Wagner v. State

MURPHY, Chief Judge. In the Circuit Court for Washington County, a jury (Hon. Fred C. Wright, presiding) convicted Russell Wayne Wagner, appellant, of two counts of first degree premeditated murder, two counts of first degree felony murder, and one count of burglary. 1 Appellant now presents four questions for our review: ⁵³⁷ I. DID THE TRIAL COURT ERR IN ADMITTING MITOCHONDRIAL DNA EVIDENCE LINKING APPELLANT TO A GLOVE FOUND NEAR THE CRIME SCENE?

II

DID THE TRIAL COURT ERR WHEN, IN RESPONSE TO A QUESTION FROM THE JURY, IT ENGAGED IN A DISCUSSION WITH DEFENSE COUNSEL IN FRONT OF THE JURY, REGARDING THE COURT’S WILLINGNESS TO ALLOW MEMBERS OF THE JURY TO COME TO COURT EARLY TO LOOK AT THE EXHIBITS?

III

WAS THE EVIDENCE LEGALLY INSUFFICIENT TO SUSTAIN APPELLANT’S CONVICTIONS?

IV

DID THE TRIAL COURT ERR IN IMPOSING A LIFE SENTENCE FOR APPELLANT’S CONVICTION OF FIRST DEGREE FELONY MURDER OF WILDA DAVIS GIVEN THAT APPELLANT WAS ALSO SENTENCED TO A LIFE SENTENCE FOR THE PREMEDITATED MURDER OF WILDA DAVIS? We answer “no” to questions I, II and III, and “yes” to question IV. We shall therefore vacate the sentences imposed on the felony murder convictions, but otherwise affirm the judgments of the circuit court. Background On February 15, 1994, Daniel and Wilda Davis were found dead in their home on West Wilson Boulevard in Hagerstown.

The victims had been bound at their wrists and ankles and had been stabbed multiple times in the chest and back. 2 ⁵³⁸ On February 16, 1994, the victim’s neighbor, Phyllis Carpenter, informed the police that during the morning of February 15, 1994, she discovered a work glove along the curb on a street near her home and had placed it on her back porch, intending to throw it away. Upon learning of the murders, however, she contacted the police. 3 The glove was recovered from Carpenter’s porch on the afternoon of February 16,1994. That same day, investigating officers recovered a knife from a snowbank after another concerned citizen, Bobby Burnett, informed them that he saw what appeared to be a bloody knife in a snowbank near the front of his house. 4 Detective William Rourke recovered the knife, and noticed blood on the blade. He also recovered the glove from Ms. Carpenter’s back porch.

Both the glove and the knife were sent to the FBI laboratory for processing. A single strand of hair was discovered on the glove, along with stains of blood that matched Mr. Davis’ blood type. In 1996, appellant was charged with the murders of Mr. and Mrs. Davis. Appellant’s first trial ended in a mistrial when the jury was unable to reach a verdict.

During that trial, there was no physical or scientific evidence linking appellant to the scene of the crime. After the conclusion of that trial, however, mitochondrial DNA (mtDNA) testing was performed on a single strand of hair recovered from the glove found by Ms. Carpenter. During the retrial that resulted in the verdicts at issue in this appeal, the jury was entitled to accept all, part, or none of the State’s evidence, which included the following testimony. ⁵³⁹ Dr. John Stewart, an expert in forensics, testified as to the scientific probability that appellant was the contributor of that genetic material, i.e. the hair. The victims’ son, Vernon Davis, testified as follows.

His parents kept a very clean house, ate supper early, and prepared for bed around 7:00 p.m. every night. They owned two rental properties for which they received rent payments in cash. They kept the cash in their home, and used their bank account to deposit their Social Security checks. After his parents were murdered, he and his two sisters, Vivian Monger and Virginia Davis, each inherited between $50,000.00 and $60,000.00.

Vivian Monger, the victim’s daughter, testified as follows. She talked to her mother on the phone every day and saw her once a week. On February 14, 1994, when talking to her mother on the phone, she mentioned that her husband, Ted Monger, would come by to pick up some potato salad that evening. At 7:10 p.m., Ted arrived home without the potato salad.

Vivian called her mother back to let her know that he had forgotten to stop by, but there was no answer. Virginia Davis, the last of the victims’ children to speak to their mother, testified as follows. She called her parents a little after 7:00 p.m. to ask how their Valentine’s Day had been. While she was on the phone with her mother, someone arrived at her parents’ door.

Mrs. Davis said, “Someone’s at the door,” at which time she put the telephone down. Virginia heard some talking, but could not make out what was said, except that she could hear her father’s voice, which was sometimes loud because he had hearing problems. Virginia heard her father say, “I know what you want. You want gas.” Mrs. Davis then came back to the telephone and told her daughter she would “talk to her later.” During this conversation, Virginia did not detect concern or alarm in her mother’s voice.

Lisa Smith, Virginia’s granddaughter and the papergirl in the Davises’ neighborhood, stopped at her great grandparents’ house every day around 3:00 p.m. to deliver the newspaper. ⁵⁴⁰ When she came by on February 15, 1994, she discovered their bodies and observed that their house was a mess. Tina Robinette, who rented a small house from the Davises directly behind their house, testified that the Davises were like parents to her, that she paid her rent in cash, that Ted Monger occasionally did repairs for the Davises and that, on one occasion prior to the murder, appellant accompanied Ted when he came to fix her sink. She also testified that on another occasion, she saw Ted and appellant coming out of the Davises’ backdoor. Dr. Jeffrey Kercheval, a forensic scientist for the Hagerstown Police Department, testified as follows.

When he arrived at the crime scene on February 15, 1994, the house was in disarray and the drawers were pulled out of the dressers. Pillowcases were missing from the pillows in the upstairs bedrooms. Mrs. Davis’ empty wallet was sitting out on the kitchen table. There was also an empty bank envelope on the table.

There was no paper currency found anywhere in the house. His investigation revealed that it would take approximately eight minutes to walk from the victims’ house at 109 West Wilson Boulevard to 610 Chestnut Avenue, appellant’s residence at the time of the murders. He later collected hair and blood samples from appellant and from everyone else who came in contact with the crime scene or with the evidence recovered from the scene. On February 18, 1994, Detective Rourke went to the Big Lots store at the South End Shopping Center in Hagerstown, and purchased gloves that matched the glove recovered from Ms. Carpenter.

From the store receipts provided by Big Lots, he determined that a pair of the same type of gloves had been purchased at 5:05 p.m. on February 14, 1994. Wayne Albright, a friend and coworker of appellant’s, testified as follows. On February 14, 1994, he drove appellant to Big Lots after they got off from work. Appellant told Al-bright that he wanted to buy gloves for work.

Prior to the murders, the knife recovered from Ms. Carpenter’s porch had been in appellant’s apartment. Appellant told him that Ted ⁵⁴¹ Monger, appellant’s landlord at 610 Chestnut Avenue, and another man, had asked appellant to do “something,” but appellant did not specify what they had asked him to do. Prior to the murders, appellant never seemed to have any money. Albright’s wife, Dawn, testified as follows.

She had become friendly with appellant through her husband. She cashed appellant’s checks for him because he did not have a bank account. In 2001, when appellant was incarcerated, she had a telephone conversation with him, during which (1) she asked him why he was taking the fall for others who committed the Davis murders, and (2) appellant told her that Billy Hassenbuhler, another of Monger’s tenants, committed the murders while appellant was upstairs looking for money. Karen Powell Minnich, a friend of appellant’s in 1994, who also knew Ted Monger, Billy Hassenbuhler, and Chuck Harmon (an employee of Monger), testified as follows.

She was “down and out” during that period of her life, and she “hung out” with the people who rented apartments from Monger at 610 Chestnut Avenue. On several occasions prior to the murders, appellant told her that Monger and Harmon wanted him to do something for them, but appellant did not specify what. She recalled that, in an earlier statement to the police, she stated that appellant told her that Monger was going to pay him to rob some older people. On February 14, 1994, Minnich and her friend, Cathy, met appellant at the Off Square Lounge in Hagerstown.

On this occasion, appellant appeared to be “stressed out.” Although he usually bought beer using change, that night he had cash and bought beer for the three of them over the course of two hours. During the evening, appellant told Minnich “everything was taken care of ... I don’t have to worry about money anymore.... [,] I don’t have to worry about rent anymore ... and Ted’s taking care of it.” A few days later, appellant told Minnich that he expected that they would try to pin the murders on him. ⁵⁴² Robert Keedy testified as follows. He met appellant in a tavern in Hagerstown in 1997, and that on one occasion, appellant told Keedy that he had nothing to do with the murders, but that he had been upstairs “ransacking” and looking for money.

Michael Crouse testified that he shared a jail cell with appellant in August, 1997, at which time appellant told him that he had beaten a murder rap four and half years earlier. According to Crouse, appellant admitted that he had tied up the victims, put pillowcases over their heads, and stabbed them. As stated, appellant was convicted of the first degree premeditated murders of Mr. and Mrs. Davis, first degree felony murder of each victim, and burglary. Discussion I Prior to trial, defense counsel filed several motions to exclude the mtDNA evidence.

At the conclusion of the hearings on those motions, Judge Wright delivered an oral opinion that included the following findings and conclusions: Science evolves. Certainty and perfection are elusive. Even in this testing procedure of mitochondrial DNA, it is not a perfect identification process. We know that the final result of mitochondrial DNA typing analysis is that a defendant is either excluded as a possible contributor of the genetic material, or he is included within a class of possible contributors.

So there is uncertainty as to inclusion, because it is inclusion within a possible, a class of possible contributors. Evidence is to be allowed to be considered by a trier of fact that is reliable to the extent that it has evidentiary value. The court ... acts to keep away from jury consideration any evidence that the court finds is of no evidentiary value, because it is, maybe, prejudicial to the point that it may affect the juror, but it is not connected to the case____ [I]t is a goal in criminal matters to make certain that the evidence is of such a nature, that if believed, a person is to ⁵⁴³ be found guilty only if that evidence shows guilt beyond a reasonable doubt, not to perfection.... This whole analysis of the process by which the hair was found and eventually is analyzed is to be analyzed by the court to make certain whatever imperfection there may have been, that imperfection does not destroy the reliability, or the integrity, or the evidentiary value of the evidence itself.

So, yes, there’s imperfection in this chain of custody. Yes, there’s, perhaps, imperfection in the procedure of analysis. But it is not ... imperfection that destroys the reliability and the evidentiary value of either the opinion of the analyst, or the evidence itself. Having said that, this court finds that the evidence [ ] has ... established] that the mitochondrial DNA ... procedure of analysis and interpretation used in this case, as well as generally used, have reached generally accepted reliability in the scientific community.... [I]n the scientific community of the study of evolution, biology, forensics, all of the scientific communities that deal with identification in some nature have generally accepted this steady process of extraction, amplification, PCR amplification, and sequencing.

So the procedure is, is accepted, and, and passes the Frye/ Reed analysis that this court must do. [T]he opinion, basically, comes down [ ] to the extent that the defendant could have been the donor of the hair because he falls within a particular class. Now that is not perfection; that is not identification, but it is a ... generally accepted, scientifically accepted method, opinion. [D]r. Stewart’s reaching that opinion, was based on generally accepted procedures, which the jury can certainly consider together with any types of examination which would indicate that it is not to be given much value. The weight, it’s a question of weight.

As far as Pm concerned it’s a question of admissibility, and 1 would deny the motion to exclude. ⁵⁴⁴ Appellant argues that Judge Wright should have excluded the mitochondrial DNA (mtDNA) evidence linking appellant to the glove found near the crime scene. According to appellant, due to recent developments in the scientific community regarding issues of (1) mtDNA heteroplasmy, and (2) laboratory contamination, mtDNA test results are inadmissible under the Frye-Reed standard. Appellant also argues that “gaps” in the chain of custody and possible “contamination” of the glove rendered the test results unreliable. We are persuaded, however, that Judge Wright neither erred nor abused his discretion in overruling appellant’s objections.

The Admissibility of MtDNA Evidence DNA is found in mitochondria, which are little organelles floating in the cytoplasm surrounding the nucleus of a cell. 5 The mtDNA is a double helix structure, the exact same structure as nuclear DNA. 6 The mtDNA molecules, however, are in the shape of a circle as opposed to a long twisted ladder, and the double helix structure is much smaller in mtDNA than in nuclear DNA. 7 As with nuclear DNA, if the double helix structure of the mtDNA is stretched out, the exact order of ⁵⁴⁵ As, Ts, Cs, and Gs in the mtDNA molecules of one person can be determined. Although the steps involved in laboratory analysis of mtDNA are exactly the same as those used for nuclear DNA analysis, 8 [t]he comparison process for mitochondrial DNA analysis involves two areas of the mitochondrial DNA structure, referred to as HV1 and HY2. These areas, referred to as the control region, are comprised of 1100 nucleotide bases and demonstrate high levels of sequencing variation among different individuals. It is very unlikely that any two people will have the same order of their ATCGs in the control region of mtDNA.

However, it is not a unique identifier, because any other person in the same maternal lineage will have the same type. In mitochondrial DNA analysis, the sequence of the known and unknown samples are lined-up next to each other and compared. United States v. Coleman, 202 F.Supp.2d 962, 966 (E.D.Mo. 2002). MtDNA analysis provides significantly less ability to discriminate among possible donors than does nuclear DNA analysis and has been said to be a test more of exclusion than of identification.

State v. Scott, 33 S.W.3d 746, 756-57 (Tenn. 2000). 9 The FBI laboratory implemented mtDNA analysis for ⁵⁴⁶ forensic purposes in 1996. State v. Underwood, 134 N.C.App. 533 , 518 S.E.2d 231, 238 (1999). Appellate courts in at least ten states and one federal district court have held that the results of an mtDNA analysis are admissible. 10 The admissibility of mtDNA evidence has never been considered by a ⁵⁴⁷ Maryland appellate court. 11 “Novel scientific evidence may become admissible in one of several ways. First, the evidence may be admitted by statute, if a relevant statute exists.

Second, the proponent can prove that the evidence meets the Reed standard of general acceptance in the relevant scientific community.” Armstead v. State, 342 Md. 38, 54 , 673 A.2d 221 (1996) (citations omitted). Before expert testimony can be based on the application of new scientific techniques, it must be established that the particular scientific method used is reliable. Reed v. State, 283 Md. 374, 380 , 391 A.2d 364 (1978) (adopting the standard set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923)). “[I]t is necessary that the reliability be demonstrated before testimony based on the technique can be introduced into evidence.” Id. The proper test for establishing the reliability of scientific opinions is whether the basis of the opinion is generally accepted as reliable within the expert’s particular scientific field.

Id. at 381, 391 A.2d 364 . Appellate courts apply a due novo standard when reviewing the trial court’s Frye-Reed issues. Wilson v. State, 370 Md. 191, 201 , 803 A.2d 1034 (2002). During the hearings and at trial, Dr. Stewart was accepted, without objection, as an expert in forensic mtDNA analysis.

He is the Program Manager of the FBI’s National Missing Person DNA Database, and an examiner in the FBI’s DNA Analysis Unit II, and testified as follows. If the same letter is found at each position on both the known person’s sample and the unknown person’s sample, the known person cannot be excluded from contributing the unknown sample. If there are ⁵⁴⁸ two or more letters that are different, however, then an individual can be excluded. “So if they have the same [letters] at each position it’s a match; two or more ... letters that are different, that’s exclusion; one letter difference is inconclusive.” If an individual cannot be excluded, the final step is to determine how common the sequence is by looking at a database of mtDNA profiles to see how many times that sequence shows up in the database. During the motions hearings, Dr. Stewart testified that mtDNA evidence has. been entered into evidence at trial a total of approximately fifty times, in twenty-five states.

He also submitted numerous peer review articles that demonstrate the general acceptance of mtDNA evidence, none of which rejected mtDNA analysis as unreliable. Even the defense’s expert, Dr. Jeffrey Boore, did not controvert the proposition that the process of mtDNA extraction, amplification, and sequencing is generally accepted as reliable. At trial, Dr. Stewart testified that all of the sites in the mtDNA obtained from the hair on the glove matched the sites from appellant’s mtDNA. “The profile from [appellant], his mitochondrial DNA profile did not have differences from the mitochondrial profile from the [hair found on the] glove at those positions. Therefore, appellant cannot be excluded as the source of that hair.” Most important, Dr. Stewart testified that, when he compared appellant’s profile to the 5,071 profiles in the FBI’s database at the time, he found eleven individuals in the profile that had the same mtDNA profile.

Appellant’s “Contamination” Argument ■ [5] Appellant argues that the danger of laboratory contamination makes mtDNA unreliable and thus inadmissible. An important shortcoming of mtDNA analysis is the sensitivity of the material, which renders it particularly susceptible to contamination. Scott, 33 S.W.3d at 757 . This has resulted in heightened contamination controls in labs that analyze mtDNA evidence.

Id. at 759 . In State v. Pappas, 256 Conn. 854 , 776 A.2d 1091 (2001), the Supreme Court of Connecticut held that the potential for contamination certainly affects the ⁵⁴⁹ weight of mtDNA evidence, but does not automatically render mtDNA evidence inadmissible. Id. at 1108. We agree with that holding.

Dr. Stewart testified that, based on published literature on the subject, as well as on his own experience, the danger of laboratory contamination does not render mtDNA testing unreliable. He explained the FBI laboratory has a strict contamination abatement program in place within the laboratory. That program involves sterilization of space, using bleach solution, ultraviolet light, gloves, masks, and lab coats, and restriction of movement of personnel from one area to the other. All of these precautions would have been taken in the analysis of the specific mtDNA evidence at issue.

The defense’s expert, Dr. Jeffrey Boore, testified that the FBI’s method of guarding against contamination is better able to detect lower levels of contamination than the method used by his own lab, and added that “it’s admirable that they go to such lengths to validate that they have not contaminated their sample.” With respect to contamination, Judge Wright stated: There’s reasonable probability that there was no tampering, or other contamination which occurred, either in the handling or the testing, which destroyed the reliability or the integrity of the process, or the reliability or the integrity of the evidence itself. So that the opinion that will be offered by the State that Mr. Wagner cannot be excluded as the donor of the [ ] hair can be of value to the jury, would be of value to the jury. We agree with that conclusion. Appellant’s “Heteroplasmy” Argument Appellant also claims that mtDNA evidence is unreliable because of the existence of heteroplasmy. 12 Dr. Stewart ⁵⁵⁰ testified that the term heteroplasmy means that you have at least more than one exact type of mtDNA in the same individual.

Heteroplasmy can present difficulties for forensic investigators because, if a mtDNA sample of the perpetrator differs by one base pair from the suspect’s mtDNA sample, this difference may be interpreted as sufficient to “eliminate” the suspect. There are two types of heteroplasmy that are present in the same individual: point and length. According to Dr. Stewart, point heteroplasmy exists when, at one “address” on the person’s mtDNA strand, some mitochondria have, “say, a C,” while others have, “say, a T.” Length heteroplasmy exists when, for instance, there is a consecutive “run” of a particular letter, “say, seven Cs” at one position in a person’s mitochondrion, and there is a different number, “say, eight Cs,” at another position. In most instances, the presence of heteroplasmy makes data interpretation more complex, but does not render the data nonfunctional. 13 In State v. Pappas, the Supreme Court of Connecticut rejected the defendant’s argument that, given testimony regarding heteroplasmy, the trial court should not have admit ⁵⁵¹ ted the mtDNA analysis presented at his trial. 776 A.2d at 1109 .

The Pappas Court noted that (1) no evidence of heteroplasmy in either the known or questioned samples had been presented at trial, 14 and (2) even if it had been present, heteroplasmy would result in false exclusions, not false inclusions. For these reasons, the Pappas Court held that questions about heteroplasmy may bear on the weight of mtDNA evidence, but they do not render it inadmissible. M 15 We agree with that holding. More important, Dr. Stewart testified that there was no evidence of heteroplasmy in this case, meaning that appellant’s known mtDNA sequence shared a common base at every position with the mtDNA sequence found in the hair, and had the same pattern at every position.

Dr. Stewart also disagreed that heteroplasmy rendered mtDNA testing unreliable, stating that the published literature on the subject “does not support that.” During the pretrial hearings, Dr. Bruce Budowle, senior scientist in the FBI’s biological laboratory division and an expert in mtDNA analysis, also testified regarding heteroplasmy. According to Dr. Budowle, heteroplasmy exists in “the rarest of the circumstances. And, again the rarest of the circumstances, we’re willing to accept there possibly could be false exclusion.” Judge Wright found that the existence of heteroplasmy in some mtDNA did not render the evidence generally unreliable: ⁵⁵² The court, also, would find that the specific procedures that were used by the FBI laboratory to extract, amplify, and sequence, and consequently analyze the particular hairs in this case to identify characteristics of another’s genetic material was certainly reliable.... So the question is, ... is the testing procedure generally reliable?

And I say, ‘Yes,” because it is accepted ... in the scientific community. And was the testing procedure that’s used in this case reliable? And I would say, ‘Yes.” The existence of contamination, the existence of heteroplasmy does not affect the reliability of the scientific procedure generally, nor the procedure used in this particular case by the FBI laboratory, Dr. Stewart, and those under him. We agree with that conclusion.

Appellant’s “Chain of Custody” Argument Appellant argues that, even if the mtDNA was admissible under a Frye-Reed standard, the circuit court should have excluded it due to gaps in the chain of custody of the glove. The law requires a party to establish a “chain of custody” when offering certain items of evidence, in order to assure that the particular item is in substantially the same condition as it was when it was seized. Lester v. State, 82 Md.App. 391, 394 , 571 A.2d 897 (1990). Establishing a “chain of custody” as to a certain item provides a means to “account for its handling from the time it was seized until it is offered in evidence.” Id. “The circumstances surrounding its safekeeping in that condition in the interim need only be proven as a reasonable probability ... and in most instances is established ... by responsible parties who can negate a possibility of ‘tampering’ ... and thus preclude a likelihood that the thing’s condition was changed.” Best v. State, 79 Md.App. 241, 250 , 556 A.2d 701 , cert. denied, 317 Md. 70 , 562 A.2d 718 (1989) (citations omitted).

During the hearing, the State established the following chain of custody for the glove. The glove was found by Phyllis Carpenter on February 15, 1994. She placed it on her porch, where it was when she called the police the next ⁵⁵³ morning. Detective Rourke recovered the glove from Ms. Carpenter’s porch at 9:00 a.m. on the morning of February 16, 1994.

At 11:30 a.m., Jeffrey Kercheval, the crime scene technician, photographed the glove and logged it into evidence. On February 18, 1994, Detective George Brandt delivered the glove, along with other evidence, to the evidence room at the FBI crime lab in Washington, D.C. On February 22, 1994, Melissa Smrz, a forensic scientist, inventoried the tape-sealed box and designated the glove as “Q2.” On February 23,1994, forensic scientist Janet Bray received the glove from Smrz and conducted the hair and fiber examination. At this point, Bray found the hair on the glove and, using polymer, sealed the hair onto a slide. Bray returned the glove and the slide to Smrz, who mailed the evidence back to the Hagerstown Police Department on March 21, 1994.

Kercheval opened the sealed FBI box on March 30, 1994, and placed the contents back into evidence. The next day Lieutenant Robert Voytko logged out the glove and returned it on June 7, 1994. On June 12, 1998, the glove was received in the FBI’s DNA testing department and given to Dr. Stewart, who broke the seal of the slide to test the hair. The glove was sent to the Baltimore FBI office on September 8, 1998, where it was placed in storage the next day.

On May 23, 2000, Detective Shank signed it out and delivered it back to the Hagerstown Police Department. Jeffrey Kercheval logged the glove into evidence on June 6, 2000. On June 21, 2000, Kercheval shipped the glove to Bode Technology, via Federal Express, where it was received by Keith McElfresh, and examined on August 10, 2002, by Suzanna Ulery. Ulery sent the glove back to the Hagerstown Police Department on February 27, 2001, where Kercheval signed it back into evidence on March 6, 2001.

It remained there until trial. Judge Wright found that “there was reasonable probability that the [ ] hair was in substantially the same condition when it was scientifically tested as it was when it was discovered by ⁵⁵⁴ the law enforcement agency.” That finding was not clearly erroneous. The evidence was properly admitted at trial. II Appellant argues that Judge Wright erred during the trial when, in response to a question from the jury, he engaged in a discussion with counsel that was overheard by the jury.

The record shows that the following transpired: [THE COURT]: Now before we do adjourn, I want to bring something to the attention of defense counsel. There has been a request by individual jurors to look at evidence that has been admitted. I mean we have I don’t know how many exhibits that are now here sixty-something probably or fifty-something. They’ve had the opportunity to personally observe every witness who’s testified under oath, made their own mental and physical notes of witnesses but they ... and they’ve had the opportunity to look at a couple of the exhibits that have been received.

But the more extensive ones they have not. Now I would not want the jury or any jurors to discuss the case or discuss any particular evidence until they have received it all in their deliberations. And I don’t want there to be anything done by a juror outside of the jury room ... or outside of the courtroom that would not be approved really by defense counsel. So the request is to observe or to look at individual pieces of evidence.

Now what we can do is have the evidence or the individual pieces ... exhibits, whatever a juror wants to look at, having said, “I would like to look at Exhibit Number 7,” for example. We could have that available for the juror to look at the beginning of the day before we come into court at nine o’clock, come in early. Could take that to the jury room and look at and make one’s own notes again as he or she would be observing the ... a witness so long again as there is no discussion about the information received between. ... ⁵⁵⁵ But I don’t want to do that without the concurrence of counsel. [DEFENSE COUNSEL]: I don’t want ... I don’t want to appear to be the bad guy and say no.

But, your Honor, I think that ... I have to say I can’t ... I don’t think that we should do that until at the conclusion of the case when everything is given over. [THE COURT]: I’ve allowed it when we’ve had multiple day civil cases. But I’ve not done it in multiple day criminal cases. [DEFENSE COUNSEL]: And just for some clarification, [there are] several reasons why I feel that way and I’ll name some of them.

A couple of them is [sic] there are lots of exhibits; not all of them are entered into [evidence] even though we identify them and we’ve talked about them. So not all of them are entered. Furthermore, a lot of them are not going to be entered in and I certainly would not want one of those to go back. [THE COURT]: Well I think ... I understand, you know, and I understand also the risk that could occur and could be avoided actually by not ... not allowing a juror ... individual to further observe.

So I’m not going to do it without ... without concurrence and I understand and I think the jury can understand your reluctance or anybody’s reluctance. [DEFENSE COUNSEL]: Your Honor, there’s one other issue that occurs to me. Some of these items in evidence perhaps it’s not wise to be handling them without ... some of them are bio-hazards. I mean ...