The Wrong Gun

31

Judge Hendrick peered down from the bench. “Ladies and gentlemen of the jury, when we left off yesterday the witness, Mr. Manning, was on the stand and had just completed his direct examination. We adjourned so the defense could consider if it wished to cross-examine. Mr. Winslow, are you prepared to proceed?”

“Yes, Your Honor.”

“Do you intend to cross-examine the witness?”

“I have one or two questions, Your Honor,” Steve said. He approached the witness stand. “Mr. Manning, you testified yesterday that the bullet, People’s Exhibit One, came from the gun, People’s Exhibit Four, is that correct?”

“Yes, it is.”

“Correct me if I’m wrong, but you reached that opinion by comparing the bullet, People’s Exhibit One, with test bullets fired from the gun, People’s Exhibit Four?”

“That is correct.”

“Could you describe that procedure for us?”

“Certainly,” Manning said. “I examined the bullets under a comparison microscope.”

“For the benefit of the jurors, just what is that?”

“It is a microscope on which two bullets can be magnified and compared at the same time.”

Steve smiled. “As one might expect, Mr. Manning. Can you give us a bit more information than that? For instance, just what is it that you are comparing on these bullets?”

“The rifling marks.”

“Rifling marks?”

“Yes. The scratches on the bullet made from the barrel of the gun.”

“Now we’re coming to it, Mr. Manning. Would you tell us please about these rifling marks?”

“Certainly.” Manning turned to the jury. “The barrel of each gun has its own individual scratches and imperfections. As the bullet travels through the gun barrel, these markings are etched onto the surface of the bullet. And each barrel is unique-that is to say, the markings on no two gun barrels are exactly the same. So by observing the markings on a bullet, it is possible to tell what gun it was fired from.”

“But not by comparing the bullet directly to the barrel of the gun?”

“No, of course not. That would be incredibly awkward. What you do is compare a bullet that you suspect was fired by a gun with a bullet known to be fired by that gun.”

“How do you obtain this known bullet? How do you make sure it has been fired by that gun?”

“You fire it yourself, of course.”

“And that is what you did in this case?”

“Yes. Of course.”

“You took the gun, People’s Exhibit Four, fired a bullet through it, and compared that bullet to the bullet, People’s Exhibit One?”

“Yes, I did.”

“With a comparison microscope?”

“That’s right.”

“And if I understand your testimony correctly, what you were doing was attempting to line up the scratches on the bullet made by the gun barrel, establishing an exact correspondence that would allow you to conclude that both bullets had been fired from the same gun?”

“That is correct.”

“You compared the bullets side by side?”

“Yes and no.”

“What do you mean by that?”

“The bullets are side by side. The image I’m looking at is not.”

“Then what is it?”

“The alignment is the same as if the bullets were superimposed one over the other. Although that is not the image I’m seeing. What I’m seeing is the top half of one bullet and the bottom half of the other bullet. In other words, if you think of the picture I am seeing as the image on a movie screen, you could draw a horizontal line halfway across the screen. The top half of the screen would show the image of one bullet. The bottom half of the screen would show the image of the other bullet. That is, in each case, half the bullet. The top half of the screen would show the front half of the bullet and the bottom half of the screen would show the back half of the bullet.”

“And how does this enable you to make your comparison?”

“The bullets are round, of course, and can be rotated. If the bullets were fired from the same gun, it is possible to rotate one bullet until it lines up exactly with the other bullet. In other words, so all of the scratches and indentations line up. So for all intents and purposes, it appears as if you were looking at one bullet.”

“I see,” Steve said. “And that is what you did in this case?”

“Yes, I did.”

“I see,” Steve repeated.

Steve paused a moment, looked around. In the back of the courtroom Tracy Garvin caught his eye. She raised her hand, gave him the thumbs up sign.

Steve took a breath, turned back to the witness. “All right, Mr. Manning,” he said. “Let’s refer to the bullet, People’s Exhibit One, as the fatal bullet, and the bullet you fired from the gun, People’s Exhibit Four, as the test bullet. Are you saying you were able to line these two bullets up on the comparison microscope so that each and every scratch on the fatal bullet lined up with each and every scratch on the test bullet?”

“No, I’m not,” Manning said.

“You’re not? Are you telling me the scratches did not line up?”

“Not each and every one.”

“Didn’t you just get through saying that that would happen if the bullets had been fired from the same gun?”

“Under ordinary conditions, yes. But these were not ordinary conditions. See, the barrel of the gun, People’s Exhibit Four, had been defaced.”

“Defaced?”

“Yes, it had been altered. Someone had taken a tool such as a rasp or file and scratched deep grooves onto the inside of the gun barrel. These grooves of course resulted in additional scratches on the test bullet that do not show up on the fatal bullet.”

Steve frowned. “Let me be sure I understand this. You’re saying the gun barrel was defaced after it had fired the fatal bullet?”

“Exactly.”

“In other words, sometime between the time the gun fired the fatal bullet and the time the gun came into your possession, the gun barrel had been altered?”

“That’s right.”

“Is there any way for you to tell when that was done?”

“No. Only within the time frames you just described.”

“I see. Now, can you tell me, in your opinion as an expert, why would someone deface a gun barrel? What would be the purpose of it?”

Vaulding started to stand up, thought better of it, sat back down again.

Manning smiled. “Obviously, so the gun could not be matched with the fatal bullet. It’s not that uncommon for criminals to alter the barrel of their guns after the guns have been used in the commission of a crime. It’s certainly not the first instance I’ve seen.”

“And you say the purpose of this is so the gun cannot be matched with the bullet?”

“That’s right.”

“However, in this case you were able to match the gun with the bullet.”

“Not without some difficulty.”

“Oh? You say you had some difficulty?”

“Objection, Your Honor.”

“Overruled. That’s exactly what he said. If he wants to clarify it, he can. Proceed, Mr. Winslow.”

“What do you mean, you had difficulty?”

“Just that. The fresh scratches on the gun barrel made it more difficult to line up the scratches that were already in existence when the fatal bullet was fired.”

“But you were able to line them up?”

“Yes, I was.”

“I see. And once you had achieved this alignment, did you photograph the result?”

“Yes, I did.”

“It’s standard practice to photograph the bullets on a comparison microscope?”

“Yes, it is.”

“You do it in every instance?”

Manning hesitated.

“Or rather in every instance when you are preparing evidence for court?”

“Yes, I do.”

“You have pictures of the fatal bullet and the test bullet in the comparison microscope?”

“Yes, I do.”

“And these pictures show the scratches on the bullets lining up?”

“Yes, they do.”

“And they also show the marks from the fresh scratches on the gun barrel, which you claim were made by a rasp or file?”

“Yes, they do.”

“I see. And do you have those pictures here in court?”

“No, I do not.”

“Why not?”

“Objection.”

“Overruled.”

“I wasn’t asked to bring them.”

“Were you asked not to bring them?”

“Objection.”

“Overruled.”

“I was told there was no need.”

“Who told you that?”

“Mr. Vaulding.”

“Mr. Vaulding told you there was no need to bring these pictures into court?”

“Objection. Already asked and answered.”

“Sustained.”

“Your Honor, I ask that this witness be instructed to return to court and bring with him the pictures he has just testified about. The pictures of the fatal bullet and the test bullet on the comparison microscope.”

“So ordered,” Judge Hendrick said. “Mr. Winslow. Does that mean you have completed your cross-examination at this time?”

“Actually, I have a few more questions, Your Honor.”

“Very well. Then I’ll withhold instructing Mr. Manning when he is to return until such time as this phase of his examination is complete. Proceed, Mr. Winslow.”

“Thank you, Your Honor. Mr. Manning, you have already testified to comparing the fatal bullet with the test bullet?”

“Objection. Already asked and answered.”

“It is preliminary, Your Honor.”

“I should think so,” Judge Hendrick said. “I’ll allow it on that assurance. Could we try, gentlemen, to dispense if possible with overly technical objections? Proceed.”

“You have testified to comparing the fatal bullet with the test bullet from the gun, People’s Exhibit Four?”

“Yes, I have.”

“Let me ask you this: did you compare the fatal bullet with test bullets fired from any other gun?”

“Objection. Irrelevant and immaterial.”

“Overruled.”

“Yes, I did,” Manning said.

“You did? And what gun would that be?”

Manning cleared his throat. “That would be the gun, People’s Exhibit Three.

“Really? The gun that was found next to the body?”

“I have no knowledge as to that,” Manning said. “I wasn’t there when the gun was found.”

“No, you weren’t,” Steve said. “Nor were you there when the other gun, People’s Exhibit Four, was found, were you?”

“No, I was not.”

“When you say you don’t know that this gun, People’s Exhibit Three, was the gun found next to the body, you also don’t know that the gun, People’s Exhibit Four, was the gun found in Russ Timberlaine’s bedroom, do you?”

“Objection.”

“Overruled.”

“No, I do not.”

“Thank you, Mr. Manning. I didn’t think you did.”

“Oh, Your Honor,” Vaulding said.

“Exactly,” Judge Hendrick snapped. “Mr. Winslow, I’ve warned you about such side remarks.”

“Sorry, Your Honor. Mr. Manning, you have testified to comparing the fatal bullet with test bullets fired from the gun, People’s Exhibit Three, is that right?”

“Yes, it is.”

“Can you tell us the results of that comparison?”

“Yes. The bullets didn’t match.”

“They didn’t?”

“No.”

“Was that readily apparent?”

Manning hesitated a moment. “Actually, it was not.”

“And why was that?”

“Because the gun in question, People’s Exhibit Three, is a Colt.45. As is the murder weapon, People’s Exhibit Four. Therefore the class characteristics were the same.”

“Class characteristics?”

“Yes. The markings that the barrel of a gun leaves on a bullet can be broken down into what we call class characteristics and individual characteristics. Class characteristics are the markings that are common to a particular make and model of gun. In this case we have the Colt.45. Since the guns are of similar manufacture, the barrels of all Colt.45s will leave some similar markings on bullets fired through them. Due to the similarity in structure. These similar markings are known as the class characteristics. By comparing them, it is possible to tell what make and model of gun a bullet was fired from.

“On the other hand, the individual characteristics are the markings on a bullet that are unique in terms of a particular gun. In other words, they are marks that will only appear on bullets fired from that gun.”

“Thank you,” Steve said. “So what you’re saying is, when you compared the fatal bullet with a bullet fired from the gun, People’s Exhibit Three, you found similarities?”

“Due to the class characteristics. As I’ve just explained.”

“I understand. But the fact is you found them. And because you found them, you continued trying to match up the bullets.”

“Which I could not do,” Manning said. “I attempted to do so to the best of my ability, but it was not possible. I now realize it was because the bullet did not indeed come from that gun.”

Steve Winslow’s head came up. He raised one hand. “Just a minute, Mr. Manning. You say you now realize it was because that wasn’t the gun?”

“Yes, of course.”

“Then when you were attempting to align the bullets, you were acting on the assumption that it might be the gun?”

“Yes, of course. That’s the whole point of doing the alignment.”

“I understand,” Steve said. “But if you had already matched the fatal bullet with the gun, People’s Exhibit Four, you would have known it couldn’t match with a bullet fired by the gun, People’s Exhibit Three. Isn’t that right?”

“Yes, it is.”

“Are you saying now that you’re not entirely sure that you have a match with People’s Exhibit Four?”

“Not at all,” Manning said.

“You do have a match?”

“Yes, we do.”

“Well, if you’re certain, why would you be comparing the bullet with another gun and looking for a match?”

“Well,” Manning said. “As to that…” He hesitated, pursed his lips.

Steve Winslow smiled. “Am I to assume you compared the fatal bullet with a test bullet fired from the gun, People’s Exhibit Three, before you compared it with a bullet fired from the gun, People’s Exhibit Four.”

Manning took a breath. “Yes. That is correct.”

Steve Winslow’s smile widened into a grin. “Gee, Mr. Manning,” he said. “Let me be sure I understand your testimony. The police first came to you with a gun. The gun found next to the body. The gun, People’s Exhibit Three. And you tried to match it up with the fatal bullet. When you couldn’t get a match, they said, ‘Try this one,’ and gave you another gun, People’s Exhibit Four, the gun taken from Timberlaine’s bedside table, and asked you to try to match that up.”

“As I said before,” Manning said, “I have no personal knowledge as to where those guns came from.”

“All you know is the cops gave you one gun, and when that wouldn’t match with the fatal bullet they gave you another?”

“That’s a gross oversimplification.”

“Perhaps it is. Tell me, did you take pictures of the test bullet fired from the gun, People’s Exhibit Three, on the comparison microscope?”

“Yes, I did.”

“You took pictures showing that bullet in alignment with the fatal bullet on the comparison microscope?”

“Now, that’s misleading,” Manning said. “I did take pictures of the two bullets in those positions. But they are not in alignment. They are aligned in as much as it was possible to do so from the class characteristics. But there is no way they could be in alignment, because they were not fired from the same gun.”

“I understand your contention, Mr. Manning,” Steve said. “But the fact is, you took the photos?”

“Yes, I did.”

“And this was done before you examined bullets from the gun, People’s Exhibit Four?”

“Yes, it was.”

“Thank you, Mr. Manning.” Steve turned to the judge. “Your Honor, at this time I would like to suspend my cross-examination until such time as the witness shall have brought into court photographs of the fatal bullet shown on the comparison microscope with the test bullet fired from the gun, People’s Exhibit Four.

“At this time, I also ask that the witness be instructed to bring into court any photographs he has taken showing the comparison of the fatal bullet with test bullets fired from the gun, People’s Exhibit Three.”

“I object, Your Honor,” Vaulding said.

Judge Hendrick held up his hand. “Overruled. You may object to the introduction of these photographs, but this witness is going to bring them.

“Mr. Manning, you are temporarily excused from the stand. You are directed to return here tomorrow morning at ten o’clock and bring with you any and all photographs you have taken comparing the fatal bullet to bullets fired from the gun, People’s Exhibit Four, to bullets fired from the gun, People’s Exhibit Three, and any other bullets to which you may have compared it.

“Mr. Vaulding. Mr. Winslow. We will go into the individual merits of such evidence at that time. But for the time being, the witness is excused.

“Mr. Vaulding, do you have another witness available to call?”

“I will momentarily, Your Honor.”

“Very well. Court will stand in recess for half an hour.”