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CHAPTER 3
Front page headlines in the Salem News Tuesday, April 13, 2004. "Residue
test on Brooks is negative, attorneys say." The article, written by Dwayne McClellan goes on to say "Gun residue tests on
Brian Brooks, facing first degree murder charges, have come back negative, according to attorneys in the case...Residue tests,
administered by the Missouri Highway Patrol were taken on both of Brooks' hands when he was questioned at his home in northern
Dent County for his alleged role in the Nov. 22, 2003 shooting death of Neil Maxwell in the parking lot of Gregory's Roadhouse...Dent
County Prosecuting Attorney Jim Gray says he doesn't believe that the tests will make or break his case against Brooks because
the tests are not 100 percent accurate and are often labeled inconclusive by the highway patrol. "He (Brooks) had admitted
he fired a gun when he got home, so that shows how unreliable those tests are," Brooks' attorney, Public Defender James D.
Stephens, has a different view on the residue tests results. Without any residue there is no evidence that his client fired
a shot, he said". Now we go forward to the civil trial. The questioner is the Maxwell's attorney. Mr. John Cayton, the ballistics
expert answering the questiona. Q. "Are you also familiar with a gunshot residue test where someone's hand is swabbed?" A.
"Yes." Q. "And tell us about that." A. "Gunshot residue swabs are taken in shooting cases to try to determine if somebody
had fired a gun. And sometimes victims of shootings might have gun shot residue on them also. But the swabs are taken of the
top back part of both hands. They call it the web area, the top back of the hand, and then the palm of each hand...So when
it's analyzed, they're looking for barium,and ammonium, lead. And those are the constituents of gunpowder primer residues.
In other words, you could have some of the elements, lead and ammonium and barium in the environment, but when they're found
together in established levels, it's consistent with somebody recently handling or firing a firearm." Q. "What could
cause a false negative in a gunshot residue test?" A. "A false negative, if somebody had actually handled the firing gun and
you swabbed them and it came back negative, it could be the result of them washing their hands for a long period of time between
the shooting and the time the swabs were taken. It's not embedded in the skin. So if you rub your hands on your clothes or
if you wash your hands, this would get rid of or reduce the amount of residue there and it might not be detected, so it might
come back as a negative when actually the person was the shooter."
Now we go back in time to the
day that Neil was murdered. The following quotes are from the recorded transcript from the Highway Patrol. The questioner is Ralph Roark, a highway patrol investigator and the person answering is Brian
Brooks. Q. "Today's November 22nd, 2003. The time is about 7, 7:17 in the morning. I'm Sergeant Ralph Roark, of the Missouri
State Highway Patrol. We're at the Dent County Sheriff's Office in Salem, Missouri. Present in the room with me is Corporal
H. J. Folsom, also of the Highway Patrol; and Mister Brian K. Brooks...Brian, you and I have had a short conversation here.
You've been read your, right rights twice this morning, is that correct?" A. "Yes.".........Q. "And I also found a little
brown leather holster. It looks like it's about the size of maybe a twenty-five automatic, do you remember seeing that holster?
Do you remember I showed that to you? Do you remember that, Brian? (Pause) Brian, do you remember me showing you that small
holster?" A. "I'm not." Folsom speaks, "I showed it to you also." A. "Feeling so good." Q. "Do you need to take a break? The
time is 7:3 (Inaudible-noises of someone vomiting) I'm going to shut this off for just a second." END OF STATEMENT
Now we look at the Highway Patrol
report that was written after the recording was made. The report date is 11/22/03. "After this brief interview, I told Brian
Brooks that I wanted to make an audio tape recording of his statement. He agreed to do this. I turned on the recorder. A few
minutes into the taped interview, Brian became ill and began to vomit in a trash can. The interview was terminated and Brian
Brooks was allowed to wash. He was placed in a cell to rest for awhile due to his becoming ill. A copy of the transcript of
the recorded interview is attached to this report." Here is another Missouri State Highway Patrol report. The reporting officer
is H. J. Folsom. 'Details of Investigation--Collection of Gunshot Residue Kit-Brian Brooks. 1. In continuing an investigation
into the homicide of William Neil Maxwell which occurred on November 22, 2002, in Dent County; on November 22, 2003, a gunshot
residue kit was obtained from Brian K. Brooks. 2. At approximately 1035 hours, November 22, 2003 I asked Brian K. Brooks if
he would consent to a gunshot residue test of his hands and he agreed. I asked Brooks if he had fired any weapons in the last
twenty-four hours and he stated, "No, last Monday was the last time I shot a gun. I was hunting and I killed a deer." I then
put on latex gloves and opened the collection kit and explained how the kit would be utilized to Brooks. I then began dabbing
Brooks' left hand with the left hand collection module. Brooks began shaking and rocking back and forth in his chair. Brooks
then stated, "I need to use the bathroom." I informed Brooks that I would be done in just a minute and he could use the bathroom
in just a minute. Brooks continued shaking and he stated, "You know I could have fired of my muzzle loader off this morning
when I got home. As a matter of fact, I think I did.".....Brooks then stated, "I'm going to be sick. I need to go wash my
hands." Now fast forward to the civil trial. The questioner is defense
attorney, Mr. Wilke and H. J. Folsom is on the stand answering. Q. "The gunshot residue test we've talked about a little bit.
I'll show you Exhibit B-001. What time does it say it was done.?" A. "On this property record,
Sgt. Roark, he wrote this out. It says that it was taken into custody at 0745. However, that's an administrative error
on his half and my half. Q. Every one of those property records is supposed to be filled out by putting the actual time that
you do these things.?" A. "Yes, that should be the way it's done." Q. "Fifteen minutes--well, 7:45 would be 15 minutes after
the end of the interview where Mr. Brooks vomited, correct?" A. "I believe roughly, yes." Now the questioner is the Maxwell
attorney. Q. "After Mr. Brooks threw up, is that when he was allowed to wash his hands and face?" A. "Yes, sir." Q. "And so
even at 7:45 he would have already washed his hands; isn't that right?" A. "Yes, sir."
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