December 9th, 2009
The parties identify themselves for the record. Shelly Torrealba and Shannon Presby, DDA’s. Mark Overland and Julio Vergara for the defense.
The hearing starts out with Judge Perry bringing up a case decision, Vanwinkle vs. County of Ventura, a decision which was filed on December 7th of 2007. The opinion is at CAL.APP.4TH, 492.
This is in regards to statements the defendant may have made in regards to the Public Safety Officer’s Procedural Bill of Rights Act. Judge Perry quotes from the case ruling. “That we hold these protections do not apply to officers subject to criminal investigations conducted by their employers.”
Judge Perry does not want to discuss this issue now. He wants to proceed with testimony and take up this issue at another time.
17. MINELA SRBOVA
Ms. Srbova is a criminalist at the LAPD crime lab, toxicology unit. She was hired in 2003 as a laboratory tech and in February 2005 she became a criminalist. Srbova outlines her training and qualifications. She obtained her masters in environmental chemistry and engineering from the University of Chemical Technology in Prague, Czech Republic.
Srbova is shown a document, Defense Exhibit A. She identifies it as a document (an evidence log) that originates from the coroner’s office. She identifies her initials and and serial number on the log as receiving evidence labeled “bite mark swab.”
Srbova states she also goes by the nickname of “Millie.”
Srbova testifies that she did go to the coroner’s office and pick up this item. Srbova is now shown People’s Exhibit #29. She identifies her handwriting on this exhibit in the lower left hand corner. It has the D.R. (?) number (86-09-0480), item number, her initials S.I.D. and the date she wrote the numbers on the envelope.
Srbova is asked about the “D.R.” number and where she obtained it. It was obtained from a detective or the coroner’s office. The number “30” on the envelope is the item number at LAPD property that it would be booked into evidence as.
When she received the envelope, she transported it to the LAPD crime lab where she placed it in the refrigerator. The refrigerator is also a freezer.
This was not the only case she picked up that day. She also picked up evidence from 18 coroner cases for a total of 106 pieces of evidence.
Srbova states that each case’s evidence items are kept separate. She states she never opened the envelope that she picked up involving this case.
Srbova outlines her procedures once she gets the items back to her department and placed the evidence inside the freezer/refrigerator. She went through all the cases and all the pieces of evidence that she picked up and wrote all the D.R. numbers and item numbers, initials. She marked on the envelope or on the packages whatever she received. She then places them in LAPD envelopes and writes a report for all the cases and then booked them into property.
People’s number 86 and 87, photos that depict the front and back of the LAPD envelope. Srbova identifies her name and serial number on the envelope “frozen tag.”
Srbova is asked about a date on the envelope and what it refers to. She states that is the original booking date.
(Reading the transcript, I’m somewhat confused about the dates they are referring to.)
A date of February 25th, 1986 is not the date that she booked it. It was booked into LAPD evidence on January 25th, 2005. The January date is the date Srbova booked it into evidence.
Srbova identifies on People’s number 87, the backside of the LAPD envelope. She states she sealed that envelope. She identifies her signature, her serial number, the date and the S.I.D.
The delay from the date Srbova picked up the evidence from the Coroner’s office (December 30th, 2004) and the date from the time it was booked into evidence at LAPD (January 25th, 2005) is explained by Srbova.
Srbova states, “There’s actually no delay because it takes time until I went through all the evidence packages and all through everything I book - - I picked up. So therefore, it seems like delay, but it’s a normal process.
Judge Perry doesn’t understand the answer and questions Srbova on the details of her procedure.
Judge Perry elicits from Srbova that it takes time for her to go through 106 pieces of evidence. Although she receives the evidence on December 30th and files it in the freezer, it takes time to log all those pieces into LAPD evidence.
Under questioning, Srbova states that if she only picked up one piece of evidence from the coroner, then it would get processed in one day. But she picked up 106 pieces. That takes time. Although she picked up the piece of evidence on December 30th, 2004, she doesn’t work weekends and sometimes she’s off and sometimes she assigned to do something else. She states that the envelope goes in the freezer on December 30th, in the original coroner’s envelope but it’s not transferred to an LAPD envelope and LAPD documentation until January 20th, 2005. She states that she did not “repackage” the envelope. She on the 20th, she took the item out of the LAPD freezer, put the envelope from the coroner inside an LAPD envelope, documented it and put it back in the freezer.
Judge Perry also elicits from the witness that during that time the evidence is waiting to be booked, there is no notation anywhere, that this evidence is in the freezer waiting to be booked.
Srbova states there was no particular order in which those cases were worked on. She states she would not work on more than one case at a time. She had to verify with the property unit in order to get the number “30” for this piece of evidence. That was the next in order number available at that time.
Direct is finished and Overland begins the cross.
Srbova states that when she picked up the evidence (in this case) from the coroner, she took it to the LAPD the same day. Srbova states that it’s a matter of procedure (she always did it that way) that she would put items that needed to be refrigerated in the refrigerator or freezer. When the items are put in the freezer, there is no log that she signs at that immediate time. Here are her words.
“When I picked up any evidence from the coroner’s office, I put it into serology unit, which was the unit that had refrigerator and freezer, into the refrigerator or freezer in the property unit, that happens after I book it. And there is - - there is a log that I sign the D.R. number and everything that I booked it that day, but that belongs to property unit.”
There is no record or log that she put something in the freezer or refrigerator (until the paperwork is completed that the item is booked into evidence).
Judge Perry asks questions of the witness again to clarify the delay from December 30th to January 25th. Again the witness states there is no record that she put the item in the freezer on December 30th. “Nothing like that was in the procedure, so there is no record that would indicate that I put it in the freezer. Just have to believe me that I did.”
Judge Perry asks what record would she have to remind her that she had put something in the freezer.
(Srbova’s answer is confusing to me and to Judge Perry.)
“The record would be that I booked it as a frozen, that’s why it was i the freezer. Because if it needed to be frozen, I would not put it on the shelf or anywhere else. I would put it always in the freezer.
Judge Perry asks again, about any record being made at the time it was put in the freezer, and Srbova answers, “There’s no record about it, only the envelope that I booked it.”
Overland enters into evidence, Defense Exhibit C, a one page LAPD property report dated January 21st, 2005.
Srbova is asked about the report and states she prepared the report for D.R. number 86-09-10480, the case here. Srbova agrees that there is nothing in that report as to when she put the evidence in the freezer.
Srbova is questioned further as to what was involved in booking those 106 items of evidence. She has to review to ensure that all the pieces she received do belong to the proper case number. She has to ensure that everything is properly sealed by the coroner’s office. She also has to ensure that she is marking everything correctly on each envelope and package. She had to find out the D.R. numbers and sometimes that took a couple of days until she got a response from a detective or someone handling the case. So that took time.
Srbova is asked how many pieces of evidence she went through in that period of time from December 30th to January 25th. She states 106. She knows this because she created an EXCEL spread sheet that had all the items of evidence that she picked up. She created the spread sheet at that time she picked up the evidence.
Srbova states that the EXCEL spread sheet she created does not document how much time she spent on each individual item to properly book it into LAPD evidence and that she doesn’t know how much time she spent on each of those 106 items.
Srbova states, specifically to the bite mark swab, it would have taken her about 1/2 hour to verify that everything was correct.
Overland is finished with his cross and Judge Perry asks a few more questions of the witness.
Judge Perry makes a general statement that her job was basically that of courier. She would go over and pick up evidence and bring it back to the LAPD and make sure that what she got from the coroner was properly booked.
Srbova states that she was usually faxed a sheet of what she was to pick up, but she didn’t care that much what she was going to pick up. She verified when she got back to LAPD it was her job to verify everything that she signed for on the evidence log.
Srbova states that she did have a regular run or she could go over to the coroner’s office by special request. That special request could be from a detective or from someone in the coroner’s office.
The EXCEL spread sheet, that was something that she did on her own, so that she could keep track of what she picked up. Judge Perry asks her if she has a copy of the spreadsheet or if she can make a copy of one for the period they are talking about. Srbova states that she has it in the computer at work.
Ms. Torrealba gets up to redirect the witness.
Srbova states that at that time, there was only one freezer in the serology unit and that it was locked. Only criminalists in serology unit and during the daytime (had access to the freezer). There was a special place in the freezer, a box labeled “Coroner’s evidence” and that was her box. There was no one else picking up evidence from the coroner’s office.
Redirect is finished and there is no recross. Shannon Presby presents the next witness.
18. RICHARD SMITH
Mr. Smith is an LAPD officer and firearms examiner for the Scientific Investigation Division. He describes his background, training and experience with respect to firearms. He first trained with the FBI and AFT in 1993 to become a computer aided firearms examiner. He entered the firearms training program in 2004, completed it in 2006. He took all the required tests and has been working as a firearms examiner ever since.
When he first went to firearms, he was tasked with completing an exemplar set of cartridges for LAPD. That involved studying and finding out about anything to do with cartridges from .22’s all the way up through the 458 rifle rounds. He assembled a collection of over 1,000 cartridge cases from 1993 to 1994 that are currently being used by LAPD as exemplar cases for them.
Smith has previously been accepted as an expert witness in court in respect to firearms analysis in approximately 100 cases.
Smith first joined the LAPD in 1981. Smith states that the LAPD has rules, regulations that authorize specific types of ammunition for specific guns for specific periods of time for rank and file officers, officers on patrol.
Smith testifies that it is a violation of LAPD policy for an officer to use ammunition other than what LAPD has authorized.
Smith states that he does remember the authorization and use of .38 caliber Plus-P semi-jacketed lead soft point ammunition by the LAPD. Smith states the time range that ammunition was authorized for use was between 1982 and 1984. Smith states that during that time he was a patrol officer. Smith states there is an event in his career that helps him to remember this fact about the ammunition and that was he was working with a partner who was in a shooting with that type of ammunition. Smith states he believes the shooting took place approximately in 1983, but he doesn’t remember the exact date.
Smith is asked about the .38 caliber Plus-P semi-jacked lead soft point ammunition. Plus-P is a .38 cartridge, that is loaded to a higher pressure creating more pressure which creates a higher velocity of when the bullet leaves the firearm.
Smith states that Richard Maruoka is the supervising criminalist of the firearms analysis unit. In July of 2009, he had a discussion with Maruoka about this ammunition. He told Maruoka during that discussion what he told the court here, that at one time, the LAPD authorized the use of this ammunition. During that conversation, Smith informed Maruoka that he still had in his possession some of this specific ammunition.
People’s next in order, number 88 and 89, color photocopies of boxes of ammunition. Smith identifies the photos of the back side of a box of ammunition that he gave to supervisor MAruoka. Photo number 89 is another view of the same box of ammunition.
Using the laser pointer, Smith points out a “30” sticker on the box and explains. “The significance of the 30 sticker is the box is designed to hold 50 cartridges, and because we qualified with LAPD with 30 cartridges, LAPD returned to us 30 cartridges when we qualified at the sooting range. So in order to identify the box as one that was only holding 30 they would put a sticker on the box so that we were not lead to believe that it was a 50, box of 50 cartridges.”
Smith verifies that is the same type of sticker he recalls seeing on boxes of ammunition that he was given when he was an officer at LAPD. Smith verifies he gave this box to his supervisor, Maruoka. Before he handed it over, he looked inside the box and verified there were some of the mentioned rounds of ammunition, made by the company, “Federal.”
Direct ends and cross begins by Overland.
Smith states that he is able to narrow down the date to the early ‘80’s of when the ammunition was used because of the shooting incident involving his partner.
Overland gets the witness to admit that he doesn’t remember the name of the victim and he wasn’t able to track down any reports to solidify the date of the shooting.
Cross ends and there’s no redirect. Mr. Presby presents the next witness.
19. DANIEL RUBIN
Mr. Rubin is a criminalist with the LAPD for 19 years. He describes his training and background. Rubin is also an firearms examiner for 19 years. He’s testified approximately 146 times as an expert.
Rubin examined firearm evidence in this case (86-09-10480). He received two bullets with identification numbers 42-A and 42-B. Rubin describes the packaging the bullets arrived in. (Envelopes within envelopes.)
Rubin explains that he engraves on the base of each bullet his identifying mark to document that he’s analyzed a projectile. He puts his identifying mark, the item number and the nine digit case number.
Rubin examined the bullets and determined that they came from the same firearm. He based his conclusion on the tool-marks that were on the bullets from being fired. After his examination Rubin testifies that the bullets were consistent with being fired from a Smith & Wesson Model 45. Rubin details all the steps he took (photographs and measurements) including the comparison to a reference source (the rifling characteristics file from FBI) to come to this conclusion. The items were then repackaged and returned to the property center.
On July 22, 2009, he reacquired the items from the property room to reexamine the bullets and compare them with other ammunition to determine the possible manufacturer. On July 39th, 2009 he obtained some live ammunition from Richard Maruoka (.38 caliber semi-jacketed lead ammo) for comparison to the two bullets.
Rubin took a photograph of his microscopic comparison of the items (People’s number 92). Presby then asks him to explain “jacket crimp” as it relates to a bullet. Rubin states that he had not come across before, the unique characteristic of the jacket crimp on the fired bullets. It wasn’t very common. The jacket crimp on the fired bullets appeared to be the same type and shape as the live rounds provided by Maruoka. Using the laser pointer, Rubin points out for the court the similarities in the microphotographs he took in comparing these items. Rubin describes the jacket crimp as “a hoof print of cattle.”
Rubin states that in all his 19 years of microscopic examination of “thousands” of bullets, he has no recollection of ever seeing that type of jacket crimp before.
Direct ends and cross begins.
Overland has Rubin clarify his expert opinion about the bullets. Rubin states “they could be” Federal brand bullets, since they are “consistent with” that particular brand. Rubin states he did look at other brands and the bullets were not consistent with other brands he compared them to.
Rubin excluded a particular Remington jacketed hallow point brand bullets. Overland has Rubin’s report that he wrote marked Defense Exhibit D. Under cross, Rubin clarifies that the bullets “could have been fired” from a Smith & Wesson model 49.
Rubin states there are other models of weapon that the bullets could have been fired from. Ruben rattles off a long list (over 30 different weapons from Smith & Wesson, Ruger, Sportarms or Taurus).
Rubin goes onto explain that there could be other weapons beyond this list. This list is limited to weapons in the General Rifling Characteristics File supplied to crime lab by the FBI. There could be other makes and models that have the same general rifling but that data has not yet been submitted to the FBI (and reached the GRCF list).
Overland wants to ask the witness about cartridges that were recovered from Lazarus’ home that he tested and compared to the fired bullets. None of those cartridges were consistent with the bullets that killed Rasmussen.
At this point, the people agree to stipulate to the cartridges Overland is referring to were obtained during a search warrant of the defendant’s home and one cartridge obtained through a search warrant of Lazarus’ (work) locker.
Through his own questioning, Perry elicits a point that Overland is trying to make, and that is that none of the bullets loaded in the unfired rounds recovered from the search warrants are consistent by design with the bullets recovered from the victim’s body.
Rubin states that the .38 special caliber revolver found in Lazarus’ locker was test fired. Rubin could neither confirm nor eliminate the bullets recovered from Rasmussen's body as being fired from the .38 special. The bullets could have been, but Rubin cannot determine if they were or were not fired from that weapon. He doesn’t know.
Cross is finished and there is no redirect. Mr. Presby introduces the next witness.
20. GEORGE LUCZY
Luczy is an independent forensic firearms and explosives consultant since 1991. Before that, he was employed by the LAPD. At that time he was assigned to the Scientific Investigation Firearms and Explosives Unit. He was a forensic firearms examiner and bomb technician. Luczy describes his background and training in regards to firearms examination.
Luczy was in the army before joining the LAPD in 1971. From a patrol officer he was trained as a divisional armorer. He was responsible for the maintenance of all model ITHICA .37 shot guns owned by the LAPD. During that position, he researched a safety defect in the model 15 Smith & Wesson revolver that eventually resulted in the recall of every city owned LAPD firearm. Over 7400 guns were recalled, rendered safe and reissued.
Luczy came in as a temporary member in the firearms and explosives unit to assist during the 1984 Olympics. His loan to the department started in 1983 under a 15 month loan. In 1986 he was reassigned back to the firearms and explosives unit. From 1986 to 1991 Luczy performed approximately 3400 firearms examinations for LAPD as well as being a bomb squad member.
Since retiring, he does the same thing he did for the LAPD except his practice is 99% defense work. In his own practice he has conducted hundreds of cases.
In his career he has examined clothing that has been in close proximity to a firearm discharge. The examination of clothing can reveal the type of firearm that caused marks on clothing. There are certain types of marks (left on clothing) that are indicators of the type of firearm that may have been used in a crime.
Luczy examined clothing related to this case. During his tenure with the LAPD he kept his own journal of the cases where he conducted firearm analysis. Pages from Luczy’s journal relevant to this case are entered into evidence, People’s number 94. Luczy also wrote a report (Peoples number 95) relevant to his examination of a specific caliber bullet, a rust colored robe and a pink tank-top style shirt. In the report, Luczy also made a diagram of the front and back of the rust colored robe, People’s number 96 and 97.
Luczy also examined a quilted, multi-colored bathrobe and wrote a report, People’s number 98 and the diagram of that bathrobe, People’s number 99. Luczy re-examined the rust colored robe and the multi-colored item on December 1st, 2009 and wrote a new report detailing that examination. That report, People’s number 100 is entered into evidence. The examination took place at a crime lab on the campus of Cal State University.
When the items were presented to Luczy they were wrapped in heavy brown paper, over wrapped with string and inside a sealed cardboard box. The items were in two separate boxes. Luczy testifies they were in an “...excellent state of preservation.” During Luczy’s recent examination, he attempted to “match” the lineup of the holes in regards to the rust colored robe. At this point, Overland makes an objection to chain of custody and Judge Perry overruled that objection.
Luczy testifies that the correspondence between the holes in the items he examined on December 1st and his report and diagrams prepared back in 1986 were exact. The rust colored robe was photographed during his reexamination. That photograph, People’s number 101. During Luczy’s initial examination in 1986, he numbered the holes in the front portion of the robe (depicted in diagram, People’s number 96). Overland made another objection to chain of custody. The holes are numbered A1, A2, A3, A4.
Luczy testifies that he noticed a material deposited around holes number A3 and A4. Luczy described it. “There’s a very, very heavy deposition of unburned granules of gunpowder that surround those holes in that area of the robe.” (The front of the robe.) That finding was consistent with what he noted back in 1986. Luczy states what he was attempting to do was document what he saw on the robe in his 1986 diagram. He placed many little black dots around holes A3 and A4 to represent numerous burns or unburned grains of powder.
People’s exhibit number 102, a photo of the robe taken during the reexamination in 2009 documenting the tiny speckling, grains of unburnt gunpowder. They are still there after 23 years.
The presence of unburned grains of powder on the robe is significant as to distance determination, which is defined as the distance between the muzzle of the firearm in question and the surface upon which the residue was deposited; in this case, the robe.
Luczy states, based on his experience, there is a difference with respect to the about of unburned particles you would expect to find on a garment between a short barrel weapon and a longer barreled weapon. His opinion is the unburnt particles were left by a short barreled weapon. The length of the barrel in a firearm determines how much of the powder is combusted. Luczy testifies, “These grains that you see here are unburned and that is caused by the - - - by the fact that the firearm that produced this is a short barreled weapon.”
Luczy reexamined the hole designated as A2. A2 had a cruciform appearance, meaning there was tearing at the margins of the hole that is similar to a cross or star shape. This is an index of a contact gunshot would where the muzzle of the firearm is in direct contact with that piece of material. Luczy determined that hole number A1 next to hole A2 was produced when the portion of the robe number A1 was underneath number 2. In other words, the lapel of the garment was folded over and that hole 1 and 2 were created by one fire, one shot fired. Hole number 2 is indicative of a classic ‘contact gunshot wound.’
Luczy reviewed Dr. Selser, the coroner’s report, specifically what she documented in her report as gunshot wound number 1. The report indicates there was gunshot residue inside that wound indicating it was a hard contact gunshot.
Luczy determined that this was the same robe he examined back in 1986. He added his initials via a label to the robe in 1986. People’s exhibit number 103 is a photograph of the label attached to the robe.
Luczy now details his reexamination of the multi-colored robe in 2009. (It is much the same as his reexamination of the rust colored robe. He came to the same conclusions about the multi-colored robe in his re-exam as he did in 1986.) Luczy came to the conclusion that there were three shots fired through this robe. He based that on the grouping (of the shots) that he observed as well s the appearance of the holes that were created. More photos are introduced and analysis to back up Luczy’s conclusions. Luczy states the gunshot residue left by the muzzle blast leads him to conclude that the multi-colored robe was draped or wrapped around the firearm when it was discharged.
Luczy states that a linear gunshot residue deposit on the garment in one area is called a barrel cylinder gap discharge mark. A barrel cylinder gap is something that is unique to a certain type of firearm mainly a revolver-type handgun.
(I remember learning about this during the Spector trials.)
The barrel cylinder gap is a gap that is between 4 and 6 thousands of an inch in width, and this is a gap that the bullet has to jump. When that happens, there is blow back or blow out to the sides. It’s called barrel cylinder gap discharge. This phenomenon is present on the garment which indicates that the mark could only have been produced by a revolver.
Because of the location of the bullet holes in the multicolored robe, and the location of the barrel cylinder gap discharge on the garment exactly two inches away. That measurement allows Luczy to identify the length of the barrel of the gun involved in this crime.
With this information, Luczy attempted to align the barrel cylinder gap with an exemplar of a Smith & Wesson model 49 handgun. Photographs were taken of that alignment, People’s exhibit number 106.
In conclusion, Luczy states that the bullet holes and the barrel cylinder gap discharge was caused by a two-inch barreled gun, and that gun was a revolver.
Direct examination ends and cross begins.
Luczy verifies there are a huge number of revolvers manufactured with a two-inch barrel. Easily 2,000 different weapons.
Judge Perry asks questions of the witness and there is a confusion if Overland wants to know how many different models, or just Smith & Wesson's or overall guns. Judge Perry wants to know how many models of two-inch revolvers are out there. More than 10? Yes. More than 100? Luczy doesn’t know but states he could easily find out. Luczy agrees it’s a large number.
Luczy states that he was only asked to compare one model of weapon to the holes and residue on the weapon.
Cross is finished and there is no redirect. The noon recess is taken early.
Mr. Presby notifies the court that the defense and prosecution is trying to work out some stipulations as to some lose ends that are remaining, and they hope to get those completed tomorrow. Judge Perry responds he is “..jumping up and down with glee” regarding the news that both parties will probably finish the preliminary hearing tomorrow. Mr. Presby presents the next witness.
21. ELAINE SENA-BROWN
In March of 1986 Ms. Sena-Brown was employed by the Santa Monica Police Dept. She was not a police officer; she was a Community Service Officer and her duties were to handle non-emergency calls. She was not sworn; she is a civilian. As part of her duties, she routinely took reports. On March 9th, 1986, she took a report from someone who identified themselves as Stephanie I. Lazarus. People’s next in order is exhibit number 108, a four page document entitled City of Santa Monica Police Report. It’s a crime report.
Sena-Brown details the document. It was obtained on March 9th, 1986, on a Sunday in district 3. The reporting person was Stephanie I. Lazarus, who identified herself as a police officer. Lazarus was reporting a theft from an automobile of her firearm and some miscellaneous items. Lazarus gave Sena-Brown a description of the firearm. The report states the firearm was a Smith & Wesson model 49, two-inch blue steel five shot .38 caliber revolver. Lazarus also provided a serial number for the weapon which was noted on the report.
Sena-Brown wrote the entries on the report based on what Lazarus reported to her. The report indicates she looked at the vehicle but the witness doesn’t have any independent memory of doing that. The report states the driver’s side lock was “punched” meaning the lock had been tried (pried?) or attempted to be removed off of it’s normal seating. Sena-Brown states she is testifying based primarily on looking at the report and knowing what her custom and practice was back then. She does not have an independent recollection of the vehicle or any damage to the vehicle or of the person who reported it.
Direct ends and cross begins.
Overland has the witness detail the address location and the streets in between where the crime supposedly occurred. Back in 1986, Santa Monica did not take these types of reports over the phone. She would have received a call and arranged to meet the reporting individual at the station. In this case, she did not meet the individual at the location of the auto burglary.
During Ms. Sena-Brown’s interview with detective Jaramillo and Mr. Presby, she stated that whenever there was a burglary from an auto, she would request the victim to come to the station if they wanted prints. This was her normal practice. It’s noted on the report that an I.D. tech was requested, but she would not have any contact or report back from that technician.
A blue gym bag was also reported stolen as well as clothes, six music cassettes and currency and coin. Sena-Brown states she can recall one other incident where another police officer reported having their weapon stolen, two incidents if she counts Ms. Lazarus.
Overland reminds her of her taped conversation where she stated she could remember four reported incidents of officers having their guns taken. Sena-Brown concedes she probably did.
Cross is finished and there is a short redirect.
Sena-Brown states she does not have a specific memory of Lazarus specifically asking to take prints of the vehicle. She has no independent recollection if this was actually done. Based on her report she assumes that it was done but she doesn’t know if it was done or not.
Sena-Brown indicates that the location of the vehicle at the time of the burglary was five blocks from the pier and is a location that is commonly used for parking for people who want to visit the pier.
Redirect ends and recross begins.
Sena-Brown is asked more detail questions about the burglary location and it’s proximity to the 3rd Street Promenade where there are shops. Sena-Brown states in 1986 it was a lot different. The Promenade was not as well attended as it is today. Sena-Brown agrees that the location was also close to Santa Monica Place, once a large area with various stores, like a mall. It’s no longer in existence today but it was in 1986.
Sena-Brown states that if the individual decided they did not want to wait for a technician to print the car, they didn’t have to because that may take time to get the technician there. Sena-Brown states that if that was the case, she would have noted it on the report.
Recross ends and redirect begins.
Presby presents a map of the area where the burglary supposedly occurred. Sena-Brown states the area is actually four and a half blocks from the pier. She does not know if the person who initiated the report, remained to have prints taken of the car. After completing her report, if the individual changed her mind about prints being taken, Sena-Brown would have no way of knowing tat.
Sena-Brown states that back then, she would have just knocked on the door (to that department) and say she needed a technician to look at the car. She would do that at the time she made the report. She would either make a phone call or walk over to the department. She would not necessarily do that in the presence of the reporting individual. If she had cancelled the I.D. tech, she probably would have a notation in the report.
Examination ends and Presby calls and presents his next witness.
22. JIM NUTTALL
Mr. Nuttall is a homicide detective for the LAPD. He conducted a re-review of this case in February, 2009. In that review, he discovered the original theory of the case that was pursued in 1986, of a botched robbery conflicted with other information found in the file.
There are objections by Overland regarding the questioning and whether the answer would be “double hearsay.” Judge Perry rules that at this time it’s not relevant “why” the detective did something. He instructs Mr. Presby to just ask his witness what he did.
From a review of the original “murder book” Nuttall identified five females that were part of Ms. Rasmussen’s life at the time of the murder. They were given numbers 1 through 5.
On February 10th, Nuttall interviewed John Ruetten by phone that was not tape recorded. He conducted a second in person interview on May 20th, 2009. In the interviews Nuttall asked Ruetten about any possible females from his life in 1986 who might have had some animosity toward his wife. Nuttall made it clear to Ruetten they were reopening the investigation and that he wanted him to be forthcoming. Judge Perry interrupts and explains to the witness he’s offering too much information. He instructs the witness to listen carefully to the question. He repeats the question to the witness. John Ruetten gave him the name of Stephanie Lazarus. Ruetten told Nuttall he met Lazarus at UCLA, and that they had an ongoing relationship through the time of the incident in 1986. Ruetten told Nuttall that Lazarus was an LAPD officer at the time of his wife’s death.
Nuttall also investigated a woman by the name of Debra Hoey. Nuttall determined where Ms. Hoey lived in 2009 and arranged to obtain a surreptitious DNA sample from her that was submitted for comparison. Subsequently, he spoke to Ms. Hoey and she volunteered a DNA sample that was submitted for comparison.
In the interview, Nuttall discussed Ruetten’s relationship with Sherri Rae Rasmussen. Ruetten stated he purchased a BMW vehicle for Rasmussen about the time of their engagement. Ruetten was living somewhere in the San Fernando Valley at the time of his engagement. After the engagement, he moved into Rasmussen’s condo. Ruetten stated that after he moved in, the couple changed their security practices. They had an alarm installed that Ruetten paid for.
Overland wants clarified as to which interview the detective did where all this information was obtained. The information came from the face to face meeting with Ruetten.
Ruetten told Nuttall that he met Lazarus in his second year at UCLA. They were living on the same floor of the Dykstra Hall Dormitory. Initially, their relationship was “very good friends” and it continued after they graduated from UCLA. Ruetten described his relationship with Lazarus as a “gray area between a friendship and one-on-one dating relationship.” Ruetten stated they were never fully intimate while on campus together. After graduation, they became “fully intimate.”
After Ruetten became engaged to Ms. Rasmussen, he described to Nuttall a contact he had with Lazarus. Lazarus called Ruetten asking to see him. They met at Lazarus’ residence in Northridge. At that meeting Lazarus made what she wanted clear. She wanted to be “more than friends” she had strong feelings for Ruetten and wanted a romantic relationship. During the conversation Lazarus told Ruetten she was in love with him.
Ruetten described his activities on the day his wife was murdered. The woke early. Ruetten ran a morning errand and went to work. He left work to go to a nearby bank and then went back to work. He left work at approximately 5:00 pm. He made a stop on the way home and arrived home about 6:00 pm.
Arriving home, Ruetten noticed that the garage door was open, no cars inside and there was glass on the pavement. Sherri’s BMW was gone. Ruetten told Nuttall that Sherri did not have a bite mark on her body the day prior to her murder.
Nuttall also interviewed Rasmussen’s sister, Theresa Lane, in June, 2009 regarding any injuries Sherri may have had in the days prior to the murder. Ms. Lane had seen her sister the day prior to the murder and did not see any bite marks on Sherri’s body that day.
Ruetten informed Nuttall that Lazarus had never been in either of the two cars he and Rasmussen owned at the time of Sherri’s death.
(There is a question and answer here at this point in the transcript, right after the above question was answered that does not make any sense. Here is what it says.
“Q. Did you ask Mr. Ruetten whether or not the decedent had ever been inside the residence 7100 Balboa, to his knowledge, prior to the date of the murder?
Q. What did she tell you in that regard?
A. She had never been inside the home.”
(It’s my guess there are two errors here. It’s my opinion the transcript should read “whether or not the defendant had ever been inside the residence.” The second error, I believe is in the next question, and should read “What did he tell you.”)
Ruetten told Nuttall that to his knowledge, Lazarus did not have keys to Sherri’s condo nor was there any personal property of Lazarus’ that he brought with him from Lazarus’ residence.
Ruetten stated that to his knowledge, there was no time where he, Lazarus and his deceased wife, were ever all together at the same time. Ruetten was very clear to Nuttall. He stated that during the initial investigation in 1986 “...he made it known to our investigators that Stephanie Lazarus was his ex-girlfriend and perhaps she should be spoken to.” Ruetten also clearly remembered following up with LAPD investigators in the 1980’s about Lazarus being a possible suspect.
(This is interesting. Presby wants to ask some specific questions of the detective, but Judge Perry feels the line of questioning for the preliminary hearing is not relevant. Judge Perry rules, “352,” but I will include it because it’s noteworthy to explain Ruetten’s behavior with Lazarus after the murder.)
“Presby: I think what detective Nuttall will say is that John Ruetten told him that he was told that Ms. Lazarus had been eliminated as a suspect. It’s relevant because it explains - - there are some post murder contacts between Mr. Ruetten and the defendant explains why he would have such contacts. You don’t care about that.
Judge Perry: 352.”
Ruetten told Nuttall that he did have contact with the defendant after the murder. Ruetten also stated that he told the defendant “face to face” that he had provided her name to police. That conversation took place in Hawaii. In that conversation, Ruetten told the defendant (that he told police) about his knowledge of Lazarus’ confrontation with his wife at Adventist Hospital in the fall of 1985.
Nuttall testifies that when Ruetten informed Lazarus about the police knowing about this confrontation, she appeared “...unfazed. There was no reaction or response.”
Judge Perry asks how Ruetten and Lazarus were in Hawaii together. Ruetten informed him it was by chance. They went to Hawaii independently.
Direct ends and Overland crosses Nuttall.
Overland questions Nuttall on the specific words he used in questioning Ruetten. Nuttall states for the record that he didn’t use the word ‘animosity,’ he actually said, “...anybody who may be involved in the investigation...”
Nuttall states that Ruetten never told him that he informed Lazarus about the gift of the BMW. Nuttall clarifies that it was an “engagement” gift and not an anniversary gift. Nuttall clarifies that the term “never fully intimate” means sexual intercourse. Overland states that they will continue with Nuttall’s term.
Nuttall states that Ruetten told him that any contact he had with the defendant after February 24th, Ruetten initiated. Overland gets Nuttall to concede that the word he used to describe the Adventist Hospital incident was “met with” and not “confronted.” Nuttall agrees there was a “meeting.”
Nuttall concedes that Ruetten stated he had “no direct knowledge” of the meeting. Nuttall states that Ruetten said, “...it was his fault, that he had confused the relationship between himself and Ms. Lazarus.” Ruetten had confused the relationship by being friends and at the same time being intimate.
Overland asks Nuttall about that incident where Ruetten went to Lazarus’ apartment. Nuttall states Ruetten told him that Lazarus was not angry or mad. That Lazarus thought this might be the last chance. Ruetten told Nuttall that Ruetten and Lazarus were intimate that night, and this was after Ruetten and Rasmussen were engaged.
During Nuttall’s interview with Ruetten, he told him that he hoped that June would be a deadline for resolving the case. Nuttall was not getting any pressure to resolve the case by June by anyone higher up in the department. With the resources Nuttall had, he had a good time frame of when he would have his answer.
Cross ends and Presby picks up redirect.
When Nuttall predicted a resolution to the case by June, he was expecting an answer on the DNA. At the time Nuttall had no idea if the DNA was going to identify the defendant. He thought it would either eliminate or identify her.
Overland has one more question on recross. When Ruetten told Nuttall he installed an alarm system, it was because there were burglaries in the area.
Ms. Torrealba presents the next witness who is not on the list.
23. MARIA TOMES
Ms. Tomes is a detective with the LAPD Robbery/Homicide Division, Robbery Special Section. She holds the rank of senior supervising detective. She has been with the department for 22 years. Tomes states she does know an individual by the name of Nand Hart-Nibring, a criminalist employed by the LAPD.
Tomes states that on June 5th, 2009, she was with Hart-Nibring and detective Dennis English were at the old LAPD location on Los Angeles street. English is a detective with Robbery/Homicide division. The defendant was also present. Tomes states she observed Hart-Nibring collect two buccal swabs from the defendant, also called oral swabs. Tomes described the steps Hart-Nibring took to collect a DNA sample.
Tomes states once the swabs were collected she described the steps he took to package up the swabs. During the collection, Hart-Nibring had on a facial mask, protective clothing and gloves. Once the collection was properly packaged Tomes states that Hart-Nibring booked the items into evidence under the proper DR number. The item number placed on the swabs was 51. Hart-Nibring prepared a report regarding the collection which Tomes reviewed.
Direct is finished and there is no cross of this witness. Ms. Torrealba presents the next witness.
24. ANDREA DILLION
Ms. Dillion is a forensic print specialist assigned to the Scientific Investigation Division of the LAPD. She has been in the assignment of fingerprints a total of 15 years. Dillion describes her training and experience and has already been qualified to testify as an expert witness.
Dillion worked on DR number 86-09-10480. She was assigned to work on comparison. The victim in the case was Sheri Rasmussen. She compared palm prints regarding the defendant. Dillion refers to her notes to state she compared prints on a package on June 8th, 2009, August 21st, 2009 and yesterday. She prepared a report of her findings, dated August 21st, 2009.
Dillion compared Lazarus’ prints to 18 lifts in Package “A” and 15 lifts in Package “B.” Package “C” was a photo of a latent print which she didn’t compare because it had already been identified. There were five latent prints in Package “D” four of them identified and one unidentified.
The contents of Package A, two pages is marked next in order, exhibit 111-A and 111-B. These are prints that were collected from the crime scene. And on the document, there’s columns that say, identifiable, identified and not identifiable.
Identifiable means, the print has been evaluated by the examiner initially before work is started and later on it’s (possibly) identified. She did not prepare this document. It’s a document that’s prepared in the field, by a field individual who collected the print.
She was asked to take the unidentified prints and see if she could compare them to the defendants. Overland concedes that there are exemplars of the defendant’s prints to compare to.
Dillion could not make a match comparison between Lazarus and any of the unidentified prints in Package A or Package B or Package D. She compared one print in Package B to the victim, #12, and it did not match the victim. Some of the prints were not able to be identified (classified as unidentifiable) because they did not have enough ridge pattern. Direct is finished and cross begins by Overland.
Dillion states that she did not prepare the form. There is a document log with a list of people who did previous comparisons on these exemplars prior to her employment at LAPD. She cannot speak to forms prepared back in 1986. Dillion explains she does a visual comparison of latent print to exemplar print. She does not use photographs. She does not take notes when she evaluates a print. Dillion states she takes mental notes comparing the land and groves between the two. If she comes to a conclusion and finds a comparison, then a report is generated. If there is no comparison then the print is marked as unidentifiable.
Before the next witness testifies, the defense makes an objection for the record in respect to comparison and analysis of the DNA on the grounds of the failure to establish a chain of custody. The objection is overruled. Presby recalls Detective Gregory Stearns and presents the witness.
16. GREGORY STEARNS (recalled)
In November, 2009, Stearns met with John Ruetten and showed him some photographs of rope, the same rope that was booked into evidence. (People’s exhibit number 43.) Stearns also showed Ruetten other rope photographs as well as photographs that were taken at the crime scene. Ruetten told Stearns that rope was not in his residence at the time of the murder. Ruetten focused in on the frayed ends of the rope and was certain it did not come from his home.
Direct is finished and cross begins by Overland.
Overland asks Stearns if he asked Ruetten how he knew (the rope did not come from his home) at the time of the murder. Stearns testifies that he never asked Ruetten that question.
In redirect Presby asks one more question but Judge Perry interrupts and asks his own questions. The rope was shown to Ruetten and Stearns asked him if he’d ever seen it before and Ruetten replied he’d never seen it before. That’s it for Stearns recall to the stand.
Ms. Torrealba calls Jennifer Butterworth.
25. JENNIFER BUTTERWORTH
Ms. Butterworth is a criminalist with the LAPD crime lab currently assigned to the serology DNA section. She’s been with the department for ten years. She describes her position states she’s been certified as an expert witness before approximately 25 to 30 times. She gives her background and training. Butterworth has been with the serology department about eight and a half years.
Butterworth performed DNA testing on items from Rasmussen’s case. She first performed DNA testing in December, 2004. She described the analysis performed at that time, which would have been presumptive tests for blood, nucleated epithelial cell searches using a microphone and then DNA analysis of particular items.
Butterworth explains the “four steps” it takes to go from an item like a swab to a DNA profile. The first step is DNA extraction. The second step is DNA quantification. The third step is P.C.R. amplification. The fourth step is running a sample using capillary electrophoresis on a genetic analyzing instrument.
(These steps are then described in more detail.)
Butterworth testifies that there were different types of kits available in 2004 verses 2009. The kits that the lab used back in 2004 (that are still available) consists of two different kits which combine target 13 genetic markers plus a gender marker. Currently the lab uses a new kit called identifier. It combines those 13 markers and adds another two for a total of 15.
The difference between the two is the 2004 kit came in two parts but the 2009 kit has everything in a single kit.
Butterworth prepared a single page report from her analysis in 2004, dated February 8th, 2005. It’s marked as People’s 17 for identification.
Butterworth, when assigned the case made a request first with LAPD property to request items to test for possible biological evidence. At first, there was difficulty locating the item with LAPD. When she had trouble locating it, she then contacted the coroner’s office and spoke to a technician. At some point she spoke to Dan Anderson. In January, 2005 she was able to obtain the evidence from the coroner’s office.
Butterworth identifies the photo of the envelope she received. She states that the photograph up on the screen, she took that photo. She points out her identifying information on the envelope. The next photo Butterworth states she took also. It’s item “30” from inside the envelope. The inner packaging and the two bite mark swabs. Butterworth identifies the envelope sealed by Dan Anderson and her identifying marks. Butterworth then identifies People’s #6, a photograph of the original evidence envelope and protruding red cap shown sticking out of it.
Butterworth is now shown a photograph, People’s #118, a photograph depicting an envelope and a tube. Butterworth took the photo #118. It’s the reverse of the envelope they just saw and the tube has been removed. Butterworth identifies the writing on the tube that is hers.
Another photo of the tube People’s #7; Butterworth testifies she took the photograph. It’s the same tube, rotated in the photo to see other writing on the tube.
When reading the other writing on the tube, Butterworth states she could make out the word “left” and maybe the first two digits of the coroner’s case number. Butterworth states she can make out the name of the decedent on the top of the envelope in People’s #6.
Butterworth now describes what she observed when she first opened the LAPD envelope and saw the old envelope for the first time. She noted that the package was torn. She described it as “ratty” and “torn” and recalls seeing the red part of the tube sticking out. By ratty, she meant not in mint condition.
When she first pulled out the tube from the envelope, she noticed that the label was a little worn and hard to read. Judge Perry asks the witness, “Otherwise the tube appeared to you to be intact?” The witness replies, “Yes.”
Butterworth then describes that she took a portion of one of the swabs, did an extraction, examined the cellular material using a microscope and then went on to DNA extraction.
Butterworth states there were two swabs inside the tube and they are physically attached to the cap and the cap screws into the tube. The swabs cannot move around inside the tube since because of being attached to the cap.
Butterworth found a DNA profile that was consistent with a mixture. There was a major female DNA profile on the swab that did not match the victim and there was a very minor partial extra alleles that were consistent with Rasmussen’s DNA profile. Butterworth knew Rasmussen’s DNA profile because she typed the coroner blood swatch.
Butterworth made comparisons (of this DNA profile) to other items collected at the scene that matched Rasmussen’s DNA profile. She prepared several reports detailing this analysis.
Butterworth then prepared a report on item 51, People’s 119. It’s the DNA report she prepared in June, 2009. This is the DNA sample that was obtained from Lazarus while she was in custody. Butterworth then compared Lazarus’ collected DNA to the “bite mark swab” and determined that they were a match. The combination of those 13 genetic markers “is expected to be found in 1 in 402 quadrillion unrelated individuals.” (That’s a 4 with 17 zeros.)
Butterworth also analyzed “brown speaker wire” and “white cord” (rope) collected at the crime scene. She tested the rope for blood and found it positive. DNA profiles found matched Sherri Rasmussen. In all the items she tested, the only item that had DNA other than the victim was item 30, the “bite mark swab.”
Direct ends and cross begins.
Butterworth indicates a specific date on her report, People’s number 117, September 19th, 2003 is the date the DNA analysis was originally requested by Robbery Homicide Cold Case Section.
This is the date that Robbery Homicide detectives submitted a request to a laboratory in general. She started working on the request in December, 2004. The request was sitting on another analysts’ desk and she volunteered to work on the request. On or about December 15th, 2004 she contacted the coroner’s office searching for the “bite mark swab” that was not in LAPD’s inventory.
It took a little over a month for her to receive the “bite mark swab” from the coroner’s office.
When she received the evidence envelope, Butterworth confirms that the original envelope was torn. Butterworth states that there is no seal on the cap of the tube. Overland asks her, “And all you have to do to open it up is just to unscrew the top or pull the top out; right?” Butterworth answers, “Correct.”
Cross is finished and redirect begins.
Butterworth states that when she opened the evidence, it looked like a “regular dry secretion swab.” It didn’t show any presence of mold or have any deterioration or color change on the swab.
When Butterworth looked at the cells on the swab under a microscope, she noted and evaluated quantity of “nucleated epithelial cells.” In the DNA profile obtained Butterworth states the profile was “robust.” She did not see any other DNA profile other than the major profile of the defendant and the minor profile of the victim.
Redirect ends and recross begins.
Butterworth states that the cells she found were skin cells. Those cells can be found on anything anyone touches.
Recross ends and redirect begins again.
Butterworth states that these nucleated epithelial cells can come from the mouth. There are large quantities lying in the mucous membranes of the body. Butterworth explains the difference between a mouth epithelial cell and a skin epithelial cell. In the skin cells, the nucleus is degraded and broken down. Those inside the mouth are much newer and they slough off more frequently. She describes them as the nucleus being more robust than what is a part of the top of the skin.
This is why when DNA is taken from someone, they take a swab from the inside of the mouth.
Redirect ends and there is no recross.
Presby informs the court there are no additional witnesses and they are going to work out some stipulations with counsel. Presby informs the court that although they do not concede the validity of the defense’s argument with respect to the suppression of the defendant’s statement, they are not going to seek to introduce that statement at the preliminary hearing.
This is it for December 9th, 2009. The hearing is continued on December 10th, 2009.
STEPHANIE LAZARUS QUICK LINKS