EVENING NEWS: The State made up some major ground today as Defendant's Motion for Directed Verdict was denied, along with request to introduce adjutant evidence regarding a prior incident in which Officer Talbot discharged his weapon against a man who had assaulted others with a knife, but who was fleeing, allegedly most likely without the knife and with his back turned at the time Talbot shot. The Court will take a proffer (offer of proof) as to what the man would have testified to in order to preserve the record. The Court ruled that that case was different because Talbot was called to respond as an officer and the Prosecution successfully argued that it would present a 'trial within a trial,' and other witnesses attacked by the man (Bombard or Mombard) would also have to testify, while Krupp argued "Talbot was in plain clothes and didn't identify himself as a police officer, he is running away while shots are fired and the police find 8 cartridge casings where Talbot had been."
The State also won on the issue of Michael Racca's testimony. Racca, inter alia (yes, I said it again LOL), is going to testify to a series of telephone calls coming in from Derek Lodie. Krupp wanted to be able to introduce the statement "some dudes shot at us and we fired back" as an excited utterance or a statement against penal interest to get around the hearsay rule, along with other expected testimony that Lodie told him "If you open your mouth you're gonna be the next one killed." The Lodie statement was not as crucial for the Defense but they definitely wanted the first one, but the Court held that it could have been the product of reflection and thus did not meet the standard necessary for admission under either theory.
The Court has not decided on whether it will offer a Jury Charge on Felony Murder or on Self Defense. Felony Murder is the legal construction that renders someone guilty if someone dies while the Defendant is in the commission of another felony, particularly a violent felony. Note also for those of you new to this case, there is what is called a Doctrine of Transferred Intent, which means that a jury could convict if they believe that Defendant Iacoviello pulled the trigger had the requisite intent to murder a rival gang member - because the police admitted they never identified themselves as police the entire time, for some reason.
Court: "I'm still somewhat in the dark as to how self defense could be in the picture."
Krupp: "The evidence is overwhelming that the incident with the person with the red shirt was precipitated by Daniel Talbot in particular was was drunk and talking gang talk and continued with verbal altercation as he and Soto began advancing towards the individual..... Soto's gun was in a visible position and the guy with the red shirt shot first, so it's self defense for anyone other than the person in the red shirt."
Also Defense witness Martin Schnall fought to a stalemate at best regarding the trajectory analysis, the best move for the Defense is just to note that the State failed to maintain the materials under chain of custody so that they could review it, and Neurologist Jeremy Schmahmann testified that 99% certain that Dan Talbot could not have fired his weapon after he was shot.
In other news Mindy Hull, M.E. testified that Officer Talbot's BAC was
Now I'll start the video uploads, I expect to load X/E of Defense witnesses on trajectory and the physician, the Medical Examiner on BAC and other issues, and I might load a short clip of Mr. DiPasquale testifying that "The casings are very hot" when ejected from a semi-automatic weapon. Well I know this, because I shoot guns occasionally and what I also know is this: It would take a freak miracle of nature for a spinning, flying casing to perfectly land in the grove of a Gatorade bottle on top of a trash can. Further, if it did land there one would be able to see some heat marks on the bottle, of that I am 99.9% certain.
Don't hold your breath, I have to watch them first to see what's what, then start uploading. First one will probably be up around 7:30.
LUNCH UPDATE: Well folks, yesterday in the Sweating Bullets post I showed you how Defense Attorney Krupp thought he was #1 with a bullet, but today Prosecutor Zabin says he’s got it all in the bag., and Lieutenant Condin noted that Robert Iacoviello’s Indictment was issued only after 34 witnesses testified before the Grand Jury.
The Prosecutor showed the Jury a back hallway at 11 Adams Court with a gun stock, ammo and other potential crime tools including liquid wrench in a child’s play table, a corona pail with a smashed up camera and other burned items, a box of burned clothing including a black and grey hoodie whose ownership is in dispute, and a bag full of tools allegedly used to destroy the currently-remanufactured 9mm Hi-Point. Clearly somebody had something to hide, the question is who?
“That all came from Michael Picardi’s address, right?”
Krupp attacked the line search by making Lieutenant Condin admit that Sergeant Murphy had informed him about the youth that came around the fence, point being why wasn’t the area near the fence made a priority, how could you have missed these two 9mm casings that were found in plain view, etc. etc.
“Did Murphy relate to you that kids had entered into that area by the fence?”
“I was told that they entered into that area.”
He also made Condit admit that he had no idea when the crime scene was unsecured, nor does he have a list of people who entered the crime scene area. He issued a question about the lack of Gun Shot Residue testing on Officer Soto or Sergeant Franklin, but that item was fairly dismissed by Zabin on Re Direct because both of them had been firing handguns all day.
On Re-Cross, Krupp later grilled him about the fact that no one conducted DNA testing on Officer Talbot’s bullets, 4 of which were non-spec hydra shock .40 cal.
The medical examiner is due up shortly, there will be no pictures of any of that, I have assured the family. I have a policy never to publish such photos. There will be audio, however, and edited video because her narrative is somewhat important to understand the nature of the injury – even though she testified that one still cannot infer position of the shooter.
Someone asked me what this case was all about the other day, and this is what I said. Defense case in chief is expected today, updates at lunch.