The Richmond Register

January 14, 2013

Attorneys question detective’s ID of defendants from video of shooting

By Sarah Hogsed
Register News Writer

RICHMOND — Defense attorneys for twin brothers facing up to 10 years in prison on weapons charges tried to create reasonable doubt in jurors’ minds Monday by questioning how the investigating detective identified the men from a surveillance video.

Elton and Eltron Bailey, 23, are both charged with attempted murder, first-degree wanton endangerment and felons in possession of a handgun after an April 12 shooting in front of East Main Tobacco. However, the handgun charges are the focus of this week’s trial because it was ruled that trying all the charges together would be prejudicial, according to Assistant Commonwealth’s Attorney Jennifer Smith.

As convicted felons, Eltron and Elton face enhanced sentences of five to 10 years in prison on the handgun charges if they are found guilty.

In opening statements, Smith told the 13 jurors that two questions must be answered for the prosecution to prove its case against the Baileys – “Are they convicted felons? Did they possess a handgun?”

Deputy circuit clerk Jenny Spurlock testified, based on official court documents, that Elton Bailey had been convicted in Fayette County in 2009 on a charge of felony second-degree assault. Eltron Bailey was convicted the same year in Fayette County on a felony charge of first-degree wanton endangerment.

April 12 shooting

Richmond police officers received a call April 12 about gunshots heard near East Main Street shortly after 6 p.m., according to the testimony of Detective Eric Long. Officers collected seven spent 9 mm casings at the scene as well as one live 9 mm round.

Footage from a video surveillance system at East Main Tobacco was shown to jurors Monday afternoon. In the video, two men on foot approach a Chevrolet Monte Carlo parked in front of the store. Then the car quickly pulls out of the parking lot. One man hands something to the other man, who is walking beside him, and that man takes off running after the car with his hand extended.

The video does not show a clear view of the shooter’s face or of his companion’s face. After the car drives away, the two men run from the scene along with two more men who were in the parking lot.

No spent bullets were found by police after the incident, and Long testified that when a shooting occurs outside the bullets can end up anywhere.

“Essentially you’re looking for a needle in the haystack,” Long said.

Officers found the Baileys and the two other men from the parking lot at a nearby apartment on Linden Street. The four men refused to come out of the apartment for nearly two hours, and the police department’s Emergency Response Unit was called in to deal with the “tense” situation, Long said.

Eventually the four men surrendered, and Eltron Bailey was arrested on the strength of a March 2012 warrant that charged him with escape and tampering with a prisoner monitoring device. He had been out on bond since December 2011 in another case.

Long said officers collected clothing at the apartment that he believed linked the Baileys to the shooting, based on what the men in the surveillance video were wearing.

Long testified that he knew the Baileys prior to the incident. He stated their different hairstyles and build helped him identify them in the video.

Police also found a Bryco model 59 9 mm handgun near the back door of the apartment in a hole created by a broken drainpipe.

Cross-examination

Elton’s attorney, Timothy Despotes, questioned Long about why ballistics tests weren’t done on the gun. He also questioned Long about why a gunshot residue test wasn’t performed on either one of the Baileys once they were in police custody. Long replied that many law enforcement officials believe residue tests are “useless” because they cannot conclusively prove whether someone has fired a gun, and actions like hand-washing can remove any gunpowder residue.

Despotes and Eltron’s attorney, Brian Barker, also questioned Long about why a photo lineup was not used to help identify the shooters.

Long said it took several days to find Johnathon “Pookie” Harris, the intended target of the shooting, and Harris did not cooperate with police to identify the shooters.

Harris was not injured in the shooting, however Long said he found what appeared to be a bullet hole in the body of Harris’ Monte Carlo.

Since a gun can’t be seen on the video when one of the men hands something to another, Despotes asked Long if he could be certain that item was a gun.

“(I) can’t be 100 percent certain, no,” Long replied.

Also testifying at Monday’s trial was a fingerprint expert from the Kentucky State Police. Fred Crane said following tests done on the handgun found outside the Linden Street apartment, he was able to recover two latent prints on the firearm.

One fingerprint wasn’t clear enough to use for identification, however the second print was a positive match for Eltron Bailey’s third right middle finger.

Crane said although identical twins have the same DNA, that’s not the case for fingerprints.

“No one has been shown to have identical prints, not even twins or triplets,” Crane said.

The trial is scheduled to resume at 9 a.m. today.

Sarah Hogsed can be reached at shogsed@richmondregister.com or 624-6694.