Llama .22 caliber hand gun

Collected on: December 24, 2002

Collected by:  Detective Brocchini

Reason:  Loaded hand gun in the glove compartment of the Ford Pickup, suspected to have been used in the crime

Received by:  California Department of Justice crime laboratory, Ripon, CA

Received on:  January 22, 2003

Case No:  CV-02-10941

Request No:  Not provided

Tested by:  Ronald Welsh, Criminalist Firearms

Tested on:  January 28, 2003

Bates No. for Report: Not provided

Results: Negative

Initial Suspicion

Detective Brocchini found the Llama gun in the glove compartment of Scott's Ford pickup when he did an initial survey of the vehicles on the night of the 24th.  Scott explained that he had the gun with him at Lone Pine to shoot pheasants about a month earlier and had forgotten it was in the glove box.  Scott also told Brocchini it had misfired at Lone Pine. Scott said when he fired, it just clicked.  He ejected that round and tried again with the same results and ejected the second round.  Brocchini took the gun without Scott's knowledge, and Scott called him about it at 2:15 a.m. on Christmas Day. 

The testimony

Most of the Brocchini's testimony derived from the information Scott gave him in the interview after midnight on the 24th.  Distaso referred to the hand gun in his OS twice.  First he gave general information about Brocchini finding the gun, and the second time specifically asking the jurors to "pay attention to that  as it relates to what Scott told Detective Brocchini about his using that particular handgun during the hunting trip."  In his Closing Argument, however, Distaso specifically said the gun was used in the crime because it was brought along for protection as Scott made the journey to the Bay:

What the defendant said, the reason the defendant said he had the handgun in his car is he left it there from a pheasant hunting trip. Remember that? He said he went through certain actions to, to work the gun and it jammed.

        Remember the gun expert came and said It worked fine for me. With the ammunition that was in there. So we know that's not true.

        Remember his own father said I don't remember him having a handgun on that trip.

        So why did he take the gun? How do we know, let me phrase it to you this way.

        How do we know the defendant took the gun that day with him for protection? If you just killed your wife, you're driving down the road, you've got her body in the back, it makes every sense to have the gun.

        Okay. What possible reason would you be in such a hurry that you pull all this stuff out and leave it hanging off of there, and leave the thing hanging on the ground, and take your tennis shoes and put them on the wet bar outside? Is that reasonable? Or is it reasonable that, Man, I got to get my gun, I got to get out of here.

        So you're scrambling around trying to find it, you reach up there, oh, it's in this bag, you pull it down, your stuff falls, falls on the ground, you pull the gun out, throw it in your glovebox and off he goes.

        You know, you know how else we know that the defendant was really concerned about that gun? Was because, remember what Detective Brocchini testified to, after he dropped him off in the early morning hours of December 25th, on the day that should be the most horrible day in his whole life, he calls him up an hour or two later, he says: Hey, did you take that gun out of my truck? I wish you would have told me.

        Why did he go back looking for that gun if he didn't know the detective took it?

        Why did he go straight back and look for his gun?

        Because he was worried about it. Because he knew that it was associated with this crime, and he wanted to deal with that.

        You know, the other thing, too, and this is just a side note, really, but, you know, those sturgeon are big fish. And remember I asked the expert, you know, Well, can you, can you bring a gun with you to shoot the sturgeon to subdue them? He said No, you can't do that. So we know the defendant didn't have the gun with him for that reason.

The exhibits -- People's 71 & People's 93

Chain of Custody

People's 71 indicates a problem with the chain of custody.  Brocchini collected the gun on the night of December 24, but didn't book the gun into evidence until January 15, 2003.  However, when Skultety testified, Distaso asked him about the evidence envelope and noted the date of 12/26/02, initialed by Karen Dahlberg, an evidence technician at the MPD.  Distaso concluded that Dahlberg opened the evidence envelope in order to collect information from the gun, but Geragos objected that it was speculation, and Delucchi agreed. 

The test results

Welsh confirmed that the gun had no blood or tissue on it and had not been recently fired. Two rust stains that appeared to be blood were tested using LMG (Leuko Malachite Green) a chemical test for blood.  When Welsh tried to remove the debris from inside the barrel, the first attempt took some force, but the second was easier.  He said lead deposits would account for that.

Welsh test fired the gun with similar ammunition from their reference collection. It fired all 5 times, with no function problems. He did a similar test with 4 of the cartridges that were in the magazine when it was booked into evidence, and the gun fired without function problems all 4 times. Welsh also said that if the gun misfired, it would leave an impression on the cartridge, and none of the 8 cartridges in the magazine when he received it had any such impression.

Conclusion

The testing refutes Scott's claim that the gun misfired the last time he used it, unless Scott removed the cartridge that misfired and replaced it with another one.  However, with the chain of custody problem, we can't be certain that the cartridges were not replaced by Brocchini. Distaso capitalized on that apparent lie to support his assumption that Scott brought the gun along for protection.