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Johnston defense begins to present case

By Staff | Jan 26, 2010

A shell casing used as evidence in the Kemar Johnston double-murder trial could not be found for several minutes Tuesday, causing the judge to send the jury from the courtroom so it could be located.
Assistant State Attorney Marie Doerr handed an envelope to Justin Greenwell, who in 2006 was a crime laboratory analyist with firearms for Florida Department of Law Enforcement.
She asked him to identify it and what was inside.
“There’s nothing in here,” he said.
Doerr said: “Oh” and took the envelope back.
For several minutes, Doerr continued questioning Greenwell about other ballistic evidence in the case. Then, Judge Thomas Reese excused the jury while deputies, attorneys and courthouse staff searched the floor for about three minutes before a deputy found the casing near the podium where the attorneys stand while they question witnesses.
Neither the prosecution nor defense would comment on how the shell casing came to be lost – and the possibility of the chain of custody being broken could affect the outcome of the trial or any possible appeal if Johnston is convicted.
The casing proved to be from a 9mm Glock used in the slayings, Greenwell said. It was one of several fired from the Glock and a .22-caliber Mossberg rifle.
Johnston faces the death penalty or life in prison without possibility of parole if convicted of two counts each of first-degree murder, kidnapping and aggravated battery with a deadly weapon in connection with the October 2006 killings of Jeffrey Sosa, 14, and his 18-year-old uncle, Alexis Sosa.
Johnston, who prosecutors maintain was a member of the Cash Feenz gang, is one of 10 people charged in connection with the case.
The Sosas attended a birthday party at a duplex in Cape Coral and were beaten, zapped with a Taser, cut with a knife and hog-tied. They were driven to an industrial area in North Cape Coral and shot. Fire units responding to a reported car fire found the bodies. Alexis Sosa’s body was found in the trunk of the car. He had been burned.
Most of Tuesday’s testimony centered on Greenwell’s analysis and that of Beth Ordeman, another FDLE analyst who performed DNA testing on several items, including a bloody blanket and sheet found at the industrial park and items from a Ford Contour.
Defense attorney David Brener would later question Cape Coral Fire Rescue Lt. Brian Lauer about a photo taken at the industrial park showing the blanket, which had apparently been run over by a fire truck responding to the scene.
That blanket had Alexis Sosa’s DNA on it, Ordeman said.
She also said that a gun submerged in water would not be a good candidate for DNA testing.
A .22-caliber rifle believed to be used in the shootings was recovered in November 2006 from a Cape Coral canal, earlier testimony showed.
Greenwell testified he compared bullets and shell casings recovered at the scene, from the Sosas’ bodies and three in a body bag to the guns alleged to have been used to shoot the Sosas. Some matched, while others were too degraded to test.
Greenwell said he would agree to some extent that bullets and casing marks lend themselves to a “judgment call” on whether they match a specific gun.
He also said some of the projectiles were not submitted to FDLE for testing.
Brener wondered whether those projectiles could have led to or matched a different weapon, but Greenwell wouldn’t commit to an answer.
Brener queried the expert on whether all shell casings and bullets should be submitted.
“I would always err on the side of submitting,” he said.
At one point in Greenwell’s notes, he referred to the .22-caliber as a pistol instead of a rifle.
He also said a .22-caliber bullet that had been fired was of “limited identification value.” He agreed another gun could be out there that fired it.
During re-direct questioning by Doerr, Greenwell said a bullet could be burned and could affect the identification of a shell casing or bullet to a specific gun.
Brener attempted to have Greenwell talk about another gun, but because Doerr didn’t question him about it during direct questioning, he was not allowed to continue.
The state then rested its case.
The defense renewed asking for a mistrial and change of venue, which the judge denied. The defense also asked for a judgment of acquittal, saying the state has not proved its case on the murder and kidnapping charges.
The prosecution said that Alexis Fernandez saw Johnston firing into the trunk of a car, which held the Sosas’ bodies. Paul Nunes, another defendant, said he saw a body on the ground with a person – whom he could not identify – firing into a body on the ground.
Paul Nunes said he did not see who was doing shooting.
The judge denied the motion for acquittal.
The defense began its case by asking the judge to allow some photos into evidence – ones presented by the prosecution but not admitted by them. Brener said one of the men who could identify the photos for him – a prosecution witness – is on a cruise.
Assistant State Attorney Bob Lee countered that he didn’t object to the photos but was concerned about the relevance, especially on ones the prosecution had yet to see.
Ultimately Brener was allowed to introduce the photos into evidence. Those photos showed Dr. Pepper cans, garbage and other evidence. One can found in the industrial park was never sent for testing.
Cape Coral Detective Christy Jo Ellis was called by the defense to testify about a search warrant executed on Johnston’s Cadillac and house where Alexis Fernandez lived and two of his vehicles. He is not a defendant in the case.
Ellis said she found a receipt dated four days after the homicides. That receipt was from Goodwill Industries and was for “clothing drop-off.”
She also testified she mistakenly said Johnston’s car was beige, but it is purple.
Also testifying was Greenwell, to identify some photos, and Raymond McCaslin, a private investigator hired by the defense. McCaslin, who is a retired law enforcement officer out of Prince Georges County in Maryland, testified he was with Brener at the Cape Coral Police station and took photos of evidence.
John Dahowski, a forensic technologist with Cape Coral police, testified he collected several items from a house, including a gasoline container, bleach bottle, knife and a paper towel which reacted when Luminol was placed on it. Luminol will show the presence of blood on an item.
Dahowski said he learned later that Fernandez had ripped the trunk pad from his vehicle, but did not know it the day the search warrant was executed in October 2006. Nor did he know for sometime another man — partygoer Donteavious Overmyer, who has not been charged in the crime, lived at the house where the warrant was served.
Brener brought out that Dahowski collected 23 items, but he didn’t know if all were submitted to the lab.
Some of the swabs were never sent for testing, Dahowski later said. He didn’t know why.
The defense will continue its case at 8:30 a.m. Wednesday in the Lee County Justice Center.
After the trial ended for the day Tuesday, Reese spoke with the attorneys about a potential problem: the only black juror, a female, also is a Jehovah’s Witness. Jehovah Witness attend church on Saturdays.
Reese plans to give the case to the jury no later than Friday morning, but they will be sequestered until a verdict is reached or until the jury cannot make a decision.
Brener said he would rather wait to see if the jury can reach a decision rather than question the juror about the possibility of her having to deliberate and be sequestered during her faith’s church schedule.
The issue remains undecided.