April 30, 2004

Update

Officer Dauchy has been recalled to the stand to testify on the drugs found on Perez' person. Dauchy was the second police car to arrive on the scene. As he arrived, he witnessed a plastic baggie in Perez' mouth. While at the time he did not know if it was an illegal substance, he knew from experience it was possible drug-related. The photograph being shown is confirmed as being what Dauchy saw.

Next witness is Scott Edward Elliott, from the training division. He supervises the simulation that the jurors were taken through earlier in the inquest. But the first incident apparently did not come through, so they have brought Elliott in to describe the first scenario from that simulation. As far as we know, that simulation was not broadcast over the video feed -- at least not any feed we saw.

Elliott is simply describing the simulation scenario in question, involving a stabbing at a restaurant. Subject picks up knife, officer gives verbal commands, had already pulled out his weapon. Subject moves towards the female in the scenario, officer fired three shots.

This simulation process, Elliott says, is used at the end of the firearms training, and then later on after their probationary period as well.

Update

Next witness is Chris Gates, a forensic scientist with the state police, her primary duty deals with the identification of illegal drugs.

Gates prepared a report on the matter of the substances found on Perez. She made visual examination of the evidence, then performed chemical analysis and compared those results to a "known standard."

She is confirming exhibits on the screen are the same as evidence she examined.

One item was a plastic baggie containing plant material, which was less than 1 gram of marijuana. Another item was chunks of white system, which was cocaine "in the base form" -- crack. Another item was two baggies with more crack and some fluid.

Gates also testified before the grand jury.

Question: Information that was provided to you by the police, was anything provided identified as coming from Perez' right front pocket?

Gates says it's not in her case notes but it was marked on the evidence itself. The evidence is marked as left-front pocket in the exhibits, not right-front.

Question: Were any of the bags from the mouth open, such that the contents could have been swallowed? Yes, the bags were not intact. One was obviously torn, the other (which appears bloody in the exhibit) had discoloration of the material itself which led Gates to believe there must be small holes in the bag somewhere.

Update

Daniel Lawrence Alessio is the next witness. He is a forensic scientist with the state police, a firearms examiner with 600 hours of training in "all areas of firearms."

Alessio is giving a brief explanation of how bullets, cartridges, and firearms function, what happens to each part when a gun is fired, and a little bit about the "rifling" in the barrel of guns which puts spin on the bullet, and the Glock's rifling is a little unique.

Looking at a bullet, they can tell first what group of guns it could have come from, and then they look at specific markings or striations to link to a specific gun.

Alessio examined three fired cartridge casings in this incident, which were submitted to his lab through the Portland Police property people. His examination, which included test-firing Sery's gun to comparison purposes, showed the catridge casings from the scene did come from Sery's gun.

He is now explaining gun-powder residue, which can help them determine distance by matching the pattern of such residue via test-firings. He also adds that there are lead residues as well.

Alessio says they tested for lead on the vehicle itself to see if they could determine distance. He says they found a "couple of spots" around the doorframe of the driver's door that were positive for lead.

In his opinion this lead was not lead from the gunshots.

Alessio says that testing with the weapon and ammunition (which they had not tested before) to determine patterns to compare to the scene to try to determine a distance. Beyond three feet, the gun-power pattern would be lost. The shot appears to have come from more than three feet away, but within 15-16 feet. Since there was no gun-powered patterns but there were particles in the garments, that was the range he determined.

They also tested to get an idea of what direction the cartridge casings go when ejected out of that particular firearm. These tests found the casings go to the right and to the rear, but they will also roll and bounce once they hit the ground. They had also been stepped on.

Question: One witness, Tyler, aid he thought the shots came from aproxmately six feet, is thaty within your range? Yes, Alessio thought between 3 and 16 feet. When we give a range that's as specific as we can be.

Update

Next to the stand is Trooper Amdrus. Schrunk is establishing his background and experience. He enforces traffic and criminal laws in Oregon, he says. He is familiar with legal standards for tinted windows, which exist he says because the Legislature adopted them.

He looked at Perez' vehicle to determine if it was likely it was unlawful, and he has a digital measuring device which he is showing to the jury.

Amdrus says that after making sure the meter was working, he tested the front windows and determined there was an after-market tinting applied to these windows. The tint read at 12%, the minimum one can have is 35%.

Amdrus confirms a photograph of Perez' vehicle is of the car he tested.

He says that window tinting is an important factor was a law enforcement officer and to a person on the street because there is no ability to make any eye contact with the driver or to make out features of people in the car to see if they acknolwedge you. You can't see movement or body positioning, or see hands.

Amdrus says he has made traffic stops involving tinted windowed cars. His procedure, he says, is to find a safe place to stop the vehicle. Primary focus is directed to where a person's hands are and what they are doing. Usually, he says, he will identify how many people are in the vehicle and have them all roll their windows down and keep their hands where he can see them.

He will asks to see a certificate from the person who applied the window tinting. If none, he asks who tinted them. Then he asks to roll window up partly so he can test it.

Schrunk asks about "after-market" tinting. Amdrus says this is popular and is a continuing problem.

Question: You viewed this car, where was it when you viewed it? It was at the Bureau impound yard. In practical terms, how did the tint affect your ability to see into the car? He says it was a limo-black tint, of such darkness that you cannot see into the vehicle, hard to distinguish seats or persons or movements.

Question: Did you examien the rear window of this vehicle? Yes, but he doesn't have a meter to do this, but the rear did not have after-market tint, you could see in through the back window.

Can an officer make eye contact with a driver or passenger through this kind of tint? Right-front and left-front, no. Rear glass, if the driver was turned around you would be able to see through it (the windshield as well).

Schrunk is asking for a way to understand the difference between 12% and 35% and how if affects observation. Amdrus says that's hard to do with some kind of reference. At 35% you can see into the vehicle and the main features of the person, and eye contact will be hampered but you can still look at a person and see their body and features, hands, arms, shoulders, seats, occupants. At night, a 35% windows does hamper one's ability to see into the vehicle. But at 12% it's so dark that you can't see into the vehicle clearly to make out physical characteristics of people. Culd not see defined movement or identify objects.

Update

Richard Austria is next. He is a detective with the Portland Police Bureau. He is speaking about defensive tactics. Hands-on, psychological, and principles and concepts. From conversation to deadly-force.

All officers receive this training, he says.

Austria is describing training. Eleven-week state academy. In Portland, officers go through a second "advanced" academy for eight weeks.

Defensive tactics. We traine very officer as if they have no experience, learning "our" tactics from ground zero. How to appear as an officer, stand, how they speak. How to take a person down if it comes to that ppint. And how to make decisions based upon a given situation. We can't train them in every type of scenario they might be trained for. Broad basis from which to make decisions in situations they've never been faced with before.

An exhibit is on-screen. It's the "levels of control" from the Portland Police Bureau. It breaks down certain behaviors and officer resposnes to them and what level of control they can use.

Austria says in any defensive encoutner the officer's primary concern is an individual's hand. A weapon places on a table is a weapon until a person picks it up, then it becomes a threat.

Going through the levels of control it's important to know what's happening with the hands. Austria is taking the court through the "levels of control" document. In general, there are visual, verbal, and physical forms of control. He is describing normal traffic stops, for example, where the normal thing to do might be to reach for one's wallet, but from an officer' standpoint that could be a potential threat. Verbal controls can be used to tell a subject, for example, to do that more slowly and make sure the officer can see the hands at all times.

When an individual's behavior escalates, that can change the officer's actions to match the new level of subject behavior.

Next level is "impact weapons." For example, from batons to "less-lethal" weapons. There is also physical resistence and aggresive physical resistence -- the former not intended to cause harm, the former itnended to cause harm.

Then comes "deadly force."

Another exhibit is up showing another way to look at levels of control via a pie chart, showing that the officer does not have to go through all the levels in order to get to deadly force. They can go directly from one to another (and in the other direction as well). "Actions are dictated by the behavior."

"It would be unsafe for officers when faced with deadly foce to think about using pepperspray."

Austria gives examples of both escalation and de-escalation. In making the determination the officer has to make a threat assesment, which is not based jjust on the behavior but on the officer's experience and knowledge and what he knows of the subject and the environment.

Time and proximity can be restrictions on what level of control an officer is able to use in a given situation.

Question: How should officers use threat assesment factors to determine what to do in an action-reaction situation? Threat assesment is used at every level of control. Every officer is taught the principle of action-reaction. The assesment officer has to make is made in relation to time and proximity. Threat assesment may have to be quicker if time and proximity is shorter or closer. If time or distance is short, the "menu of options" shortens because the decision must come quicker.

Question: What kinds of non-lethal and lethal weapons are officers typically armed with? Restraint, impact weapons, deadly force. Only authorized deadly force is a firearm, but when it comes to survival firearm is not the only option. Most officers carry knives, not as means of a weapon but it's necessary (for example to cut an airbag away after a crash), although if they've lost all other weapons, it's an option. Carry less-lethal beanbag shotguns. Some carry long rifle. Batons. Taser. All officers have the option to carry all of these, but not all officers carry each of them.

In general, any officer would have firearm, pepperspray, and baton. Taser is an option. Beanbag shotgun is an option. Lethal shotgun is an option.

Question: Are Portland officers trained to think every hand in a pocket is a deadly threat? When is it reasonable to consider this a threat an when it is not? Not every hand in a pocket is a threat. You have to look at the totality of the circumstances.

Question: When officer makes a stop under a "pretext," is he trained to be on high alert and escalate the use of force more quickly? Austria says no. What we need to understand is there are hundreds and thousands of traffic stops made every year. When you think of a traffic stop you think of a normal violation. When an officer makes a traffic stop, they don't know the intent of the individual inside the car until they go up to that window. So while they stop for a traffic violation, that person might have just robbed a bank down the street. The intent of the perosn is never known by the officer at the time.

Follow-up: If a suspect resists being forced from the car are officers trained to use deadly force, what are they trained to do? What level of resistance? Physical resistance? That's not a deadly force situation, we can use physical control. If behavior escalates to an intent to cause injury or death they can move up to that level. Do some officers escalate to use of force more quickly than others? That's a tough question. Officers are aware of deadly force, but every officer is different. We can't clone officers to behave the same. What one officer may percieve as deadly force another officer may not.

Audience has reminded Schrunk to make sure jury can see exhibit on the screen.

Question: Do you tach officers to retreat and under what circumstance? If they can do so safely then yes we train them to do that. Look at entire circumstance. If they feel retreating puts them at a disadvantage then they may not do so. Once you retreat you may lose your visual control of the subject's hands.

Question: Can you tell us is the race of a suspect perceived as a threat to officers in certain situations? Is race addressed in training? Absolutely it's addressed in training. Officers are trained on behavior and nothing else. It's the behavior they respond to, not the individual, not the color, not the sex. That's how we train them.

Question: If you know, can you tell us how many Portland officers have been killed in traffic stops the last 5-10 years? None, not in traffic stops. Are you aware of how many shooting incidents arisen out of traffic stops? And the video feed cut out to an external of the courthouse so we lost his answer on that.

There is now a mid-morning recess.