two components, the sperm from the semen donor
And also we take
So the first
and the DNA from the woman.
from the possible semen donor.
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107
size of our DNA once we've added this chemical
just looking to see how big is an individual's
their DNA, and it's going to cut it because
it's going to recognize the different areas on
is we're going to add a chemical, which is
depicted by this pair of scissors, and this
chemical will look at the DNA in the known
blood samples from the sperm and from the DNA
We're
We're
And it will look at
What we're looking at is
So what makes us unique is the
What makes people unique is that
And to do that, what we're going to do
inch long.
the DNA.
from the vaginal swab.
depending on the person, where this DNA is
going to be cut.
For example, if the DNA for me was
cut, it may end up being six inches long, but
if her DNA was cut, it may end up being an
not looking at any particular type.
eye color or height.
just the size of the individual's DNA.
DNA.
possible perpetrator, right?
Yes.
Okay.
So what we're going to do with RFLP testing is
we're not going to be looking at hair color or
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going to wiggle through this gel much quicker
than a larger piece, just because the gel
keeps it from moving as fast.
For example, this small piece, it may
be all the way down here, whereas a bigger
piece like this, it's going to get stuck up
higher. So that's how we can tell how big or
how small a piece of DNA is, based on it's
ability to move through this gel, and that is
what we have is all of these different sizes
of DNA, so we have to see what size they are
because all we have here is we have this
liquid that we're looking at. So this is
where we come to the visualization of how big
are these different sizes of DNA.
We're going to run the DNA in this
gel, which is very similar to jello, and the
DNA is going to move through this gel because
there is a current applied. DNA has a charge,
so it's going to move through this gel because
of a current. And based on how big the DNA
is, is going to determine how far it can move
through this gel based on a limited amount of
In one hour, say, a smaller piece is
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that's going to be cutting it for us.
time.
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So now
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109
because of the size, which was determined
originally when we added this chemical that
cut the DNA for us to tell us how big it's
going to be.
So once we have the DNA that's moved
through here, we're going to be putting it on
some paper that we can then work with to get
an actual image that we'll be showing you in a
few minutes, the actual image, and that's what
we're going to be calling it, a piece of he
x-ray film or autorads. We call it just film
in the lab.
But the DNA now is on this piece of
paper and we're going to be adding different
chemicals to it that are going to actually
bind to the DNA. They're going to be attracted
to it. And then when we expose this DNA to
this x-ray film it's going to create an
image. And the image is then analyzed by a
computer, which is going to actually tell us
the size of the DNA.
Now, at one point, after you put it on the
thing and it runs up and down, or actually
just down, this step number four, you actually
break apart the DNA, correct?
110
Q. If the DNA is visualized as a ladder in this
A. The ladder is actually just being cut right
A. In the fourth step is where I was mentioning
A. In this section, this is the hybridization, or
What
Objection.
Sustained.
And then after that in
MR. GARVIE:
What do you in the fourth
THE COURT:
And then what?
it's really just a detection method.
Okay.
this section here, you're doing what?
we're going to be doing is adding chemicals
that are going to stick to the DNA, they're
down the middle.
going to bind to it, and where ever it's bound
to the DNA, will cause this piece of x-ray
ladder?
fourth step, what are you doing to that
methods.
how we're going to do all of our detection
what we call, single-stranded, which is then
this piece of paper we're going to make it,
piece of paper, and then after it sticks to
where we actually have the DNA stick to this
step?
(BY MS. TANNER)
Leading.
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111
film to have an exposure.
And we had previously talked about the fact
that there are complements within the strand.
With regards to this binding in number five,
is that complements binding to one another?
Yes.
Okay. And then when you have this x-ray, does
that allow you to -- or this x-ray type item,
does that allow you to make a visualization of
your results?
Yes, this is how we can actually see what the
size of our DNA is.
And, as such, you had mentioned like if yours
is six inches and mine is one inch, how would
you expect that to show up on this particular
thing that's labeled the autorad?
What we have in this lane, this lane and this
lane is what we call a ladder, and these are
pieces of DNA of known lengths. What we will
do is we will compare where these two bands
travel compared to the ladder. In a piece of
DNA, for example, if it's one inch long, it
will travel much further than a piece that's
only six inches long, and that's because of
its size.
112
is the victim's known referenced blood sample,
the suspect's known referenced blood sample,
and this would be, for example, a blood stain
on the suspect's clothing.
So we can look and see that the blood
stain on the suspect's clothing is moving at
the exact same rate from the victim's known
referenced blood sample, and we can see that
these two bands are lining up along with these
So you'd expect, because you're unique, would
you expect your DNA to generally always end up
in different places than mine?
Yes.
After you do that, what is that seventh step
in computer analysis?
What we can actually do is -- what we haven't
allowed, there is some computer software that
can actually go in and it tell us what the
size of this band is, compared to the ladder.
And do you have a visual aid to show what the
actual result will end up looking like?
Yes, these are some of the examples of some
different scenarios that we may get in the
an inclusion.
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lab. This first example would be what we call
What we have, for example, this
113
referenced blood sample, and here is the
suspect's known referenced blood sample. So
two bands, so this would be an inclusion. And
also we can compare that to the suspect's
What are
We can see how
Can you tell us what that
Let's look at the victim's known
The victim would not have been excluded.
Sure.
it's an exclusion.
one shows?
Yes.
every gel, and we have the expected results
from the control; and if the control does not
give us the expected results, we do not
interpret the gel, and we re-analyze the
samples.
Now, with regard to this second one, it says
Now, there are two controls here.
those?
The controls are known DNA that we run on
known referenced blood sample.
these two bands, how much quicker they move
compared to these two bands, which means
they're a different size, and so the suspect
could not have been the donor of the DNA in
the blood.
But the victim could have been a donor of the
DNA in the blood, correct?
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114
than the victim's blood, so the victim is
suspect's clothing, it also moves quicker than
also excluded as a possible donor of the blood
on the clothing.
So this is an example of an
exclusion.
when we compare that to the blood stain on the
suspect's clothing, we can see that neither of
these individuals could be a donor of this
blood stain.
And,
So he or she is
Take your time
Whoa, whoa; she's
They move so much quicker
THE COURT:
THE COURT:
The blood from the stain on the
And if we look at the suspect's
the suspect's blood sample.
excluded.
that blood stain.
blood sample.
and just slow down a little bit.
If you look at the victim's known referenced
blood sample and compare it to the blood stain
on the clothing, we can see how much quicker
these two bands have moved from that DNA in
THE COURT REPORTER: I'm
having a hard time keeping up with you.
having a hard time keeping up with you.
frankly, so am I.
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there would be no more analysis.
Now, if you have an exclusion like that, do
you need to do any further tests?
epithelial cells or the skin cells from that
swab, if we compare that back to the DNA from
the victim, we can see that they move at the
I mentioned earlier that we have a semen
stain, and so we have to actually separate the
two components, this is an example of where we
separate out the epithelial or skin cells from
the victim, from the sperm cells from the
When
So we can see that the
So the DNA is essentially the
This would be a clear exclusion and
And then, finally, what is this?
The person didn't do it, it's not their
same rate.
Okay.
semen donor.
Okay.
Oh, no.
This is an example of a sexual assault.
blood, that's the end of the ball game, right?
Yes, that's correct.
What if you have done six tests before and you
get this result?
It would be an exclusion.
Nonetheless?
An exclusion at any point in the testing, it's
always an exclusion.
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116
same. If you look at the blood from the
suspect, you look at how that DNA has moved,
and then you look at the semen, the sperm
cells, and we see that they haven't moved at
the same rate, so this suspect would not be
excluded.
Now, you had indicated earlier that sometimes
-- or it's not uncommon to not be able to
completely separate out the sperm cell
fraction and the.epithelial cell fraction,
correct?
That's correct.
Now, if that occurs and you can't fully get
them broken apart, how does that affect what
you see on this autorad?
That would not change your results because the
band would still be accounted for. We could
still see that some of the DNA from the
epithelial, for example, was in the sperm
fraction, or some of the sperm DNA was in the
E-cell fraction.
Okay, and as long as those bands are accounted
for, that being they correspond with one of
these people, that doesn't affect your result?
That's correct.
1 Q. Okay. Now -- you may have a seat.
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(Witness complies.)
When you do RFLP testing, is each one of those
-- whenever you do a case when you end up
with an autoradiograph, what is that one thing
6 called? Is that just one probe?
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A. What each of these films is going to be is•
looking at one area of an individual's DNA.
9 Q. Okay. And is that film in that area of the
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DNA, is that test independent of any other
test that you may do?
Yes, it is.
Is it independent of any DQ-Alpha or D1S80
testing?
Yes, it is.
16 Q. Okay. And in a typical case, do you do just
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one probe and quit?
No, we do not.
What is the standard usual amount of probes
that you do in a regular case?
In a case where they have requested this RFLP
analysis, we will do five probes.
23 Q. Okay. Now, if a person has been excluded by
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some kind of peR testing, whether it be
DQ-Alpha or whether it be D1S80, is there any
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reason at all to go forward and do any sort of
RFLP testing?
No. Once you have looked at an area of DNA
and there is an exclusion, there is no reason
to continue the analysis.
Did you do RFLP testing in this particular
case?
Yes, I did.
And the testing that you did, is there an
established protocol for doing it?
Yes, there is.
Did you follow that protocol?
Yes, I did.
And is that protocol established in accordance
with the guidelines of the technical working
group DNA analysis methods?
Yes, it is.
That's also known TWGDAM, T-W-G-D-A-M, right?
That's correct.
Is the protocol that you used also in
accordance with the National Research
Council's recommendations contained in its
manual The Evaluation of Forensic DNA
Evidence?
Yes, we are in accordance with the FBI and we
119
occasion?
Yes, that would be on more than one occasion.
are also accredited by ASCLAD.
That has been talked about before, but what is
the significance of being accredited?
Being accredited means that we have followed
through the standard that has been set by the
DNA community.
Now, is RFLP DNA testing considered to be
reliable within the scientific community?
Yes, it is.
bo you know of any time when RFLP testing has
resulted in any kind of a false match, a false
conclusion?
No, I do not.
Okay. And through the course of your work
with DPS, do you have any idea how many times
you have done a RFLP testing of a particular
sample?
I have done several hundred samples for DNA
analysis.
Have you done any samples within those several
hundred that excluded a suspect?
Yes.
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Okay. Would that be on more than one
120
This particular sample?
My co-worker, Wilson Young, would have
collected the blood from this sample and then
given me that card.
Okay. How is it then that you get blood from
the particular person?
My co-worker, Wil Young, would have given me
the known referenced blood sample.
Okay. And when you did that, did you call law
enforcement and let them know you've got the
wrong guy?
Most definitely.
Okay. With regard to this particular case,
what items did you do RFLP DNA testing on?
I conducted RFLP analysis on a vaginal swab, a
known referenced blood sample from Stacey
Stites, and a known referenced blood sample
from Rodney Reed.
And just for purposes of the record, I'll show
you what's been marked State's Exhibit 113.
Does this appear to be a referenced blood
sample of Rodney Reed such as that that you
tested?
This does have the laboratory case number on
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it. However, I have not worked with it.
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Okay. How do you test it? I mean, do you
test it out of a vial like this or do you test
it off some other medium?
What we will do in our laboratory to preserve
the genetic constituents in this blood sample,
we will take it and put it on a card that has
got some cotton on it that has been sterilized
and that way the blood can dry on this card,
and that is actually what I will be working
with.
Now, with regard to the vaginal swab that
you've tested, did that derive from the
vaginal swabs taken at the scene where Stacey
Stites's body was found or the vaginal swabs
taken at the time of her autopsy?
They were from the scene.
And do you know who took those?
They are identified as being collected by
Karen Blakley.
Okay. And in regards to this particular case,
did you do the RFLP testing just like you told
the jury about in general?
Yes, I did.
Any problems, any contamination, anything that
caused the results of the test -- for the test
: .122
may answer it, ma'am.
No, all controls gave expected results at each
step of the analysis.
(BY MS. TANNER) And during the analysis, did
you cause to be made several autoradiographs,
those pictures that we talked about?
Yes.
I would like to show you what's been marked
into evidence as -- marked for admission as
State's Exhibit 96, 97, 99 and 100 and ask if
you can identify each of those item?
Yes, each of these items are exact duplicates
of the films that I generated in this case.
And did you actually make those and provide
those to us?
Yes, DPS provided those to you.
And do you have the originals of those films
with you?
Yes, I do.
And have you had an opportunity today, before
our testimony, to compare these duplicates,
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to not work out?
Leading.
MR. GARVIE:
THE COURT:
Objection.
Overruled. You
123
offer State's Exhibits 96, 97, 99 and 100.
(State's Exhibits Nos. 96,
97, 99 and 100 were offered
into evidence.)
would be the original documents themselves.
Counsel has not provided any other reason why
we can't use the originals.
That's the only
DPS can't
Your Honor, I
The State would
I'll overrule it;
Is that the only
MR. GARVIE:
The best evidence, obviously,
MR. GARVIE:
THE COURT:
they are all admitted.·
objection.
would object.
objection?
MS. TANNER:
release the originals.
THE COURT:
the ones that are marked as State's exhibits
with the origlnals that you have?
Yes.
And are they accurate?
They are accurate.
MS. TANNER:
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Yes, that's my writing.
you have the original of that?
Yes, I do.
And can you show the jury the original of
that's one of those autoradiographs like you
talked about, right?
Yes, that's correct.
And on there, there are several lines of
that you have in your possession to the
copies, which are the better transparencies?
I think the originals will be the better
transparencies.
So if -- you have compared each one, and if
you were to show the jury the originals, that
would be the easier to see them?
Yes, I believe so.
On State's Exhibit 96,
Now, comparing the originals
(State's Exhibits Nos. 96,
97, 99 and 100 were admitted
into evidence.)
Is that your writing?
With regard to State's Exhibit 96, do
writing.
Okay.
State's Exhibit 96.
(BY MS. TANNER)
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125
And let's start out by concentrating on what
lane represents?
In the first lane, the middle lane and the
last two lanes we have the ladder that we
referred to which has our known DNA sizes.
And this inner lane is the control that we
will be seeing on each one of these films that
gave us the expected results, so, therefore, I
interpreted this film.
The next sample is the sperm cell
fraction from the vaginal swab, the epithelial
or skin cell fraction from the vaginal swab,
the known referenced blood sample from Stacey
Stites, and the known referenced blood sample
from Rodney Reed.
Now, on there does it show the sites where
those two individuals, as well as the two
evidence samples, where their DNA lined up?
Yes, it does,.
And can you blow that up, that particular
portion of this, in order for the jury to be
And can you show the jury what each
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each one of those lines is.
as lanes?
Yes.
Okay.
Are those known
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126
better able to see that?
Yes.
Now, with regard to State's Exhibit 96, would
you please explain to the jury what this
exhibit shows?
What we're going to look at is the placement
of these bands compared to the known
referenced blood samples. If we first look at
the epithelial cell fraction from the vaginal
swab, these two bands move at the same rate as
the two bands from Stacey Stites's known
referenced blood sample. If we look at the
bands from the sperm cell fraction on the
vaginal swab from the semen donor, these two
bands move at the same rate as the two bands
from Rodney Reed.
Now, there are additional bands on the lane
with regard to the sperm cell fraction of the
vaginal swab. What are those?
We have an additional band here and there's an
additional faint band right here, and that you
can probably see better on the original.
And what does that represent?
These two bands are consistent with DNA coming
from the vaginal tract of Stacey Stites.
127
So is that the carryover that we talked about
just a second ago?
Yes, this is what we refer to as incomplete
separate the two DNA donors.
With regard to the male portion of the vaginal
swab and the blood of Rodney Reed, the
defendant, what was your conclusion?
That he could not be excluded as a possible
semen donor.
Now, if in any way he could have been
excluded, then that would have been the end of
the ball game, right?
That's correct.
Did you go on and do another probe?
Yes, I did.
And let me show you what's been marked as
State's Exhibit Number 97, and ask you do you
have the original of that particular autorad?
Yes, I do.
Can you show that to the jury as well.
(Witness complies.)
With regard to State's Exhibit Number 97, does
that have the same sort of writing in the same
lanes?
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separation. We were not able to completely
128
the three bands in this case, in light of the
These three bands are an obvious mixture, and
what we are looking at is how these bands
moved, compared to the known referenced blood
samples.
vaginal swab male fraction always go in the
same spot and the female fraction will always
be in the same spot?
Yes, it will be.
Okay. Now with regard to State's Exhibit
Number 97, if you could blow up the relevant
portion to show the jury.
(Witness complies.)
And what does State's Exhibit Number 97 show?
What we see here is the control, which gave us
the expected results, the sperm cell fraction
from the vaginal swab, the E-cell fraction,
and also Stacey Stites' and Rodney Reed's
blood samples.
And with regard to the sperm cell fraction of
the vaginal swab, you can see three bands
Yes, it does.
And is that universal? I mean, does the
What is that?
And what does the fact that there areOkay.
there.
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129
referenced blood samples, tell you?
That there is ~n incomplete separation.
the male portion and the female portion?
Yes, that's correct.
Okay. And what is your result with regard to
the female portion of State's Exhibit 97
versus the blood of Stacey Stites?
We can see that these two bands have moved at
the same rate as these two bands, and that she
cannot be excluded.
And what is result -- your conclusion with
regard to the result as to the male portion of
the vaginal swab versus the blood of Rodney
Reed the defendant?
If we look at this first band and this band,
they move at the same rate as the two bands
from his known referenced blood sample, so he
could not be excluded.
Now, on State's Exhibit 97 you can see that
the bands of Stacey Stites are somewhat darker
than the bands of the other individual, Rodney
Reed, and of the male portion of the sperm
cell.
And, again, there is mixture between
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Okay.
MR. GARVIE: Objection. Go
130
My objection,
It's getting late
It's overruled.
Okay.
Why is it that the female
THE COURT:
Why is that?
MR. GARVIE:
Rodney Reed, from this probe in State's
Exhibit Number 97?
No, he was not excluded.
portions are so much darker than the male
portions on this?
The reason is because there is just more DNA
there from the epithelial cells, or from the
skin cells.
And is that at all uncommon either?
No.
What was your conclusion -- I already asked
you that, didn't I?
in the day.
Could you exclude the defendant,
Good ahead.
(BY MS. TANNER)
Your Honor, for purposes of the record, to
this question is, counsel is, number one,
leading the witness; and, number two, telling
the witness what it shows, which in essence
amounts to leading the witness also.
ahead and finish your question.
(BY MS. TANNER)
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131
I show you what has been marked State's
Exhibit Number 99, and do you have the
original of State's Exhibit Number 99?
Yes, I do.
And could you show that to the jury.
(Witness complies.)
This one has a lot more gunk on it. What is
that about?
I had to do a longer exposure time. What that
mean is the DNA was very light, and so to get
it to expose on this film to create this band,
I had to leave it on there longer. That's why
it's darker.
And, again, these lanes are all exactly the
same as they are in all the other ones,
correct?
Yes.
And, if you will, show the jury what is in
each lane.
We have the control, which gave us the
expected results; the vaginal swab sperm cell
fraction; the vaginal swab epithelial cell
fraction; and then the known referenced blood
sample from Stacey Stites and Rodney Reed.
And what is your conclusion with regard to the
Right?
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132
female portion of the vaginal swab and the
blood of Stacey Stites?
The bands have moved at the same rate,
therefore, she is consistent with the
epithelial cells from the vaginal swab.
And what is your conclusion with regard to the
male portion of the sperm sample and the
defendant, Rodney Reed?
We're looking at these lower bands, which have
moved at the same rate, and so, therefore,
he's not excluded.
Now, this lower band, particularly on the
evidence sample, as well as on the known blood
sample of the person Rodney Reed, is very
faint. Why is that?
On the vaginal swab sperm cell fraction there
is less DNA there to create the image, and
also it's a very small piece of DNA, so there
is not as much there to cause the film to be
exposed and have the banding pattern.
Now, on State's Exhibit 99, with regard to the
known blood sample of the defendant, there is
only one band.
Yes.
And what does that mean?
Can you
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That means that there is either another band
which is too small and it ran off the gel, or
it means that he has two bands that are very
close together and, therefore, they look like
one band.
Is that at all uncommon to get one band?
Not at all.
Okay. And so could you in any way, shape, or
form exclude the defendant from being the
semen donor on State's Exhibit Number 99?
No.
Now, before I show you the last one, you
indicated on your prior testimony that
standard procedure is you do five probes?
Yes.
There were four probes in this case.
tell the jury why that is?
There are four probes in this case because if
we look at these films, I know that this gel
ran a little bit too long, and so the control
for the fifth probe would not be on this gel
any longer. So if I did run the sample, then
I would not be able to interpret it because
there would be no control.
So it's not that there is anything
134
exclusionary about it or anything, it's just a
wash?
regard to whether there is any exclusion or
anything as to the fifth probe?
MR. GARVIE: Objection.
Calls for speculation.
Objection.
Leading.
It's overruled.
What does that mean with
just a "no result"?
(BY MS. TANNER)
Sustained.
(BY MS. TANNER)
No result.
Okay. And, finally, the fourth probe that you
did, which is reflected in State's Exhibit
Number 100, do you have the original of that
THE COURT:
There is no information.
MR. GARVIE:
First of all, leading.
THE COURT:
one?
Yes, I do.
And I would like for you to show the jury
State's Exhibit Number 100.
(Witness complies.)
And State's Exhibit Number 100, does that
actually show the writing and the relevant
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What about the male portion of the vaginal
swab and the blood of the defendant Rodney
Reed?
Looking at these two bands on the vaginal swab
sperm fraction, they move at the same rate as
the known referenced blood sample of Rodney
Reed; therefore, he was not excluded.
And, once again, is there a carryover in this
case of the epithelial cells onto the male
portion?
Yes, we can see these two bands.
portions of the autorad?
Yes, it does.
And with regard to State's Exhibit Number 100,
what does that reflect?
This reflects the control sample, the sperm
cell fraction from the vaginal swab, the
epithelial cell fraction, and then the known
referenced blood sample from Stacey Stites and
Rodney Reed.
What is your conclusion with regard to the
know referenced blood sample of Stacey Stites
and the female portion of the vaginal swab?
We can look at the bands and see that they're
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at the same place. It does not exclude her.
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Could you exclude the defendant, once again,
from being the semen donor on State's Exhibit
Number lOa?
No, I cannot.
Okay. Now, are these all of the
autoradiographs that you did in this
particular case?
Yes, they are.
Now, with each of the sites that you looked at
that are reflected on each of those probes,
are they tied to one another in any way, or
are they completely independent of one
another?
They are. independent.
And as to each and everyone of those, or all
of them together, were you able to exclude the
defendant as being the person who left the
semen in the body of Stacey Stites?
No, I was not.
Now, Ms. Lockhoof, is there a means whereby
you can put a numerical value on the findings
that you have had?
Yes, I can.
Okay, and what is that?
The numerical value?
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What is this -- the means whereby you get to
it?
What we will do is we will look at each one of
these films, see what size the piece of DNA
is, then look at how often that size of DNA
occurs in the population and then we will get
a population frequency.
Do you have a particular database in your
laboratory that you have used to develop that
population frequency?
Yes, we do.
And what is that database?
We use the T-Com database, which is by
Dr. Arty Eisenburg out of Ft. Worth.
And can you tell us, is that a published
database?
Yes, it is.
Is it copyrighted?
I do not know if it's copyrighted.
Okay. With regard to that database, has it
been approved by any other agencies?
Yes, it has been peer reviewed.
And by "peer review" you mean what?
That other individuals in the field have
looked at the database.
138
the statistical analysis to determine the
probabilities in this case?
Yes, I did.
or is it a means of determining how likely it
would be that someone other than this person
left the sample?
What the probability will say is this is the
individual's profile, this is how often it
occurs in a population.
Now, when you do that, is that population
determination, is it broken down into any
subgroups?
And determined?
That we can apply it to forensics.
Specifically, does the FBI have a particular
set of standards for databases and DNA testing
and that sort of thing?
The over-all field has a particular standard,
including the FBI.
And the database that you use as well as the
testing procedures that you use are all within
those protocols, or no?
Yes, ma'am, they are.
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Okay.
Okay.
Now, in this particular case did you do
Now, is that a means of identification,
139
happen is, the likelihood of including a
It's broken down into different races.
And what are the races that it's broken down
into?
Caucasian, black and Hispanic.
Now, with regard to coming up with these
population frequencies, . is there some concern
within the scientific community about the
possibility of relatives, or brothers, or
fathers and things like that?
Yes, there is.
The concern arises around whether or not an
individual having relatives within the
vicinity could also be either victims of the
scene our could also be suspects of the scene.
Now, you've indicated that DNA is unique to
everyone except for identical twins, correct?
That's correct.
Can you tell us, do siblings, nonetheless,
share some DNA?
Yes, they do.
And is the concern in that regard that they
could be sharing enough to skew the results?
What would
And can you tell us about that?Okay.
The results would not be skewed.
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140
sibling is greater, because they do share the
DNA from their parents.
In that regard, did you make any
recommendations with regard to this particular
case?
Yes, I did.
And what were those recommendations?
I recommended that to eliminate any possible
relative that they also be submitting their
blood samples to do DNA analysis, for
exclusionary purposes.
And in that regard did you request the blood
of the father and the brothers of the
defendant?
Yes.
Okay. Now, with regard to this particular
case, what is the statistical frequency of the
particular four sites that you looked at?
Looking at the four sites are Mr. Reed's known
referenced blood sample. The RFLP profile is
approximately one in 590 million for the
Caucasiin population, one in 330 million for
the black population, and one in 3 billion for
the Hispanic population.
I show you what has been marked as State's
141
offer State's Exhibit Number 101.
(State's Exhibit No. 101 was
offered into evidence.)
object to that. The best evidence, obviously,
would be the report itself.
Exhibit Number 101 and ask if you can identify
this document?
Yes, I can.
What is State's Exhibit Number 101?
This is the report I issued summarizing my
results.
And does this set forth the probability that
someone other than the defendant could have
left the semen sample?
Yes, it does.
And is this a fair and accurate rendition of
your report?
Yes, it is.
The State would
Again, I would
It is the report
I thought that's
MS. TANNER:
MS. TANNER:
MR. GARVIE:
THE COURT:
what it was.
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Number 101 reflect, as you stated earlier,
what the odds are of someone other than the
defendant leaving this sample?
A. Yes, it does.
Q. Do you know what the United States population
is, approximately?
A. The total population is approximately one in
240 million.
MR. GARVIE: It is.
THE COURT: It's overruled;
number 101 is admitted.
And does State's Exhibit
(State's Exhibit No. 101 was
admitted into evidence.)
And not made
This is a
Is that the only
Is that the only
(BY MS. TANNER)
thing?
MR. GARVIE:
nor adopted by that witness.
THE COURT:
objection?
MR. GARVIE:
blown-up version of it.
THE COURT:
itself.
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at it a different way.
(BY MS. TANNER) With regard to the population
of the United States, as to each of the
subgroups, would the odds of it being someone
other than the defendant be greater than the
population of the United States or less?
Did I mess that question all up?
240 million people?
In the United States, yes.
And do you know what the population in the
United States, generally speaking, of
Caucasians is?
No, I do not.
Do you know what the population in the United
States, generally speaking, of
African/Americans is?
No, I do not.
But the total is 240 million?
Yes.
And this result is saying that the odds are
that only one in more people than are in the
United States would have left this sample?
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leading.
MR. GARVIE:
THE COURT:
Objection;
Sustained. Come
144
Let me go on to another question.
Now, you've indicated that your
testing of these four sites is independent of
any other testing that took place in your
laboratory, correct?
Yes, this is the only testing I conducted on
this case.
Is there a means through your database,
however, to compute the probabilities of a
person having all six of those sites?
All six referring to combining the peR and the
And pursuant to our request in this particular
case, did you do that analysis?
Yes, I did.
And in that are you looking at the odds that
any other person other than the defendant
would have the same genetic profile in each of
the six sites tested at DPS?
Yes, we are looking at how often this profile
occurs in the population.
And in that regard, what was your
determination about how often these six sites,
this profile of these six sites, occurs in the
population?
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RFLP? Yes, we can do that.
145
Go ahead, ma'am.
The actual numbers would be approximately one
in 270 billion for the Caucasian population,
one in 130 billion for the black population,
Yes.
And what is that policy?
That we only report numbers as large as the
approximate world population.
So if the numbers are greater than the world's
population, what are the numbers you end up
reporting?
Combining the RFLP and PCR results, Mr. Reed's
blood sample gives a population frequency of
approximately one in 5.5 billion for the
Caucasian, Black and Hispanic population.
Now what is the significance, if any, of the
number, 5.5 billion?
That is the approximate size of the world's
population.
Does your laboratory have a policy with regard
to reporting the numbers that you're giving
us?
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speculation.
MR. GARVIE:
THE COURT:
Objection;
Overruled.
146
offer State's Exhibit Number 102.
(State's Exhibit No. 102 was
you tell me what the date is on that?
1998?
Yes, this is a report summarizing the
statistics.
And is this a fair and accurate blow-up of the
report that you made in this particular case?
Yes, it is.
The State would
April 14th of
Counsel, would
MS. TANNER:
MS. TANNER:
MR. GARVIE:
and one in 3.6 trillion for the Hispanic
population.
And that's the odds of someone else having
this genetic profile for these six sites?
Yes.
However, your lab policy is that you report
that as one in 5.5 billion, which is the world
population?
That's correct.
I show you what has been marked as State's
Exhibit Number 102 and ask if you can identify
this item.
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offered into evidence.)
MR. GARVIE: Again, Judge,
would object on the grounds that the best
evidence would be the report itself, and also
it's cumulative of her testimony.
THE COURT: It's overruled.
MR. GARVIE: As to both
Number 102 reflect exactly what you testified
to, that the odds are one in 5.5 billion
people could have left this sample?
Yes, it does.
And does it also go on to reflect the
laboratory policy that you shared with us?
Yes, it does.
And aside from what the policy is, the actual
calculations with regard to the black
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objections?
both overruled.
Go head.
(BY MS. TANNER)
THE COURT: Yes, they are
Number 102 is admitted.
(State's Exhibit No. 102 was
a9mitted into evidence.)
And does State's Exhibit
I
148
CROSS EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. My name is Calvin Garvie. I think we met on
at least one occasion, if I remember
correctly, when I was over at your facility
over there on -- is it North Lamar?
A. Yes.
Q. Your test is one of, in essence, exclusion;
population, are what?
They are approximately one in 130 billion.
Would be the people that would have been
expected to have left the semen sample in the
body of Stacey Stites?
That's correct.
Okay. By the way, when doing RFLP analysis,
when you're in the process of doing the test,
do you know the race of any of the people that
you have gotten blood from?
No, we do not.
Do you know the occupation of any of the
people you've gotten blood from?
No, we do not.
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witness.
MS. TANNER: Pass the
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149
isn't that correct?
That's correct.
And you cannot a hundred percent include
anybody?
That's correct.
Where did you get your database from?
Our database is from Dr. Arty Eisenburg from
T-Com in Fort Worth.
In other words, it's not compiled there at the
facility -- the DPS facility?
No, it's not.
So you're relying on some other individual?
That's correct.
And would you happen to know how many people
are in this database?
Dr. Eisenburg has several thousand individuals
in his database for each race.
So he has several thousand African/Americans
in his database?
Yes, sir.
Okay, and you saw him, personally, go out and
get these samples from these several thousand
African/Americans?
No, I did not.
Are you familiar with the notion of polling?
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150
I think I've heard a little bit about it.
You 'know, where they go out and get a thousand
people and ask those to represent all of the
other 240 million people in the United States?
Yes.
And that's supposed to represent our attitudes
on whatever it is, or something of that sort?
Yes.
So he didn't actually test a million people,
did he?
No, he did not.
He didn't test a hundred thousand, did he?
No, I do not believe it's that large.
And so obviously he did not test a hundred
thousand African/Americans, did he?
No, he did not.
So his projection is based on a core group of
in the thousands?
I believe his database is about 20 to 30
thousand individuals.
And you have seen that database?
Yes, I have seen that database.
Do you know it was collected?
I do know that he is a paternity DNA analyst,
and so that is reflected in paternity cases.
No, I did not.
So that is the information that you have
received, that that's how he did it?
Yes, sir.
You did not personally see him do any of that?
No, I did not.
on, isn't it?
Yes, we do.
To be a representative information on the
black population, if you're comparing it to
the possibility of that particular markers, if
you will, how frequently it shows up in the
black population?
have found in other areas of studies that
sometimes the studies don't bear out the way
somebody said they did, don't they?
That can happen.
Are you familiar with the study of -- but from
time to time we've found that studies that a
whole body of data was based on were
incorrect, haven't we?
Yes.
And this database is something that you rely
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Okay.
Okay.
151
But you personally saw him do this?
And, in fact, from time to time you
152
various times it looks like one of these
particular alleles is a little bigger than the
That's correct.
Can I see number -- was that 99 or 97?
That was 99.
certain area, do you declare a match even
though physically they may not be in exactly
the same position?
Yes.
Yes, that's correct.
And, likewise, in the Caucasian population or
in the Hispanic population?
Yes, sir.
What if that database was wrong?
If that database was wrong, then our results
would be wrong.
Can I see
May I approach
Yes, sir.
I believe it's
In coming down the gels,
MR. GARVIE:
THE COURT:
MR. GARVIE:
If you have a marker within a
So a match may not be a physical match?Okay.
other one.
(BY MR. GARVIE)
the witness?
97 and 99 that I need to see again.
number 99?
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153
Okay, can I see 97? I'm trying to find the
one that you referred to as sort of a banding,
or something of that sort.
Do you remember that reference?
You only saw one and you said
something to the effect that it could be there
but you can't see it, basically.
I think that is the one that we were just
looking at, where there was a single band?
Right here? The single banding pattern?
And you saw something there -- on both sides?
Yes, this band and then this band.
remember exactly which one it was.
What is VNTR? Does that have
anything to do with RFLP?
A VNTR is a Variable Number of Tandom Repeat,
and that does have something to do with RFLP.
What does that mean?
What that means is, in our DNA there is a
sequence or a series of DNA that are going to
repeat, and based on how many times it repeats
determines the size of our DNA.
Are you familiar with the FBI laboratory in
Quantico, Virginia?
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Oh, okay. Okay, that's fine. I don't
154
reading of something, something, we don't know
present there are a few data on the
distribution"
read it and ask her how she responds to it.
She's giving her opinion.
paragraph out loud, so the jury knows what
you're reading and then I'll as you to respond
to it?
there's
May I approach
Your Honor,
Judge, I can
It's somebody
Yes, sir.
MR. GARVIE:
MS. TANNER:
No, I don't think I've seen
MR. GARVIE:
Have you ever seen this
THE COURT:
THE COURT:
I'm going to object to the witness
"Under the topic sample populations, at
Can you, if you would, read that
Okay.
Okay.
document before?
Yes, I am.
(BY MR. GARVIE)
No, I have not.
this document.
the witness?
excuse me.
what it is, and without foundation
no foundation whatsoever.
else's --
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testimony is based on somebody else's
database.
statistical approach for VNTR analysis, have
you not?
Yes.
by gentlemen by the name of Bruce Budowle and
Keith Munson?
Yes, that would be Bruce Budowle.
laboratory in Quantico, Virginia?
Yes, he is.
And there are few data on the distribution of
VNTR alleles for a particular loci for various
racial and ethnic groups; isn't that correct?
That there is few data? I think that article
is talking about DQ-Alpha.
Well, it says VNTR?
But I believe he's talking more about DQ-Alpha
Her whole
I don't believe that is
And he is with the FBI
MR. GARVIE:
You have some studies on the
THE COURT: Ask her a question
Don't have her read it to the jury.
And the document I just showed you wasOkay.
Okay, thank you.
about it.
the HLA DQ-Alpha.
about RFLP.
(BY MR. GARVIE)
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156
And there is no evidence to
minute, wait a minute, I'm trying to keep this
straight.
In your -- I'm sorry, maybe I misunderstood.
You said that VNTR's are not used in RFLP?
They are used in RFLP, but there is extensive
data for VNTR's for RFLP, but VNTR's
Wait aTHE COURT REPORTER:
support the assertion that a sample population
adequately represents the true population or
other sub-population groups.
And that's talking about ethnic
groups, isn't it?
It sounds like it, yes.
If I were to ask you, for example -- I'm
sorry, you've already said you did not collect
the database, so you're relying totally on
what that person's database is?
That's correct.
THE COURT: You really need
to slow down so everybody can understand your
testimony.
There is extensive data on VNTR's for RFLP,
but their concern is about VNTR's for HLA
DQ-Alpha.
(BY MR. GARVIE)
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REDIRECT EXAMINATION
QUESTIONS BY MS. TANNER:
Q. Ms. Lockhoof, to your knowledge, do all the
labs across the country that to DNA analysis
use population databases?
A. Yes, they do.
Q. Does the FBI use a population database?
Yes, they do.
And do labs other than the Department of
Public Safety in Austin use Mr. Eisenburg's
database, T-Com?
Yes.
And would you agree that population databases
are used for a lot of stuff other than just
DNA?
Yes.
Is the Eisenburg database considered to be
reliable within the field of RFLP DNA
testifying?
Yes, it is.
Okay. Do you have any information that that
database is wrong?
i
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witness.
MR. GARVIE: Pass the
157
158
No, I do not.
And with regard to the numbers you got,
combining the DQ-Alpha, D1S80 and the RFLP, it
would have to be pretty darn wrong to get it
below the world population for the total
calculations --
databases and things like that, can you tell
the jury, are they generally more conservative
or more liberal than what the true population
is?
More conservative.
And why is that?
The RFLP database is more conservative because
when we look at these films, we see that
actually this band is fact. We cannot see
exactly where this band is. So what they will
do is they will do an estimate. And so they
will put everyone in what we call a bin or a
category. For example, everyone whose DNA is,
When you're working on
THE COURT: Sustained.
MS. TANNER: I'll withdraw
Objection.MR. GARVIE:
the question.
(BY MS. TANNER)
Leading.
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159
say, one to three inches, they will go into
six inches will go in another category. So
we're not looking at each specific size. We
group them together, which makes it more
common because we look at the group rather
size, that would make it more rare, but
because we're grouping them together it
actually makes it more common.
As a result of that, when you're making these
calculations, is it skewed to err in favor of
the suspect or in favor of the State?
It benefits the defendant.
talked about the fact that some of these bands
are a little thicker than the other ones,
correct?
Yes.
And he asked you if even if they are not the
exact same thickness, do you make a match, and
you said that you do, right?
Yes, it would still be a match.
And are there specific criteria, in that
regard, to make a match?
If we look at the one
Everyone who is, say, three to
And in that same regard, Mr. GarvieOkay.
than the one size.
one category.
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160
we'll see what size are these different bands
of these that fell outside of the parameters
of what you could do to call it a match?
look at this and see that these two bands are
the same as these two bands and these two, and
we can look at this band and see that it's the
Yes, there are.
I mean, do you just go on and say, " well,It
looks good to me," and be done with it, or is
there certain measurements that have to be
taken?
There are two steps to what I call this a
We can
That is what I would call
And then we'll go in and
And these two bands have to be the
The first one is a visual.
And with regard to 100, were there anyOkay.
a visual match.
same size within a certain percentage before
we can call it a match.
And if it does not fall within the criteria of
being within that same closeness of size, what
do you call it?
An exclusion.
And it will clear the person?
Yes.
of DNA.
same as this band.
match.
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161
RECROSS EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. You didn't test all this long list of people
that Mr. Young had, did you?
A. No, I did not.
A. No.
Q. With regard to any of these, were there any of
the bands that you saw that were consistent
with the defendant or that were consistent
with Stacey Stites that fell outside the
parameters of what you could call a match?
A. No.
Q. And with regard to any of those four probes
that you looked at, did you see any evidence
at all that there was a combination of semen
between two donors?
A. No, there was no indication of a second semen
donor.
Q. SO, in your opinion, how many people could
have left the semen that you typed by RFLP in
the body of Stacey Stites?
A. There is indication of only one semen donor.
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MS. TANNER: No further
162
see.
MR. GARVIE: May I
approach?
the bands are within a certain percentage of
each other, even if they don't actually
physically match in size, it's called a match?
That's correct.
Okay. So say, for example, if I have -- this
item here was a band, and this item under here
was close enough, you could call that a match
even though they weren't physically the same
size?
Ma'am, I'm a little
THE COURT: Sure.
As I understand it, you say that if
No, that's applying this matching a little
differently than what we're actually doing.
Okay. Well, what do you mean by the
percentages?
What I mean by percentages, for example -
I'll show you one of the films. For example,
looking at this film, let's assume that this
band right here has a value pf 3300, 3-3-0-0.
This band right here may give it --
MS. TANNER: The jury can't
confused.
(BY MR. GARVIE)
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Thanks for pointing it out. This band may
have a value of 3300, this band may have a
value of 3350. (Indicating on exhibit.) So
they're different by about 50. That's part of
the nature of RFLP, because we can't
specifically say exactly what size they are.
So that 3300 and that 3350 are within our
match criteria to call it a match.
And who sets that criteria?
We are following the criteria set by the FBI.
Okay. So the FBI says a close counts. If
you're close enough, it counts as a match.
Yes.
And you mentioned earlier that the standard
procedure, and by that I assume you mean the
protocol, is that correct?
Yes, sir.
The standard protocol is to do five loci?
Yes.
You did four?
That's correct.
You did not follow the standard procedure; is
that correct?
I did not do the fifth loci.
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A.
Q.
A.
Q.
A.
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A.
Q.
A.
Q.
A.
Q.
A. Yes,
MR. GARVIE: Judge, I ask
164
that characterization, Your Honor.
that we exclude any of her testing or any of
the results or any testimony related to that.
to do what you have said to this jury is the
standard protocol?
Yes, you can do less than five.
And just so the jury understands, there could
be the thousands of such loci, isn't there?
Yes, there are thousands of loci.
So you didn't test all those sites either, did
y o u>
No, I did not.
And standard protocol says you do five.
Standard protocol says we can do five, but you
don't have to do all five.
Oh, so you can cheat?
Go
Objection to
I'm sorry, let
It's denied.
MS. TANNER:
You can get by without having
MR. GARVIE:
I did not do the fifth loci.
So you didn't follow your own
THE COURT:
(BY MR. GARVIE)
me rephrase that.
ahead.
(BY MR. GARVIE)
protocol?
That's correct.
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165
MR. GARVIE: Pass.
FURTHER REDIRECT EXAMINATION
QUESTIONS BY MS. TANNER:
Q. And if you do less than five, the result of
that is what?
A. That you have four loci.
Q. Let me make it a little more narrow of a
question.
With regard to the statistical
analysis, what is the result of doing four
instead of five?
A. If you do five, you have a more rare profile
and it would be even a great number.
Q. SO if you would have done an extra one, the
numbers would have been bigger?
A. Yes.
this case?
The reason I did not do a fifth one is because
the control for the fifth loci would not have
been present, because it would be too far down
on this gel, and so we would have had a result
we could not interpret.
If the control is not showing on the gel where
you can see it on the autorad, would it be
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Q.
A.
Q.
Okay. And why did you not do a fifth one in
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A.
A.
Q.
Q.
against protocol to give a reading to that, or
to make a result?
You cannot apply statistics if you do not have
a control.
And the whole reason for that is to insure
that the test is done correctly, right?
Yes.
Do you know of any lab that requires, say, on
these two that we talked about, that
absolutely requires the only way you can call
this a match is if this is 3300 exactly and
this one is 3300 exactly?
A. No.
FURTHER RECROSS EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. They have that fifth as the part of the
standard protocol, as you say, or standard
procedure, whatever you want to call it,
that's there fore a reason. Somebody said you
questions.
Q. Is it possible to be that exact in DNA
testing?
A. with RFLP testing you cannot be that exact.
MS. TANNER: No further
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(Whereupon the witness was
excused from the stand.)
those exhibits before you leave.
That's all, ma'am, you may step down.
THE COURT: Is that all?
MR. GARVIE: I have no
further questions.
FURTHER REDIRECT EXAMINATION
QUESTIONS 'BY MS. TANNER:
Q. Do some places, some labs, do more than five?
A. Yes.
Q. Do some labs do less than five?
A. Yes.
I'm
No further
No further
Ma'am, we need
We're going to
MR. GARVIE:
MS. TANNER:
THE COURT:
THE COURT:
questions.
quit here for the day and for the week.
do this, right?
A. Yes.
questions.
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168
this.
escorted from the courtroom
weekend.
so don't watch the news at all and don't read
Yes, sir, we
They have a
Please don't get any
MS. TANNER:
THE COURT:
The news people have been around here
have contacted Lab Corp and the individuals
that are in charge of all the notes and things
the one we talked about this morning.
were had outside the presence
and the following proceedings
(Whereupon the Jury was
and hearing of the jury.)
Otherwise, have a good Mother's Day
motion on the floor that I need to address,
informati~n outside this courtroom about this
the paper if they have a story in there about
I'm going to remind you of the instructions
I've given to you.
case.
told you earlier, but I am going to ask you to
not going to ask you to work tomorrow, as I
come back Monday morning at nine o'clock; and
i .!I .I .
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talked to you about it before that.
MS. TANNER: The day before.
And they've been out of town all week.
THE COURT: I don't want it
to slow the trial down, so try to get it to
the laboratory in California. Is that what
like that are out of the office until
tomorrow. We will be able to get it from
them, but they will be down here and I'll have
them bring it with them Monday, or Sunday
night, and bring it on Monday, because they're
not going to be in the office until tomorrow.
Now they can Fed-Ex it to me and it'll get
here on Saturday, or they can bring it on
Sunday and I can bring it in on Monday.
MR. GARVIE: Is it possible
to Fed-Ex it to the lab in California?
MS. TANNER: Well, you know,
you didn't file the motion
and you've known for a month
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don't.
the thing is, is
until yesterday,
about the test.
MS. TANNER:
MR. GARVIE:
MR. GARVIE:
I suppose.
She needs it, I
Yeah, but I
170
record, can we grant that as to item one, I
think it is?
going to be able to fax it, it's going to have
to be Fed-Ex'd.
talked to the lab to know, specifically, what
they can and cannot do because they are all
you're talking about?
MR. GARVIE: Yes, Your Honor.
THE COURT: Get there as soon
I'm not
I have not
Okay.
Well, it
It's notes and
Sure.
Judge, for the
Will you ship it
Instead of faxing
Whatever they can give
MS. TANNER:
MS. TANNER:
testifying all week.
MS. TANNER:
MR. GARVIE:
MR. GARVIE:
all that kind of stuff.
THE COURT:
out there then?
THE COURT:
it here, fax it out there.
MS. TANNER:
as possible.
probably won't be until sometime tomorrow that
we'll even get it out because they're all out
of town testifying all week.
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171
week after you've consulted with them.
Is that all for this week?
(At this time court was
recessed until Monday
morning, May 11, 1998, at
9 a.m.)
Okay. I won't
I'll rule on it nextrule on it today then.
we will get shipped out, and if we could,
after I have had a chance to look into that,
decide -- put that on the record. Whatever,
in accordance with the motion, we can give, we
will be happy to.
THE COURT:
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172
1 STATE OF TEXAS
2 COUNTY OF BASTROP
3 I, Carolee Murray, Official Court
4 Reporter in and for the 21st Judicial District
5 Court of Bastrop County, State of Texas, and Notary
6 Public for the State of Texas, do hereby certify
7 that the above and foregoing contains a true and
8 correct transcription of all the proceedings (of
9 all proceedings directed by counsel to be included
10 in the Statement of Facts, as the case may be), in
11 the above styled and numbered cause, all of which
12 occurred in open Court or in chambers and were
13 reported by me.
14 I further certify that this
15 transcription of the record of the proceedings
16 truly and correctly reflects the exhibits, if any,
17 offered by the respective parties.
18 WITNESS my hand this the 18th day of
19 July, 1998.
20Carolee Murray
21 Official Court Reporter335th Judicial District
22 Certification No. 1938Expiration Date 12-31-98
23 P.O. Box 2441Brenham, Texas 77834
24 (409) 277-0707
25 Taxable Court Cost:
