Free Response - District Court of Arizona - Arizona

1 II TERRY GODDARD
ATTORNEY GENERAL

2 (FIRM STATE BAR No. 14000) 3 AARON J. MOSKOWITZ
ASSISTANT ATTORNEY GENERAL CRIMINAL ApPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007-2997 (STATE BAR NUMBER 022246)

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5 II TELEPHONE: (602) 542-4686
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RESPONDENTS
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ATTORNEYS

FOR

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
WILLIAM FLOYD SMITH,
Petitioner, -VS DORA B. SCHRIRO, et aI., Respondents.

CIV 04-573-PHX-FJM (MS)

EXHIBIT K, PART 3, PGS. 80-119 FOR ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

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R E C R 0 S S - E X A M I N A T ION

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BY MR.

GRIFFITH: Sir Q. , do you still have 6 and 7 up there in front of you? A.
Q. Yes, I do, sir. Now, I want to just go over a over. couple of

these that the prosecutor went the prosecutor

Do you remember of 18 and 6 of 18

asking you about page 5

regarding whether or not you were specifying that it was out of this bottle that he was supposedly taking Halcion?

A. Q.

Yes. In fact, the question is: When is the

last time you took any of them; is that correct?

A. Q.

That's correct. And the question before that is: What is

the purpose for the Halcion; correct?

A.

That's right. Then you said: When is the last time you

Q.

took any of them.

A.
Q.

Correct.

Correct? Then later on, on page 6 of 18, again you

asked:

Do you recall the last time you took any of

them; is that right?

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A.
Q. bottle? A.
bottle.

That's correct. So you weren't specifying out of this

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The subject of conversation was that

We were

--

that's what we were talking about And the way I phrased

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and I was referring to Halcion. the question was: any of them.
MS. BOWEN:

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Do you recall the last time you took

Your Honor, may we approach

please?
THE COURT:

Yes.

(Side-Bar Conference, off Record)
THE COURT:

Proceed, Mr. Griffith. Thank you, Your Honor.

MR. GRIFFITH: BY MR. GRIFFITH:

Q.
again.

Okay.

Let's go over those questions

You said:

What is the purpose Objection, asked and answered. Given the interruption, I'll Go

MS. BOWEN: THE COURT:

let you reask the same question for text purposes.

ahead, Mr. Griffith.
MR. GRIFFITH: BY MR. GRIFFITH:
Thank you.

Q. Halcions?

Your question:

What is the purpose for

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A.

What page are you on?
Page 5 of 18. Correct.

Q.
A.

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6

Q.
them?

When is the last time you took any of

A. Q.

That's correct.

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And when was the last time

--

do you

recall the last time you took any of them; correct? A. Q. That's correct. Okay.
Now, he indicated to you that

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the bottle indicates there were 30 in the bottle;

correct? A. Q.
Yes. And he said he took a couple every -- he

took some every couple days, every two or three days?

A. Q.

Correct.

So there is no way a bottle filled in

February could have lasted until July under that scenario; is there?
MS. BOWEN: THE COURT:

Objection, speculation. Your objection, calls for

speculation?
MS. BOWEN:
THE COURT:

Correct.
Overruled.

BY MR. GRIFFITH:

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Q.

That means you may answer, sir. If it was filled in February? Right.
I'm sorry. If it was filled in February, there is no

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A. Q. A. Q.

way to last enough pills until July.

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A.
day. Q.

If someone actually took some every other

You asked him when was the last time he

had that prescription filled; isn't that right?

A. Q.

I don't believe so. You don't remember that? If it's in the

transcript, it's in there. A.
I remember asking him when that, that It was several, three or four

prescription was filled. months ago. prescriptions.

I didn't ask him about any other

Q.

You knew, did you not, that was, that that

prescription was already at least five months old? A. yes. Q.
All right. Now, some of these other

Well, it was July.

It said February.

So,

questions, you would certainly agree with me the
transcript is a better record of what he told you than your own memory?

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Objection, calls for a legal

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conclusion.
THE COURT: Overruled.

Ask your question,

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Mr. Griffith.
BY MR. GRIFFITH:

Q.

You certainly agree with me, the

transcript is a better record than your own memory; is that correct? MS. BOWEN:
THE COURT:

Objection, argumentative.
Overruled.

THE WITNESS: that day certainly. BY MR. GRIFFITH: Q.

I can read what was spoken

And I want to go back to the questions

Ms. Bowen was asking you regarding how many times he said, he suggested that she lay her head down. That was

because you kept going around that subject, right, kept trying to ask that same question different ways, it's not that he told her to lay her head down five or six

times; is it?
MS. BOWEN:

Objection, argumentative, the

Jury can figure out by reading the transcript.
THE COURT:

Overruled.

The witness was

there.
THE WITNESS:

Yes.

I kept reapproaching

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the subject. BY MR. GRIFFITH:

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Q.

That's good police work, you do that in

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every interrogation? A. Try to. MR. GRIFFITH:
further questions, Your Honor.
THE COURT:

All right.

I have no

Anything else of this witness?

No? You're the case agent, Detective Powers. That means you may be subject to recall. You may step down.
THE COURT: Thank you.

Members of the Jury, let's go

ahead and take our mid afternoon break at this time for 15 minutes. Please remember the admonition, and we We Have a good

started pretty much on time, shortly after 1:30.

will hopefully start back up in 15 minutes.
break. I'm going to stay here on the bench.
Thank you. THE COURT: All right.

The Jury has left

the courtroom.

Counsel, the Defendant, court reporter,

case agent and staff are still present. A couple of things. Ms. Bowen, given my

ruling that the reference in the typed-written transcript referring to wine or the drinking of wine the

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day before has been excluded, please make sure, if it
hasn't already been whited-out or blanked-out, it is blanked out from the exhibit transcript of the interview of the Defendant.
MS. BOWEN:

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The wine reference has been

redacted, and off the tape also.
THE COURT:

And the other matter that's The

similar to that is at the bottom of Exhibit 11.

letter that has already been read to the Jury written by the Defendant, there is reference to Madison booking

number.

That needs to be redacted as'well.
MS. BOWEN:

I didn't realize that, Your

Honor.
THE COURT:

I appreciate, Detective, you

paused and stopped there rather continuing on since you have been present for my rulings. Thank you very much.

Do you still believe you need one hour for

your criminalist?
MS. BOWEN: THE COURT:

Yes. Do you believe you need 45

minutes or perhaps an hour as well, Mr. Griffith? MR. GRIFFITH:
THE COURT:

Yes.

Let's take our 15-minute

break.
MS. BOWEN:

I'll put one thing on the

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record, Your Honor.

I had the microcassette of Exhibit 19A has the So I move to have

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19 transferred to large cassette, 19A. redactions to reflect the transcript.

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19A substituted, and 19 can remain for the record only.
THE COURT:

So 19A contains the, the

redaction of reference to drinking wine.
MS. BOWEN:

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And the polygraph.

And I

think there is one other redaction we did in the transcript. But 19A is the redacted audio cassette of

Exhibit 6 and 7 transcripts.
THE COURT: Thank you.

Anything else prior to the break? MR. GRIFFITH:
THE COURT:

No, Your Honor.

All right, Counsel, thank you.

We will see you in about 15 minutes. (Break)
THE COURT:

The record will show the

presence of the Jury, the court reporter, counsel and the Defendant Mr. smith, case agent and court staff. Okay.

Next witness, Ms. Bowen? The State calls, John D'Asaro.
All right.

MS. BOWEN: THE COURT:

(Witness sworn) THE COURT: ready, Ms. Bowen. All right.

Any time you're

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MS. BOWEN:

Thank you.

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J 0 H N

D

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A S A R 0

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called as a witness herein, having been first duly sworn, was examined and testified as follows:

D IRE C T BY MS. BOWEN:

E X A M I N A T ION

Q. A. Q. A.

Please state your name. John Anthony D'Asaro. Where are you employed?

1'm employed with the Arizona Department

of Public Safety crime lab in Phoenix.

Q. A. Q. capacity?

In what capacity? My title is a criminalist. How long have you been employed in that

A.

I have been employed for approximately

three years as a criminalist.

Q.

And briefly describe for us your

background and experience that qualifies you for that
position.

A.

Well, first off, I have a bachelor degree

in biological services from the University of California Santa Barbara. I worked for approximately four years in

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research and development in the area of clinical chemistry, which is a field related to type of work I do now since my employment with the Department of Public Safety crime lab.

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I received fairly extensive training by senior criminalists employed there in the area of
forensic drug testing.

My specialty, or my -- the thing

I specifically do primarily is screening urine samples
for drugs.

During the course of my training, I

completed successfully several proficiency examinations

which are given on a routine basis to ensure I'm
correctly analyzing the samples that I am testing. I've also -- probably have to this date, analyzed approximately 2000 urine samples. I've also

attended numerous workshops and classroom settings as advanced training in the field of forensic toxicology. Just the mention of toxicology, what that is, is the study of analyzing specimens, primarily biological fluids like urine and blood for the presence of drugs. The courses that I took as advanced training that dealt with that type of science, just to mention a few of them, I attended at the FBI National Academy in Quantico, Virginia, a course on advanced mass spectrometry forensic workshop. I've also attended

courses on analytical toxemia, interpretation of mass

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spectrum, courses in gas chromatography.

All these

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things, I hope to explain to you later what they mean.
I also completed a course that's offered

here in the state called drug recognition expert school,
a two-week course which officers are trained how to recognize the signs and symptoms of drugs in the way they affect people. I'm a currently I'm a member of the California Association of Toxicologists. I've been

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qualified as an expert witness to testify in forensic toxicology, having testified approximately 20 to 30 times throughout the state in both municipal, justice

and superior courts.

Q.

Do you have any type of licensure or

certification that designates you as toxicologist?

A.

There is no such license or certification

for the state of Arizona to certify somebody that does

forensic drug testing. Q.
Thank you. What is the name of the process that you go through to analyze urine?

A.

Well, when we analyze urine for drug

it's -- primarily what we do, a two-step approach or two different tests. test. The first test is called preliminary
The

The second test we do is confirmatory test.

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preliminary test utilizes a procedure called, in this

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case, by radio amino acid.

What that does is it uses

radioactivity to determine whether or not drugs are present in the urine sample. What primarily this test

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does, it helps us eliminate drugs that aren't there.
As you probably know, there is lots of drugs out in the world, and this test, this preliminary test, helps to us zero in. If there are any drugs

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present, it helps us to zero in on the type of, or group of drugs that might be present. Once we get a

preliminary test that's positive, it then has to go to what is called confirmatory test. The confirmatory test that's employed is called the gas chromatography mass spectrometry, as I mentioned before, we just call GCMS for short. That

procedure is used to zero in specifically on the drug or drugs that are present. What I mean, zero in, specifically

identifies it positively as being a certain drug or many drugs, if there are several drugs that are present. Q.
You mentioned as to the preliminary test.

Does that involve the use of a machine?

A.

Yeah.

The instrument that's used in the As I

preliminary test is called gamma counter. mentioned, it measures radioactivity.

And what this

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instrument does, it determines how many radioactive particles are present in a sample. What happens is a small sample from the

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urine that I am analyzing is placed in a test tube.
That small sample then is -- reacts in this test tube. If there are drugs present in this sample, then the

radioactive reading is going to be a certain amount of
radioactivity. If there are no drugs present, the

amount of that radioactivity will be significantly
greater.

So by looking at the reaction of the radio -

of this urine sample with these radioactive particles, we determine whether or not there is perhaps some drugs that are present. Remember, this is a limited test. It

gives us an idea what might be present. me exactly the drug that's present.

It doesn't tell

Q.

How do you verify the working condition

accuracy of that gamma counter?

A.

The gamma counter is -- before each run

the gamma counter is calibrated whereby it does its own measurements internally to make sure there are no radios floating around in the laboratory that might give you some false reading. And so that's one way that the

instrument is calibrated. Also with the run, controls are run with

your sample that you are analyzing.

You run controls.

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Those controls should always behave in a certain way.

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You monitor how those controls are behaving.

If there

is something wrong with the way the control behaves,
that would indicate that may be something indicated with the analysis in this case. There was no indication that

anything was wrong with the analysis based on those controls, based on the calculation of the instrument. Q. As to the confirmatory test, the GCMS -

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A. Q.

Um hum.
-- is there a way to verify the working

condition and accuracy of that machine?

A.

Yeah.

And this instrument is a highly The

more complex instrument than the one I described.
GCMS is,

is an instrument that's -- or, actually two

instruments that are used extensively throughout forensic chemistry. will have a GCMS. Any forensic lab in the country That's the standard benchmark method

of identifying drugs, whether it be in urine samples or blood samples or whether it be from the street, that instrument is used primarily to identify drugs that are

present in a sample. Now, that instrument is calibrated prior to the start of each run to ensure that it's properly functioning.
Well, and also, again, controls are run

with the sample that I am analyzing to ensure that the

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instrument is behaving correctly, that it's analyzing it correctly. was done. And, in this case, again, the calibration They show no problem with the instrument and

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the controls were responding the way that they should.

Q.
control is?

Could you please define for us what a

A.

Sure.

In the GCMS analysis, the control

would be a group of drugs that are known, that will be subjected to the same type of procedure as the sample that I am analyzing. this urine sample here. So if you can imagine, I've got I've got another sample here I treat

that I know that I have certain drugs in there. them the same way through an elaborate procedure of extracting the drugs from these samples.

They both get

injected into the instrument, not at the same time but in sequence. I look at those controls then. Now, these

are drugs that are present in a urine, a drug-free urine sample. Those controls are known drugs that are spiked By looking at those, the

into that urine sample.

response of those drugs in this instrument, I use that

primarily to compare to the sample that I am analyzing that I don't know what is necessarily present in it. So

a control basically is something that you treat the same way as your sample, and you then have some interpretive
meaning based on the results of that at the end of the

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Q.

Is the test for analyzing urine that you

have just described recognized within the scientific

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community as an approved method for the analysis of
urine?

A.

Absolutely.

You're not going to find a

forensic lab in the country that doesn't use GCMS to identify that test. Q. You identify a preliminary test that gives

you information regarding group of drugs?

A. Q.

That's correct.
How does that definition of group differ

from what you are going to find in the confirmatory test? A. Well, I'll explain that this way: That

the preliminary test that, that was employed in this case is the same test that's employed in all our cases when we screen for urine, that is, we look for six different types or groups of drugs. They are THC which We look

is cannabis or marijuana.
for methamphetamine.
opiates.

We look for cocaine. We look for

That's three.

That would be something like Codeine or We look for barbiturates, We look for benzodiazepines.

morphine, heroin. phenobarbital.

Benzodiazepines in this case was positive.

The other,

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the other ones were negative.

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Q.
barbs -

You said THC, methamphetamine, cocaine,

A.

Let's see.

Barbs and opiates.

So these

are groups of drugs.

What we are trying to do,

eliminate as much as possible drugs that aren't there and also zero in on a group of drug that might be
present.

In this case it was positive to find
Lots of benzodiazepines are -

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benzodiazepines.

Q.

Before we go further, does the preliminary

test effectively negate the presence of the other ones?

A.

Yes.

It's, it's a commercial -- it's a And, you know, they do

commercial kit that we purchase.

studies to show how effective these tests are in being able to render either true negatives or true positives. Typically, these tests run over 95 percent in terms of
it's true.

True negative, meaning a negative will be There are some times

negative 95 percent of the time. which it won't.

You know, a small margin of error it What I mean by

will make a mistake on the negative.

true negative, if there are no drug there, it will say
no drugs.

Q.

You've indicated it effectively ruled out

the other five, other than the benzodiazepines?

A.

In this case, yes.

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Probably be helpful, Your Honor, if I could refer to my notes as we get into this.
THE COURT:

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Do you have those with you

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right now?
THE WITNESS:

Yes, I do.

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BY MS. BOWEN:

Q.

At this level we can talk more generally.

We don't need to get into your notes just yet. Anyway, could the preliminary test confuse the group benzodiazepines with anything else?

A.

No, you wouldn't get any type of confusion Each one of these tests

with the benzodiazepines test.

are separate and there wouldn't be -- for instance, another drug like cocaine or barbiturates that would not be positive for benzodiazepines. The benzodiazepines

are specific for a group of drugs different than the other five.

Q.

Within the groups themselves, is that

particular group specific enough that it does not blend into being mistaken for an opiate or cocaine? A. Q. That's correct, that's correct. Is this initial test similar to sorting

out things in a broad group?

A.

Yeah.

The analogy that I like to use, if

you could picture -- if you were presented, say, with a

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deck of cards, all colored cards. them.

Say there was 150 of

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And you were asked to stand 25, 40 feet away from

them and they were blue cards and red cards and yellow cards and green cards. And a maybe from that distance Red, green, blue

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you could see them as those colors: yellow.

In essence, what the preliminary test does,

tells you okay, it's the yellow cards or it's the red
cards. Maybe there is 10 or 12, or maybe just two of That's what the preliminary

those different colors. test does.

It sorts out, sorts out the major colors. The confirmatory tests, what would happen

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there, to use the same analogy, would be you then would be given -- you said, okay, the blue cards, let's say those represent the benzodiazepines. You would be given

all those blue cards that you were looking at, this time up close though. Let's say you were the world's expert

on being able to determine different shades of blue and

those cards were given to you.

You would be able to

look at those and say, this blue card is actually kind
of aqua blue, this one is more like a teal.

As you saw

more closely, more specifically you could identify the exact color of those blue cards. That's what the

confirmatory test does, gives us an exact description or identity of a drug. Q. Now, you mention that there is more than

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one drug within the group of benzodiazepine?

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That' s

correct.

Q.
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Could you give us that list or --

Well, I've given you a few examples. One that you are probably familiar would be Valium. Valium
is a common benzodiazepine. Librium. Another one would be

A.

Xanax would be another common one.

And, of

course, the drug that I define or found was Halicon or its generic name is triazolam. So there are also

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probably another five or six different benzodiazepines prescribed here in the united States.

Q.

Now, when you are doing your test, are you

actually looking for that drug, a drug named Valium, a drug named Librium, a drug named Xanax? A. Right. When I do the confirmatory test, I

am, again, like I have all those blue cards in front of you, I'm going to tell you what blue card that is. my training and my experience I'll be able to identify From

what that drug is, what card I'm talking about. that's going to be representative of which benzodiazepine.

And

Now, just to mention here, it's important
to know that some of these drugs, most of these drugs, when they are taken into the body metabolize, the body wants to get rid of them. Some of these drugs, the body

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doesn't like, wants to get rid of them.

In a urine

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sample I'm limited to, to testing those breakdown problems or metabolites. into the urine. That's where those product go

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When I am testing drugs in urine

sometimes I'm not testing necessarily the actual chemical that was taken into the body, but I'm testing for metabolites, the breakdown products of those drugs.

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Q.

Does a metabolite differ specifically from

the parent drug?

A.

In, in most cases there is quite a bit of

similar structural comparisons between a metabolite and the parent drug. I would refer to these types of drugs,

parent drugs, the original thing that was taken. Chemically-speaking, the structures are usually quite similar -- might be a little modification. once it goes into the liver might be a little modification for the body to get rid of it through the urine or through the feces. But the structure though is
The drug,

quite similar though to the parent drug.

Q.

Is triazolam a metabolite of any of the

other benzodiazepines?

A.

The triazolam is a parent drug in itself.

If you go to the doctors, he prescribes you Halicon, what you are getting is triazolam. It's not something

that is, would be formed from any of these other

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products if you were to take them into your body.

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Q.

You're saying there is something

specifically different in triazolam and Valium?
A.

Yeah, there would be some structural

differences in the, in the molecule itself, as well as the effects that that drug has. Halcion versus Valium,

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they are used for different purposes and you can look at the structures of these things and see the
differences

--

a chemist could.

Q.

Are you saying the word Halcion and the

word triazolam are interchangeable, nothing changed between the two?

A.
brand name.

Right.

Halicon is basically the complete

MR. GRIFFITH:

I'm going to object to

that, Your Honor. that.

I'd like to voir dire the witness on

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That's not right.
THE COURT: Overruled.

You can

cross-examine the witness.
BY MS. BOWEN:

Q.

Is there a metabolite from triazolam you

are looking for in your confirmatory test? A.
Yes. For triazolam there is a major

metabolite that the liver forms, once it forms and gets rid of the drug the body takes in. That metabolite is

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call alphahydroxytriazolam.

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3

Q.

When you run your test, you don't come up

with triazolam, you come up with this alphahydroxy -

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6

A.
Q.

That's right, alphahydroxytriazolam.
Is alphahydroxytriazolam a normal

byproduct in urine?

7

A.

If you mean normal, do you mean, are you

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

asking me if it's something that if someone didn't make
triazolam they would have in their urine?

Q.

Correct. You would have to take triazolam to have

A.

alphahydroxytriazolam in your urine. Q.
When you do the preliminary test, does it

come back saying the benzodiazepine or the alphahydroxytriazolam?

A.

The preliminary test, all it tells you,

there is a benzodiazepine present, if it's positive.

Doesn't tell you which one it is.

Q.

The preliminary test isn't sophisticated

to know, ferret it out?

A.

That's right.

Not sophisticated enough to

tell you which benzodiazepine is present.

Q.

During the course of your duties were you

asked to analyze a urine sample from Rachel Tseko?

A.

If now I could refer to my notes.

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Q.

I'd like to show you what has been

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referred to Exhibit 25, if I may approach? THE COURT:

Yes.

And where are the

witness' notes?
THE WITNESS:
THE COURT:

They are in my brief case. Yes. You can go ahead and

refer to them.
THE WITNESS:

Could you state the

question, again, please. BY MS. BOWEN:

Q.

In the course of your job, were you asked

to analyze a urine sample obtained from Rachel Tseko, spelled last name, T-s-e-k-o? MR. GRIFFITH:
it was taken from Rachel Tseko.
THE COURT: Overruled.

Calls for speculation that

You can

cross-examine as to this witness' knowledge regarding the source and derivation.
THE WITNESS: Overruled.

Yes.

The sample that I

tested was labeled Tseko, T-s-e-k-o, Rachel, D.
BY MS. BOWEN:

Q.

Did it reference from where that sample

had originated, either in your chain of custody, or by

A .
There was -- on the packaging material

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that the sample came in, there was a record number, that was representative of the agency's record number that's submitted, the evidence.

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5

Q.

And you're indicating the agency that

submits it has to have a record number for that piece of evidence?

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A.

Generally, yeah.

We service over 100 They all have

different police agencies in the state.

their different record systems and numbers they assign their cases to. They usually put their own record

numbers on the evidence when they submit it for
analysis.

We have our own so we can keep track of it.

Q. sampling?

And from what agency did you receive the

A.

This was submitted by the Maricopa County

Sheriff's Office.

Q. A. Q.

Was their record number 94-16125?

Yes.
Does that correspond with the chain of

custody page that I have handed you as Exhibit 25?

A.

Yes, it does.
MS. BOWEN:

The State moves to have

Exhibit 22 into evidence. MR. GRIFFITH:
THE COURT:

No objection, Your Honor. Thank you, Exhibit 22 is

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BY MS. BOWEN:

Q.

Do your notes reflect the condition in

which you get that sample?

A. Q.

Yes, they do.

Can you recall specifically without

referring to your notes the condition of the sample?

A.
Q.

I would either look at my notes to

-

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

What is it you try to reflect in your

notes when you are first viewing the sample as its condition?

A.

The primary thing that we are looking for

is, whether the, whether the evidence is properly sealed, whether or not there has been any indication, that the thing has been damaged or the specimen leaked or things of that nature. We also note anything that

seems pertinent in terms of information.

As I read to

you, the packaging material in this case had the agency on it, Maricopa County Sheriff's Office, their record number. That's pertinent information so that, that type

of information would be recorded in the notes. Q.
package itself? Did it also note the condition of the

A.

Yes.

We would also note the condition of

the package, the type of package, again, whether or not

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it was sealed.

Whether it was not sealed, we write

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those types of things down. Q. What do your notes reflect as to the

condition this package arrived?

A.

The package that we analyzed was at that

point sealed properly, that it was a manila envelope,
one of those with the spread seal, little tabs pullout and lick the thing. That it was sealed. Inside of that

contained a zip-locked stapled plastic bag containing that was labeled with that record number, the Maricopa County Sheriff's Office number, and then inside that plastic bag there was a tube, a clear tube, plastic tube that was labeled with the name Tseko T-s-e-k-o, Rachel, D. that contained about nine milliliters of urine, which is about a third of an ounce.

Q.

Was the sample, when it arrived at the

lab, preserved in a manner consistent with what you would expect from a urine sample?

A.

Yes.

It might be helpful to explain how I'll do that real

the evidence is stored, so forth.
quickly.

Above in the laboratory is our property and Whenever agencies submitted evidence, That evidence, when it's ready

evidence room.

they drop it off there.

to be worked by a criminalist like myself, we request the evidence, evidence be sent down to us.

We have a

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dumbwaiter that operates between the first and second

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floor.

Any biological specimen, urine or blood is

stored in a big walk-in refrigerator, like a restaurant. That's done up in, above in property and evidence room. When the sample comes down it has been refrigerated.

6

When we receive the sample that we are not ready to
7

sample, ready to analyze it right away we have our own
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walk-in cold room. it was normal.

In this case everything seemed like

Q.
preserved?

How would you expect the sample to be

Does it have to be frozen, heated, what?
It's recommended urine samples be kept at It's not bad if

A.

refrigerated type storage condition. you freeze the urine. stable, type of fluid.

And urine is a fairly strong, And you can -- you know, it's

not uncommon for us to analyze urine specimens that may have sat out, you know, in an officer's car for a while
in the sun. Maybe they -- when they, they couldn't So

store it right away in the refrigerated condition. maybe it sat out for a day or two in a locker that wasn't refrigerated. But urine is a very stable, very

tough type of specimen, especially for analyzing drugs. Drugs aren't typically going to be effected much by those types of changes in the storage conditions. we do prefer a refrigerated condition. But

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Q.

You've indicated that the urine that you

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received was in a condition appropriate for analyzing?
A.
Q.

That's correct.

I'd like to show you what has been marked Do you recognize that document?
Yes, I do.

as Exhibit 26.

6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 admitted.

A. Q. A.

Is that a document from your crime lab? This is a document that -- a copy of the

notes that I use when I analyze the urine specimen for drugs.

Q.

Does it reflect the results of the

preliminary test that you have indicated prior to the confirmatory test?

A.

Yes, it does.
MS. BOWEN:

The State moves to have

Exhibit 26 into evidence. MR. GRIFFITH:
THE COURT:

No objection, Your Honor.
Thank you.

Exhibit 26 is

BY MS. BOWEN: Q. After the preliminary test is performed,

would you do a confirmatory test if the preliminary test was negative for a group of drugs?

A.

No, no.

Again, that's the reason why we

wanted to do the preliminary test is to help us

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eliminate doing a whole bunch of your meds. Q. A. Q. You did a confirmatory test in this case? For the benzodiazepines.
Can you explain to us that, how the

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

confirmatory test separates out specifically the drug from the group?

A.

Sure.

The first thing that's done, before

it even goes to the instrument, there is an extraction
procedure, meaning I can't take that urine specimen -- I wish I could -- cannot take it, shoot it into this instrument, it's going to tell me what drugs are
present.

I've got to go through an elaborate procedure

of extracting it or taking out the drugs from urine
specimen. And because this was positive for

benzodiazepines, we have a specific procedure that's used that's unique for extracting out that group of drugs.

Remember, I said a lot of these drugs are similar but they are distinguished from one another. So, the procedure that is utilized, utilizes those similarities to help optimize extracting them out of the urine sample. The first thing that is done, is a

procedure called extraction in which any benzodiazepines present are extracted out from the urine sample.
that -- we call an extract.

Then

The final product of that,

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that extract then is injected or put into the GCMS instrumentation. That's two different instruments that

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work in tandem together. The first one, the GC, gas chromatograph is like, it's like an oven. Inside this oven there is

4
5 6 7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

this wire-like column that goes around and around and around and around many many times, very narrow, very
narrow things could pass through this wire. The sample,

when it's injected into this gas chromatograph, begins to race through this wire. Okay?

If you can think about a race, like a car race, where every car lined up at the starting line at the same place. The race starts, the cars around, go Pretty soon they start to

around, go around, go around.

separate from each other, the faster drivers up front, the slower drivers in the back. chromatograph does. That's what the gas

That separates out individual

components of the sample that was injected. So, the sample is injected. starts. This race

The samples, the components of the sample go And when they are done with the race

through this wire.

at the end of this wire, they go into this other part of the instrument called the mass spectrometer. the complex, highly specific analyzer that I was referring to. This is where then the instrument This is

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identifies, if you will, takes a picture of the drug

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that is coming or that is exiting into this instrument.
What the mass spectrometer does, in essence, takes a blueprint of the drug -- or, fingerprint is a better

word to use -- fingerprint of the drug. I could go into an explanation of how that is accomplished. The drug is unique enough to give a

7
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

unique picture, which we call spectra, mass spectra. And by looking at this picture, this mass spectra, we
can identify drugs. Because, there are actually two The

parts that are used in the identification process. first one is done in gas chromatograph.

Remember, there

are two instruments, the GC -- that has to do with how long does that drug stay in that wire before it comes out. In other words, how long does it take for that car

to finish the race.

That time is going to be unique.

It's going to be unique to that drug, so unique that these drugs listed up here will, will finish at different times.
If I run those drugs over and over

again, that GC, they will come out almost exactly at the

same time over and over again.

But they are separate

enough in the race to distinguish them from -- but that's the -- that's not the only way that we identify what drug is present. used as well. It's the mass spectrometer that's

And that's where it takes a fingerprint

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of the drug, gives me a picture of it to help me also

2 3 4 5 6 7
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identify what it is. Q.
That process can separate out the

benzodiazepines from each other?

A. Q.

That's correct. Is there any way in that second test you

would get a reading for alphahydroxytriazolam when it's not from a benzodiazepine group?

A.

I would not misidentify an

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13 14 15 16 17 18 19 20 21 22 23 24 25

alphahydroxytriazolam for another group that's up here, another drug.

Q.

Do you have those pictures readout or the

readouts get from the second test?

A. Q. A. Q.
notes?

Do I have them here in front -Yes. Yes, I do. Can you please refer to them in your

I would like to show you what has been marked as

Exhibit 28.

May I approach?
THE COURT:

Yes.

BY MS. BOWEN: Q.
I've handed you a three-page document that Is that the same set of

has been marked as Exhibit 28.

information you're looking at in your notes?

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A.
Q.

Yes, it is.

2
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And all three pages are the same, are the

same as compared with the ones in your notes?

A.
Q.
demonstrates?

Yes, it is. Can you explain for us what Exhibit 28

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A.

Okay.

What -- again, what occurs in this

procedure, is a two-fold approach to identifying drugs. The first, as I mentioned, is the time that it takes that drug or that component to get through this wire, or this column, into the detector. That's referred to as a

retention time.

What this -- in this case, that's

reflected in that exhibit by giving a retention time.
In other words, the component that identified the alphahydroxytriazolam had a retention time of 17.76
minutes.

That's how long it took for that drug to get So that's the first thing that this

through that wire.
reflects.

The second thing it reflects is the mass spectra, which I explained kind of briefly, but perhaps I can do a better job at that. The -- what the mass

spectra is -- as I mentioned, it's like a fingerprint of the drug.

If you can imagine, you know, a drug is, is a

structure, a molecule, and that molecule, when it enters -- when it finishes the race, gets into this mass

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spectrometer, it encounters a high intensity beam of electronics.

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4

What that in essence does, it breaks up

that molecule into small fragments or into fragments, pieces. The analyzer -- this is why it's called mass What it does, it measures the mass or the

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spectrometer.

weight of each of those pieces.

Now, if I were to shoot, or if that alphahydroxytriazolam were to go into this instrument
time and time and time again, it would always give me the same weighted fragments. are unique to this drug. Those weighted fragments This analyzer determines the

weights of these fragments and the abundance of those
fragments.

Based on then the picture or the pattern of

these fragments I can identify a drug.

Q. A.
page.

Is that what is reflected in Exhibit 28?

Yes.

That's what reflected on the second

Q. A.

What does page 1 reflect?

Page 1, in essence is just referring to

the -- what page 1 reflects, over the course of that time, that we are looking for any benzodiazepines that might be present. The analyzer is constantly monitoring So what that reflects in

stuff that's coming into it.

this exhibit, page 1 is all of the elements or all of the components that happen to go through the column and

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3

enter into this mass spectrometer. Q.
Were any of those other elements

indicative of a group of drugs outside the benzodiazepine group?

4 5 6 7
8

A.

Well, the way I set the analysis is set

up -- is I'm specifically looking for benzodiazepines and so there are other substances that I don't, I don't
identify.

There are other substances that could be

9
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present in that sample.

But I'm looking specifically
So I'm looking for a, for

looking for benzodiazepines.

a particular retention time, the time it takes for those drugs to come through that wire. I'm also looking for a

particular pattern that's going to be formed from a drug

when it hits this electronic beam. looking for just those two things.

So I'm specifically I'm not looking for

everything that might be present in this case. Q. That's based on the preliminary test that

told you you are looking for a benzodiazepines? A. Group.
MS. BOWEN: Exhibit 28 into evidence.
THE COURT:

The State moves page 2 of

Page 2 of Exhibit 28.

Any

objection? MR. GRIFFITH: which one that is. Document 33-20 Filed 08/11/2005 Page 37 of 41
I'm sorry.

I need to see

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No objection, Your Honor. THE COURT: Thank you. 28 is admitted. MS. BY MS. BOWEN: BOWEN: Thank you. Page 2 of Exhibit

2 3 4 5
6

Q.

Is there any way, based on the GC portion

7
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or MS portion of that second test that you are going to get a reading outside of the benzodiazepine group and mistake it for the benzodiazepine?

10 11 12
13 14 15 16 17 18 19 20 21 22 23 24 25

A. Q.

No, there is not.
Based on the molecular weight of the

alphahydroxytriazolam?

A.

Based partly on that.

One thing unique

is -- about the benzodiazepine, they tend to be large
molecules as drugs are concerned, larger than cocaine, methamphetamine. So the fragments that are going to

break apart from this molecule are going to be heavy in comparison to the other two. That already helps us as

chemists identify these.

There aren't a whole lot of

drugs that give these heavy-weighted pieces when they
break down.

That's one thing that helps us know what to

look for to identify benzodiazepines. Q. Again, you're indicating you're looking
Is there any way somebody had crushed

for metabolites.

up Halcion, or triazolam pieces and stuck it in the

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urine, could you get these kinds of results when you analyze?

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A.

Triazolam is metabolized in the liver.

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Unless somebody has taken it in the body, I won't find it in the urine unless it's gone through the liver. Q.
Are you familiar with the coding of

classifications of groups within the group of narcotic
and dangerous drug?

A. Q. A. Q.

statute 13, are you referring to?
Title 13.

Title 13, yes. Are you referring to the classification

schedule for the metabolite Halcion or metabolite triazolam?

A. Q. A. Q.

Yes, I am. What is that? It's referred to as dangerous drugs. Are you familiar with the effects of the

Halicon upon a person? A.
Yes, I am.

Q.

Can you describe for us what the signs and

symptoms a person may display under the influence of Halicon? MR. GRIFFITH: Objection, he hasn't laid

out any qualifications for such testimony.

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He took advanced drug

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recognition for that specific purpose.
THE COURT: THE WITNESS:

Overruled. Yes. Halicon is, again,

it's a benzodiazepine, and there are primarily four different properties of benzodiazepine.
Some of them

are more potent in those properties than the others.
Those are: They are used for either muscle relaxing, to They are used for either as a hypnotic Also have properties of anticonvulsant, And, the other thing

relax muscles. or sedative.

meaning people who have seizures.

is that they are used for treatment of insomnia, for instance for somebody who is having trouble sleeping. The Halicon itself has that particular property
strongly.

In other words, Halicon, has a very strong

hypnotic property, so that somebody who takes Halicon will probably fall asleep. purpose of treating insomnia. It's prescribed for the So when somebody has

Halicon, they are told to take one tablet or two tablets right before bedtime, helps them to sleep, so the effect of Halicon, its purpose is to try 'to help you to sleep. So it causes drowsiness. The other thing it can cause, it can cause dizziness, some light-headedness. Another property of

Halicon is that -- not in all cases, but it has been

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noted in the studies that they do as a side-effect of

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this drug, is that it will limit your ability to be coordinated.
things.

You might be a little bit slow in doing

You might not be able to have as much strength One other property about this

as you would normally.

particular drug that's been shown, is that it, it does have the ability to cause some memory loss. that this -- not that Halicon is unique to that. benzodiazepines they believe it has been shown Halicon tends to have, tends to cause this with, with more potency or more stronger. It's -- it causes memory And not In the

loss, particularly the memory loss is a couple hours after ingestion. Somebody who takes Halicon

typically -- who is prescribed it is going to be asleep, he's not going to remember. If he can't remember

because he's sleeping -- the thing that happens, if you take it while you're awake, is you may not remember things that happen two hours after you've ingested it.

So the studies show there is this possibility that you could have some memory loss during that time. Q.
And would those signs and symptoms vary

depending upon the amount of drug that is ingested?

A.

Primarily would vary, not only the amount

that's taken but also on the physiology of the person.
Halicon has not been tested in children or people under

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