Direct examination of Dennis Fung (part 2)

📄 Direct examination of Dennis Fung (part 2) — Tuesday, April 4, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\4\DIRECT-EXAMINATION-OF-DENNIS-F.DOC

TRIAL

▲ Day 51 of 167

◀ Return from lunch recess Sidebar: exhibit violation and redaction ▶

Witness: Dennis Fung
Examiner: Hank Goldberg
Called by: Prosecution • Date: Tuesday, April 4, 1995 • Utterances: 150

Dennis Fung's direct examination continued after the noon recess, covering evidence collected from the Bronco (a cap found on the driver floorboard) and the chain of custody and renumbering of the blood vial received from Detective Vannatter. The most consequential testimony concerned Fung's decision to reassign item numbers so that the Vannatter blood vial — originally labeled item 18 — became item 17, explained as a bookkeeping measure to maintain chronological order and avoid extra property report paperwork.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, IN THE PRESENCE OF THE JURY:)

# 2 THE COURT:

ALL RIGHT. THANK YOU, LADIES AND GENTLEMEN. PLEASE BE SEATED. MR. FUNG, WOULD YOU RESUME THE WITNESS STAND, PLEASE.

DENNIS FUNG,

THE WITNESS ON THE STAND AT THE TIME OF THE NOON RECESS, RESUMED THE STAND AND TESTIFIED FURTHER AS FOLLOWS:

# 3 THE COURT:

ALL RIGHT. LET THE RECORD REFLECT WE HAVE BEEN REJOINED BY ALL THE MEMBERS OF OUR JURY PANEL. GOOD AFTERNOON, LADIES AND GENTLEMEN. THE JURY: GOOD AFTERNOON.

# 4 THE COURT:

ALMOST AN ON-TIME START. ALL RIGHT. MR. DENNIS FUNG IS STILL ON THE WITNESS STAND UNDERGOING DIRECT EXAMINATION BY MR. GOLDBERG. GOOD AFTERNOON AGAIN, MR. FUNG.

# 5 DENNIS FUNG:

GOOD AFTERNOON.

# 6 THE COURT:

YOU ARE REMINDED YOU ARE STILL UNDER OATH, SIR.

MR. GOLDBERG, YOU MAY CONTINUE WITH YOUR DIRECT EXAMINATION.

# 7 MR. GOLDBERG:

THANK YOU, YOUR HONOR.

# 8

DIRECT EXAMINATION (RESUMED)

# 9

BY MR. GOLDBERG:

# 10 Q:

SIR, WE WERE TALKING ABOUT THE SEARCH OF THE BRONCO WHEN WE LEFT OFF. DID YOU RECOVER ANY PHYSICAL ITEMS OF EVIDENCE IN THE BRONCO, OTHER THAN THE STAINS THAT YOU JUST REFERRED TO, IN THE WAY OF CLOTHING?

# 11 A:

YES.

# 12 Q:

WHAT WAS THAT?

# 13 A:

I COLLECTED A CAP.

# 14 Q:

WHERE WAS THE CAP COLLECTED FROM?

# 15 A:

THE CAP WAS RECOVERED FROM THE DRIVER FLOORBOARD.

# 16 MR. GOLDBERG:

YOUR HONOR, AT THIS TIME I WOULD LIKE THE WITNESS TO TAKE ANOTHER LOOK AT PEOPLE'S 164 FOR IDENTIFICATION. IT WAS THE BOX. MAY I APPROACH THE WITNESS?

# 17 THE COURT:

YES, YOU MAY.

# 18 Q:

BY MR. GOLDBERG: SIR, SHOWING YOU 164 FOR IDENTIFICATION, COULD YOU UNSEAL THIS AND DESCRIBE WHAT YOU ARE DOING FOR THE RECORD.

# 19 A:

CUTTING ALONG THE BOTTOM EDGE OF THE BOX AND THROUGH THE TAPE. WITHIN THE PACKAGE ARE SEVERAL BAGS. THE FIRST ONE I'M PULLING UP IS ITEM NO. 27.

# 20 Q:

OKAY. AND IS THAT THE BAG INTO WHICH YOU PLACED THE CAP?

# 21 A:

YES, IT IS.

# 22 Q:

AND YOU ALSO PUT THE DR NUMBER IN OUR CASE ON THERE?

# 23 A:

YES.

# 24 MR. GOLDBERG:

ALL RIGHT.

# 25 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

# 26 Q:

BY MR. GOLDBERG: SIR, PERHAPS YOU COULD UNSEAL PEOPLE'S 16 -- PERHAPS WE CAN MARK THAT AS 164-C, YOUR HONOR, JUST SO THE RECORD IS CLEAR.

# 27 THE COURT:

ALL RIGHT. 164-C WILL BE THE PAPER BAG MARKED AS ITEM NO. 27.

# 28 (PEO'S 164-C FOR ID = PAPER BAG W/ITEM 27)

# 29 MR. GOLDBERG:

AND COULD WE MARK THE GLOVE 164-A AND THE BLUE BAG 164-B?

# 30 THE COURT:

ALL RIGHT. MRS. ROBERTSON, DO YOU HAVE THAT?

# 31 THE CLERK:

YES.

# 32 THE COURT:

ALL RIGHT. THANK YOU.

# 33 (PEO'S 164-A FOR ID = GLOVE)

# 34 (PEO'S 164-B FOR ID = BLUE BAG)

# 35 DENNIS FUNG:

I AM CUTTING ALONG THE SEAL, UNFOLDING THE BAG, AND WITHIN THE BAG IS A CAP.

# 36 Q:

BY MR. GOLDBERG: IS THAT WHAT YOU COLLECTED?

# 37 A:

YES.

# 38 Q:

OKAY. CAN YOU NOW REPLACE THE ITEM, DESCRIBING WHAT YOU ARE DOING FOR THE RECORD.

# 39 A:

I'M PLACING THE CAP BACK IN THE BAG AND FOLDING THE BAG UP AND PLACING THE CAP BACK INTO THE BOX.

# 40 Q:

NOW, AFTER YOU HAD COLLECTED THE VARIOUS ITEMS OF EVIDENCE FROM THE BRONCO, WHERE DID YOU GO?

# 41 A:

AFTER COLLECTING THE ITEMS OF -- ITEMS FROM THE BRONCO, I RETURNED TO THE CRIME LAB.

# 42 Q:

WITH THE ITEMS THAT YOU HAD COLLECTED?

# 43 A:

YES.

# 44 Q:

AND WAS THE BRONCO SECURE WHEN YOU LEFT?

# 45 A:

THE BRONCO WAS LEFT IN THE PRINT SHED AND THE PRINT SHED WAS LOCKED.

# 46 Q:

OKAY. WHEN YOU WENT BACK TO THE CRIME LAB WITH THE ITEMS, DID YOU GO ABOUT PROCESSING THEM IN TERMS OF THE DRYING PROCESS THAT YOU PREVIOUSLY DESCRIBED IN YOUR TESTIMONY?

# 47 A:

YES.

# 48 Q:

NOW, ON THIS PARTICULAR OCCASION DO YOU REMEMBER WHAT ROLE, IF ANY, ANDREA MAZZOLA PLAYED IN TERMS OF THE DRYING PROCESS?

# 49 A:

SHE REMOVED SOME OF THE SAMPLES FROM THE PLASTIC BAGS AND PLACED THEM IN THE TEST-TUBES TO DRY.

# 50 Q:

USING THE TECHNIQUE THAT YOU HAD DESCRIBED OR DO YOU RECALL WHETHER SHE WAS USED A DIFFERENT TECHNIQUE?

# 51 A:

SHE USED THE SAME TECHNIQUE.

# 52 Q:

ALL RIGHT. AND WHAT WAS DONE WITH THE EVIDENCE AFTER IT HAD BEEN PLACED INTO THE BAGS -- EXCUSE ME -- BEEN PLACED IN THE TEST-TUBES TO DRY?

# 53 A:

AFTER BEING PLACED IN THE TEST-TUBES TO DRY, THEY WERE PLACED IN THE DRYING CABINET WITHIN THE EVIDENCE PROCESSING ROOM.

# 54 Q:

ALL RIGHT. NOW, DIRECTING YOUR ATTENTION TO THE AFTERNOON OF JUNE THE 14TH, AFTER YOU CAME BACK AND DID THIS PROCESSING WITH THE BRONCO EVIDENCE, DID YOU REMAIN AT PIPER TECH?

# 55 A:

YES, I DID.

# 56 Q:

AND WHAT WERE YOU DOING THERE THAT AFTERNOON?

# 57 A:

I CONTINUED TO WRITE MY PROPERTY REPORTS FROM THE PREVIOUS THREE SCENES THAT I HAD DONE.

# 58 Q:

NOW, WITH RESPECT TO THE -- EXCUSE ME. WITH RESPECT TO THE VIAL OF BLOOD THAT YOU HAD RECEIVED FROM DETECTIVE VANNATTER, WAS A PROPERTY NUMBER ASSIGNED TO THAT VIAL OF BLOOD?

# 59 A:

YES.

# 60 Q:

AND WHO ASSIGNED THAT? WAS THAT DONE BY YOU?

# 61 A:

YES, IT WAS.

# 62 Q:

OR BY --

# 63 A:

YES, IT WAS.

# 64 Q:

ALL RIGHT. AND CAN YOU DESCRIBE FOR US HOW THAT PROCESS OCCURRED OF ASSIGNING THE NUMBER TO THE VIAL OF BLOOD?

# 65 A:

I HAD ITEMS OF EVIDENCE NUMBERED UP THROUGH 16. I HAD RECEIVED THE VIAL OF BLOOD ON -- AT ROCKINGHAM, THE AFTERNOON BEFORE, AND I DECIDED TO MAKE THAT ITEM NO. 17.

# 66 MR. GOLDBERG:

YOUR HONOR, AT THIS TIME I WOULD LIKE TO MARK AS PEOPLE'S NEXT IN ORDER 173, A XEROX COPY OF LABORATORY NOTE L-115, AND IT HAS NO. 17, 18 -- EXCUSE ME -- L-15 WAS THE LABORATORY NOTE AND IT HAS ITEMS 17, 18 AND 19 LISTED.

# 67 MR. SCHECK:

YOUR HONOR, I WOULD LIKE THE ORIGINAL OF THAT, WHICH I BELIEVE IS IN COURT, MARKED AS WELL. HE CAN USE THE COPY, BUT I WOULD LIKE THE ORIGINAL MARKED AS A SEPARATE ITEM.

# 68 THE COURT:

WELL, HE IS ENTITLED TO RUN HIS OWN CASE. IF HE WANTS TO USE A XEROX COPY, HE CAN USE A XEROX COPY FOR THIS PURPOSE. IF YOU WANT TO USE THE ORIGINAL FOR THE CROSS-EXAMINATION, YOU ARE ENTITLED TO DO SO. PROCEED. IT WILL BE MARKED AS 173.

# 69 (PEO'S 173 FOR ID = CC OF LAB NOTE L-15)

# 70 MR. GOLDBERG:

YOUR HONOR, MAY I PUT THIS UP ON THE ELMO?

# 71 THE COURT:

YES.

# 72 Q:

BY MR. GOLDBERG: SIR, WE ARE GOING TO SHOW YOU WHAT HAS BEEN MARKED AS PEOPLE'S 173 FOR IDENTIFICATION. DO YOU RECOGNIZE THIS PAGE?

# 73 A:

YES.

# 74 Q:

AND WHO WROTE THAT OUT?

# 75 A:

THAT WAS WRITTEN BY CRIMINALIST MAZZOLA.

# 76 Q:

OKAY. AND DID SHE WRITE THAT OUT AT SOMEONE'S DIRECTION OR DID SHE DO IT ON HER OWN?

# 77 (NO AUDIBLE RESPONSE.)

# 78 Q:

DID YOU TELL HER TO OR DID SHE DO IT ON HER OWN?

# 79 A:

I BELIEVE SHE --

# 80 MR. SCHECK:

OBJECTION.

# 81 THE COURT:

WHAT IS THE OBJECTION?

# 82 MR. SCHECK:

I DON'T THINK HE HAS A PROPER FOUNDATION YET WITH RESPECT TO PERSONAL KNOWLEDGE.

# 83 THE COURT:

REPHRASE THE QUESTION.

# 84 Q:

BY MR. GOLDBERG: DID YOU TELL HER TO?

# 85 A:

NO.

# 86 Q:

ALL RIGHT. WHEN WAS THE FIRST TIME YOU SAW THIS DOCUMENT?

# 87 A:

I SAW IT WHILE I WAS WRITING MY PROPERTY REPORT.

# 88 Q:

OKAY. AND WHAT DID YOU DO WHEN YOU SAW THIS DOCUMENT?

# 89 A:

I HAD HER TRANSCRIBE THE INFORMATION ON TO AN EVIDENCE COLLECTION REPORT.

# 90 Q:

OKAY. THIS WAS JUST WRITTEN ON A BLANK SHEET OF PAPER?

# 91 A:

YES.

# 92 Q:

AND DO YOU HAVE STANDARD FORMS THAT ARE USED IN THE ORDINARY COURSE OF THE CRIME LABORATORY'S BUSINESS FOR THE PURPOSES OF WRITING OUT ITEMS OF EVIDENCE THAT WERE OBTAINED DURING A CRIME SCENE INVESTIGATION?

# 93 A:

YES.

# 94 Q:

ALL RIGHT. AND IS THE CRIME SCENE IDENTIFICATION CHECKLIST THAT WE SAW YESTERDAY ONE OF THOSE FORMS?

# 95 A:

YES.

# 96 MR. GOLDBERG:

YOUR HONOR, I WOULD NOW LIKE TO MARK AS PEOPLE'S 174 FOR IDENTIFICATION ANOTHER DOCUMENT. I'M GOING TO PUT A "174" IN THE UPPER LEFT-HAND CORNER. I CAN'T READ THE "L" NUMBER ON IT, BUT I'M SHOWING IT TO COUNSEL.

# 97 THE COURT:

ALL RIGHT. 174. THIS IS ANOTHER LAB NOTE?

# 98 MR. GOLDBERG:

YEAH, AND IT HAS 18, 17 AND 19 ON IT.

# 99 (PEO'S 174 FOR ID = LAB NOTE)

# 100 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

# 101 Q:

BY MR. GOLDBERG: OKAY. NOW, MR. FUNG, DIRECTING YOUR ATTENTION TO 174, WHAT IS THIS DOCUMENT?

# 102 A:

THIS IS THE EVIDENCE COLLECTION REPORT THAT THE INFORMATION WAS PUT ON OR TRANSCRIBED TO.

# 103 Q:

WHEN YOU SAY "THE INFORMATION," ARE YOU TALKING ABOUT THE INFORMATION FROM THE LAST DOCUMENT WE SAW, 173?

# 104 A:

YES.

# 105 Q:

AND WHO PUT IT ON THIS FORM?

# 106 A:

THAT WAS A COMBINATION OF MYSELF AND MISS MAZZOLA.

KEY QUOTE

# 107 Q:

OKAY. AND ON THIS FORM WHAT WAS THE NUMBER THAT WAS ASSIGNED INITIALLY TO THE BLOOD VIAL THAT HAD BEEN RECEIVED FROM DETECTIVE VANNATTER?

# 108 A:

INITIALLY THE ITEM NUMBER WAS 18.

# 109 Q:

AND THAT WAS WHAT MISS MAZZOLA HAD PUT ON THE OTHER FORM?

# 110 A:

YES.

# 111 Q:

NOW, WHAT WAS ITEM NO. 17?

# 112 A:

ITEM 17 WAS A PAIR OF TENNIS SHOES.

# 113 Q:

NOW, WHEN COLLIN YAMAUCHI COLLECTED HIS EVIDENCE EARLIER IN THE MORNING OF THE 14TH, DO YOU RECALL WHETHER HE WAS GIVEN A NUMBER AS TO THE -- THE REFERENCE SAMPLE OF THE DEFENDANT'S BLOOD?

# 114 A:

I DON'T RECALL.

# 115 MR. SCHECK:

OBJECTION, VAGUE, COMPOUND.

# 116 THE COURT:

OVERRULED.

# 117 DENNIS FUNG:

I DON'T RECALL.

# 118 Q:

BY MR. GOLDBERG: ALL RIGHT. NOW, AT SOME POINT DID YOU DECIDE TO REASSIGN NUMBERS TO THESE -- TO THE TUBE?

# 119 A:

YES.

# 120 Q:

AND WHY DID YOU MAKE THAT DECISION?

# 121 A:

I WANTED TO KEEP THE ITEMS IN A CHRONOLOGICAL ORDER AND REDUCE LESS PAPERWORK FOR MYSELF.

KEY QUOTE

# 122 Q:

OKAY. NOW, WHY WOULD IT REDUCE LESS -- WHY WOULD IT REDUCE THE PAPERWORK?

# 123 A:

WITH THE -- IF THE BLOOD HAD REMAINED ITEM NO. 18, I WOULD HAVE HAD TO CREATE THREE ADDITIONAL PROPERTY REPORT FACE SHEETS.

# 124 Q:

OKAY. NOW, THE PAIR OF SNEAKERS ON THE PREVIOUS DOCUMENT WE SAW WAS LABELED ITEM 17; IS THAT CORRECT?

# 125 A:

YES.

# 126 Q:

WHICH DID YOU RECEIVE -- AND THE BLOOD 18?

# 127 A:

YES.

# 128 Q:

WHICH DID YOU RECEIVE FIRST, THE BLOOD OR THE PAIR OF SNEAKERS?

# 129 A:

I RECEIVED THE PAIR -- I RECEIVED THE BLOOD VIAL FIRST.

# 130 Q:

ALL RIGHT. AND DO YOU TRY GENERALLY TO KEEP ITEMS IN CHRONOLOGICAL ORDER?

# 131 A:

GENERALLY, YES.

# 132 Q:

IN ORDER TO DO THAT, DID YOU NEED TO REASSIGN THOSE NUMBERS?

# 133 A:

YES.

# 134 Q:

NOW, I WANTED TO FOLLOW UP ON THIS OTHER QUESTION THAT YOU SAID ABOUT REDUCING THE PAPERWORK. WHAT IS THE TYPE OF PAPERWORK THAT YOU WOULD BE REDUCING?

# 135 A:

PROPERTY REPORT.

# 136 MR. GOLDBERG:

YOUR HONOR, MAY I MARK AS PEOPLE'S 175 FOR IDENTIFICATION A PROPERTY REPORT THAT HAS THE DATE OF -- WELL, RATHER THAN IDENTIFYING IT BY A DATE, I WILL DO IT BY NUMBER. IT IS NO. 12 THROUGH 17. AND I HAVE ANOTHER PROPERTY REPORT WHICH I WOULD LIKE MARKED AS PEOPLE'S 176 THAT HAS NO. 18 AND 19 ON IT.

# 137 THE COURT:

ALL RIGHT. SO MARKED, 175 AND 176.

# 138 (PEO'S 175 FOR ID = PROPERTY REPORT)

# 139 (PEO'S 176 FOR ID = PROPERTY REPORT)

# 140 Q:

BY MR. GOLDBERG: OKAY. SIR, LOOKING AT THIS DOCUMENT, DO YOU RECOGNIZE THIS?

# 141 A:

YES, I DO.

# 142 Q:

AND WHO FILLED THAT OUT?

# 143 A:

I FILLED IT OUT.

# 144 Q:

AND IS NO. 17 WAY AT THE BOTTOM THE REFERENCE TO THE VIAL OF BLOOD?

# 145 A:

YES.

# 146 Q:

OKAY. NOW, CAN YOU EXPLAIN TO US WITH THIS EXHIBIT WHY YOU WOULD HAVE HAD TO FILL OUT MORE PAPERWORK IF YOU HAD KEPT THE BLOOD VIAL AS NO. 18 INSTEAD OF CHANGING IT TO 17?

# 147 A:

WHEN WRITING PROPERTY REPORTS WE ARE NOT ALLOWED TO SKIP ITEM NUMBERS FROM -- FOR INSTANCE, GOING FROM 16 TO 18. YOU HAVE TO HAVE EVERYTHING IN SEQUENTIAL ORDER, SO IF I WANTED TO MAKE THE BLOOD 18, I WOULD HAVE HAD TO STOP AT ITEM NO. 16, CREATED A NEW PROPERTY REPORT WITH 17 AND ONLY 17, ON THE NEXT PROPERTY REPORT CREATE ANOTHER PROPERTY REPORT WITH ONLY 18 ON IT, AND THAT IS WHY I MADE THE BLOOD NO. 17.

# 148 MR. SCHECK:

EXCUSE ME, YOUR HONOR. COULD WE HAVE A SIDE BAR?

# 149 MR. COCHRAN:

MAY WE APPROACH, YOUR HONOR?

# 150 THE COURT:

WITH THE REPORTER.

Temperature

procedural

Key Quotes (3)

Dennis Fung

I WANTED TO KEEP THE ITEMS IN A CHRONOLOGICAL ORDER AND REDUCE LESS PAPERWORK FOR MYSELF.

Fung's explanation for renumbering the Vannatter blood vial from item 18 to item 17 — a chain-of-custody irregularity the defense would exploit as evidence of tampering or sloppiness.

Dennis Fung

IF I WANTED TO MAKE THE BLOOD 18, I WOULD HAVE HAD TO STOP AT ITEM NO. 16, CREATED A NEW PROPERTY REPORT WITH 17 AND ONLY 17, ON THE NEXT PROPERTY REPORT CREATE ANOTHER PROPERTY REPORT WITH ONLY 18 ON IT, AND THAT IS WHY I MADE THE BLOOD NO. 17.

Fung's detailed procedural justification for the renumbering, attempting to defuse suspicion by grounding it in mundane bureaucratic rules.

Dennis Fung

THAT WAS A COMBINATION OF MYSELF AND MISS MAZZOLA.

Fung acknowledging joint authorship of the evidence collection report, blurring accountability for the original incorrect item number assigned to the blood vial.

Evidence (7)

People's 164-A

Glove (from Bronco evidence box)

formally sub-labeled from People's 164

People's 164-B

Blue bag (from Bronco evidence box)

formally sub-labeled from People's 164

People's 164-C

Paper bag containing item no. 27 — the cap collected from the Bronco driver floorboard

unsealed and identified by Fung on the stand

People's 173

Xerox copy of lab note L-15, listing items 17, 18, and 19 — written by Andrea Mazzola on a blank sheet of paper

introduced and displayed on ELMO; shows blood vial originally numbered item 18

People's 174

Evidence collection report (formal form) transcribed from lab note L-15 by Fung and Mazzola

introduced; shows the transition of blood vial from item 18 to item 17

People's 175

Property report covering items 12 through 17

introduced to illustrate why renumbering reduced paperwork

+ 1 more

Notable Exchanges (3)

Hank Goldberg•Dennis Fung

Goldberg walked Fung through the decision to renumber the Vannatter blood vial from item 18 to item 17, eliciting a bureaucratic explanation (sequential numbering rules, paperwork reduction) to preempt the defense's chain-of-custody attack.

strategic

Barry Scheck•Lance A. Ito

Scheck objected that Goldberg lacked foundation for asking Fung why Mazzola wrote a lab note on a blank sheet; Ito sustained by asking Goldberg to rephrase rather than ruling broadly.

procedural

Barry Scheck•Johnnie Cochran•Lance A. Ito

Both Scheck and Cochran simultaneously requested a sidebar at the end of the session — likely triggered by Fung's paperwork explanation and the introduction of the renumbering documents.

strategic

Light Moments (1)

Lance A. Ito

Ito noted 'ALMOST AN ON-TIME START' when resuming after the noon recess.

Credibility Attacks (1)

⚔ Dennis Fung

anticipated impeachment via prior inconsistent documentation

The prosecution proactively introduced the renumbering of the Vannatter blood vial (originally item 18, changed to 17) and Mazzola's informal lab note on a blank sheet of paper — irregularities the defense was clearly poised to exploit as evidence of sloppy or manipulated chain of custody.

Objections

2 objections (1 sustained, 1 overruled)

Proceeding 5590 • 150 utterances • Prosecution witness

Criminal Trial

Department 103