CHAPTER 14  THE CLOTHES AND MORE ABOUT GUNSHOT RESIDUE

The following testimony is from Sergeant Roark of the Highway Patrol. The questioner is Missouri State Prosecutor, Robert Ahsens. Q. "Sergeant Roark, I'd like you to turn your attention now if you would to your efforts to locate a man who was identified to you as Brian Brooks. How did you go about doing that?" A. "After I learned that Mr. Brooks had possibly engaged in a fight with Mr. Maxwell, inquired of Sheriff Wofford and some other officers if they were familiar with Mr. Brooks. As I recall, Sheriff Wofford was. The county also has a 911 system. Had him call his office and they obtained the telephone number and an address for Mr. Brooks." Q. "What did you do after receiving that information?" A. "Well, I made a call to the Brooks residence in an effort to determine whether Mr. Brooks was home." Q. "And were you able to do so?" A. "Yes." Q. "How did that happen?" A. "Well, I telephoned the Brooks residence. The phone was answered by a female who I assumed was his wife. I just asked if Brian was there. She asked who it was. I told her it was a friend. She said he's asleep. I simply said, "Don't bother him. I'll call back later." Q. "Then what did you do?" A. "Myself and several other officers, Corporal Folsom, Sheriff Wofford, Corporal Suhr of the Highway Patrol all drove to the Brooks residence."

The following excerpt is from the civil trial. The questions are being asked by Mr. Wilke, one of the defense attorneys and the answers are being given by Mr. Roark, who was a Missouri State Highway Patrol investigator at the time of Neil's murder. Q. "So what you also know is that when you've got a weapon  in close proximity to a body and you discharge the weapon, there's going to be more gunpowder residue. There's going to be more carbon that's going to be forced out of the front and out the back that may end up on the clothes and the person of the perpetrator?" A. "It's possible. It's not absolute, no."..Q. "So to make sure that you preserve evidence, you ask Mr. Brooks right there in the bed room, 'Are those the clothes you had on last night?" A. "I believe that's correct, yes." Q. "And then you took the clothes, and you put them in a sealed bag and told him to find other clothes to put on, of course?" A. "I believe that was done. I don't recall. I'd have to look at the report." Q. "No, you never seized his clothes. Do you think you seized his clothes?" A. "I said I don't remember." Q. "But, certainly, if at 5:57 you had taken his clothing, you would have had your best chance of eliminating him as a suspect if there's no gunshot residue either on his hands or his person or on his clothing, but you don't do that?" A. "That's correct."

Now we go back to the Preliminary Hearing on February 4, 2004. The questioner is Mr. Doran, the defendants attorney. The person answering is H.J. Folsom, a Missouri State Highway Patrol investigator. Q. "Now, you'll need to educate us a little bit. I'm not real familiar with the scientific angle of a gunpowder residue kit...When you--do you get trained, first of all, to administer that test?" A. "Yes." Q. "And what kind of training, Corporal, do you obtain to--how many hours of training do you normally have to conduct that test?" A. "When I worked as a Special Agent for the United States Army Criminal Investigation Command, I received quite a bit of training on several--we used a different kind of kit. I received training on that. As far as the actual gunshot residue kit, I received some training at the Highway Patrol Academy. I don't recall how many specific hours it is. I have been trained how to properly utilize the kit."

The following testimony is from the criminal trial in Cape Girardeau. The defense attorney, Mr. Mitchell is doing the cross examination of Corporal Folsom. Q. "And what we have in the taped portion, he was never asked whether or not he owned a .25, was he?" A. "In this particular section of the transcript, that is correct." Q. "He never denied the .25, the holster or the ammo in this taped portion, did he?" A. "He never answered the question, sir." The question was, "Do you remember me showing that, showing you that ammo," and he said "Yeah"?" A. "That question, yes sir." Q. "On the next one, "Do you remember me showing that small holster?" And he said, "I'm not, I'm not feeling so good." A. "Yes, sir." Q. "What happened next, sir?" A. "He was allowed to go into the bathroom and wash his face and lay down." Q. "Okay. It says here, "Do you need to take a break?" And the time is 7:30 something. Is that right?" A. "Yes, sir." Q. "Your next contact with Mr. Brooks was a gunshot residue test. Is that correct?" A. "Yes, sir." Q. "I'm going to hand you what's been marked Defendant's Exhibit 1 and ask if you can identify what Defendant's Exhibit 1 is, sir." A. "It's a property record of the test taken from Brian Brooks at the sheriff's department." Q. "And did you prepare that property record?" A. "I signed the property record. Sergeant Roark wrote out the property record for him." Q. "He was present, was he not?" A. "Present when, sir?" Q. "During the interview, the second interview which ended at 7:30 something in the morning." A. "Yes, sir." Q. "Okay. What time is indicated on there that the gunshot residue test was taken in custody?" A. "He's indicated 0745 which is incorrect." Q. "So you have a signed, prepared property record in this case that was provided to us that you now state is incorrect?" A. "No. Sergeant Roark, he used the time that the interview, that I'm sure that he took the tape as evidence. He filled out the property record for the tape and used the time." Q. "Sergeant Roark testified yesterday, sir, that when he takes things into evidence--" At this point the State Prosecutor interrupts. MR. AHSENS: "I'm going to object, Your Honor. Referring the witness to testimony of another witness and then asking him to--that's improper cross examination." THE COURT: "Overruled." Mr. Mitchell continues the cross examination. Q. "Sir, yesterday Sergeant Roark testified that when he took property into evidence, that it was within minutes of the time that was at the top of the page." MR. AHSENS: "I'm going to object to that, Your Honor. There is no such testimony. The question is not asked in good faith." THE COURT: The jury will remember the evidence." Q. (By Mr. Mitchell) "And you're now stating that he wrote 7:45, but it was some three hours later that the test was performed?" A. "I don't understand your question, sir. You asked--" Q. "Although the property record says it was taken into evidence at 7:45 in the morning?" A. "Yes, sir." Q. "You're wanting this jury to believe it was three hours later when it was performed?" A. "It was taken at 10:45 by myself, and it was indicated on the paperwork with the kit what time we took the kit." Q. "The property record which was used when it was taken into custody regarding the gunshot residue test says 7:45 does it not?" A. "That is not when the property record was filled out." Q. "That's when it says the gunshot residue test was taken into evidence, does it not?" A. "Yes, sir. There's an administrative error there."

The cross examination of Corporal Folsom by Mr. Mitchell continues. Q. "Corporal Folsom, are you aware of the results of the tests which you collected?" A. "The test was negative according to the laboratory, sir." Q. "Showing no gunshot residue on the defendant?" A. "That is correct, sir." Q. "Are you aware of the results of the gunshot residue test on Mr. Maxwell?" A. "Yes, sir." Q. "And what are those, sir?" A. "I believe the test was positive for the presence of gunshot residue." Q. "You stated earlier in your direct testimony that gunshot residue was present for how long?" A. "Normally within 24 hour. We normally try to obtain the kit within eight hours. Our laboratory doesn't like to test a kit that obtained more than eight hours from the incident." Q. "Okay. You recall being at a preliminary hearing on February 4th, 2004?" A. "Yes, sir." Q. "And do you recall being asked the question about the gunshot residue test, "Did Brian Brooks consent to a gunshot residue test"?" A. "Yes, sir." Q. "And the response was?" A. "Yes, he did." Q. "Okay. And what is that exactly? Do you recall your answer being, "Gunshot residue kit is a test kit issued through our crime lab, and what it is is a kit that they look at under a microscope and do a forensic examination and determine whether or not a firearm has been fired. Normally the kit is accurate between 48 hours from the time the firearm has been fired." Do you recall giving that statement back on February 4th, 2004?" A. "Yes." Q. "Today your statement is that it's accurate for 24 hours. Is that my understanding?" A. "It's normally within 24 hours. I have had some results past 24 hours, up to 48." Q. "Do you recall further answering, sir, "Basically when you discharge a firearm, the chemical particles that come from the shell and the weapon being fired, the burnt carbon and the things still remain on your skin even though you wiped your hands off for 48 hour"?" A. "Yes, they can remain on your skin, yes, sir." Q. "Do you recall giving that testimony?" A. "Yes, sir." The State Prosecutor interrupts. MR. AHSENS: "Your Honor, I'm going to object to this. This is not impeaching. If he wants to ask him those questions, he may, but this doesn't impeach the witness." THE COURT: "That's correct."

Now we turn to the 'Forensic Evidence Handbook' of the Missouri State Highway Patrol Forensic Laboratory. This is a passage from the Introduction of that handbook. "The Crime Laboratory Division of the Missouri State Highway Patrol is pleased to provide the latest edition of the Forensic Evidence Handbook to all Law Enforcement Agencies." Section 1 is listed as 'Crime Scenes'. Under the part listed as 'Armed Assault/Rape/Homicide we find this passage. "If the incident involved the discharge of a firearm, administer a gunshot residue kit on the individual suspected of discharging the firearm. Keep in mind, however, that the elapsed time between the discharge and the collection of the gunshot residue kit is critical to the residue levels recovered. Gunshot residue is rapidly lost from the hands of an active person. When possible, administer the gunshot kit where the subject is apprehended and prior to transporting the subject and especially before any actions are taken that involve processing of the hands(e.g. fingerprinting)." Section III of this handbook is entitled 'Collection and Presevation'. In this section we find a part on gunshot residue and I quote, "The  Gunshot Residue Kit. The Missouri State Highway Patrol Crime Laboratory currently supplies the SEM/EDX Gunshot Residue Kit to law enforcement agencies. The kit contains two tape lift collection stubs(one for each hand), a pair of gloves and an instruction/data sheet. It is important to complete the data sheet. When possible, administer the gunshot residue kit where the subject is apprehended and prior to transporting the subject and especially before any other actions are taken that involve processing of the hands(e.g. fingerprinting). Gunshot residues rapidly decrease in concentration through normal activity within about 2 hours and are readily removed by washing of the hands. Caution! During collection of the kit, avoid blood on the hands. Blood defeats the adhesive of the collection stub. Try to sample around the blood."