ARAPAHOE COUNTY — Denver Post reporter Jordan Steffen’s updates from Day 29 of the Aurora theater shooting trial at the Arapahoe County Justice Center in Centennial, Colorado.
Day 29
A ballistics expert from the Colorado Bureau of Investigation continued testifying on Wednesday as the Aurora movie theater trial moved into its 29th day.
The case came to a nearly day-long standstill on Tuesday after the judge learned that one of the jurors had seen news reports about the case and shared details with other jurors. Judge Carlos Samour Jr. released that juror and two others after deciding they hadn’t been fully honest when questioned about the incident.
Neither prosecutors nor defense attorneys moved for a mistrial as a result of the misconduct.
Dale Mikio Higashi was called to the stand Tuesday afternoon. Higashi, a CBI agent, examined the guns and ammunition used by James Holmes in the July 20, 2012 attack that killed 12 people and injured 70 others.
Guns similar to those used in the attack were brought into the courtroom. Higashi showed the jurors how the weapons are loaded and explained how they work.
Also on Tuesday, Arapahoe County District Attorney George Brauchler told Samour that he intends to call Holmes’ ex-girlfriend to the stand. Holmes and the woman dated while he was enrolled in a neuroscience graduate program at the University of Colorado.
Holmes has pleaded not guilty by reason of insanity to all 166 counts. He could face the death penalty if he is convicted.
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LIVE STREAM:
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8:59 a.m.
The jury was brought in Wednesday and Chief Deputy District Attorney Karen Pearson continued her direct examination of Higashi.
Higashi said he examined bullet fragments collected during the investigation. He looked at the surface of the bullets to see what characteristics transferred from the barrel of the guns to the bullet.
He was able to determine that bullet fragments collected were fired from the rifle that was collected from the scene.
Pearson handed Higashi a stack of evidence bags containing some of the fragments he examined.
The first two fragments fired from the rifle Higashi examined were collected from Matthew McQuinn said.
Higashi explained the “individual scratches” on the bullet fragments. He test fired bullets from the rifle.
“The general characteristics all lined up,” Higashi said.
Higashi looks at each bullet underneath a microscope. He examines all of the surfaces looking for characteristics that match the bullets he test fired.
Next, Higashi explained how he identified a bullet fragment collected from Jessica Ghawi. Based on the marks made on the lower half of the fragment, Higashi was able to determine the bullet had been fired from the rifle, he said.
The following two fragments were collected from Rebecca Wingo. Higashi then identified the fragments collected from Jonathan Blunk. The were all fired from the rifle, he said.
Higashi used a hand-held microphone to describe what happens to a bullet when it enters soft tissue.
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9:15 a.m.
Higashi then held up the fragments that were taken from Veronica Moser-Sullivan.
Next, Pearson asked Higashi to describe the fragments that were collected from Micayla Medek.
Whether a bullet fragments determines what the bullet hits, Higashi said.
Higashi also examined fragments taken from survivors Christina Blache and Denise Traynom-Axelrod.
Pearson then handed Higashi a second stack of fragments he examined. The fragments in the stack had the same characteristics as the rifle used, but they did not have enough “individual characteristics” to definitively link them back to the rifle used in the attack.
There was nothing suggesting that the bullets were not fired from the rifle.
The fragments were taken from Jessica Ghawi, Matthew McQuinn, Rebecca Wingo and Alex Teves, he said.
Some of the fragments were shown to the jury. Higashi explained why he could not definitively say the fragments were or were not fired from the rifle. There were not enough markings on the bullet fragments to link them back to the rifle used in the attack.
Higashi also examined bullet fragments taken from Gage Hankins and another survivor.
Some fragments had “no comparison value” because they had no markings to compare to test bullets.
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9:41 a.m.
Higashi described more fragments collected victims.
Those were examples of fragments Higashi examined that had “steel-penetrating tips.” Those bullets also had copper jackets that Higashi could look at for markings.
Higashi said the tips of bullets never touch the inside of a gun barrel and cannot be used to help determine which guns fired the bullets.
Pearson handed Higashi the BB shot collected in the case. Higashi examined the BB shot and said it was consistent with the BB shot that was used in the shotgun rounds.
He examined the BB shot taken from Jesse Childress and Rebecca Wingo.
Higashi was also able to link bullet fragments back to the handgun that was collected behind the theater. He compared the two handgun bullet fragments to test bullets he fired from the pistol. That gun had a laser sight on it.
Using a pointer, Higashi explained how the bullet “mushroomed” and how he used the markings on the base of the bullet to help him link it back to the handgun.
Defense attorney Daniel King began his cross-examination of Higashi.
The handguns have different barrels than the rifle. That was one of the ways Higashi was able to determine which bullet fragments belonged to which gun.
King points out the differences between the guns collected at the theater and the guns that Higashi used in his explanations on Tuesday.
“These are not what you would call a machine gun or a fully automatic weapon?” King said.
Higashi agreed. Each gun only fires one round each time the trigger is pulled.
There is a large spectrum in the size of BB shot used in shotgun ammunition. There was no indication that shotgun shells with “buck shot” were fired inside the theater, Higashi said.
The handguns and rifle are easy to reload once the magazine has been emptied, Higashi said. There were three bullets Higashi examined that had damage to them. Those bullets had not been fired, but had “evidence of some sort of feeding malfunction,” Higashi said.
They were either flattened or had a dent in them, Higashi said. Normally the bullets feed from the magazine up into the firing chamber.
It appeared that there was more than one attempt to correct a jam in the rifle, Higashi said. There also may have been more than one instance when the rifle jammed.
The rifle may have jammed because too many bullets were loaded into the ammunition magazine. It also could have been because the magazines themselves were bad, Higashi said.
Higashi examined a 30-round magazine that had 30 bullets loaded into it. Typically, law enforcement does not load the magazines to capacity because it can cause the gun to jam, he said. He also found two ammunition magazines with 31 bullets loaded into it. A magazine with too many bullets loaded into it will not lock into the rifle correctly.
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9:58 a.m.
The magazines were most likely damaged by hitting the ground, Higashi said. He does not know if they were dropped at the theater or if they were damaged before the shooting.
Higashi also examined a third magazine that had been overloaded with 31 bullets.
The “green tipped” ammunition that Higashi examined can be purchased online, he said.
Drum magazines, like the one Higashi examined, are known for being unreliable.
“It’s a lot of work to not have to reload,” Higashi said.
CBI does not use the drum magazines.
The scope on the rifle projects a red dot into the user’s field of view, Higashi said. The sight has to be properly aligned or it does not work well.
The laser sight on the handgun follows “where the muzzle is going,” Higashi said. Again, CBI agents do not use laser sights. Sometimes the laser sights, which attach to the gun’s frame, can cause the gun to malfunction.
Pearson had one follow-up question. She asked him to clarify that he was talking about the Bureau of Alcohol, Tobacco, Firearms and Explosives when discussing the standards for how guns are made.
The judge read Higashi three questions submitted by the jury.
Approximately how much do the guns weigh when they are loaded?
The handgun is about 2 pounds, the rifle is 7 to 8 pounds and the shotgun is about 5 pounds, Higashi said.
How many pellets are in the red shotgun shells?
Eight total pellets, he said.
What size is bird shot/hunting load as compared to the BB shot or double-load shot?
Bird shot, is about .10 of an inch, and is used for target shooting. The double load shot is larger than bird shot, Higashi said.
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10:15 a.m.
Prosecutor Jacob Edson called Christopher Moore to the stand.
On July 3, 2012, Moore worked at a FedEx in Aurora. He worked in the customer service department of the store.
Customers can have items delivered to the store instead of directly to their homes, Moore said. In order to collect the package, customers must show a photo ID and sign a release form.
On July 20, 2012 , Moore was contacted by law enforcement about the shooting. Investigators asked him about a customer named James Holmes.
Video surveillance recorded in the store on July 3, 2012 shows Holmes walking into the store and picking up a package, Moore said.
Edson handed Moore a DVD of the recording. Moore said the video shows him helping a customer on July 3, 2012.
Moore said he remembers helping that customer. The man came into the store and said he had packages to pick up.
The man’s “reddish, orange” hair could be seen underneath his beanie hat. He told Moore there were packages he needed to pick up. Moore retrieved the packages.
“They were very heavy. They made a rattling noise as if metal was rattling together,” Moore said.
There were six packages, Moore said.
The video recording, which was five minutes long without sound, shows Holmes walking up to the counter wearing a dark cap, a T-shirt and shorts. He walks up to the counter where Moore meets him.
Moore collects the six boxes from behind the counter. He scanned the packages and released them out of the system.
Holmes made four trips to his car to load all of the packages.
The judge read Moore one question submitted by the jury.
When you spoke with the defendant can you comment on his demeanor at the time?
“Calm but very quiet,” Moore said.
Defense attorney Tamara Brady points out that Moore’s interaction with Holmes was very brief.
The judge then released the jury for a morning break.
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HIGHLIGHTS:
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10:52 a.m.
After the morning break, before the jury was brought in, Brauchler asked if the judge wanted to address the Gmail chats. The chats are between Holmes and his former girlfriend.
The judge ruled that the chats are admissible. Samour said his reasons for allowing the chats to be admitted are similar to the reasons he gave for admitting the e-mails admitted on Tuesday.
“These Gmail chats are probative for all the reasons that I stated in my lengthy ruling yesterday,” Samour said. “In a way this is even more probative than the e-mails.”
Both court-appointed psychiatrist asked Holmes about his former girlfriend.
“This has been a big theme throughout the trial,” Samour said.
Some of the chats discuss Holmes being unhappy in his labs. The chats speak to whether Holmes’ dislike of his graduate program was a lack of motivation or a result of his mental illness.
One of the chats refers to the “rapist,” Samour said. The judge said it appears that the comment was referring to therapy and Holmes is using a Saturday Night Live skit.
Samour said there is nothing in the chats that would prejudice the jury against Holmes.
Similar to the e-mails he admitted, the chats will give the jury a frame of reference in considering Holmes’ mental illness.
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11:09 a.m.
The jury was brought into the courtroom.
Prosecutor Lisa Teesch-Maguire called Patricia Legarreta-Rohrs to the stand. Legarreta-Rohrs was at the Century Aurora 16 movie theater on July 20, 2012.
The day before the shooting Legarreta-Rohrs’ boyfriend was sick and she ran around doing errands. Around 5 p.m., she called her boyfriend to see if he wanted to go to the midnight premiere of the Batman movie.
He agreed. Legarreta-Rohrs purchased tickets for herself, her boyfriend Jamie Rohrs, daughter and 4-month-old son, Ethan. Legarreta-Rohrs and Jamie Rohrs are now married.
Before the movie started Legarreta-Rohrs and her daughter noticed that there was back exit. She remembers a man shouting out in excitement when a preview for a Superman movie played in the theater.
Using a model of the theater, Legarreta-Rohrs described what she saw inside the theater.
She remembers the exit door opening and seeing something fly across.
“You heard a pop and then smoke,” Legarreta-Rohrs said.
She said she saw the exit door open again.
“I just remember hearing popping sounds and my boyfriend yelling to get down,” Legarreta-Rohrs said.
Legarreta-Rohrs threw her sleeping daughter to the ground and covered her. She remembers trying not to panic. She looked up to see her boyfriend cradling Ethan and jumping over seats.
She lost sight of Jamie and Ethan.
Legarreta-Rohrs and her daughter stayed down. She poked her head up to see what was going on. When she did she saw flashes.
Then she screamed at a pain in her right leg. She screamed out that she had been hit.
“I remember hearing a voice say that ‘I did too,'” Legarreta-Rohrs said. She realized that any movement she made could cause her to get shot.
Then she heard crying. Ethan was by himself.
“I looked up in the aisle. I saw Ethan,” Legarreta-Rohrs said. “I knew I needed to get out.”
She grabbed her son and dragged her daughter to the exit door at the back of the theater.
The gunshots had slowed down, but she remembers hearing different kinds of gunshots inside the theater. Some were “rapid” other shots were “deeper.”
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11:13 a.m.
Outside the theater Legarreta-Rohrs walked around the parking lot “hoping to find Jamie.”
She had left her purse and cell phone inside the theater. Someone handed Legarreta-Rohrs their phone so she could call him.
She found Jamie.
“He could see that I was bleeding from my leg,” Legarreta-Rohrs said.
Instead of waiting for an ambulance, Jamie drove Legarreta-Rohrs to the hospital. There Legarreta-Rohrs learned that she had been hit with shrapnel.
Teesch-Maguire handed Legarreta-Rohrs photographs of her injuries. The photographs were shown to the jury.
Doctors also found shrapnel in her hip as well.
Defense attorneys did not have any questions for Legarreta-Rohrs. The jury did not ask Legarreta-Rohrs any questions.
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11:27 a.m.
Edson called Gordon G. Madonna to the stand.
Madonna is a detective with the Aurora Police Department. He has been with the department for 21 years.
Currently, Madonna works on an assignment with the FBI. He is a computer forensic examiner who examines digital devices such as computers and cell phones.
Madonna has gone through more than 1,000 hours of training on how to analyze digital evidence. Every year Madonna has to pass proficiency tests to show that he understands how to use the tools and software to examine the different devices. He also completed a program that certifies him to work with the FBI.
Madonna works with the FBI response team that is sent out to examine digital devices.
The lab where Madonna works is one of 16 in the country.
Madonna has done more than 600 examinations. Everything that Madonna does in the lab has to be reviewed by someone else. That second person must come up with the same results in order for them to be valid.
The judge admitted Madonna as an expert in his his field.
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11:45 a.m.
Madonna said he has to get a warrant to examine computers and other digital devices. The evidence he collects from the devices is logged into a controlled system and copied. Investigators work from the copy and preserve the original evidence.
They can look for specific things, such as documents or pictures.
When Madonna examines a computer he preserves the information on the computer’s hard drive. Essentially, he creates a “digital fingerprint” for each computer. If that fingerprint changes, Madonna knows something is wrong.
Once he’s copied an accurate copy of the hard drive, the original hard drive or computer goes back into evidence.
Examining a cell phone is more difficult. A cell phone is constantly changing and updating, Madonna said.
What Madonna looks for on a device depends on the case, he said.
Unlike other detectives, Madonna doesn’t “act like investigators,” Madonna said. Most often he looks for what he was told to look for.
Madonna will write a report once he is done with his examination. It details the items that are found, he said.
On July 21, 2012, Madonna was assigned to work on the theater shooting case. He received a call from an Aurora detective asking for assistance. He was asked to examine an iPhone.
Edson handed Madonna the iPhone he was asked to examine. The phone was at the Aurora Police Department when he received it.
He was also requested to help examine devices at Holmes’ apartment. Madonna did not go to the theater.
At the apartment, Madonna was eventually asked to collect a tower computer, laptop, tablet, modem, a thumb drive and wireless devices. The items were in the hallway when he collected them.
Madonna and two other investigators brought the items to a van before transporting them to the police department. At the computer forensic lab, Madonna photographed the items and the items were also processed for fingerprint and DNA evidence. He was later given two additional thumb drives.
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12:01 p.m.
Edson handed Madonna a stack of photographs.
The photographs show the computer tower that was collected from the apartment. Madonna examined some of the items at the police department lab.
He was asked to look for images, documents and Internet history for anything to do with firearms or explosives. All of Madonna’s findings were put onto a disc. Madonna also did a written report.
The investigator found documents, images and web history having to do with guns and explosives on the computer tower, iPhone and iPod. Nothing was found on the laptop or tablet computer.
The three thumb drives Madonna examined did not have anything related to guns or explosives. Madonna did not examine the modem.
He did examine the iPhone.
The phone’s contents were able to be recovered, Madonna said. Holmes’ two e-mail accounts were connected to the phone.
Madonna could look at images and photographs on the phone.
Edson handed Madonna a second stack of photographs. They show the images that were recovered from the iPhone.
They also show the metadata associated with the phone and a webpage, he said.
The photographs were admitted as evidence. The first photograph was shown to the jury.
An image of Holmes with orange hair was shown to the jury. Before Madonna could testify about it, the judge called for a lunch break so he could talk with the attorneys.
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12:05 p.m.
After the jury was out of the courtroom, the judge cautioned Edson about violating an order he had entered for Madonna’s testimony.
Madonna can talk about the categories of information, but he is not allowed to opine about the images or data extracted from the phone.
Edson explained that he plans to show the photographs and then ask about when the images were created. Madonna will not talk about how the photograph relates to the case.
Samour said it sounds like Edson’s questions are in line with his order, so long as Madonna does not describe what is shown in the photographs.
The attorneys then left for their lunch break.
The trial is expected to resume around 1:30 p.m.
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1:39 p.m.
After the lunch break Samour said juror 901 indicated that she needs to speak with the judge.
The juror was brought in independently of the rest of the jury.
Juror 901 came into the courtroom and told the judge that she has had a family emergency. A family member was in an accident around 3 a.m. on Wednesday. She asked for the judge’s permission to go to the hospital, which is one of the locations where jurors should not go because it is related to the case.
The judge granted her request and said she may go to the hospital to see her family member.
Neither prosecutors nor defense attorneys asked for any further action by Samour.
Jordan Steffen: 303-954-1794, jsteffen@denverpost.com or twitter.com/jsteffendp
