The following items were covered prior to the jury coming into the courtroom.
1. Mr. Allison said that he received a copy of a judgment against Chris Lubbers. He gave a copy of the paperwork to Mr. Duncan.
2. Mr. Allison showed the judge and Mr. Duncan a piece of paper with three photographs printed on it. These photographs showed:
- Patricia holding a handgun, cropped so that you couldn’t see the beanie she was wearing (this was the picture that the judge earlier in the trial had approved Mr. Duncan’s motion to exclude)
- The disassembled handgun
- Patricia holding the case for the firearm
3. Mr. Allison pointed out that Mr. John Singley, Patricia’s father, was present in the courtroom and was also on the defense witness list. After checking his witness list, Mr. Duncan said that Mr. Singley was not on it. Mr. Singley was allowed to stay in the courtroom.
4. Mr. Allison said that he needed some of the court’s time to discuss where to set up the tent for the jury to see. Discussion on this topic continued at the end of the day.
5. Mr. Allison submitted a motion to accept testimony concerning Chris’ state of mind. No further details about that testimony. The judge will meet with the attorneys at 8:30 AM tomorrow morning to make a ruling on this motion.
For 13 years, Sgt. Gilley has been the commander of SWAT, dive recovery, helicopters, and marijuana abatement for Siskiyou County. He has been in law enforcement for 28 years. He was certified as a diver in 1986. Since then, he has received more than 300 hours of additional training, including cold water, deep water, and salvage. He is also a certified diving instructor. He said that he has recovered 6 to 12 weapons and at least 24 bodies by diving.
He said that on December 13, 2012, he was approached by Detective Sergeant James Randall, Siskiyou County Sheriff's Office, about recovering a firearm that had been disposed of in a river. On January 7, 2013, he want alone to the campsite where Chris' body had been found to do an evaluation and risk assessment. Sgt. Randall gave him the GPS coordinates and a description of the campsite, including the pile of rocks where the road to the campsite leaves the main road. He described the area as being a remote area, in a ravine about 3-4 miles from Applegate Lake.
Mr. Allison showed a number of photographs to Sgt. Gilley and he described them for the jury:
#135. A photograph taken from the campsite toward the waterfall
#136. A photograph taken from the top of the waterfall showing a lot of white water
#137. A photograph showing the waterfall and the rock formation across the river, including the pool at the bottom of the waterfall
#138. A photograph showing the rock formation and the overlook into the pool
#139. A photograph showing the waterfall flowing into the pool
#140. A photograph taken of the pool, showing the outlet from the pool
#141. A photograph showing the near bank and the other side of the river
Mr. Allison asked Sgt. Gilley about a rust-colored surface that could be seen on the bank in the foreground in photograph #141. Sgt. Gilley said that surface was on the same side of the river as the campsite and, at Mr. Allison's request, he circled that object. Mr. Allison also asked him to mark the far side of the river on the same photograph.
Mr. Allison asked if there was a large rock on the far side of the river. Sgt. Gilley said that there was a rock face on the far side o the river and that there were several rocks in the river. Sgt. Gilley said that the pool into which the waterfall fell was about 15 feet across. He did not measure its depth at that time.
Mr. Allison asked if it would have been safe to enter the water on January 7, 2013. Sgt. Gilley said that he did not believe that anyone should be in that water, that it could not be done safely. He said that where the waterfall entered the pool, there was a great deal of turbulence and a strong back eddy pushing water back against the rock face of the waterfall. The water from the waterfall had a very high velocity and a very substantial volume.
Mr. Allison asked what an eddy is. Sgt. Gilley replied that it is a back wave that flows back into the structure that the water has flowed over and that the water circulates there. He could tell there were eddies in the pool based on the appearance of the surface. He also said that the eddy produced by the waterfall would cause motion on the bottom. He said that he went back upstream and found a log that was about six feet long, eight inches in diameter, weighing about 50-60 pounds. He threw the log into the river and watched it go over the waterfall and disappear underwater. After 30 minutes, the log had still failed to appear. He said that indicated to him that there was a substantial back eddy that could pin items back behind the waterfall.
Mr. Allison asked if human bodies could get trapped that way. Sgt. Gilley said that yes, they could. Mr. Allison asked if firearms could get trapped that way. Sgt. Gilley said that no, they couldn't, but they could get trapped on the bottom. Mr. Allison asked if items that got trapped would eventually be released. Sgt. Gilley said that yes, they would because there would eventually be changes in the water flow and pressure that would release the item downstream, perhaps underwater.
Mr. Allison then set up and played about a 15-minute video, #133. It was a continuous video taken by someone walking and holding a video camera. There was no sound other than the crunching of feet walking and the constant sound of the waterfall. The video showed an inch or two of snow on the ground. It began where the road to the campsite branches off from the main road. It showed the following: The pile of rocks at the road junction, the road down to the campsite, the campsite and the fire pit, the cliff down which Chris' body was found, the campsite again, the path to the waterfall, the waterfall and the amount of water running over it.
Mr. Allison asked Sgt. Gilley if this was an accurate representation of the campsite he had visited on January 7, 2013 and he said that it was, except for the snow. Sgt. Gilley said that he had seen the pile of rocks at the road junction. He also said that there was no cell phone coverage and that he had to drive to Applegate Lake to use his cell phone. He also said that he didn't see anyone else during the time that he was at the campsite.
Sgt. Gilley said that he returned to the campsite on May 15, 2013. He found that the volume of the water flowing over the waterfall had decreased by about 10%, but that there were still substantial hydraulics in the pool and that it was still not safe. He was again informed that investigators believed that a firearm had been thrown into the pool.
During this visit to the campsite, Sgt. Gilley attached an underwater camera to a steel pole and lowered it into the pool. The flow of the water was so strong that they could not control the camera and the water bent the pole. He said that they did get a clear image of a small portion of the bottom, but that was all that the turbulence and current would allow them to do. Sgt. Gilley said that he had used an underwater camera attached to a pole like that successfully in the past and in only one other case had the force of the water bent the pole.
Mr. Allison showed a piece of paper to Sgt. Gilley with three photographs on it, #142, the three pictures discussed in limine, above. Mr. Allison presented the photographs to Sgt. Gilley so that neither the audience nor the jury could see them. After looking at the pictures, Sgt. Gilley said that although he wasn't personally familiar with that type of firearm, he understood it to be the weapon they were looking for in the pool under the waterfall.Mr. Allison asked Sgt. Gilley if this was an accurate representation of the campsite he had visited on January 7, 2013 and he said that it was, except for the snow. Sgt. Gilley said that he had seen the pile of rocks at the road junction. He also said that there was no cell phone coverage and that he had to drive to Applegate Lake to use his cell phone. He also said that he didn't see anyone else during the time that he was at the campsite.
Sgt. Gilley said that he returned to the campsite on May 15, 2013. He found that the volume of the water flowing over the waterfall had decreased by about 10%, but that there were still substantial hydraulics in the pool and that it was still not safe. He was again informed that investigators believed that a firearm had been thrown into the pool.
During this visit to the campsite, Sgt. Gilley attached an underwater camera to a steel pole and lowered it into the pool. The flow of the water was so strong that they could not control the camera and the water bent the pole. He said that they did get a clear image of a small portion of the bottom, but that was all that the turbulence and current would allow them to do. Sgt. Gilley said that he had used an underwater camera attached to a pole like that successfully in the past and in only one other case had the force of the water bent the pole.
Sgt. Gilley said that he returned to the campsite on June 27, 2013. He found the volume of water going over the waterfall to be slightly decreased, but that the eddy was still very extensive. He said that the hydraulics in the pool were less significant, but they would have to fight currents in order to dive. Deputy Merrill, who accompanied Sgt. Gilley, put on his gear and entered the outlet, but they decided that it was not safe for him to enter the pool. Sgt. Gilley reported that the pool was still 15 feet across.
Sgt. Gilley returned to the campsite a final time on September 10, 2013. The water level in the river was substantially lower and there was a minimal amount of hydraulic action in the pool. Sgt. Gilley and two other officers dove into the pool. The water was 52 degrees and the visibility was at least 15 feet because they could see all the way across the pool. The divers went to the bottom of the pool to search for the weapon.
Sgt. Gilley drew a diagram of the pool, which was marked #134. It showed a rock basin with the outlet on the left and the waterfall on the right. He drew a sloping gravel bar that was highest under the waterfall and sloped down, to the left and was lowest under the outlet. He marked the dimensions on the drawing: the depth of the pool under the outlet was about 20 feet, the depth under the waterfall was about 10 feet, the waterfall was about 10-12 feet high. According to the diagram, the gravel under the waterfall was about 10 feet deep. He said that along with the gravel, there were small boulders along the outer edges of the gravel bar, away from the waterfall, from about softball to bowling ball size.
Sgt. Gilley and two deputies dove in the pool and searched for 3½ hours. He described the search as very extensive. They moved all the boulders and searched under them. Although there was plenty of sunlight and visibility was good, they used a flashlight to look in openings and gaps between the boulders. They used a metal detector and conducted a grid search of the entire pool. They found several waterlogged branches and logs on the bottom of the pool, but he did not find the one that he had thrown in the previous January.
Mr. Allison asked Sgt. Gilley about the movement of boulders by flowing water. Mr. Duncan objected due to speculation and lack of foundation. The judge sustained the objection.
Mr. Allison asked him about the metal detector and Sgt. Gilley said that it would penetrate about nine to twelve inches in gravel. He said that the gravel under the waterfall was about 10 feet deep, which is well beyond the capability of the metal detector they were using.
Mr. Allison asked about the movement of the gravel due to the water current. Sgt. Gilley said that the gravel would be moved by the water current and that the gravel bar was continually changing. He said that, since the gravel is lighter than a firearm, the firearm would, over time, sink under the gravel.
Mr. Duncan's cross examination of Sgt. Gilley
Mr. Duncan asked Sgt. Gilley to go over the diagram of the pool that he had drawn. Sgt. Gilley said that the left edge of the pool, where the outlet was, was some kind of bedrock and that the level of the pool should always be the same. He described how he had stood at the top of the waterfall to make his estimate that the waterfall was 10-12 feet high. He confirmed that this was an estimate, not a measurement.
Mr. Duncan asked Sgt. Gilley if he knew what specific gravity is. Sgt. Gilley said that he thought so. Mr. Duncan asked Sgt. Gilley what the specific gravity of water is and Sgt. Gilley said that he didn't know, he thought that some things have more than others. Mr. Duncan asked, do you want to try that one again?
Mr. Duncan asked Sgt. Gilley if all guns have barrels and other hollow parts in them. Sgt. Gilley said that yes, they did. He asked if a gun would be lighter than a solid piece of metal of the same size without the hollow pieces. Sgt. Gilley said that it would.
Mr. Duncan asked Sgt. Gilley how long the pool had been there. Sgt. Gilley was at a loss, but then said that it had been there perhaps for thousands of years. Mr. Duncan asked how the boulders got there and Sgt. Gilley said probably through erosion, but people could also have thrown them in. Mr. Duncan said that the boulders they had found at the bottom of the pool couldn't get out of the pool and Sgt. Gilley agreed that they couldn't. Mr. Duncan asked if similarly, a gun couldn't get out of the pool and Sgt. Gilley said no, it could not.
Mr. Duncan asked about the grid search and Sgt. Gilley said that the flowing water would not allow them to actually set up string of some sort, so they performed a visual grid search. They moved the boulders first and examined the gravel bar next.
Mr. Duncan asked Sgt. Gilley if he had personal knowledge that a gun had been thrown into the pool and Sgt. Gilley said that no, he did not. He said that he had been told by some of the other officers that a weapon had been thrown into the pool. Mr. Duncan said that you couldn't find a gun if it wasn't in the pool and Sgt. Gilley said no, he could not.
Mr. Allison's redirect of Sgt. Gilley
Mr. Allison asked Sgt. Gilley why he wasn't able to find the weapon. Sgt. Gilley said that either the weapon is under the gravel pile, beyond the reach of the metal detector, or the weapon had been removed by someone else.
Mr. Allison asked if he had ever used a magnet to recover a weapon in water. Sgt. Gilley said that he had, but had never been successful recovering a firearm with a magnet.
Mr. Duncan's recross of Sgt. Gilley
Mr. Duncan asked Sgt. Gilley if he had ever actually seen a boulder moving in a stream. Sgt. Gilley said no, he hadn't.
He asked Sgt. Gilley if the other reason he hadn't found the gun was that it simply was never in that pool. Sgt. Gilley said that could be a reason.
Mr. Allison's redirect of Sgt. Gilley
Mr. Allison asked Sgt. Gilley if he had ever dove in a pool looking for something that he knew was there, but couldn't find it. Sgt. Gilley said that yes, he had.
Next witness: Thomas Vasquez, Criminalist for the California Department of Justice Laboratory in Redding, CA
Mr. Vasquez's duties include firearm examination and testing, blood alcohol testing, tire and shoe impressions, tool marks, and the preparation of reports. He said that sometimes he goes out into the field to collect evidence, but usually he examines evidence that is brought to him at his lab. The forensic lab in Redding serves the six northern counties in California. There are eight criminalists at the lab, two of which specialize in firearms and ballistics.
Mr. Vasquez has a BA from the Oregon Institute of Technology with courses in chemistry, organic chemistry, biology, and physics. He took some additional classes after graduation to prepare for the criminalist exam. He has also taken classes in Sacramento in ballistics, how to identify firearms, crime scene investigation, and firearm serial number restoration. He said that he has fired weapons in the course of his investigations.
Mr. Vasquez reported that after analysis, he returns the evidence he examines to the agency it came from. He also reported that at times experts for the defense come to the lab to do their own testing or to gather information. His lab is nationally accredited and undergoes yearly proficiency testing by the national accrediting agency. He said that all of his reports are peer reviewed, which means that before they are published as a report, another expert in the field reads through the report and looks at the pictures to make sure that it is accurate. In addition, his reports are administratively reviewed by his supervisor. Mr. Vasquez reports that he has testified more than twenty times in different counties.
Mr. Allison asked him to define forensics. Mr. Vasquez said that it is the preparation of information for legal proceedings.
Mr. Allison asked him to define ballistics. Mr. Vasquez said that ballistics is anything that has to do with firearms, including how they function, their projectiles and how they travel, and their cartridge cases.
Mr. Vasquez's duties include firearm examination and testing, blood alcohol testing, tire and shoe impressions, tool marks, and the preparation of reports. He said that sometimes he goes out into the field to collect evidence, but usually he examines evidence that is brought to him at his lab. The forensic lab in Redding serves the six northern counties in California. There are eight criminalists at the lab, two of which specialize in firearms and ballistics.
Mr. Vasquez has a BA from the Oregon Institute of Technology with courses in chemistry, organic chemistry, biology, and physics. He took some additional classes after graduation to prepare for the criminalist exam. He has also taken classes in Sacramento in ballistics, how to identify firearms, crime scene investigation, and firearm serial number restoration. He said that he has fired weapons in the course of his investigations.
Mr. Vasquez reported that after analysis, he returns the evidence he examines to the agency it came from. He also reported that at times experts for the defense come to the lab to do their own testing or to gather information. His lab is nationally accredited and undergoes yearly proficiency testing by the national accrediting agency. He said that all of his reports are peer reviewed, which means that before they are published as a report, another expert in the field reads through the report and looks at the pictures to make sure that it is accurate. In addition, his reports are administratively reviewed by his supervisor. Mr. Vasquez reports that he has testified more than twenty times in different counties.
Mr. Allison asked him to define forensics. Mr. Vasquez said that it is the preparation of information for legal proceedings.
Mr. Allison asked him to define ballistics. Mr. Vasquez said that ballistics is anything that has to do with firearms, including how they function, their projectiles and how they travel, and their cartridge cases.
Mr. Allison asked him to define forensic ballistics. Mr. Vasquez said that it is the preparation of firearm information for legal proceedings.
Mr. Allison presented the following exhibits to Mr. Vasquez. For each item, Mr. Allison asked Mr. Vasquez to identify the item.
#32. A black gun case that had been found in Patricia's home. Mr. Vasquez said that he had put a label on the handle of the gun case, which included the item number, his initials, the date, and Redding lab #2.
#144. Two photographs of Patricia's gun case, taken by Mr. Vasquez. Mr. Vasquez said that he normally takes photographs of the evidence that he examines.
#145. Two photographs of the inside of the gun case, taken by Mr. Vasquez. These photographs show Mr. Vasquez' hand-written notes, one live cartridge found under the padding in the box, and brochures and other paperwork in the lid of the box. A serial number was listed on the outside of the box, which was EMP22828. This is a unique serial number belonging to a semi-automatic pistol, model 1911. Mr. Vasquez explained that a semi-automatic pistol reloads itself when fired and that you need to pull the trigger each time you shoot a round, until the magazine is empty. For an automatic pistol, on the other hand, if you pull the trigger back and hold it, all bullets will fire until the gun is empty.
#142. Three photographs printed on a single page. These were the same photographs that were presented to Sgt. Gilley earlier in the day. Again, the photographs were presented in a way that made it impossible for the jury or the audience to see. Mr. Vasquez said that the gun pictured--one picture showed it being held by Patricia and the other showed it disassembled--were consistent with the gun that had come with the gun case he examined, although he couldn't tell for the certain the model number of the gun from the picture.
Mr. Allison asked Mr. Vasquez about the cutout space in the styrofoam inside the gun case and Mr. Vasquez said that it was cut out in the shape of the gun that came with the case.
#63. A bag containing the fired bullet that was recovered from Chris' shoulder during the autopsy. Mr. Vasquez said that he had initialed and dated the bag when he opened it and again when he resealed it. He said that there is a BLM number on the bag, which means that the bullet had been originally collected by Bonnie Mortensen.
#148. Two photographs on a single sheet of paper showing the three bullets collected from the crime scene and bullet #63, recovered from Chris' shoulder. Mr. Allison asked Mr. Vasquez to circle bullet #63 and mark it with the letter A and then to circle the three bullets and mark them with the letter B. Mr. Vasquez also said that he had taken these photographs on November 8, 2013.
Mr. Duncan asked Mr. Vasquez to describe his procedure when examining bullet #63. Mr. Vasquez said that he took the bullet out of the bag and took photographs of it. He noticed that it appeared to have already been cleaned. He measured and weighed the bullet. He then examined it under a low power microscope looking for traces of fibers, hair, blood, paint, etc. He then looked at it under a higher power, stereo comparison microscope. Using this microscope, he measured the lands and grooves on the bullet.
Mr. Allison asked Mr. Vasquez to describe lands and grooves and Mr. Vasquez said that the barrels of guns are not smooth inside. The manufacturer cuts small channels into the inside of the gun barrel which either twist to the left or to the right. The part of the inside of the barrel that is higher is called a land, the part that has been cut away, is the groove. When a bullet is fired, contact with the lands and grooves causes the bullet to twist or rotate. Depending on the gun, the lands and grooves can twist to the right or to the left and the gun barrel can have, typically, five or six lands and grooves. The thickness of the lands and grooves markings on a bullet is an important characteristic that the gun barrel leaves on the bullet.
Mr. Allison asked Mr. Vasquez to draw a sketch of the lands and grooves found on bullet #63 on a display pad behind him. Mr. Vasquez drew a bullet with three distinct lands, twisting up and to the left. He reported that bullet #63 was fired from a .40 caliber gun with six lands and grooves, which twisted to the left. These are the same characteristics as Patricia's gun. As a result, the bullet found in Chris' shoulder could have been fired from Patricia's gun. Her gun cannot be ruled out by the findings. However, without the gun, that is the strongest opinion he can give. This sketch became exhibit #149.
#143. A photograph of three bullets, including the one found under the foam of the black gun case.
#62. An envelope containing the bullet fragment recovered from Chris' wrist. Mr. Vasquez said that his initials with dates were on the envelope indicating when he had opened the envelope and when he had resealed it. Mr. Vasquez said that he did not try to compare this bullet fragment to the bullet found in Chris' shoulder. He did note that both bullet #63 and the fragment had the same brass color, but he couldn't determine anything else.
#32. A bag containing the unfired bullet found in the gun case, under the foam padding. Mr. Vasquez said that he found this bullet and bagged it himself after taking pictures of it inside the case.
#146. A photograph of bullet #32, showing the shape, color, and head stamp of the bullet. He said that he did not take the bullet apart, but the shape of the bullet, the diameter, the color, and the nose shape of bullet #32 was consistent with bullet #36, taken from Chris' shoulder.
#147. Six photographs on a single sheet of paper, which Mr. Vasquez took on October 4, 2013. These photographs are of bullets taken from the box of ammunition found in Patricia's home. The bullets from the box of ammunition are all consistent with bullets #32 and #36 in terms of head stamp, style, color and design, and shape of the nose.
At the close of the day once the jury had left the courtroom, the judge and the two attorneys discussed where to set up the tent in which Chris’ body was found. They discussed various places and then they all went into the back of the courtroom to talk some more. Court was over for the day.
From the Clerk's Docket and Minutes
9:00 - In session
9:15 - Sgt. Mike Gilley begins testifying
10:20 - Recess
10:50 - In session
11:20 - Thomas Vasquez begins testifying
12:40 - Recess
End of day 6
Last update: 5/2/14 - Return to the Patricia MacCallum trial home page
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