YT YouTube2Text

YouTube2Text → Transcripts → Judge Rules on Key Evidence in UNC Student Murder Case

Judge Rules on Key Evidence in UNC Student Murder Case — Transcript

by Law&Crime Trials · 15,128 words · 2,837 segments · language en · Watch on YouTube

Open in transcriber Summarize with AI Download SRT/VTT

Full transcript

0:00All right. Let the record reflect
0:03we are back in session. Madam Clerk, you
0:06may call
0:07your next matter.
0:08>> Thank you, Your Honor. The state calls
0:10the state versus Miguel Angel
0:12Salguero-Olivares,
0:1421 CR054671-310.
0:19We're here, Your Honor, for the purpose
0:21of hearing pre-trial motions that have
0:23been previously filed by both the state
0:25and the defense. I am Angela Martinez
0:27joined by Brooke Stone, co-counsel in
0:29this case.
0:30Unfortunately, we don't have the best
0:32today because of the cold rain which is
0:34our other trial team member.
0:37The state would like to ask the court if
0:39we might first arraign the defendant.
0:42>> Dismissed. Allowed.
0:48>> Defense counsel, does the defendant
0:49waive formal arraignment of formal
0:51reading of the indictment?
0:53>> Yes, ma'am.
0:54>> Thank you. In that case, in 21
0:56CR054671-310,
1:00how does the defendant, Mr.
1:01Salguero-Olivares, plead to count one,
1:04murder?
1:05Count two, first-degree burglary?
1:09Count three, first-degree rape? And
1:11count four, first-degree sexual offense?
1:14>> Not guilty to all charges.
1:16>> Thank you, sir.
1:18>> All right. And
1:20may I see?
1:22Before we start, I do want to make sure
1:25we are all on the same page. If anyone
1:27in the audience did not receive
1:30consent from the court,
1:32you shall not you will not be allowed to
1:35record
1:36with their cell phones or any
1:39type of devices that can record. Now,
1:43the court has allowed for one camera in
1:46the courtroom. And
1:48we
1:49that is allowed, obviously. But, you are
1:52here
1:53and you have a device, you're not
1:55allowed to take pictures, you're not to
1:57record
1:58on any other devices.
2:00All right.
2:01Now,
2:03>> [snorts]
2:03>> Madam DA, and
2:07DA, I believe
2:11there are several pre-trial motions that
2:14the state has filed and that the defense
2:16has filed, and
2:18if I'm correct,
2:29this is
2:30if the court wants to start
3:20Believe, Madam
3:21DA, there's a motion
3:24in limine
3:26to exclude written
3:28statement analysis. I believe
3:30I'm correct that that's the first one.
3:32Is that it?
3:33No, that's I I apologize. It's the
3:35motion to limit to exclude the 911
3:38analysis. I think that would be the
3:40one that the court would want to go
3:42ahead and start with first. I think this
3:44is the state's motion, if I'm correct.
3:47>> Yes, Your Honor. That is correct.
3:50>> Yes, ma'am.
3:51I'm ready for you.
3:52>> Thank you, Your Honor. Um
3:55at some point during the investigation
3:56of this case which began in 2012,
3:59um
4:01and I I think it might help at this
4:02point just to provide a little context
4:04for the the history of the investigation
4:07of this case. Um and so, Your Honor, the
4:10time of collection occurred September
4:127th, 2012.
4:14Chapel Hill PD uh started investigating
4:18um
4:19the uh autopsy was conducted by the
4:21Office of the Chief Medical Examiner,
4:23uh who did, among other things, collect
4:27evidence, forensic evidence as part of
4:29the sexual assault kit.
4:31That kit was then analyzed by the North
4:33Carolina Crime Lab, and a suspect DNA
4:36profile was identified, was found.
4:39Um that suspect DNA profile was then
4:42determined to be present on other parts
4:45of the crime scene, not just inside the
4:47victim's body.
4:49Uh Chapel Hill PD, eventually along with
4:52the help of our State Bureau of
4:54Investigation, um ended up conducting
4:58dozens, dozens of DNA buccal swabs of
5:03men
5:04in the Triad area.
5:06Um the
5:08for the court's reference, the Crime Lab
5:10has more DNA analysis um for this case
5:14than in the history of the Crime Lab.
5:17Um
5:18they were not able to find a match
5:21to the suspect profile that was on the
5:24victim and in the crime scene.
5:27And they continued to investigate. Um
5:31not finding the DNA match, they
5:33continued to sort of circle back to some
5:36of their hunches. They were following
5:37the evidence, you know, in one direction
5:39and then in another direction. And at a
5:42point, they began doing some things that
5:44were unconventional.
5:45One of those things was to submit the
5:48911 call that was placed by the roommate
5:50of the deceased
5:52who is named Jessica.
5:53It was she that is the the victim in
5:55this case rather than the deceased. And
5:57her roommate, Karina Alvarez, was the
5:58first to find her along with their
6:00friend, Marta Solano.
6:03When Karina called 911, that recording
6:07um
6:07was saved.
6:08And Chapel Hill PD sent that recording
6:12to someone named Mark McClish uh in an
6:16attempt to find anything, any kind of
6:19direction, a sense of lead uh that might
6:23take him to the suspect whose DNA would
6:25match the glass.
6:26Um unfortunately, Your Honor, Mr.
6:28McClish is um
6:32really not qualified under the law in
6:33North Carolina
6:35to offer an expert opinion. If I may
6:38approach
6:39>> Yes, ma'am.
6:47>> Here then, I'm happy to go into the
6:48motion uh if your if Your Honor has not
6:50had a chance to read it or has questions
6:52about it.
6:53>> I've read all the motions.
6:53>> Okay. So, I I think it's fairly
6:55self-explanatory. The problem here is
6:57that under Rule 801 uh 702 subsection A,
7:03if scientific, technical, or other
7:04specialized knowledge will assist the
7:06trier of fact to understand the evidence
7:08or to determine a fact in issue, a
7:10witness qualified as an expert by
7:12knowledge, skill, experience, training,
7:15or education must testify thereto in the
7:18form of an opinion or otherwise if all
7:21of the following apply. Number one, the
7:23testimony is based upon sufficient facts
7:25or data.
7:26Number two, the testimony is a product
7:28of reliable principles and methods. And
7:30number three, the witness has applied
7:32the principles and methods reliably to
7:35the facts of the case.
7:38According to Mr. McClish's report, after
7:40listening to the 911 call,
7:43um
7:44he formed opinions based solely on,
7:46quote, "an examination of the language
7:48used by the subject in that one 911
7:51call."
7:52Even assuming arguendo that a
7:54scientifically reliable opinion could be
7:56formed based upon linguistic choices,
7:59Mr. Lapidus' analysis is not on
8:01sufficient facts or data. He didn't know
8:04anything about the circumstances
8:05surrounding the call. He didn't know
8:07anything about the people involved.
8:09Um he didn't know anything about the
8:11caller's normal speech patterns or other
8:14um information that would help him to
8:15reliably interpret that caller's
8:18language.
8:19Um
8:20it is not the product of reliable
8:22principles or methods within the meaning
8:24of Rule 702. This would be subsection
8:27number two.
8:28Um
8:29rather than employing a methodology
8:30that's been
8:31objectively tested, independently
8:34validated, subjected to meaningful peer
8:36review, or generally accepted within the
8:38scientific and professional community,
8:40he relies on a self-created interpretive
8:42framework derived just from his own law
8:45enforcement experience. Now, which is
8:47not nothing, but it doesn't meet the
8:49threshold for expert testimony as
8:51considered to be reliable um
8:54or the product of reliable principles
8:55and methods.
8:58Uh for all those reasons, Your Honor,
9:00the state is asking that
9:02uh this court issue order excluding any
9:05reference to or uh substance of the 911
9:07call.
9:09>> Thank you, Madam Chair. Mr. Ringgold,
9:11are you giving this part of the defense?
9:14>> Yes, Your Honor. Yes, sir.
9:16Uh
9:17this is evidence which is created by the
9:19state. The defendant isn't seeking to
9:21introduce this.
9:22Um
9:24so I don't
9:26have any objection if the state doesn't
9:28want to try to present the 911 analysis
9:31in evidence.
9:33Yeah, as far as making a sweeping ruling
9:35that it lacks admissibility, that's
9:38something different.
9:39Then just saying nobody's going to try
9:41to admit it then
9:43it's not going to be admitted.
9:45I'll leave that to the court, but the
9:47defense isn't going to admit it.
9:50>> So noted.
9:51I do think it's important that the court
9:54at least acknowledge what the state has
9:57said on the record as opposed to respect
9:59as opposed to the court just saying no
10:01one's going to admit it.
10:04Just in case I think it's important.
10:06You're not objecting to the state's
10:08motion to exclude, correct?
10:09>> Correct, Your Honor. Was there an
10:11exhibit that was passed up
10:13to the court or was that just a copy for
10:15me to look at? I just want to make sure
10:16it was passed up and it was marked.
10:19>> This is not marked. This is
10:22that whatever it is.
10:23>> I'm happy to mark it.
10:25>> You have it also, Mr. Winsor?
10:27>> Yes, Your Honor. She gave us a marker
10:30giving a copy of it.
10:35>> Yeah.
10:38>> You're on the table. I'd like to mark
10:39that state exhibit one if I may
10:40approach.
10:41>> You want to mark that state exhibit one
10:43pre-trial as opposed to just to be safe.
10:45>> Yes, absolutely. Thank you.
10:48>> Distinguish between that and
10:50and then the court court is she's making
10:52sure that I do that and so we can
10:54distinguish.
10:55>> Any court you go to in the Commonwealth
10:57got stuff.
10:59>> So is that you're going to mark that as
11:02>> State State exhibit one pre-trial.
11:04>> Okay, so noted. The objection, Mr.
11:08Winsor?
11:08>> No, Your Honor.
11:09>> Okay, so noted.
11:11Allowed.
11:13Now.
11:15Not before.
11:17That's too bad.
11:22All right. The court is going to
11:23indicate I agree with the district
11:26attorney. I'm going to incorporate by
11:27reference the argument held, but I will
11:29indicate that Mr.
11:32The place I believe is relevant is he
11:34fact has his education at this point in
11:36time. I read that and that as
11:40the district attorney said, this is his
11:43own he created this own
11:45It's a self-created interpretation that
11:48derived from his law enforcement
11:50experience. However, he also indicates
11:53there's no methodology
11:54or there has not been any
11:56meaningful peer review or anything
11:58that's
11:59get the report that this method is
12:02generally accepted within the community.
12:05Um
12:06as the district attorney indicated, does
12:08not comply with rule 702.
12:12It's not based on any product reliable
12:14principles and methods. Um the court
12:17will also indicate
12:25Ex- Mrs. LaMarca actually said that I
12:28was concerned about how he would make a
12:30determination about speech patterns with
12:32only hearing uh
12:34this person's speech pattern for the
12:36first time and only time. Uh
12:38therefore
12:40as I said I will incorporate by
12:41reference the state's argument in full.
12:43I reserve the right to make further
12:45findings of fact if necessary. However,
12:48the motion in limine to exclude the 911
12:51call analysis is allowed.
12:53>> Thank you, Your Honor.
12:55>> And Mrs. LaMarca, the state will prepare
12:57an order at the appropriate time. Uh
13:00If you will and after this week, you'll
13:02share that order with the defense and
13:06once the parties have an opportunity to
13:08sign it.
13:08>> Thank you, Your Honor. Thank you.
13:09>> Thank you.
13:10Now
13:12counsel, I believe the next
13:15matter will be the motion in limine to
13:17exclude
13:18uh
13:19the
13:23state
13:25The motion in limine took the evidence
13:27of blood alcohol concentration
13:29the calculation of opinion, but let me
13:31make sure I'm clear.
13:32Is the state ready to go forward in that
13:34matter?
13:34>> Yes, sir.
13:35>> Is the defense ready to go forward in
13:36that matter at this time?
13:40At this When I said this time, you mean
13:42at this very moment as we
13:44>> You know, Your Honor, we did we're not
13:46aware that the state was pressing an
13:48evidentiary hearing on this,
13:50based on and I don't know what the
13:52testimony is going to be, but for
13:54purposes of potential cross-examination,
13:57uh and I
13:58I think Your Honor has probably seen the
14:00motion and response that we filed
14:03to the state's motion. Um that's going
14:05to involve us playing
14:07multiple video clips for the witness to
14:10review. Um Sergeant Matthews is a
14:14relevant witness. He's coming to court
14:16Wednesday, and so
14:19we're going to do an evidentiary
14:20hearing, I think.
14:21You know, rather than
14:23having everything done right now, I
14:25don't know when we're going to have
14:25everything done today,
14:28but you know, certainly we're going to
14:29call Sergeant Matthews, and he's only
14:31available Wednesday. He's coming here
14:33for a separate motion, and so
14:35um we're after the lunch hour, and we're
14:38trying to reach a different parameter on
14:39this, and maybe we can be creative as to
14:42how the evidence gets presented, but I
14:43want to make sure all of it's presented
14:45to Your Honor.
14:47>> When you say that Sergeant Matthews is
14:49pertinent to this particular motion by
14:52the state,
14:53>> Yes, Your Honor.
14:56>> Yes, Your Honor, Mr. Harris.
14:58>> Uh
14:59as an initial matter, I will say that as
15:02Mr. Harris marked it just now with her
15:04very brief hearing, uh the state intends
15:08to and reserves the right to um
15:10make all of these hearings evidentiary
15:12hearings. Um
15:14there was no
15:15request of which one was going to be
15:17evidentiary. It was um the state's
15:20um understanding with Your Honor's court
15:23that all parties were going to be
15:25prepared to address all motions starting
15:28this morning. So, we have witnesses
15:30scheduled to be present in court for
15:33this hearing. One of them has traveled
15:34to be here. State would ask to proceed
15:37with this hearing
15:39at this time.
15:40>> Well, the court's going to say this
15:41respectfully,
15:44this offense did happen September 7th of
15:472012.
15:52This court,
15:53when I was assigned last year,
15:57told the parties,
15:59give me a trial date if you want to try
16:01this. This court did not believe into
16:03and blew into that or suggest the court
16:05said both parties to think about what
16:08they need to do.
16:10Give me a court date
16:12that you want to try this matter. This
16:13matter's set for September
16:1528th
16:17of this year.
16:19And
16:20the parties
16:23understood that we're going to have a
16:24pre-trial
16:26hearing. This court did not hear
16:28in this June because of a family matter
16:33as a result of that,
16:34I pushed the
16:36deadline back as far as the date to file
16:39pre-trial motions and the date that we
16:42hear
16:43the pre-trial motions, which, as a
16:45function of that,
16:47would give all parties even more time to
16:51present motions they thought were
16:52pertinent and relevant.
16:54I say all that because
16:57we've waited long enough. We're going
16:59forward. Give me a court person's.
17:01>> Uh, uh, before I do that, your Honor,
17:03just that that thing that I found.
17:06Did Does your Honor have I'm not sure
17:08exactly when this filed. I got it when I
17:11got into the office this morning. It
17:13says here it was filed the
17:15Oh, it says it was filed the 31st.
17:19And being this
17:20>> definitive response to this motion.
17:24Is that an Odyssey or is that something
17:25that was
17:26filed?
17:27>> Your Honor,
17:29I got a notification from Odyssey this
17:31morning.
17:33>> When was it filed?
17:34>> Friday.
17:37>> I'll check it out. I was No, I was not
17:38given that. I'll give you the notice.
17:40>> When we look at the Odyssey system this
17:43morning when we got the notification,
17:45it looks as though the notation that it
17:48was filed
17:49is on the Odyssey system, but the PDF of
17:52the document is not. It may have
17:55changed.
17:55>> Do you have a copy for the court, sir?
17:59>> Yes, Your Honor. We'll provide the
18:00court.
18:04Just need to make sure I have written
18:06notes on my copy.
18:13I don't have any findings precaution.
18:15>> Do you have any more to say? Any more
18:15copies?
18:33>> Do you have any approach?
18:34>> Yes, sir.
18:48>> Your
18:49Honor, with the copy of the motion that
18:51was filed, the file stamp doesn't appear
18:53on the bottom of the motion,
18:56but
18:59we did get the notification from the
19:00clerk's office today that it received
19:03the filing that was made on Friday.
19:05>> Like Friday?
19:07>> Yes, sir.
19:08>> Uh as a initial matter, Your Your I
19:10would just note that I realized since
19:12filing that I made a mistake in this
19:14solution.
19:16And one of the issues I think we're
19:17going to be talking about in
19:19this hearing and in several other
19:22hearings this week is kind of the
19:24timeline of what happened when during
19:27those early morning hours of September
19:297th, 2012. I wrote in my motion in
19:32paragraph four that
19:35Creu Rosario and Beth Beth left the bar
19:39called Thrill at 2:07 a.m. Or rather, at
19:43approximately 2:07 a.m.
19:45That was based on information we
19:48received from Chapel Hill Police
19:49Department that was reported in their
19:50reports.
19:51Since then, I found something that was
19:54written in a report in 2016
19:57where the Chapel Hill Police Department
19:59reports
20:00on page
20:02470, and in case you guys can't find it,
20:04written by in supplement five,
20:07now Chief Blake Hill,
20:10saying that they realized that the
20:11timestamps on those
20:13videos, surveillance videos from the
20:15Thrill bar,
20:16and that what is reflected as 2:07 is
20:19actually sometime later than 2:07.
20:22I think in one of the defense's motions,
20:24they they have that they
20:26they have down that Rosario and Beth
20:28left the bar at 2:20 something.
20:31I say that, Your Honor,
20:33to apologize for making that error,
20:35first of all, and also to point out
20:38something that's going to be relevant
20:40and other hearings that we don't really
20:42know the timeline at all. There are some
20:44things we know from cell phone records
20:47that these things happened at these
20:49times.
20:50However, as far as things that are on
20:52surveillance footage, like the
20:53surveillance footage from the Thrill,
20:55we have reason to believe and or know
20:58that the surveillance footage timestamps
21:01are wrong.
21:02As they were in this case. So, we don't
21:03actually know what time exactly they
21:06left the Thrill bar.
21:08Um
21:10This motion is uh about the expert
21:13testimony of Paul Glover.
21:15Uh the state is seeking to exclude the
21:18uh opinions uh that you Mr. Glover
21:21generated with respect to Faith
21:23Hedgepeth's blood alcohol alcohol
21:25concentration or BAC
21:29uh for the morning of September 7th,
21:312012.
21:33I will say as an initial matter,
21:36Ms. Redfield & Tarka already in her
21:38motion talked about uh Rule 702, which
21:40is obviously relevant to this.
21:43Um and I will say as an initial matter
21:45that Paul Glover is a renowned expert,
21:48that he is well qualified, and that uh
21:52the the opinions that he generates are
21:55the product of reliable principles and
21:57methods. Um that he uh
22:01that far as I'm aware in every case and
22:02in this case um applied those principles
22:05and methods in a um
22:09reliable way.
22:10The issue though is that the testimony
22:14or his opinion in this case would be
22:16based on insufficient facts and data,
22:18which is Rule 702 A subsection 1, the
22:22testimony is based on sufficient facts
22:24or data. That's what this comes down to.
22:27Um so Mr. Glover was provided
22:30information
22:31um from the Chapel Hill Police
22:33Department about what they believed
22:35Faith may have had to drink that night.
22:37Um
22:39And I would submit to you, as I'm sure
22:41you read the motion, that uh that is um
22:44conjecture on what she had to drink that
22:46morning. There are a lot of gaps in the
22:48knowledge about what she had to drink,
22:50how much alcohol was in the drinks that
22:52she is believed to have consumed, and
22:55most importantly, there's um
22:58uh just speculation
23:01that she didn't have anything more to
23:02drink besides what and in all the
23:05information that the Chapel Hill Police
23:06Department gave to Mr. Glover was based
23:09on the observations that proceed that
23:11Karina Rosario was able to make.
23:14So, basically they said Karina Rosario
23:16was able to remember they had these two
23:19drinks and they assumed those are the
23:22only drinks she had.
23:24And as you I'm sure read in the motion
23:25there is reason to doubt that is the
23:27case. That is the basis of the motion.
23:30Mr. Glover
23:31given reliable information can give
23:34reliable expert testimony about a
23:36person's BAC and how it changes over
23:37time, but in this case he was not given
23:40reliable information.
23:42It was not based on sufficient facts. It
23:44was based on speculation without
23:46evidence to support.
23:47And at this time the state would ask
23:49Paul Mr. Glover.
23:52Paul Glover for the record. This side.
23:56>> Your Honor, I'm just approaching if I'm
23:58just to try to expedite things.
24:01If the state
24:02is stipulating that Mr. Glover is well
24:04qualified,
24:06reliable,
24:08applied the principles and methods in a
24:09reliable way, that retrograde
24:12extrapolation has been accepted by the
24:14court in North Carolina since at least
24:16at least 1985.
24:19If if the state is saying all of those
24:21things, then I can limit my examination
24:23of Mr. Glover. I just want to make sure.
24:25Because if we have that agreed to,
24:27because otherwise I'm going to go
24:29through those things in my examination
24:31agreed with the state and I'm just
24:32trying to expedite things by asking that
24:34question. I'm just sorry to sort of jump
24:36up before he testifies.
24:38>> This side.
24:39>> Yes, so I'll have you answer that and
24:40thank you for that. Yes, the as I
24:42indicated the state is only objecting to
24:45the facts and data, not to the
24:46principles. I do have some questions
24:48though to ask Mr. Glover about how he
24:50prepared his opinion in this case, kind
24:53of the factors that go into that. Um, so
24:56your Honor and and just kind of the
24:58information that was given to make this
24:59conclusion to your honor had no idea
25:01about
25:02um
25:03about why the
25:05um his ultimate opinion might not be
25:07reliable.
25:08>> So, is the state is only concerned about
25:11the information that Mr. Glover is
25:13getting for this particular case?
25:15>> Yes, sir.
25:15>> And information he may not have been
25:17given or may not have access to or even
25:19yet.
25:20>> That's right.
25:21Um
25:22Sorry. This court is in recess.
25:53>> Thank you, Madam Clerk,
25:55and Chair.
26:00Mr.
26:01State your first and last name for the
26:03record, please.
26:04>> My name is Paul Glover.
26:06>> And Mr. Glover, will you spell your
26:08first and last name for the record?
26:09>> P A U L, G L O V E R.
26:13>> Thank you, sir. Thank you for keeping
26:15your voice up. Just be mindful of the
26:16court reporter is right in front of you.
26:18So, try not to speak too fast and also
26:21go after the attorneys to ask the
26:23question that you can respond in order
26:26to avoid talking over each other.
26:27>> Yes.
26:28>> All right. This is This is good. This is
26:29good.
26:30>> Mr. Glover, would you please just tell
26:32us a little bit about your background?
26:36>> Um, I got my BS at Florida State
26:38University in 1974.
26:41I got my Masters at Florida State
26:43University in 1978.
26:45I worked in
26:47immunology [clears throat]
26:48at Oak Ridge National Laboratory
26:50for 7 years. And then worked at National
26:52Institute of Environmental Health
26:54Sciences in Research Triangle Park
26:57for
26:59about
27:005 years, and then in genetic toxicology
27:02at Burroughs Welcome for 7 years.
27:05I was in Raleigh by the state and was
27:08employed by the Forensic Tests for
27:10Alcohol Branch.
27:12I was initially the research scientist
27:14for the branch.
27:15I became the assistant branch head
27:18about 2 years after I was hired.
27:21I became the branch head
27:23in 2007.
27:25I was the branch head until my
27:27retirement, which was 2014.
27:33>> And um are you working now?
27:35>> Um I'm retired, but I consult on the
27:38side. And I've
27:40basically been testifying since I
27:42retired for the last 12 years.
27:45>> And approximately um
27:47how many times have you testified as an
27:49expert?
27:50>> 479.
27:52>> Okay.
27:53Uh and what uh fields did you testify in
27:57um those 479 times?
28:00>> Alcoholic
28:02um
28:02physiology pharmacology of alcohol,
28:05blood alcohol testing, breath alcohol
28:07testing,
28:08instrumentation used for those tests,
28:11um effects of alcohol on human
28:13psychomotor performance,
28:16effects of drugs on human psychomotor
28:18performance.
28:20Um
28:21That's most everything, I think.
28:24>> Is it fair to say that a majority of
28:27your expert testimony has concerned
28:29blood alcohol concentration?
28:32>> Yes, I would say probably 2/3 or 3/4 of
28:35it.
28:36>> And um
28:38and
28:40not just blood alcohol concentration,
28:41but the
28:43the calculates uh blood alcohol
28:44concentration, especially um
28:47uh using elimination rate. Is that
28:49right?
28:49>> Right.
28:50>> Okay.
28:51Uh, so how is, uh, blood alcohol
28:53concentration or BAC calculated?
28:56>> Well,
28:57if we're looking at a blood test, the
28:59blood is drawn from a subject, uh,
29:01generally it's going to be injected in a
29:04headspace gas chromatograph and
29:07determine the concentration.
29:09Um,
29:10you can calculate concentration on an
29:13individual if you know their weight,
29:16their gender, the amount of alcohol they
29:18consumed, you can calculate what their
29:20BAC would be.
29:22You can do breath alcohol concentration
29:24is done by measuring,
29:26um,
29:27breath that's deep lung breath from an
29:30individual who's been drinking alcohol
29:32and it's measured in grams per 210 L of
29:36breath.
29:38>> All right.
29:39Um, so that's kind of the information
29:41you get about the individual, about, um,
29:45what their BAC was measured as and
29:48information about their weight and how
29:50much alcohol they consumed. Is that
29:52right?
29:53>> I'm trying to get the first part of the
29:55question.
29:55>> Oh, I'm sorry. I'll keep I'll try to
29:56keep my voice up and talk to the
29:57microphone.
29:58So,
29:59um,
30:01I'm not sure I'm going to be able to
30:01recreate my question exactly, but
30:03basically what I'm asking is, this is
30:06the information that you need in order
30:08to do a BAC calculation.
30:11It's kind of information about the
30:13person, how much they weigh, um,
30:17and, uh, what their BAC was measured at
30:20at one time and then how much alcohol
30:23they consumed and at what time they
30:25consumed it.
30:27>> All of that is something you would use
30:29in an evaluating a situation, but, uh,
30:32it's like if I was going to dose someone
30:34for with alcohol in a controlled
30:36drinking exercise, I need their weight,
30:39need their gender. Uh, I would then
30:41calculate, uh, how much alcohol to give
30:44them to get them to a particular BAC.
30:47That's something that's done routinely
30:50in our classes when we have controlled
30:52drinking exercises.
30:55>> And uh, does a person's uh, after they
30:59uh, finish consuming alcohol, does their
31:02BAC change over time?
31:04>> Yes, um, an individual's alcohol
31:06concentration will change over time. Uh,
31:10as soon as you drink alcohol, it starts
31:12being absorbed into the body and
31:14distributed within the body by the
31:17circulating blood.
31:18Uh, it will become it will be broken
31:21down or the breakdown process starts
31:23immediately as soon as the first alcohol
31:26goes through your liver, some of it gets
31:28broken down before it goes anywhere
31:30else.
31:31Um, there is an enzyme in the liver
31:33called alcohol dehydrogenase
31:36that's responsible for breaking down
31:37about 95% of the alcohol that we
31:40consume. We lose about 5% of the alcohol
31:43through breath, sweat, and urine.
31:47The alcohol elimination
31:50uh, goes on at a steady rate over a
31:54fairly significant range of alcohol
31:56concentrations.
31:58Um,
31:59it's been studied and written about in
32:02peer-reviewed science for almost 100
32:04years now. So, there's some basic
32:06principles that we rely on um,
32:09that were published and that we still
32:12use today like I say for calculating uh,
32:14concentrations in the dosing experiment.
32:18>> And uh,
32:21the rate of elimination of alcohol that
32:23you uh, talked about, um,
32:27there's a phrase that you use called
32:28elimination rate, is that right?
32:30>> Yes.
32:31>> Okay. And do
32:33you use the same elimination rate for
32:35every person?
32:36>> Um, no. We will generally use a very
32:40conservative rate. So, if I was going to
32:42be doing a retrograde extrapolation, if
32:45I'm going to go back and calculate
32:47earlier concentration, um, we use 0.0165
32:51BAC per hour.
32:53That means we would expect it to go down
32:55by that much each hour.
32:57Um,
32:59if I have a person's rate of
33:01elimination, which you can calculate if
33:03I have multiple samples that are
33:06analyzed, then I would use their rate of
33:08um, elimination.
33:11We see a range of elimination rates, um,
33:15about threefold, um, range where
33:19the the highest we see is about three
33:21times the average, and that would be a
33:23chronic abuser.
33:25Uh,
33:26we don't factor that in. It's just
33:28part of what we know about what the body
33:29does and how it responds to alcohol. So,
33:32if a person is a chronic abuser, we can
33:34see rates in the range of 0.054
33:37BAC per hour. Um, I wouldn't use that
33:41unless I'd actually measured that on
33:42someone.
33:43Uh,
33:45normally we just use the 0.0165.
33:48>> So, when you say that 0.0
33:510.0165, right?
33:52>> Correct.
33:53>> Is a conservative rate, you mean what
33:55you're saying is that some people might
33:57have a higher rate of elimination.
34:00>> Correct. If we look at uh, individuals
34:02who've been charged with DWI and their
34:04studies
34:06um, where they measured rate of
34:08elimination in that population, we say
34:11they faster rate of elimination.
34:14The alcohol is a toxic substance. The
34:17body treats it as a toxic substance. The
34:20more you challenge the body with this,
34:22the more the body responds, and we find,
34:26um,
34:26greater rates of elimination
34:29in people who challenge themselves
34:31frequently. So in in
34:34essentially non-drinkers or
34:36inexperienced drinkers, we see very
34:37conservative rate.
34:39And
34:40people who have been charged with DWI as
34:42a population, we see a somewhat faster
34:44rate.
34:46We see in females, we see a faster rate
34:49than males, about 10% faster.
34:52Uh
34:52that's because females have
34:55proportionally larger liver than males,
34:57so they can process more alcohol per
35:00hour than a male can a male.
35:02Comparable male.
35:04Um
35:05And then like I say, you get into the
35:07chronic abuser, we will see that rate
35:10increase.
35:12It's also increased by concentration
35:15increase. So we have an individual
35:18who's going to get up uh say in the
35:20range of a 0.30 or higher, we see an
35:24accelerated rate of elimination. Again,
35:26that's a response the body has to that
35:29concentration. It wants to get rid of
35:31that alcohol. So it will accelerate the
35:34elimination.
35:35Once the concentration falls below about
35:38a 0.30, we'll see it
35:41referred to as normal rate of
35:42elimination.
35:44Finally, if a
35:45a chronic abuser
35:48um
35:49goes stops abusing, basically becomes a
35:52non-drinker,
35:54if they are then challenged with alcohol
35:56again, which we don't do as an
35:58experiment because ethically would be
36:00correct. But if they uh start drinking
36:03again,
36:04uh we will see that they've actually
36:06reverted back to a normal rate of
36:08elimination
36:09because again, the body responds to the
36:12no threat, it's reducing its response.
36:16>> I want to ask you about your work in
36:17this paperwork case. How'd you come to
36:19be involved in this case?
36:23>> I'm not certain. I believe I was
36:24contacted um in the first couple of
36:27weeks after um the murder and
36:32um
36:33they had limited information at that
36:35time and
36:38I talked to them in
36:40I don't remember if I I know with the
36:41Chapel Hill Police Department at one
36:43point
36:45and I'm not sure if that's when I gave
36:46them my report or if it was before that.
36:49They had a limited amount of information
36:51and they just wanted to know
36:53here's this alcohol information and what
36:55can you tell us
36:57at least that was my impression.
36:59Um
37:01they didn't know if it was something
37:02significant or not significant and they
37:04said they wanted me to look at it and
37:05say, "Tell us what we've got."
37:07And so I took the information they
37:09provided and generated my report.
37:14>> Remember
37:15>> Yes, sir.
37:28>> I am showing you what has been marked as
37:30State's Exhibit 2 pre-trial.
37:33That's two pieces of paper stapled
37:35together, is that right?
37:37>> That's correct.
37:37>> Okay. And do you recognize the
37:39information that's contained in Exhibit
37:422 pre-trial?
37:44>> Do I recognize this?
37:45>> Yes.
37:46>> Yes, I do.
37:46>> Okay, what is it?
37:48>> It's a
37:49letter
37:50or report um that I generated and
37:54gave to the uh Chapel Hill Police
37:55Department.
37:57>> And uh is this the report that you're
37:59referring to where the Chapel Hill
38:01Police Department reached out to you
38:03with a limited amount of information and
38:04asked what you knew?
38:05>> Yes, that's the report in question.
38:09Correct.
38:09>> All right. Um
38:11can you tell us about uh what
38:13information you were given and uh what
38:15you did as reflected in your report,
38:18State's Exhibit 2 pre-trial?
38:21>> The information provided was that this
38:25um
38:26female was 19 years old,
38:29weighed 148 lbs on September 7th, 2012.
38:34She was alcohol-free prior to 1:00 a.m.
38:38on that day.
38:41Between 1:00 a.m. and 2:35 a.m., she
38:44consumed 2 oz of 40% ethanol
38:47in the form of two drinks,
38:49one consisting of a shot of 40% ethanol
38:52and one consisting of a 12-oz red slushy
38:57containing 1 oz of 40% ethanol.
39:01Um the consumption took place in a
39:03social setting.
39:05Their last food consumption was
39:08approximately 6 hours prior to consuming
39:11the alcohol.
39:13Those were the the
39:15That was the information that was given
39:17to us
39:18the fact that um
39:21the
39:22uh
39:23medical examiner's
39:25determination on blood from the victim,
39:28and that was a
39:30They [snorts] expressed it in milligrams
39:31per deciliter, which is 20 milligrams
39:34per deciliter. We always do it in grams
39:37because of our criminal statutes, motor
39:39vehicle statutes. And so, we converted
39:42that to 0.02
39:44um
39:46Um okay, so that was
39:50That's what I was given, and basically
39:52they asked, "What can you tell us based
39:55on this information?"
39:56>> Now, let me ask you You said that some
39:58of that information came from the
40:00medical examiner's office.
40:02Um
40:04Do you know where the rest of the
40:05information came from?
40:07>> Well, the officers provided it to me. I
40:10presume it was from some of their
40:12investigation at that point. This was
40:14just barely 4 weeks after the
40:18um yeah and
40:19so I I know that there's some things
40:21could not have been available then and
40:22so this was all that I could get.
40:27But I
40:28I don't have a file for this particular
40:31case. I retired 12 years ago. This
40:34happened 14 years ago and that's if I
40:37had a file it would have been left with
40:39FTA. And I would be relatively certain
40:42it's long gone since we weren't involved
40:44in anything more.
40:46Um
40:46I just happened to have a copy of the
40:48original letter.
40:51>> Hey Jerome, would you like a copy of
40:52this as well?
40:53>> No, sir.
40:58>> And for purposes of pre-trial you can
41:00send to
41:01for pre-trial purposes.
41:02>> Yes, and I would move into um
41:05evidence for purposes of pre-trial. Any
41:06objection?
41:07>> No objection.
41:08>> Noted. Allowed.
41:12Um
41:13and what did you do after receiving that
41:15information?
41:17>> Um
41:18my practice is always to make a
41:20timeline.
41:21So I made a timeline of any time points
41:24that I was given.
41:25Um
41:27the first time point would have been
41:29when they arrived
41:32at
41:33um
41:34the bar
41:35and
41:38I
41:39I now have here the
41:43between 1:00 and 3:35 a.m. at some point
41:46um
41:48the value of 12:40 as an arrival time
41:51I've been I've heard that I believe that
41:54was in
41:55other notes. I don't think I had those
41:57at the time.
41:58Um
41:59but it I would have established the
42:01beginning time point
42:04and the ending time point. The ending
42:05time point would have been when they
42:07left the bar because there's there's no
42:09consumption no consumption after they
42:11left the bar.
42:13Uh so I've got 2 oz
42:16of alcohol,
42:18uh one in the form of a shot, the other
42:20in the form of a 12-oz strength, but
42:22nonetheless
42:23um an ounce of ethanol for each of
42:26those. I convert that to grams
42:29because it makes it easier for me to
42:31deal with it. Um
42:33calculate
42:35what the maximum BAC would be if I could
42:39take an exemplar person
42:42who was 148 lbs with a volume
42:44distribution of 0.55
42:47pour that alcohol in, shake it,
42:50instantly distribute it throughout the
42:52body. That would tell me the absolute
42:54maximum BAC that he could have had.
42:59With that alcohol in, um
43:02you can reduce it by 0.0165
43:05per hour that passes by.
43:07In this case, I knew that the
43:10the from an alcohol standpoint, the end
43:13point was
43:15the 0.02 g per 100 ml of uh that's
43:21when a person dies, they stop
43:23metabolizing alcohol. The blood's no
43:25longer circulating, and so
43:27um
43:29given a situation where it's not a very
43:32trauma- traumatic event like a
43:34train car crash, plane crash, something
43:37like that. Um and there there's no
43:40reason to expect that alcohol
43:42concentration to change.
43:44And
43:46so I'm now I'm looking at a 0.020,
43:50I simply look to see how much time would
43:52have to go by
43:55at the rate of elimination of 0.0165
43:58to arrive at a final BAC of 0.020.
44:02So that's what I did, and I calculated
44:05to of time that would have passed.
44:07That time would have been started at the
44:09beginning of the drinking.
44:12And
44:13then
44:14um
44:15I add
44:16to to that time point the lapse time and
44:19that gave me a final
44:21time for the BAC of being
44:24um
44:272:51 a.m.
44:29is the time that she would have arrived
44:31at a 0.020.
44:34Given
44:352 oz of alcohol
44:37in that drinking window.
44:38>> All right. Into the drinking window.
44:41Does it matter when the alcohol would
44:42have been consumed during that drinking
44:44window?
44:45>> It It does if
44:48if someone um had an hour and a half
44:50drinking window and they drank all their
44:52alcohol in the last minute, then that's
44:53not really much of a drinking window. Um
44:57the um alcohol was provided as I
45:00understood it
45:01on arrival at this bar.
45:04One was a shot. That's pretty fast as
45:06far as the starting of a drinking
45:07window.
45:08And then there was a 12-oz drink that
45:10was consumed
45:13and socially would be my expectation, my
45:16assumption, was being consumed readily
45:18over that window of time. And so you
45:21have a
45:22pretty nice window to drink the alcohol
45:24and have it distributed within the body.
45:28>> Were you given by Chapel Hill Police
45:30Department um
45:32those numbers, the amount of alcohol per
45:34drink? Did they tell you each drink that
45:36was
45:37>> Uh well, I did I had that listed in here
45:39under my
45:40uh information provided.
45:42And then they at that point had been
45:45able to say that uh 1 oz shot of 40% and
45:49a 12-oz red slushy containing 1 oz of
45:5240%. So that information
45:56was given to me cuz I certainly didn't
45:57come up with it.
45:59>> Isn't a normal shot is 1 and 1/2 oz.
46:03>> No.
46:05There's um
46:08different people will call the shot
46:10different things. Sometimes people have
46:12pony shots. It might be a 3 oz shot
46:14glass. It might have 1 oz. It might have
46:17a shot glass that's
46:19not a real shot because you can get more
46:21drinks out of a bottle if it's a short
46:23shot. Um
46:24we normally I normally expect a shot to
46:26be 1 oz and I have to assume a value you
46:30know what to do the calculations. And
46:32that's what I did on this case. Yeah, 1
46:35oz or so was given um
46:38the 1 oz shot is what I understood to
46:39be.
46:41>> All right.
46:42Um
46:44I'm going to ask you a hypothetical
46:45question.
46:47Um [clears throat] if the drinks uh the
46:50alcohol consumed by the person
46:53um
46:54was not in fact 1 oz per drink of
46:56alcohol, but 1.5 oz that she consumed
47:00with each of the two drinks that you
47:01were talking about.
47:03And then I'm going to also add to the
47:04hypothetical question. Let's say she had
47:06another drink that was 1 and 1/2 oz of
47:09alcohol at about 2:00 a.m.
47:13Okay?
47:13>> Okay.
47:14>> So in that hypothetical situation,
47:17can you say what her peak BAC would be?
47:23>> Yes. Uh and that would be
47:264 and 1/2 oz of ethanol is what you're
47:301 and 1/2 plus 1 and 1/2 plus 1 and 1/2.
47:33>> Yes, sir.
47:33>> Um 4 and 1/2.
47:35Um
47:36the maximum potential would be a .11.
47:41But we have to subtract from that the
47:43amount of alcohol that would have been
47:45eliminated during that window.
47:51>> All right. So what what what what would
47:53um the the peak BAC be at
47:56given that information if she had the
47:58the last alcohol at around 2:00 a.m.
48:01>> Well, again, you would have um
48:05it's being absorbed, it's being
48:06eliminated. I'm saying maximum the
48:09starting point of maximum potential
48:10would be like to say you could dump it
48:12in and instantly distribute it, it would
48:14be a 0.11.
48:17>> Um
48:18>> So, then anytime after that is what we
48:20have to look at. So, we would have lost
48:24um
48:24some during the drinking.
48:26It simply would have pushed the time out
48:28instead of my value of 2:51 a.m. it
48:32would push it out another probably
48:34another
48:362 hours or so put it in the range of
48:38about 5:00.
48:40Maybe 5:30.
48:42Um
48:43to to reach 0.020. Cuz 0.020 is is a
48:48fact that's in there that we can't
48:50change.
48:52>> So, you're saying
48:53given the hypothetical that I gave you
48:57it it
48:58would have reached the BAC of 0.02 at
49:01more like
49:025:00 a.m. or 5:30 a.m.
49:04>> Correct.
49:05>> Okay.
49:06Um
49:07and you were talking about her max BAC,
49:10but
49:11given the hypothetical that she would
49:12have consumed the last alcohol at around
49:142:00 a.m., she probably would have
49:15reached the max. Is it fair to say that
49:17her max BAC would have been more like a
49:200.08?
49:21>> Um
49:25All right.
49:25>> It's what I gave you. The question's the
49:27question.
49:29Would have been a 0.08 in the
49:30hypothetical I'm giving you. Just want
49:33to make sure we're clear.
49:35>> Well,
49:35>> I think the witness respectfully is
49:37going to ask that
49:38he understand the question that he can
49:40answer it. So, he had he didn't
49:41understand the question, so
49:43>> If you repeat the question
49:44>> Yes. Just so everybody's on the same
49:45page, I'll I'll repeat it.
49:47So, given my hypothetical that both the
49:49drinks you were talking about instead of
49:51being 1 oz each or 1 and 1/2 oz of
49:53alcohol each. And there was another oz
49:56and a half of alcohol consumed at around
49:592:00 a.m. My question is, is it fair to
50:02say that her peak BAC would be around
50:070.08?
50:09>> Yes, around that. It might have been
50:110.07 or 0.08, but the maximum potential
50:14BAC would And it would have been
50:16sometime
50:17Um I'll say if with last drink at 2:00,
50:21um
50:22it it's going to push it out to 2:30,
50:24maybe 3:00.
50:26Reason a social drinking situations, you
50:30peak is reached 24-hour or 24 minutes
50:33after the last sip with full elimination
50:35of 17 months beyond that. So, um
50:39from about 2:30 to 3:00
50:42is when she would have peaked
50:45and been
50:47And then that would have been in that
50:48range of
50:49about 0.07,
50:520.08.
50:53>> And And just be clear then after peaking
50:55at 0.07 and 0.08, she would have gone
50:57down to a 0.02 at about 5:00 to 5:30
51:00a.m.
51:00>> Correct.
51:02>> I think I just have um
51:04one more question,
51:05uh which is that if
51:08uh Faith had stopped consuming alcohol
51:10after the end of the drinking window
51:12that you were given, how would that
51:14affect the calculation?
51:17>> And uh depending on how much it was, it
51:19would it would in
51:21impact it.
51:23Um
51:25If it wasn't too very long after,
51:27it really wouldn't have changed that
51:29much from the
51:31hypothetical I just went through.
51:33Um
51:34When
51:36when we dose people with alcohol,
51:37there's a
51:39kind of an expected alcohol curve. So,
51:41if I dose someone today and I'm going to
51:44measure their alcohol concentration, I
51:46would have them drink whatever amount it
51:48is then they would give me a nice pretty
51:50straight line going up and then sort of
51:52it would go back down.
51:54>> [clears throat]
51:55>> In social situations we will see people
51:58where they have a drink so their BAC
52:00will go up,
52:02kind of level off, take another drink,
52:04goes up, and will level off. Depends on
52:07the time between but it's like a set of
52:09stairs going up. But whenever you stop
52:13or whenever you have your last drink it
52:14will then have a nice decrease.
52:17>> So I just want to follow up on my
52:19question then too.
52:20If she consumed alcohol after the end of
52:23the drinking window that she was given,
52:25that would have um
52:27pushed back the time that she got to a
52:29point of 0.02 until later.
52:32>> Yes, it would have.
52:37>> No further questions.
52:39All right, hold on.
52:46You may be excused from the stand.
52:48Thank you, Sheriff.
52:56How long before you get
52:58>> I'm good.
52:58>> All right, let's reflect the defendants
53:01back in the courtroom.
53:03I believe this witness is with the
53:05defense.
53:09>> Thank you, your honor. This is all.
53:10>> Good morning.
53:12>> I don't know if it's the morning or
53:13afternoon. Close.
53:14>> It was alcohol in the morning.
53:17>> Um State asked you some questions a
53:18moment ago. I'd like to follow up on
53:20some of that information.
53:22Do you still have the exhibit in front
53:24of you? I believe it's marked as either
53:26one, the copy of the report you
53:28generated from October 11th, 2012.
53:33>> I have my copy of the report. Yes, it's
53:35the copy of the stand.
53:39>> Approach. Yes, sir.
53:43Thank you, your honor.
53:43>> Yes, sir. I can see it back there.
53:45>> this one.
54:09>> Now, the information for
54:12the information provided to you was
54:15Miss H Fett's weight and time of her
54:17death, correct?
54:19And that's the kind [clears throat] of
54:20information you would need in forming an
54:22opinion or retrograde analysis.
54:25>> It is This isn't exactly retrograde, but
54:28if I'm doing alcohol concentration
54:30calculation, yes. I need the specifics
54:33on the individual.
54:35>> So,
54:36this is this information provided to you
54:38is that something that you you wanted
54:40for your report, correct?
54:41>> Correct.
54:42>> And then the next bullet point that Miss
54:45H Fett was alcohol free prior to 1:00
54:47a.m. on that night.
54:49That information is provided to you,
54:50correct?
54:51>> Correct.
54:51>> And that's listed in your report,
54:53correct?
54:53>> Correct.
54:54>> And you said the information is provided
54:55to you by law enforcement, correct?
54:58>> Yes.
54:58>> Do you have any reason to doubt the
55:00information law enforcement provided to
55:01you?
55:03>> No, I have no reason to doubt it.
55:05>> Okay.
55:06And in your report, if you had doubted
55:08information being provided to you by law
55:09enforcement, that's something you would
55:11note, correct?
55:13>> I'm sorry, can you speak up just a hair?
55:16>> Yes, sir.
55:17If you had doubted any information
55:19provided to you by law enforcement,
55:21that's something you would put in your
55:22report, correct?
55:24>> If there was an issue with it, yes.
55:26>> Okay. And you haven't listed any issue,
55:28correct?
55:28>> That would likely say that alcohol free
55:31prior to 1:00, I don't have an
55:34I I issue with that. I don't have any
55:36reason to question it. And so, if they
55:39had said
55:41um
55:41something totally off-the-wall, it's all
55:43right, it can't be, but this is
55:45reasonable.
55:47>> This report is being prepared in
55:49conjunction with the murder
55:50investigation of 19-year-old UNC
55:52student, correct?
55:53>> Correct.
55:54>> So, this isn't something you took
55:55lightly, was it?
55:56>> Not something I took lightly.
55:58>> This isn't something you would have
55:59taken lightly in preparing this report,
56:01right?
56:01And so, if you didn't think you had
56:03sufficient information to generate this
56:05report, you wouldn't have signed it,
56:07correct?
56:07>> Correct.
56:09>> And then, going back to the third bullet
56:12point,
56:13um between 1:00 and 2:35 a.m., it was
56:16said that the subject consumed 2 oz of
56:1840% ethanol, in the form of two drinks.
56:22One consisting of a 1-oz shot of 40%
56:25ethanol, and one consisting of 12 oz red
56:28slushy containing 1 oz of 40% ethanol.
56:33That information was given to you by law
56:35enforcement, correct?
56:36>> Correct.
56:37>> And you don't have any reason to doubt
56:38the information given to you by law
56:40enforcement, correct?
56:42>> I know I I'll say if they were given
56:45that if they were provided that
56:46information, they gave it to me. I don't
56:48know that they verified it, but I have
56:50no reason to
56:52to challenge them on this.
56:54>> Well, if you had concerns about whether
56:55or not it had been verified at the time,
56:57that's the sort of thing you would have
56:58asked law enforcement, correct?
57:02>> If I had a question about it, I would
57:04ask them.
57:05>> And there's nothing in your report
57:07indicating
57:08you had concerns that law enforcement
57:10hadn't properly verified how much Miss
57:14Faith Hedgepeth Miss Hedgepeth had
57:17uh consumed or been drinking on the
57:18night in question.
57:20>> I I didn't have a question about what
57:21they provided.
57:22>> All right. And relying on information
57:25from the police
57:26in your all the years you've been
57:28testifying as an expert,
57:30that's generally what you do, right?
57:32>> It It's what That's generally what you
57:34do because you're not there on the night
57:36in question, correct?
57:37>> Correct.
57:38>> And the police contacted you to prepare
57:41a report in this case, correct?
57:42>> Correct.
57:43>> And that naturally
57:45would allow you to request the police to
57:48give you information to generate a
57:50report, correct?
57:51>> Correct.
57:52>> And I know you were asked hypothetical
57:53questions about, you know, the size of
57:56the shot and what it could and could not
57:58contain. I guess my question to you is
58:01that's obviously going to be a question
58:03that can get asked in any case
58:06when someone is alleged to have alcohol,
58:08correct?
58:09>> I'm sorry, when someone is
58:11>> When someone is alleged to have alcohol,
58:13alcohol like a controlled drinking
58:15study, you know.
58:18You're not at the scene measuring the
58:20shot to say this is absolutely 1 oz,
58:23correct?
58:25>> I'm I'm not there to see if they if it
58:28was measured. I don't know.
58:29>> But the information you were given was
58:31that it was a 1 oz shot, correct?
58:33>> Correct.
58:34>> And you don't have anything in your
58:35report saying that you had any issue
58:37with law enforcement giving you that
58:39information, correct?
58:40>> Correct.
58:41>> And you wouldn't prepare a report
58:43that the shot was a 1 oz shot if you had
58:46questions about whether that were true
58:48or not, would you?
58:50>> If I was given just a shot without a
58:53quantity, without me qualifying I would
58:55have either had a question or
58:58um
58:58had to
59:00do multiple calculations considering if
59:02it was a 1 oz, 1 and 1/2, 2 oz, 3 oz.
59:04But in this case it was told 1 oz.
59:07The 1 oz of alcohol is 1 oz.
59:10>> And the police would have
59:13And I know it's in my motion and I'll go
59:14over that in a minute. But
59:18was any of the police reports from 2012
59:22was any of that information shared with
59:24you prior to you testifying here today?
59:26>> Was any of that information as it has it
59:29changed?
59:30>> No.
59:30>> Were you provided the police reports by
59:32the district attorney's office prior to
59:34your testimony today?
59:35>> No.
59:36>> Okay.
59:37Were you provided the video interviews
59:39of Mr. Rosario in which she discusses
59:42what she observed with him?
59:43>> No.
59:44>> That was not provided to you by the
59:45district attorney's office.
59:47>> The videos were not provided. No.
59:50>> Is that something that
59:51you would like to see in order to hear
59:54the testimony directly from 2012 from
59:56witnesses you said that they observed?
1:00:01>> I don't know that it's something that
1:00:02you would want to watch or need to
1:00:05watch.
1:00:07>> So, is it your
1:00:09testimony that if a witness is
1:00:10videotaped in 2012 giving information as
1:00:13to what they observed someone drinking,
1:00:16that's not something you would want to
1:00:17see?
1:00:19>> Your Honor, I'm going to object to the
1:00:22phrasing of the question of wants to see
1:00:24what this witness wants to watch and not
1:00:26watch. It's vague.
1:00:27>> Okay. Is that the kind of information,
1:00:29video interviews of witnesses, that's
1:00:32sort of information you would rely on in
1:00:34forming an opinion?
1:00:38>> It It might be. It would depend on the
1:00:41the source of the video.
1:00:43Um if it's if it was a security camera
1:00:46footage at a bar with somebody drinking,
1:00:48that's one thing. If it's somebody
1:00:51explaining what they did or what they
1:00:53saw, um
1:00:54that would That's a different That's a
1:00:55different only.
1:00:57>> So, if you were provided video
1:00:59interviews from law enforcement in 2012,
1:01:02is that something you'd be willing to
1:01:04review in this matter?
1:01:06>> Would I be willing
1:01:07>> Yes, sir.
1:01:08>> I think we could do that.
1:01:09>> Okay.
1:01:10And if that had been given to you ahead
1:01:12of time, is that something that you
1:01:13would have reviewed prior to this
1:01:15hearing today?
1:01:16>> I would imagine, yeah.
1:01:17>> Okay.
1:01:19When was the first time you were told
1:01:20the state was seeking exclude your
1:01:23opinion
1:01:24in this case.
1:01:27>> Um well, I realized they said that in
1:01:29the motion.
1:01:31>> Was that the first time that you were
1:01:33given any notice that the state seeking
1:01:35to exclude
1:01:36the opinion you offered on October 11th,
1:01:382012?
1:01:39>> That would have been the only notice.
1:01:43>> So, during 20 October 11th, 2012 and the
1:01:46state's recent motion, have you been
1:01:48contacted by any
1:01:50law enforcement
1:01:52asking you questions about, you know,
1:01:56them doubting your opinion somehow?
1:01:58>> No.
1:02:00>> Any of the assistant district attorneys
1:02:01prior to this motion being filed
1:02:03contacted you and expressed reservations
1:02:06about your opinion?
1:02:08>> No.
1:02:10>> You wrote the report on October 11th,
1:02:122012 and signed it.
1:02:15Do you stand by your opinion?
1:02:17>> I stand by the opinion I have been given
1:02:19before. It would be based on the
1:02:20information that was provided that's
1:02:22listed in the report.
1:02:24>> Information provided to you by law
1:02:25enforcement, correct?
1:02:27>> Correct.
1:02:28>> Okay.
1:02:29And you also had a blood sample from the
1:02:31medical examiner's office, the results
1:02:33of that, correct?
1:02:34>> Correct.
1:02:34>> And you had information as to the last
1:02:37time um Mr. Hatcher had food on the
1:02:40night in question.
1:02:41>> Correct.
1:02:42>> All right.
1:02:43Is that sort of information that you
1:02:45rely on in forming an opinion in this
1:02:49October 11th, 2012 report?
1:02:52>> I would rely on it.
1:02:54It might not be significant. In other
1:02:56words, eating 6 hours earlier is
1:02:59of some value because there's it's not
1:03:03like when someone drinks and eats at the
1:03:05same time and then they're
1:03:07delaying
1:03:09um
1:03:10the opening of the pyloric sphincter so
1:03:12that the stomach contents go in. Food
1:03:13will slow it down. Um
1:03:16that
1:03:16could be just that's something you
1:03:18calculate.
1:03:20But if it's far enough back that's
1:03:220.018, then it's not something that
1:03:24you're concerned about.
1:03:26>> I mean, you put a bullet point in your
1:03:27report that you can provide information
1:03:30that Ms. Hedgepath had last consumed
1:03:32food approximately 6 hours prior to
1:03:34consuming the alcohol.
1:03:35>> Correct.
1:03:36>> Okay.
1:03:36And you wouldn't put that in there if
1:03:38that wasn't information that was
1:03:40relevant to your opinion in this case,
1:03:41right?
1:03:44>> I get
1:03:44>> Relevant it it didn't
1:03:47it it allowed me to exclude an issue
1:03:49which would be some context.
1:03:51>> Okay.
1:03:52And so having factual information is
1:03:54important to you, correct?
1:03:56>> Correct.
1:03:56>> Okay.
1:03:57And you had that information, correct?
1:03:59>> Correct.
1:04:10>> If you give me just one moment I'll make
1:04:12my remark.
1:04:13And he said
1:04:15I'd like to approach the witness and I'm
1:04:17going to hand copies to opposing counsel
1:04:18and believe I want to state
1:04:26You do not have to state where you're
1:04:27honored.
1:04:28I apologize for that.
1:04:34Since you don't have to state where
1:04:35you're
1:04:36I believe the clerk asked for you to
1:04:38make your assistance.
1:04:40Thank you, Your Honor.
1:04:41>> Yes, sir.
1:04:42>> And I appreciate
1:04:44present counsel.
1:04:50>> Excuse me.
1:04:51>> Take care. So I just want to make sure I
1:04:53understand you.
1:04:55>> Commissioner approach the clerk.
1:04:56>> What?
1:04:58>> I just have to state
1:04:59>> Sure.
1:04:59>> Yeah. I just need to get some stuff.
1:05:01>> And that one.
1:05:32>> [clears throat]
1:08:16>> Do you have a chance?
1:08:16>> Oh, yeah.
1:08:17>> Okay.
1:08:20Now,
1:08:24I'll represent to you this.
1:08:26I'll turn my microphone on first. I'll
1:08:28represent to you this an officer pool.
1:08:30These are notes from a supplemental
1:08:33report prepared by Officer Rodney
1:08:35Matthews from the Chapel Hill Police
1:08:36Department that was provided to the
1:08:38defense in this case as part of
1:08:40discovery.
1:08:41Do you have a match of
1:08:43Chapel Hill Police Department retired
1:08:44Lieutenant Rodney Matthews?
1:08:47>> I'm sorry.
1:08:49>> Do you
1:08:50Do you work with retired Lieutenant
1:08:52Rodney Matthews from Chapel Hill Police
1:08:53Department?
1:08:53>> Who is this officer in this case cuz
1:08:55that's who I addressed my report to.
1:08:58>> Yes, sir.
1:09:00The
1:09:01That's who I'm
1:09:02That's who we're talking about. These
1:09:03are his notes.
1:09:05>> Okay. Can you get down to the last full
1:09:07paragraph on the first page of the
1:09:09exhibit?
1:09:12>> Okay.
1:09:15And it is
1:09:17>> And Officer Matthews'
1:09:19supplemental type report,
1:09:21it stated that
1:09:30Rosario said that Faith was driving and
1:09:33they went through a drive-thru to get
1:09:34their food at approximately 1900.
1:09:38Did you see that?
1:09:42>> Yes.
1:09:43>> And so,
1:09:45getting provided information about what
1:09:47time this hedge fund
1:09:50consumed her last meal in this case.
1:09:53Is this the sort of information police
1:09:54notes that you would also rely on in
1:09:56forming an opinion?
1:10:01>> The only way I would rely upon the piece
1:10:03of police notes is if she's apparently
1:10:05on jail and we rely on what they
1:10:06provide.
1:10:08>> This This is the sort of thing you rely
1:10:10on in other cases when you testify as an
1:10:12expert as to the
1:10:15uh the rate of alcohol elimination in an
1:10:17individual, correct?
1:10:18>> Yes.
1:10:23>> Going down to the last sentence on page
1:10:2511,
1:10:26Officer Matthews wrote, "I asked Rosario
1:10:29if they drank any alcohol during this
1:10:31period and she said no.
1:10:33I asked her if Faith had been drinking
1:10:36prior to picking her up and she said she
1:10:38didn't think so and she didn't appear to
1:10:41have been."
1:10:42Now, that's sort of information
1:10:54>> thing to drink.
1:10:56>> Correct. At this time of night, 1900
1:10:59hours.
1:11:00>> Correct.
1:11:00>> Yeah.
1:11:01So, that's additional information
1:11:04that maybe isn't specifically listed in
1:11:05your report, but it's in front of you
1:11:07now. Do you have any reason to doubt?
1:11:09>> No.
1:11:10>> No.
1:11:15Going to page 12 of the exhibit, well,
1:11:19the second page of the exhibit, the
1:11:21bottom right corner it's
1:11:22listed as page 12, but just to clarify,
1:11:26this is the second page of the exhibit.
1:11:27Can you turn to the second page?
1:11:30>> Okay.
1:11:34>> And the, I guess,
1:11:36third full paragraph starts
1:11:38Rosario said that she and Faith entered
1:11:41Thrill around 1:00 a.m. and drank their
1:11:44first alcoholic beverage.
1:11:47I asked her what Faith had to drink, and
1:11:50she said
1:11:53And she said she had a shot of Hennessy.
1:11:57Now,
1:11:59in this case, this is Ms. Rosario
1:12:01providing information, Officer Matthews,
1:12:02correct?
1:12:03>> Correct.
1:12:04>> And this is describing the time
1:12:06of the first alcoholic beverage,
1:12:08correct?
1:12:09>> Correct.
1:12:09>> And it's describing what first alcoholic
1:12:11beverage was, correct?
1:12:13>> Correct.
1:12:14>> And that first alcoholic beverage is a
1:12:16shot of Hennessy, correct?
1:12:18>> Correct.
1:12:19>> Okay.
1:12:20The assistant district attorney asked
1:12:21you about hypotheticals and what might
1:12:24be in
1:12:25certain drinks, correct?
1:12:26>> Yes.
1:12:27>> The police report and the information in
1:12:29front of you is specific
1:12:31in saying the first drink Ms. Hedgepeth
1:12:34had was a shot of Hennessy, correct?
1:12:37>> That's correct.
1:12:38>> If you had any doubts about the size of
1:12:41the shot that she had, that's something
1:12:43that you would have asked police if you
1:12:45wanted information on, correct?
1:12:58>> I I'm sorry.
1:13:00I I don't understand what you said. So
1:13:02>> The police provided you information that
1:13:04the first drink around 1:00 was
1:13:07a shot of Hennessy
1:13:10and you had any issue with that
1:13:12information, you would note that
1:13:15in your report.
1:13:16>> If I had had any issue, yes, I would
1:13:18have.
1:13:18>> All right. So, you didn't have any issue
1:13:20with the information.
1:13:21>> No, I didn't.
1:13:22>> And here today, you don't have any issue
1:13:24with that information, correct?
1:13:25>> That's correct.
1:13:28>> And
1:13:30moving along in that same paragraph,
1:13:35it said "Rosario said that Faith took
1:13:37the shot and then about 10 minutes
1:13:39later,
1:13:41she and Faith went over to one of the
1:13:43bars to the slushy machine where they
1:13:45both got a cup of red slushy drink." You
1:13:49see that?
1:13:50>> I do.
1:13:51>> And that's in the police report,
1:13:52correct?
1:13:53>> Correct.
1:13:53>> And this again is information you rely
1:13:55on in forming your report, correct?
1:13:57>> Correct.
1:13:58>> All right. And so, here
1:14:01the information is that after entering
1:14:02the Thrill at 1:00 a.m.,
1:14:05well, around 1:00 a.m.,
1:14:09Faith took a shot of Hennessy and then
1:14:11about 10 minutes later,
1:14:13Ms. Rosario and Faith went over to the
1:14:15bars to get a red slushy drink, correct?
1:14:18>> Correct.
1:14:19>> And so, I know we did hypotheticals
1:14:21earlier, does this give you some more
1:14:23exacting information about what time the
1:14:26drinks were consumed?
1:14:31>> It gives some. I mean, it's still not
1:14:33exacting. He says
1:14:35um
1:14:36entered the
1:14:37Thrill [clears throat] around 1:00, so
1:14:39that could be before or after. And then
1:14:41it said about 10 minutes later, and so
1:14:44that It be 8 minutes to 12 minutes. with
1:14:47this.
1:14:48This
1:14:48>> What's that?
1:14:49>> I'm not time stamped, but I'm
1:14:51but it's reasonable.
1:14:52>> Yeah,
1:14:53but it's not a controlled drinking
1:14:54study.
1:14:56>> But when you give opinions as to the
1:14:58fate of alcohol in the body, you usually
1:15:00don't have the benefit of controlled
1:15:01drinking study, correct?
1:15:03>> Correct.
1:15:04>> But that doesn't
1:15:05prohibit you and has not
1:15:08stopped you from offering expert
1:15:09opinions as to
1:15:11you know, the fate of
1:15:12alcohol in someone's body even though
1:15:15you know, it's not a controlled drinking
1:15:16study.
1:15:18>> Correct.
1:15:22>> Now, the next sentence
1:15:26is noted by Asbury and this is
1:15:30by gaining access. I asked Asbury what
1:15:32was in the drink and she said it was a
1:15:34red slushy concoction that it's mixed
1:15:38with tequila. I asked her how large cups
1:15:41were and she explained that they were
1:15:42about the size of the soda cup except
1:15:45that these cups are white
1:15:47with ridges.
1:15:49I then asked Asbury if she saw Faith
1:15:51drink anything else after the red slushy
1:15:53and she said no.
1:15:55She didn't specifically state it that
1:15:57she asked Faith if she was going to have
1:15:59any other drinks and Faith told her no
1:16:03cuz she had to drive.
1:16:07I guess my question to you is you were
1:16:09given a hypothetical about
1:16:13understanding what time whether somebody
1:16:15had additional alcohol. Remember that
1:16:17hypothetical?
1:16:18>> Yes, I do.
1:16:19>> And in front of you you have a police
1:16:20report where
1:16:23the victim in the case, Faith
1:16:26is alleged to have given a statement to
1:16:28Karina Rosario saying
1:16:31"I'm not going to have any more drinks
1:16:32because I have to drive." Do you see
1:16:34that?
1:16:34>> I do.
1:16:35>> Do you have any reason to doubt that
1:16:36information?
1:16:37>> No.
1:16:38>> And relying on what
1:16:41a A says they had a drink.
1:16:44That's something you take into
1:16:45consideration.
1:16:45>> There's no evidence.
1:16:47There's no evidence that Faith said what
1:16:49she had to say.
1:16:52Sustain.
1:16:54>> May I be heard?
1:16:55>> Yes, you may.
1:16:57>> Uh we're in evidentiary hearing this
1:16:59question from the jury.
1:17:01>> Sustain.
1:17:02>> Cross-examining an expert, experts are
1:17:04allowed or allowed to rely on
1:17:07inadmissible evidence.
1:17:09Hearsay evidence and other forms of
1:17:11evidence that normally
1:17:13uh another expert or another witness
1:17:15would not be able to rely on. And so
1:17:18because we're in an evidentiary hearing,
1:17:20because he's an expert, I believe I'm
1:17:22allowed to ask him questions using
1:17:24hearsay information and other forms of
1:17:27information that are routinely allowed
1:17:29for experts.
1:17:30>> There wasn't an objection based on the
1:17:32question. I think he said your your
1:17:34question about what Faith said is that's
1:17:36not
1:17:37what the evidence
1:17:40That's what I thought the objection was.
1:17:41Is that my correct understanding?
1:17:42>> Yes, sir. I do believe the statement is
1:17:44are you going to have anything more to
1:17:46drink? And then the question assumed
1:17:47that Faith said she didn't have anything
1:17:49more to drink.
1:17:50>> So that's the that's the objection. I
1:17:52agree with what you're saying, but
1:17:53that's not what his objection was.
1:17:57So now, do you want Do you want to
1:17:58object? Do you want to address his
1:18:00objection?
1:18:01>> Well, the report that we read on the
1:18:02record has Ms. Rosario
1:18:06telling Officer Matthews
1:18:08that Faith told her no
1:18:10because she had to drive. So that is a
1:18:13statement from Ms. Estrada that was
1:18:15given to Officer Matthews from Breanna
1:18:17Rosario.
1:18:19And even though that's a hearsay
1:18:20statement, that's the kind of
1:18:21information experts are allowed to rely
1:18:24on. In fact, often times that's all they
1:18:25have.
1:18:27>> Okay, that's Ask the question again.
1:18:29>> Yes, sir.
1:18:32So in
1:18:33the exhibit in front of you, Mr. Glover,
1:18:35do you see
1:18:36I'm going to read the sentence and then
1:18:38I'm going to ask the question again just
1:18:39so I'm clear.
1:18:42She
1:18:45then specifically stated that she asked
1:18:48Faith if she was going to have any other
1:18:51drinks
1:18:52and Faith told her no because she had to
1:18:56drive.
1:18:58So, my question is
1:19:00Ms. Rosario's
1:19:02recitation of what
1:19:04her friend Faith Heshmat had told her on
1:19:07the night in question about whether she
1:19:09was going to have anything else to
1:19:11drink.
1:19:12Is that the kind of information you
1:19:13generally rely on in forming these
1:19:15opinions?
1:19:21>> And that specific statement,
1:19:24um
1:19:26I mean, it it doesn't add anything. It's
1:19:28not
1:19:29There's not a value I have to correct
1:19:30for or anything or I have to subtract
1:19:32anything out. It's information about
1:19:36what she said. I mean
1:19:38>> But, there was a question asked to We
1:19:41don't know if she had anything else to
1:19:42drink that night.
1:19:44But, here
1:19:45you're being offered
1:19:47evidence in the form of a police report
1:19:49that there was a statement from Faith
1:19:52Heshmat to Karina Rosario saying, "After
1:19:55this red slushy,
1:19:57she's not going to have another drink
1:19:58because she has to drive."
1:20:00>> And that's saying that that's what the
1:20:02victim told her, but it's not
1:20:05necessarily saying
1:20:07what might have
1:20:08what did happen through the rest of the
1:20:10evening.
1:20:11>> Sure, but I mean, at this point, do you
1:20:13have any reason to date to doubt what
1:20:15Ms. Heshmat said Ms. Rosario?
1:20:20>> No.
1:20:21>> And if you have no reason to doubt it,
1:20:23then that's the sort of thing that
1:20:24clearly you should be able to rely on in
1:20:26this opinion, correct?
1:20:28>> Well, again, it's not saying what
1:20:30actually did happen. This is earlier in
1:20:32the evening when she says, "Are you
1:20:33going to have any more?" She said, "No."
1:20:36That was someone's intent is, but I
1:20:38don't know
1:20:41if that's what she did.
1:20:44>> You just said you have no reason to
1:20:46doubt it.
1:20:47>> I don't have any reason to doubt that
1:20:49that she's telling the officer what
1:20:51she's saying being her what she was told
1:20:53by
1:20:55Faith.
1:20:57I have no reason to doubt that. I just
1:20:59want to know
1:21:00that that nothing was consumed later.
1:21:04>> Well,
1:21:05did you read the motion
1:21:09that we filed against filed in this case
1:21:11that listed specific interview clips
1:21:15from Mr.
1:21:16Rosario being videoed videoed
1:21:18interviewed by the police as to whether
1:21:20or not Mr. Rosario had any information
1:21:23about whether Faith had had anything to
1:21:25drink
1:21:26once Faith and Karina came home from the
1:21:30thrill?
1:21:32>> Did I read that in your motion?
1:21:34>> Yes, sir.
1:21:35>> No, I've not seen your motion.
1:21:37>> Okay.
1:21:38Well,
1:21:43we listed time clips. I can play
1:21:47the video clips and that's going to take
1:21:48a lot longer, but I can
1:21:51tell you that an officer wrote a motion
1:21:54using video evidence that we were given
1:21:56by the state in this case.
1:21:59Officer Matthews
1:22:03in October of 2012
1:22:06asked
1:22:07Mr. Rosario
1:22:09about drinking after they got home. Mr.
1:22:12Rosario's statement
1:22:16"I wasn't in the mood to drink and I
1:22:18asked my mom and I was like,
1:22:21'Did you cuz I didn't clean out my
1:22:22fridge?' And I was like, 'Did you see
1:22:25any wine bottle in the fridge?' And she
1:22:27said, "Yeah, we poured it out so Faith
1:22:29didn't touch the wine."
1:22:33Now,
1:22:34hearing from a witness that someone else
1:22:36didn't consume any alcohol in the home,
1:22:39that's the kind of thing you rely on,
1:22:41correct?
1:22:42In trying to form an opinion.
1:22:44>> I form my opinion based on actually
1:22:47crunching the numbers that I'm provided
1:22:49with here.
1:22:54>> So, you don't rely on witness
1:22:55statements?
1:22:57>> I don't There's no other way that I can
1:22:58factor in a statement like that other
1:23:00than she said the wine was They poured
1:23:02it out, and someone said, "Well, then
1:23:03she couldn't have had it." Okay.
1:23:06But, there's no other way of factoring
1:23:07that in in the opinion. What I'm just
1:23:09going to crunch numbers.
1:23:18>> But, it's not a total assumption
1:23:20that somebody did or did not have
1:23:22anything else to drink when you're
1:23:24actually given evidence
1:23:26from a witness saying
1:23:29Faith didn't touch the wine
1:23:31once they returned home. And I
1:23:33understand you You did the distinction
1:23:35you're making.
1:23:37But, I'm asking, that is some evidence
1:23:38you're given from a witness saying that
1:23:41Ms. Hedgepeth didn't have anything else
1:23:42to drink when she got home, correct?
1:23:44>> That's correct. And then And if she had
1:23:47said, "Yes, she drank 6 oz of wine,"
1:23:50that would have been another factor I
1:23:52would have to
1:23:53factor in there. But, since no one's
1:23:54saying there wasn't any other
1:23:56consumption, I don't I don't have a
1:23:57number, so I go with what I've been
1:23:59given
1:24:00as far as what the consumption was, not
1:24:02what the consumption wasn't.
1:24:04>> I mean, you you make a great point.
1:24:06If a witness provided information that,
1:24:09uh, you know, Faith came home and had
1:24:11three beers when she got home from the
1:24:12grill, that's something that you would
1:24:14take into
1:24:15>> Absolutely.
1:24:16>> Okay. But, here it's the opposite,
1:24:18correct?
1:24:19>> That's correct.
1:24:20Again, there's no way of factoring it
1:24:22in. Nothing gets added. Nothing gets
1:24:24subtracted.
1:24:26>> So, whether or not Miss Hestad had
1:24:28anything to drink once she got home from
1:24:29the grill, that doesn't have a bearing.
1:24:32>> I'm just stating that that the testimony
1:24:34is she didn't have to be that winded.
1:24:37>> Sustained.
1:24:45>> I got to be more specific.
1:24:56Hold on.
1:24:57I want to make sure this
1:25:00Fine.
1:25:08From the same video interview, and we
1:25:10can play it in a minute,
1:25:12let me just read it to you to get
1:25:13through it.
1:25:15Bonnie Matthews asked Corina, "Did you
1:25:16drink any when you got home that night?"
1:25:19Corina's response, "None."
1:25:21Matthews' question, "Why not?" Corina's
1:25:23response, "Because the only thing we had
1:25:25was the one in the fridge." "I mean, I
1:25:28was already drunk. I was already sick."
1:25:30"I mean, I don't think that would."
1:25:33So,
1:25:34here
1:25:36is Rosario saying, "The only alcohol in
1:25:38your car was the one in the fridge,
1:25:40correct?"
1:25:41>> Correct.
1:25:42>> And then said, "Putting in context the
1:25:43later statement that I read to you,
1:25:47saying you didn't touch the wine, is
1:25:49that reasonable to you?"
1:25:50>> Hearing.
1:25:52It It's more clarity, but again, I I go
1:25:55with
1:25:55the information provided with the
1:25:57numbers I can
1:25:59calculate.
1:26:02I didn't use
1:26:03anything to suggest there's anything
1:26:05more consumed, but based on what you
1:26:07said.
1:26:10>> What I'm saying comes from the police
1:26:11interview with Rosario.
1:26:13>> Yes.
1:26:24>> In your
1:26:26expert opinion
1:26:28in this case
1:26:31going back to this
1:26:33state's
1:26:36pretrial motion exhibit one
1:26:38I may have misstated the
1:26:40part come up with the exact
1:26:43things that you wrote on the exhibit.
1:26:45The first piece of paper that said that
1:26:46you your opinion, do you still have that
1:26:48in front of you?
1:26:50>> Yes.
1:26:51>> Yeah. Yeah. That's your opinion from
1:26:53October 11th, 2012, correct?
1:26:55>> That's correct.
1:26:56>> And in
1:26:59your opinion, you said in this case that
1:27:00volume of distribution is 0.55, which is
1:27:03a value consistent with females.
1:27:05>> Correct.
1:27:06>> Is that still your opinion today?
1:27:09>> Is that what?
1:27:09>> Is that still your opinion today? Has
1:27:11that changed?
1:27:12>> It's It's reasonable. But we didn't do a
1:27:15body mass index or anything like that,
1:27:16but it's a reasonable
1:27:18value.
1:27:20>> And the next bullet point, Miss
1:27:22Hedgepath's rate of elimination of
1:27:24alcohol is 0.0165
1:27:27g
1:27:29per 100 ml per hour, which is a value
1:27:32consistent with her age and experience
1:27:34with alcohol.
1:27:36You see that in your report?
1:27:39>> Yes, and that's under my assumptions.
1:27:41And so, my assumption is her rate of
1:27:42elimination is
1:27:440.0165.
1:27:46>> Yeah. Well, that was your opinion in
1:27:48October 11th, 2012. Is your opinion any
1:27:51different today?
1:27:52>> No.
1:27:56>> [clears throat]
1:27:56>> And then the next bullet point said that
1:27:58you wrote in October 11th, 2012 says
1:28:00based on the concentration of alcohol
1:28:03and the relevant time points, there
1:28:05would be little if any postmortem
1:28:07redistribution. There was insufficient
1:28:09time for the generation of postmortem
1:28:12alcohol.
1:28:13And that was your opinion in October
1:28:1511th, 2012, correct?
1:28:16>> Correct.
1:28:17>> And has your opinion changed?
1:28:19>> No.
1:28:26>> Going to page two of the exhibit.
1:28:34In the second full paragraph, you write
1:28:37It is my opinion that Ms. Hedges had a
1:28:39peak BAC prior to 2:35
1:28:43a.m. and that she was in a post-peak
1:28:46elimination phase at that time.
1:28:50That was your opinion in 20
1:28:5211, I mean 2012, correct?
1:28:54>> Correct.
1:28:55>> Has your opinion changed?
1:28:56>> No, it has not.
1:28:57>> So, that's still your opinion?
1:28:59>> Correct.
1:29:00>> The next sentence says, "It is also my
1:29:02opinion that Ms. Hedges' BAC would have
1:29:05been 0.02 g
1:29:08per 100 ml whole blood at approximately
1:29:112:51 a.m. on September 7th, 2012."
1:29:16Have I read that correctly?
1:29:17>> Correct.
1:29:18>> And that was your opinion in your report
1:29:20of October 11th, 2012, correct?
1:29:23>> Correct.
1:29:23>> Has your opinion changed?
1:29:24>> No.
1:29:25>> All right.
1:29:27This opinion we've read, and now that
1:29:28we've gone through some of the evidence
1:29:30in the case,
1:29:31Officer Matthews notes
1:29:34about
1:29:36consumption statements that Faith made,
1:29:39is that additional information?
1:29:43Does that additional information that
1:29:45you don't think you had at the time,
1:29:47or does this
1:29:48refresh your recollection that maybe
1:29:50this is the sort of opinion you did have
1:29:51from law enforcement at the time that
1:29:54you came up with your opinion in October
1:29:56of 2012?
1:30:01>> I I don't
1:30:03If you come out looking at the police
1:30:04report, I don't see anything here that I
1:30:07need to make a correction on
1:30:09from my original report opinion.
1:30:12>> Okay.
1:30:14And then there was some questions
1:30:17and I'll mark this as
1:30:20and just jot away.
1:30:23I'll mark the first one saying the
1:30:24language correct.
1:30:27Your Honor, I'll share a copy with the
1:30:29counsel and I'll mark it an exhibit.
1:30:32It's going to be defense exhibit two
1:30:34pre-marked.
1:30:36You're my hero.
1:31:08Permission to
1:31:10approach the bench and the witness. This
1:31:12order.
1:31:21Thank you.
1:31:22Yes, Your Honor.
1:31:38Okay, let's take a moment for a
1:31:39breather.
1:31:46We're not going to go over every page of
1:31:48that exhibit.
1:34:15>> Did I get a chance to read it?
1:34:19Good. Did I get a chance to read it?
1:34:21>> Well, I scanned it.
1:34:24>> I'll take it.
1:34:25Specific sections.
1:34:27If you're looking on page one,
1:34:29um the first uh
1:34:32This is a report from J. W. Britt from
1:34:35the Chapel Hill Police Department. Do
1:34:36you see that at the top?
1:34:38>> Yes, I do.
1:34:38>> Okay.
1:34:39You've met Johnny Britt before at Chapel
1:34:41Hill Police Department?
1:34:42>> I'm sorry.
1:34:43>> You've met Johnny Britt with Chapel Hill
1:34:45Police Department?
1:34:45>> Met him?
1:34:47>> You've met her before, correct?
1:34:48>> I don't know if I have or not.
1:34:50>> Okay.
1:34:52Did you contact her
1:34:54prior to today's testimony
1:34:57to ask her
1:34:58for her notes or for her recollection?
1:35:00>> No, sir, I did not.
1:35:03>> When this report
1:35:06I'm just going to
1:35:07read this on the record so it's easier
1:35:09and I can do questions.
1:35:11Um
1:35:12She listed 1,252 hours October 8th,
1:35:162012. Quote,
1:35:18"I called the owner of The Thrill, Scott
1:35:20Campbell,
1:35:21on his cell phone number so nobody calls
1:35:23him.
1:35:24Campbell said that the bouncers were
1:35:25employed from independent contractor.
1:35:28He provided me with his email address,
1:35:31uh [email protected].
1:35:34We discussed the content of the red
1:35:36slushy drink.
1:35:38Campbell said that a typical 12-oz drink
1:35:40has 1 oz of alcohol. He said that a
1:35:43regular shot is about 1.5 oz, but at The
1:35:47Thrill, they do a four count, which is
1:35:49about 1 oz. You see that?
1:35:51>> I do. You were asked questions earlier
1:35:53about
1:35:55hypotheticals earlier about what might
1:35:57be in a particular
1:35:59mixed beverage, correct? Correct. And
1:36:01here
1:36:04you're being given evidence that the the
1:36:06owner of the bar says
1:36:08that at Thrill
1:36:10they do a 4-count for a drink, which is
1:36:11about 1 oz of alcohol, correct? Correct.
1:36:14And so when we were going through that
1:36:15hypothetical earlier, you didn't have
1:36:17this information in front of you, did
1:36:19you?
1:36:20I had 1 oz of alcohol
1:36:22and how they
1:36:23measured it and that's not something I
1:36:25was concerned with. Okay.
1:36:27But this does have the owner of Thrill
1:36:29in 2012 telling law enforcement
1:36:32that they do a 4-count, which is about 1
1:36:34oz of alcohol. About 1 oz, correct.
1:36:40Going down two more paragraphs.
1:36:44Officer Britt notes
1:36:46when she's speaking with the owner of
1:36:48Thrill
1:36:49he said that they did not appear to be
1:36:51impaired.
1:36:53Do you see
1:36:55that and let's see that.
1:36:57Now, in trying to determine in these
1:36:59hypotheticals whether somebody had more
1:37:01to drink
1:37:02>> [clears throat]
1:37:02>> than
1:37:03what was reported
1:37:05evidence of whether or not somebody
1:37:06seemed impaired, that would be the kind
1:37:08of evidence that you would want to know,
1:37:10correct?
1:37:12It could be valuable.
1:37:14Because if it was reported to you that
1:37:16the witness only had two drinks, but
1:37:19then
1:37:20a witness like Mr. Hammel says, you
1:37:22know, I saw Faith and she appeared to be
1:37:24grossly impaired by alcohol, that would
1:37:27sort of contradict this idea that there
1:37:28were only two drinks, right?
1:37:30And not necessarily. You know, I have
1:37:32seen people before that were horribly
1:37:35impaired and then I knew exactly how
1:37:36much they had been given, so
1:37:38it it's evaluating how much alcohol they
1:37:41had based on other behaviors
1:37:44always working. Okay, not always
1:37:47working, but here the testimony was that
1:37:49she had two drinks.
1:37:51None of the bar staff said she didn't
1:37:53appear to be impaired. Those two things,
1:37:55that's not inconsistent, is it attorney
1:37:57Sugiyama?
1:37:58Thank you.
1:38:00You're going to page
1:38:03three of the exhibit.
1:38:13Now on page three the last full
1:38:15paragraph.
1:38:17This is from
1:38:19Officer Johnny Britt on October 10th,
1:38:212012
1:38:231030 hours.
1:38:28Now
1:38:31I'm going to read on the record so I can
1:38:32ask you
1:38:35a couple of questions.
1:38:37Campbell is the one who created the
1:38:38drink and recipe. He said the slushy is
1:38:41mixed in a 5 gallon bucket. The slushy
1:38:44machine holds 6 gallons. They mix two 4
1:38:47gallons
1:38:48at a time in the bucket. He said there
1:38:50is
1:38:51a 0.75 bottle of
1:38:54pour of tequila for 2 gallons in the red
1:38:56slushy.
1:38:57They also add a second bottle of pour.
1:39:00The mixture consists of water, a
1:39:02Margarita Express brand strawberry
1:39:04mixture liquid and tequila.
1:39:07If they were hand mixing, the bartender
1:39:09would pour a 1 oz shot into the
1:39:11non-alcoholic strawberry margarita.
1:39:14He said that they do a rate pour count
1:39:16with stress on the low end.
1:39:19He said
1:39:20it was more like a three count.
1:39:23Campbell said there is less than 0.7 oz
1:39:26of alcohol in a 12 oz drink.
1:39:31And did I read that language correctly
1:39:33from Johnny Britt's report from October
1:39:3510th of 2012?
1:39:37>> Yes, you did.
1:39:37>> Okay. So this information in this police
1:39:40core
1:39:42is being collected.
1:39:44The owner of the bar is telling law
1:39:46enforcement
1:39:48that they stress on the low side
1:39:51and pouring a drink. Correct?
1:39:53>> Correct.
1:39:54>> And here he's discussing the recipes,
1:39:57red slushy recipe.
1:39:59They said this slushy had one red slushy
1:40:02and he describes
1:40:04what the mixture is. Correct?
1:40:06>> Yes.
1:40:07>> He describes the amount of alcohol
1:40:09that's in the mixture. Is that correct?
1:40:11>> Yes.
1:40:11>> And he explains how it's made.
1:40:14Correct?
1:40:14>> Yes.
1:40:18>> And all of this information
1:40:20that I just talked to you about from Mr.
1:40:23Campbell
1:40:24well, that was on October 10th, 2012.
1:40:26Correct?
1:40:30And then
1:40:31Johnny Britt's report
1:40:33dated October
1:40:34>> so.
1:40:35That date.
1:40:37I believe so.
1:40:39>> And then the first
1:40:41discussion of this is even in front of
1:40:42you. The date about that was October
1:40:448th, 2012.
1:40:46Correct?
1:40:46>> I believe so.
1:40:48>> And then And I'm asking you that because
1:40:50the report that you generated in this
1:40:52case
1:40:53the report you generated in this case
1:40:56is dated October 11th, 2012. Correct?
1:40:59>> That's correct.
1:41:01>> So
1:41:02it seems like this information about the
1:41:06mixture in the slushy and how much would
1:41:09be poured into the drink
1:41:11is information you probably were given
1:41:14at the time.
1:41:16>> I I don't know.
1:41:18>> Okay.
1:41:18>> I did It's been 14 years.
1:41:20>> All right.
1:41:23Would you be willing to ask law
1:41:24enforcement since they made a report
1:41:28"Hey, did you give me this information?"
1:41:32>> Would that I ask them if they gave it to
1:41:34me?
1:41:34>> Yeah.
1:41:36>> But right now I have not done that.
1:41:38>> Okay.
1:41:39Would it help, in your opinion, if your
1:41:41recollection could be refreshed as to
1:41:43what exactly you were given from law
1:41:45enforcement officers?
1:41:46>> No. My My opinion is as it is my
1:41:50report.
1:41:53>> Okay.
1:41:55So, even Okay. So, the
1:41:57You can ask hypotheticals, but say your
1:42:00opinion remains what's in your report,
1:42:02correct?
1:42:03>> Correct.
1:42:28>> Okay.
1:42:30I'll present to you this officer Correa.
1:42:34Video recorded interview with Mr.
1:42:35Rosario
1:42:37from September 13th, 2012. Prosecutor
1:42:40Matthews asked her,
1:42:43"And up to that point, leaving the
1:42:45parking deck to go into the Thrill, let
1:42:48me ask you this,
1:42:49had had you guys been drinking any
1:42:51alcohol at that point?"
1:42:53Correa's response,
1:42:55"No."
1:42:59Having information
1:43:02from a witness
1:43:04provided to law enforcement as to
1:43:05whether or not Faith had anything to
1:43:07drink prior to going into the Thrill,
1:43:10that's something that you would rely on
1:43:12in forming your opinion, correct?
1:43:15Because you would want to rule out any
1:43:17prior alcohol having been consumed.
1:43:20>> Again, it it gives me confidence in my
1:43:23calculations.
1:43:24It doesn't give me a value that I would
1:43:26either have to add or subtract.
1:43:29>> The more information you have, the
1:43:30better, right?
1:43:31>> Correct.
1:43:33>> And then on September 20th, 2012,
1:43:37Mr. Rosario said in a recorded interview
1:43:40during a question and answer quote,
1:43:42well,
1:43:43Bonnie Matthews asks,
1:43:45"During the day of the sixth,
1:43:47Karina says, 'Oh, no, we didn't have
1:43:49alcohol.'
1:43:50Matthews, 'Did you guys drink any
1:43:51alcoholic beverages at the apartment
1:43:53before you went out that night?' Karina,
1:43:56'No.'"
1:43:59Now,
1:44:00is that more information from a
1:44:03different interview day with Mr. Rosario
1:44:05confirming with the police that neither
1:44:08she
1:44:09or Kay had shot or had anything to drink
1:44:11prior to going to the thrill?
1:44:17>> Any question there? I'm sorry.
1:44:18>> Correct. Is that more information for
1:44:20>> That's more information that has been
1:44:23said before, but yeah.
1:44:25>> And just a minute ago you said the
1:44:27initial information gave confidence.
1:44:30And so now I'm giving you a little bit
1:44:31more. Does that give you even more
1:44:33confidence?
1:44:35>> I'd say generally that's the same person
1:44:37saying the same thing. When they're
1:44:38saying it three or four different times,
1:44:40it doesn't make it more correct.
1:44:43>> But it is another point of information
1:44:46you have in analyzing the case, correct?
1:44:49>> Yes.
1:44:50>> And so in this case,
1:44:52you haven't just been presented with a
1:44:54bunch of assumptions and asked, "Hey,
1:44:57let me just give you a
1:44:58these assumptions with no factual
1:45:00information, and can you tell us a
1:45:02number?"
1:45:03That's not what happened, is it?
1:45:04>> No.
1:45:05>> You were given specific pieces of
1:45:06information in order for you to evaluate
1:45:10and provide an opinion to law
1:45:11enforcement during course
1:45:15of a murder investigation of a
1:45:1619-year-old UNC student, correct?
1:45:19>> Correct.
1:45:19>> Okay.
1:45:40>> All right.
1:45:42I have a lot of you around. I don't have
1:45:43that many more questions, but
1:45:46maybe you can multiply that by pi, but
1:45:48I'm going to try.
1:45:49I hope you guys don't want to block any
1:45:51more lunch.
1:45:53I have no idea what time Huh?
1:45:55>> Give or take.
1:45:57>> 8 minutes.
1:45:59I shall do my best.
1:46:01>> I love you.
1:46:29>> May I have just a minute to talk to some
1:46:30fellow council members?
1:46:31>> Yes, sir.
1:46:32>> Thank you.
1:47:52>> video recorded interview with Mr. Zarate
1:47:54of the Chatsworth Police Department on
1:47:56September 20th, 2012.
1:47:59I'm going to read to you
1:48:01the question and the answer Officer
1:48:02Matthews asked, "And you all didn't stop
1:48:05anywhere on the way home?" Her answer
1:48:07was, "No." No.
1:48:10Having information from witness that
1:48:12there was no stop
1:48:14for
1:48:16Mr. Zarate and Ms. Hedgepath on the way
1:48:18home from the thrill, is that another
1:48:20piece of information you can rely on
1:48:22in determining whether or not
1:48:25Ms. Hedgepath consumed anything else
1:48:27after leaving the thrill?
1:48:28>> [clears throat]
1:48:29>> There's no indication that she did drink
1:48:32more based on that.
1:48:35>> And I agree with you on that, but
1:48:37there's I just want to make clear
1:48:40we're not It's not just an assumption.
1:48:42You actually have
1:48:44facts that you've been presented through
1:48:46the form of what a witness says they
1:48:48observed.
1:48:49>> Well, saying someone didn't stop
1:48:51someplace doesn't mean anything that she
1:48:53didn't drink anything. That's all.
1:48:56>> Sure.
1:48:57But it's not just an assumption on your
1:48:59part
1:49:01that the person didn't have anything
1:49:02else to drink. You actually are being
1:49:04provided with evidence that a witness
1:49:06said
1:49:08we didn't have anything else to drink
1:49:09when we left, correct?
1:49:12>> I'm being provided that statement by
1:49:14that person, yes.
1:49:16>> Because
1:49:17you testified as expert and you're aware
1:49:19there's difference between somebody
1:49:20giving an opinion when everything was
1:49:23just an assumption
1:49:24versus someone giving an opinion
1:49:27when they begin given actual pieces of
1:49:30information, factual information.
1:49:34Okay.
1:49:35Even in your own practice, if the police
1:49:38had come to you in this case and said,
1:49:41"We would like you to generate a report.
1:49:44We don't really know for many witnesses
1:49:47what anyone had didn't have to drink.
1:49:50We're just going to give you some
1:49:51hypotheticals."
1:49:53But that's not what happened, is it?
1:49:55>> That's not what happened in this case,
1:49:57no.
1:49:58>> You were given specific information by
1:50:00the police during this murder
1:50:02investigation so that you could
1:50:03formulate an opinion, correct?
1:50:05>> Correct.
1:50:06>> And you used that information
1:50:07>> [clears throat]
1:50:07>> to formulate and come up with that
1:50:09opinion, correct?
1:50:10>> That's correct.
1:50:11>> And as you sit in this courtroom today,
1:50:12you stand by that opinion, correct?
1:50:15>> I'm not correct, I do. And it's based on
1:50:17the information in the report that I was
1:50:18provided.
1:50:36>> Those are all the questions I have for
1:50:38this witness, your honor.
1:50:39>> Sir, I will be redirect when we come
1:50:42back from lunch.
1:50:42>> No, sir.
1:50:43>> Well,
1:50:45important is the
1:50:46I need it back at this point.
1:50:49Um I'm the juror.
1:50:50And the the court has to make a decision
1:50:52as to whether or not um
1:50:55this evidence at some point will go
1:50:58behind the big if that way you go in
1:51:00front of the jury. So, I do believe
1:51:02respectfully since at this point if the
1:51:04court has a question as to
1:51:07this witness, I think we can talk about
1:51:08asking a question. Any objection to
1:51:10that, Mr. Deal?
1:51:11>> No, sir. Mr. Wimsatt?
1:51:14>> I don't have an objection, only just for
1:51:16clarity's purpose, and I
1:51:19I think the rule is that
1:51:21an attorney doesn't have to object to
1:51:23the court's question. It's presumed that
1:51:25an objection
1:51:27would be raised to question. I haven't
1:51:29looked at that in a while. I'm not
1:51:30saying I object right off the bat, just
1:51:33for clarity.
1:51:33>> Now, having said the question, my my I
1:51:35want to make sure the parties were aware
1:51:37that the court has the finder of fact
1:51:39because you're presenting to me
1:51:41you're saying, "Hey, Judge Gregory, um
1:51:43we want you to either exclude it or not
1:51:45exclude it." And so, in order for me to
1:51:48find out why I should do it, if I have a
1:51:49question, I should be able to ask him
1:51:51since I'm the finder of fact, correct?
1:51:54>> Certainly, Your Honor.
1:51:54>> All right. So,
1:51:55and then we will Well, you know what?
1:51:59Well, I'm going to ask you.
1:52:01I just want to make sure I understand
1:52:02this, sir. Are you saying to me that
1:52:08it doesn't matter
1:52:10that if even if someone said, "Well, I
1:52:13don't know what she had to drink after
1:52:15or if I was around her." If you don't
1:52:17have that information,
1:52:19meaning that if if someone like this Mr.
1:52:21Rosario
1:52:22left the home,
1:52:24she wouldn't know if
1:52:27if they had anything to drink. And if
1:52:29she didn't know, how does that factor
1:52:31into your report?
1:52:32>> Well, I I can't factor anything in. I
1:52:34have to go with the absolute values that
1:52:37I was provided with, which is 2 oz and
1:52:39the time frame for those ounces and the
1:52:42ME's report.
1:52:45>> That's all I have. Now, I will give you
1:52:47a chance to ask questions about my
1:52:49question when we come back from lunch.

About this transcript

This page contains the full transcript of Judge Rules on Key Evidence in UNC Student Murder Case by Law&Crime Trials, generated from the public captions YouTube serves with the video. The transcript has 15,128 words across 2,837 segments, with the original timestamps preserved so you can click any line to jump to that moment in the embedded player.

What you can do with it

Use the transcript to take notes, quote the speaker, build a study guide, generate a summary with ChatGPT or Claude via the YouTube Summary tool, or export it as a timed subtitle file with YouTube to SRT. You can also re-open it in the transcriber to translate the transcript into 100+ languages.

Free YouTube transcript tool

YouTube2Text is a free YouTube transcript generator — no signup, no daily limit. Paste any YouTube link and get the full transcript instantly, with timestamps, click-to-jump, translation to 100+ languages, AI prompts for ChatGPT, Claude, and Gemini, and exports to TXT, SRT, VTT, or Markdown.