Mistrial Repeatedly Denied|in Baby Murder Trial

     MARIETTA, Ga. (CN) – Attorneys for the Georgia teenager charged with murdering a baby in a stroller repeatedly stopped the trial Friday with motions for mistrial.
     De’Marquise Elkins, 17, is charged with murdering 13-month-old Antonio Santiago and shooting and trying to rob his mother, Sherry West, on the first day of spring.
     Elkins allegedly demanded West’s purse as she pushed her baby in a stroller, returning from a post office. When she refused, state prosecutors say, he hit her in the head with a gun, shot her in the leg, then shot her baby between the eyes.
     Elkins’ mother, Karimah Elkins, is being tried with him, on charges of obstructing justice by hiding the gun and lying to police.
     On Friday, with the jury out of the courtroom, Glynn County Public Defender Kevin Gough told Superior Court Judge Stephen Kelley that Elkins made a “spontaneous statement” while he was being booked for murder, which should be suppressed from the jury.
     Prosecutor Jackie Johnson questioned Glynn County police Det. Roderic Nohilly on Thursday and Friday, in the first week of Elkins’ trial. Nohilly told jurors that while Elkins was waiting to be booked for murder, he challenged whether police had evidence for it.
     “Elkins was placed in a holding cell before I issued a warrant for his arrest,” Nohilly testified. “I turned the warrant over to officer Cody Blades as we were standing in an interview room, and Blades served the warrant.
     “As we were walking out of the station, in the hall that leads to the parking lot, Elkins looked over at us and he said, ‘Ya’ll ain’t got no shit on me. Ya’ll ain’t got no gun; ya’ll ain’t got no prints; all ya’ll got is a fucking acquittal,'” Nohilly testified.
     He continued: “We didn’t respond. Another investigator smiled and he [Elkins] said, ‘Oh, ya’ll got a gun?'”
     Gough told the judge that comment should be suppressed as “prejudicial” against Elkins. Allowing it is cause for a mistrial, Gough said.
     Judge Kelley denied the motion.
     “Elkins made the statement while he was in transit,” Kelley said. “These statements could be an admission by defendant, directly.”
     When the jury returned, Nohilly resumed his testimony concerning Dominique Lang’s re-enactment video.
     Lang, who will be tried separately, also is charged with murder. He testified on Thursday that Elkins counted down from five before shooting West. Lang said he ran away and heard, but did not see, the shot that killed the baby.
     Johnson introduced a crime scene re-enactment video Friday, which shows Nohilly and Lang walking through the crime scene as Nohilly questions Lang.
     In the audio portion of the video, Lang tells Nohilly that West’s purse was on her shoulder, and that he heard the third shot, which struck the baby between the eyes, and started running.
     Nohilly asked: “What was he [Elkins] wearing?”
     Lang said Elkins wore a “black shirt, black cap and a pair of Levi’s.”
     In previous trial testimony, and in interviews with police, Lang had said Elkins wore a red sweater.
     Johnson continued her questioning of Nohilly by showing him and the jury a mug shot of Elkins, asking the officer: “Do you recognize the subject in the picture?”
     “I recognize the clothing,” Nohilly replied. “It’s the description that Lang gave me of De’Marquise Elkins: the hat, the red sweater, the pants.”
     Next to testify was Glynn County Investigator Stephanie Oliver. Prosecutors shifted their focus to Karimah Elkins.
     Police and prosecutors claim she gave a false alibi for her son’s whereabouts on the day of the murder and threw the .22-caliber murder weapon into a salt marsh a few miles north of the crime scene.
     Oliver told the jury she was a member of a team of officers who went to Karimah Elkins’ home, searching for De’Marquise Elkins, on March 22.
     Oliver testified that she and seven other officers showed up at Karimah Elkins’ home that morning and asked for consent to enter her home, which Karimah Elkins granted.
     On cross-examination, Karimah Elkins’ attorney Wrix McIlvaine asked Oliver if Karimah Elkins had felt threatened by police and felt she had no choice but to let them in.
     “Isn’t it true that there were seven law enforcement officers, wearing vests, all armed, guns drawn, some with submachine guns, when you knocked on Karimah Elkins’ door?” McIlvaine asked. “She was in her pajamas and just got up.”
     Oliver replied: “There were only two officers at the door. … My gun was never drawn and it was at my side, pointing down.”
     McIlvaine asked: “Did you have a search warrant to enter Karimah Elkins’ home?”
     “We did not need a search warrant, because she gave consent at the door,” Oliver replied. “She was free to leave at any time, sir, and she was not under arrest.”
     McIlvaine persisted: “Did you really think that Karimah Elkins felt free to leave, when there’s seven officers, with their guns drawn, at her front door?”
     “She was not under arrest, and she gave consent for us to enter the house, sir,” Oliver said.
     McIlvaine asked whether Oliver knew that De’Marquise Elkins did not live with his mother, then asked: “Was that from a juvenile record or report?”
     Assistant Public Defender Jonathan Lockwood objected and again asked for a mistrial.
     Judge Kelley removed the jury from the courtroom.
     Oliver did not have a chance to respond to McIlvaine’s question before the objection, but the intimation obviously was that De’Marquise may have a juvenile record.
     Gough, visibly angry, said: “I can’t recall how much of a response came out or what it was. There wasn’t a verbal response, but there was a nonverbal response, because the jury started nodding their head.”
     The court reporter did not record a response from Oliver.
     Gough told the judge: “Your honor, I make the motion for mistrial, based on 5th, 6th and 14th Amendments of the U.S. Constitution and the Georgia Constitution. … There is nothing we can do with this witness.”
     Mcllvaine, addressing Gough, said: “Her [Karimah Elkins’] children were taken away from her after she had a stroke, and that’s why there may be a juvenile record, sir.”
     Special prosecutor Andrew Ekonomou asked Kelley if he could speak on behalf of the state.
     “Any attorney’s questions are not evidence in this case,” Ekonomou said. “Only if the witness responded is it considered evidence, and whether she answered affirmatively or not, there was nothing stated that puts [De’Marquise] Elkins’ character in question for the case.”
     Kelley denied the request for mistrial.
     “I understand the concern if the witness had responded, but that did not happen in this case,” the judge said. “He asked a question and before she could respond, the defense objected, and rightly so. But unless there is evidence of juvenile adjudication – I am quoting from the code – there is no error and no basis for a mistrial.”
     When the jury returned, Kelley told them to ignore McIlvaine’s statement to Oliver, struck the comment from the record and reminded the jury that attorney questions should not be taken as evidence.
     During testimony from the state’s next witness, Sarah Peppers, a micro analyst with the Georgia Bureau of Investigation, the defense again asked for a mistrial.
     Peppers, one of the state’s experts on examining particles from gunshot residue, told the jury that she received two gunshot residue kits (GSRs) containing hand swabs, from Sherry West and Louis Santiago, the parents of the late Antonio Santiago.
     Both parents tested positive for residue, Peppers said.
     Johnson asked Pepper about secondary residue on Louis Santiago.
     Peppers said that when a gun is fired it forms microscopic entities, or particles, when it plumes from the barrel of a gun. The residue from shooting a gun is considered primary transfer and can fall on anything, she said.
     Secondary transfer takes place when someone picks up an item on which primary residue has been deposited.
     Pepper said it was “possible” that Santiago’s positive results came from his contact with West immediately after she was shot.
     Gough objected to Johnson’s line of questioning, and disputed the prosecution’s evaluation of Peppers as an “expert.” He said Johnson was trying to use Peppers to prove that Louis Santiago did not fire a gun on the day his son was killed.
     Gough moved again for a mistrial, telling Judge Kelley: “She’s just a lab tech, your honor.”
     Gough challenged the science behind determining what is primary and secondary gunshot residue, calling Pepper’s testimony “utter speculation.”
     “Three is no scientific evidence here,” Gough said. “It’s just scientific hoodoo.”
     Kelley denied the motion and told Johnson to proceed with her questions.
     Neither West nor Santiago have been charged with any crime related to the death of baby Antonio.
     Johnson acknowledged that when law enforcement officers send a gunshot residue kit to the Georgia Bureau of Investigation, it is sent to Peppers.
     In cross-examining Peppers, Gough asked: “Did anyone perform a gunshot residue test on De’Marquise Elkins and send it to you at the GBI?
     “Not to my knowledge,” Peppers said. “We only analyze what is sent to us, and I never received a GSR for Elkins.”
     The prosecution continues its case today (Monday.)
     
     

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