Chapter 58
Beau Lee cut to the chase. “Detective Fowler, that last statement that you made before the jury as to what your opinion was is actually different from the previous answer you gave.”
DaSilva squirmed in his chair and appeared confused.
“No, I recall that the statements were the same.”
“Are you sure about that?” asked Beau Lee.
Detective Fowler looked at the prosecution with apprehension. “The statements were the same,” he repeated.
Beau Lee picked up his notes and dictated the questions and answers from DaSilva’s cross-examination of Fowler. “If need be, I can have the court reporter read them back. Would you like me to do that?”
“Yes, I would like that, because I don’t think I said what you’re saying.”
The court reporter read the statements exactly as Beau Lee had stated them. “Thank you, Madame Court Reporter,” Beau Lee said, watching as Fowler grew flush. “Detective Fowler, do you understand the huge difference between the two statements you made in front of this jury this morning?”
“No, I don’t,” Fowler said.
Beau Lee took a deep breath and faced the jury.
“You said in your previous statement that we concluded that Mr. Montrose had fired a gun, which is consistent with what we see in the video. To which I objected because the video does not show Hollis touching a gun. Then, the prosecutor asked you for your opinion again. That time, you didn’t mention him touching the gun in the video.
Was that just an oversight, or was that intentional, because you know that nowhere in that video shows Mr. Montrose touching a gun? ”
Detective Fowler shook his head. “That’s not accurate. I said based on the evidence, which would include the video, that’s how I arrived at my conclusion.”
“So, you’re going to stand by your notion that in that video, you see Mr. Montrose touching a gun?”
“I just know what was reported to me in the officers’ reports.”
“Alas, Detective Fowler, you are changing your testimony again. Now you’re saying your opinion is based on the officers’ reports and not the video.”
DaSilva stood yet again and said, “Objection, Your Honor, defense counsel is badgering another witness.”
“Your Honor, I am not badgering the witness,” Beau Lee said. “I’m just trying to get clarity on how he arrived at his opinions.”
“The objection is sustained. As I am reminding you again that the jury will be able to evaluate all of the evidence that has been admitted in the trial at the appropriate time. Now move on, Mr. Cooper.”
“Detective, how long have you been working in the Illinois State Police Division of the Criminal Investigation Crime Lab?”
“Thirteen years.”
“You are employed by the State of Illinois, which also employs Mr. DaSilva?”
“Correct.”
“How many cases have you and the state attorney, Mr. DaSilva, worked on in those thirteen years?”
“At least a hundred.”
“Detective Fowler, in those hundred cases, have you ever found that the gunshot residue in question did not come from the defendant firing a gun?”
DaSilva interjected, “This is outside the scope of the direct examination, Your Honor, and it is irrelevant.”
The judge gave an exhausted sigh as if she were nearing the last straw. “Mr. Cooper, I agree with the prosecutor. This is completely irrelevant. We are not entertaining other cases.”
“Detective Fowler, you are familiar with the limitations of gunshot residue analysis?” Beau Lee asked.
Detective Fowler steadied himself. “All scientific testing has its limitations, but it can be concluded with a reasonable degree of scientific certainty that Mr. Montrose tested positive for gunshot primer residue.”
“I appreciate your answer, sir, but wouldn’t you agree that a main limitation to a gunshot residue test is that it cannot conclude where those particles that were deposited on the subject came from?”
“That is correct. However, as I have said multiple times, based on the totality of the evidence in this case, I have concluded it came from the defendant shooting the weapon.”
Beau Lee paused for a moment and smiled. “Mr. Fowler, that is not what I asked you. Please answer my question. Can you do that?”
“Objection, Your Honor. Counsel is deliberately antagonizing the witness.”
“Sustained. Mr. Cooper, you are treading on thin ice,” said the judge.
“Your Honor, I just want him to answer my question, which is, Detective Fowler, yes or no, can a gunshot residue test conclude how the particles got on an individual’s person?”
After sucking his teeth, Fowler conceded, “No, the gunshot residue test itself cannot conclude where the particles came from.”
“Finally, we agree on something,” Beau Lee said. “Now, Detective, you would agree with me that gunshot residue particles can readily be transferred to other objects and surfaces, or from one person to another?”
“It can,” the detective answered.
Beau Lee continued. “A gunshot residue kit cannot tell you if the particles found on an individual were transferred from the individual shooting the gun or the individual making contact with someone who fired a gun?”
“No, it cannot.”
“Thank you, Detective Fowler, I have just a few additional questions,” Beau Lee said very solemnly.
“I have had a chance to review your report, and I noticed that it was only Mr. Montrose’s hands that tested positive for gunshot residue.
Not his shirt, nor his coat, nor his scarf tested positive for gunshot residue. Is that correct?”
“Yes. My report is my report. We indicated everything that showed a positive test for gunshot residue.”
“And it was only on his hands?”
“Yes, only his hands.”
“Your team also collected the bullet casings that were supposedly discarded after my client’s gun was fired, correct?”
“Yes.”
“What about the bullet’s trajectory?” Beau Lee said. “Did you analyze that?”
“Yes,” Fowler said. “We evaluated the ballistic report.”
“And what did you find?”
“Mr. Montrose’s weapon was fired in the direction of the officers from a relatively prone position, resulting in the bullet striking a concrete wall approximately ten yards away.”
“Can you explain what it means when a gun is fired from the prone position?”
“When a shooter fires from the prone position—lying flat on the ground—the firearm is typically stabilized against the earth,” Fowler said, working to regain his sense of authority.
“From a trajectory standpoint, this position naturally results in a lower muzzle height relative to the ground. Meaning, a bullet would travel upward due to an upward cant, or angling, which is likely why the trajectory indicated that a bullet was fired over the officers’ heads, because their bodies were lower to the ground as they attempted to subdue the suspect. ”
“Do you claim that it was a near miss?” Beau Lee asked. “That one bullet fired from my client’s gun somehow missed all four officers and was perfectly lodged in a wall?”
“That’s what the evidence supports.”
“How is it physically possible for my client to have fired a gun from the prone position, as you say, and not get any residue on his clothing or body besides his hands?”
“I don’t know, but it’s possible.”
“I’d like to show an exhibit that depicts an illustration of a shooter in a prone position based on Detective Fowler’s report.
” Beau Lee removed a covered easel to reveal a large rendering of a shooter lying on his side, holding a gun with his arm extended.
“As you can see, based on this illustration, in order for my client to have fired a shot, his body would need to have been slightly rolled, with significant weight on his arm and shoulder, and his arm couldn’t have been fully extended.
Meaning, the firearm would have been closer to his face and body. ”
Fowler straightened up and studied the illustration.
“Firing a weapon from this position would’ve been insanely difficult given the angle,” Beau Lee said as he shined a laser pointer against the rendered figure.
“There is no way the weapon could’ve been stabilized against the ground, so the bullet would not have traveled over the officers’ heads, but rather low and wide, potentially striking at least one of them.
That’s if the shooter had the necessary dexterity to even fire at all. What are your thoughts now, Detective?”
“A difficult shot, but not impossible,” Fowler said. “As you said, with enough dexterity, the weapon could’ve been fired.”
“I have here my client’s most recent physician’s report.” Beau Lee handed a copy to Fowler. “Take a look, Detective. What do you see?”
“It says Hollis Montrose suffers from arthritis.”
“Yes. Mild rheumatoid arthritis. Common with officers his age,” Beau Lee said, taking the report back.
“After years of report writing, it isn’t surprising that he developed arthritis.
However, the condition causes joint and muscle stiffness.
While my client is able to fire his firearm from a traditional stance, such as Isosceles or Weaver, to fire a gun from such an odd position would mean he’d need to be a contortionist. Not only that, but he couldn’t fire from any position that would limit his mobility. ”
Fowler was silent.
“So, I ask you again, can you definitively say that the particles on the defendant’s hands likely came from the gun’s blowback? Or is it possible that someone who fired the weapon transferred the particles to my client’s hands?”
DaSilva said, “Objection, Your Honor! Calls for speculation!”
Before the judge could rule, Beau Lee interjected with, “I withdraw the question. I think that as you said, the evidence will speak for itself. No further questions.”