Robert Shem, forensic firearm and tool mark examiner at the Alaska State Crime Laborator, examines a Browning BAR 7mm rifle that was allegedly used to kill two Hoonah police officers. Photo by Matt Miller/KTOO News

Live Blog: Hoonah homicide trial day 9

Robert Shem, forensic firearm and tool mark examiner at the Alaska State Crime Laboratory, examines a Browning BAR 7mm rifle that was allegedly used to kill two Hoonah police officers in August 2010. Photo by Matt Miller/KTOO News

The trial in the case of John Marvin, Jr. enters the ninth day on Wednesday. Marvin is accused of causing the deaths of Hoonah police officers Matthew Tokuoka and Sgt. Anthony Wallace on August 28, 2010.

Sitka Superior Court Judge David George is presiding over the trial that’s being held at Juneau’s Dimond Courthouse.

District Attorney Dave Brower is prosecuting the case and public defender Eric Hedland has been appointed as Marvin’s attorney.

The prosecution was expected to rest its case on Tuesday with the defense presenting its case on Wednesday. But that timetable has slipped a bit.

Earlier expectations had the trial wrapping up by Friday. No indication from Judge George yet whether he will allow the jury to deliberate over the weekend if they get the case late in the week.

Matt Miller October 31, 20124:49 pm

Judge George: “Confusing the issues and wasting time outweigh the probative value of the evidence.”

“All rise.”

Off record.

Everybody back at 8:15 tomorrow for more crafting of jury instructions.

Matt Miller October 31, 20124:44 pm

Hedland is trying to propose an alternative suspect.

Judge George is going through court rules and case law on the issue. He doesn’t sound too eager to allow such testimony…

Request denied.

Matt Miller October 31, 20124:32 pm

Reconvened approximately 4:20.

Jury still out.

Hedland wants to present a witness who will testify to Marvin’s neighbor who was a Vietnam vet, may have had PTSD, was “touched,” and ‘rumored’ hostility toward police. But Brower believes the man was not even in town and troopers had to break into his home to launch CS gas at Marvin’s house.

Evidentiary hearing on this?

Matt Miller October 31, 20123:22 pm

Edit/correction to 2:37 pm entry: nine instead of ninth.

Matt Miller October 31, 20123:08 pm

This has been the scene for the last forty minutes. Jury out and everybody in back — including a half-dozen local and state officers — have been socializing while the DA, judge, and PD hash out issues related to more potential evidence.

Break called for the next hour.

Matt Miller October 31, 20122:37 pm

Steve Warford, dinner and hunting companion, talks about John Marvin becoming more reclusive. He’s recalling Marvin’s behavior such as pacing back and forth, walking in snow in bare feet, laying on the floor, praying, no longer coming over.

“I promised not to say. But I’m going to break that promise. He did try to kill himself…” Something about ‘swimming’ before Judge George interrupts for bench conference.

Warford reports Marvin stopped taking care of himself, working on his computers, going hunting with Warford about six- to ninth-months before the shooting incident.

“About two- to three-months (before shooting incident) is when everything started going goofy.”

Warford reports being an uncle to Marvin by marriage.

Brower asks him to read something on cross-examination.

“I don’t have my reading glasses.”

“Want to use mine?”

“Sure.” Everyone in courtroom laughs.

A few more questions and then Warford is excused. Break time again.

Matt Miller October 31, 20122:24 pm

Karen Mills has just taken the stand. Hedland is trying to ask about 2009 incident between John Marvin and Hoonah Police Officers. She’s trying to recall the arrest and removal of taser barbs during the incident.

Wallace had scratches (Mills is trying to remember). Marvin had a barb removed at the jail.

Officers audibly playing a field recording so Marvin could hear it in the cell, laughing. She told them to knock it off. She didn’t think it was appropriate that they were laughing.

She reports Marvin was combative.

Under cross examination, Brower asks about taser training at HPD.

“Did you volunteer to get tasered?”

“No!” says Mills with big smile. Everyone in courtroom laughs.

Matt Miller October 31, 20122:06 pm

Finally back from bench conference. Hedland just says he’s got no more questions. Haley Tokuoka excused.

Matt Miller October 31, 20122:03 pm

Here’s a sample target used by Robert Shem of the Alaska State Crime Laboratory in his testing of a Browning BAR 7mm rifle found in John Marvin’s house and allegedly used in the shooting..

Shem says the rifle was low only 1.1 inches and off to the left about .4 inch during a 50-foot aim and point of impact test.

Matt Miller October 31, 20121:51 pm

Hedland back, then Brower leaves. Bench conference or side-bar again. It’s a long one.

Matt Miller October 31, 20121:35 pm

Back from lunch and jury back in at about 1:25. Haley Tokuoka has been called back to the stand by Eric Hedland. But then bench conference and jury sent back to jury room as Hedland leaves to look for something.

Marvin grabs tissue and sneezes into it.

Haley, still on the witness stand: “Bless you.”

Matt Miller October 31, 20121:26 pm

Let’s be honest. Most court hearings and trials are dry, dull, ponderous affairs. The type of high-energy drama that you see in “A Few Good Men” or some witness tricked into a confession on “Perry Mason” almost never happens.

Occasionally, there might a little exchange between attorneys. Perhaps, some emotional or animated testimony that is fascinating or compelling.

One example is a witness who testified on Monday. Thomas Wortman is a forensic scientist at the Alaska State Crime Laboratory who specializes in latent fingerprints. He also swabbed the suspected murder weapon for skin cells for potential DNA analysis.

After he pointed out places where he swabbed the rifle, Wortman — still standing next to the witness stand and still wearing latex gloves — continued with his rapid-fire explanation of the process. His hands were in a constant spin and whirl as he continued with his explanation (Think John Travolta during Saturday Night Fever).

My skills as a photographer have not been up to snuff during this trial with dirty lens, wrong shutter speed, or out-of-focus shots aplenty. But I realized that I had inadvertently squeezed off this five-frame sequence:

I thought afterward that Wortman would look good in a top hat and tails if he ever considered moonlighting as a magician. Perhaps a striped shirt, beret, and white face paint as a mime on the streets of Paris. But he wouldn’t get to talk.

Matt Miller October 31, 201212:01 pm

After yesterday’s court session, attorneys and judge met in the absence of the jury to go over jury instructions. A continuation of that is being planned now.

Matt Miller October 31, 201212:00 pm

Brower picks up a writing pen and then a yellow highlighter in an attempt to get Manrique to describe the diameter of copper sighting tube.

Manrique excused.

Break for sustenance.

Matt Miller October 31, 201211:56 am

Fuzzy pictures have been introduced as evidence of the view through the tube placed against the bumper. Manrique admits she doesn’t have enough practice with a camera to take a picture of what she actually saw through the tube.

Matt Miller October 31, 201211:53 am

Sargent Michelyn Manrique called to the stand. It’s a revisit of the bumper and copper sighting tube issue.

Most jurors have their pens and pads out again for taking notes… except for one. The pad is at his side and his hands are clasped together in his lap.

Matt Miller October 31, 201211:48 am

It may be another late lunch today.

Public defender Eric Hedland plans on calling his first witness to the stand momentarily. Jury coming back in.

Matt Miller October 31, 201211:44 am

Judge George compares the publicity for the Marvin case to other notable Alaska appellate cases.

Renewed motion for change of venue is denied.

Matt Miller October 31, 201211:36 am

Back to the change of venue issue and pre-trial publicity initially raised by Hedland. Brower is struggling with what it’s really called. Renewed motion or reconsideration of denial of original motion?

Hedland is talking (as I’m writing this entry) about the change in media just since 2005: We can now “instantaneously share information…with an infinite amount of people.”

Matt Miller October 31, 201211:24 am

Judge David George: Sufficient evidence to believe that John Marvin shot the officers. Jurors would likely disagree on any potential verdict.

Motion for judgement of acquittal denied.

Wallace’s mother: big sigh and a look up to the ceiling.

Matt Miller October 31, 201211:18 am

Brower notes Haley Tokuoka and Debbie Greene’s observations on Front Street, John Millan and Arlen Skaflestad suspected John Marvin, and other witnesses on watch duty did not see anyone leave the residence. Also noted, recovered fragments from parking lot area and Tokuoka autopsy were both bullets fired from a 7 mm rifle. The 2009 incident signaled intent to target only Wallace and Tokuoka.

Matt Miller October 31, 201211:09 am

Hedland: No one saw John Marvin shoot officers.

Browning was identified as gun used. Marvin was not identified as the shooter.

An encounter in 2009 between Marvin and officers only shows why Marvin was suspected.

Matt Miller October 31, 201211:04 am

Jury is out. Hedland makes motion for acquittal.

Matt Miller October 31, 201211:03 am

Back from a break. Shem is back on the stand for redirect examination and talking about rules for Lab analysis, potential conflicts with other examiners, more details about checking for strident marks, and a little more about testing a bullet and firearm: good officers doing their job versus ‘fishing expeditions’ by investigators.

Shem excused.

State rests its case.

Matt Miller October 31, 201210:16 am

Hedland is questioning Shem on basic differences between caliber and metric measurements, whether a 7 mm cartridge can be used in a .280 rifle that was also seized (no, not possible), and quantifying Shem’s error rate for examining firearms (He says it’s zero).

Matt Miller October 31, 201210:09 am

From yesterday’s testimony: Robert Shem looks at a projected display of three 7 mm rounds that were unloaded from a Browning BAR rifle that was seized from John Marvin’s house. The same image is on display on the computer in the foreground. The actual cartridges have been placed in front of Shem on the edge of the witness stand.

Matt Miller October 31, 201210:06 am

Shem can not really conclusively say that a bullet caused the graze or crease in the plastic bumper.

Matt Miller October 31, 201210:04 am

Hedland has brought out the bumper from Sargent Anthony Wallace’s patrol vehicle even though Shem — on direct examination yesterday — has already conceded that he could not really determine a bullet caliber or weapon.

Matt Miller October 31, 201210:02 am

This is another image shown to jurors during Shem’s initial testimony yesterday. These are bullet and jacket fragments retrieved during the autopsy of Officer Matthew Tokuoka. Shem has identified them as being fired from a Browning BAR 7 mm rifle that was found in John Marvin’s house.

Matt Miller October 31, 20129:50 am

Defense attorney Eric Hedland is cross-examining Robert Shem from the state crime lab.

John Marvin is wearing a white shirt with dark vertical pinstripes, occasionally stroking his long hair as he watches Shem testify to the relative subjectivity of firearms identification.

Paraphrased exchange between Hedland and Shem:

“If you have a perfect practitioner, does that mean no error rate?”

“That’s the goal, yes.”

Hedland is making Shem explain the rifling characteristic between the Browning and a Reminington, another long gun seized from Marvin’s house and set aside for examination, collection of cartridges, making a microscopic identification.

Matt Miller October 31, 20129:17 am

Discussion with jury out about the gun residue testing. Jury back in at 9:05.

Matt Miller October 31, 20129:15 am

Last night while I was producing stories for this morning, I began thinking about yesterday’s “What the heck?!” moment.

Dr. Robert Whitmore, former medical examiner, took the stand to talk about the autopsy of Sargent Anthony Wallace. After some maneuvering, defense attorney Eric Hedland was finally able to elicit from Whitmore the results of a toxicology analysis. Essentially, it indicated what appeared to be a .019 percent blood alcohol content for ethanol. As Dr. Whitmore explained on the stand, .08 percent BAC and over is considered to be legally intoxicated. After that little fact was finally divulged, Hedland seemed to drop it and did not pursue it further.

It actually seemed to raise more questions than answer. During research last night (which jurors are NOT supposed to do) while producing my stories, I found out that there may be other — and possibly very benign — reasons for such an ethanol reading.

The substance was evidently retrieved in what’s called a vitreous humor extraction. Fluid from an eye, which may remain stable even up through an embalming process, is extracted and tested. However, it is usually done only as a way to confirm the results of a urine or blood draw.

An ethanol reading can occur for a variety of reasons beside consumption of grain alcohol like vodka. For example, what about ethanol already in a liver that bleeds? And what about post-mortem glucose fermentation? If an injured person received a blood transfusion or was administered glucose by medical personnel, then any bacteria in the body could eventually produce ethanol as a by-product. The concentrations could end up being higher than the respective BAC’s.

Hedland did not press Whitmore for an explanation, such as a potential source of that ethanol. Is it just a red herring meant to distract and confuse the jury? Or does Hedland plan on getting back to it later? And how would it be relevant in his client’s case of being charged with intentionally committing homicide?

During yesterday’s testimony, District Attorney Dave Brower didn’t really touch the ethanol issue. On redirect, the only question he asked was about the prolonged retention of alcohol in the eye. If he knew there was nothing to the ethanol reading, then why didn’t he knock it down when he had the chance?

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