[R]UTLAND — An attorney for a Mount Tabor murder suspect and the prosecutor in the case are squaring off over how an expert for the defense can test key evidence in the case, including the gun that fired the fatal shot.
Peggy Shores, 54, has been held without bail since her arraignment in February 2017 on a charge of second-degree murder in the shooting death of David Shores, 54, at their home in December 2016.
She has claimed that the shooting was an accident, while the prosecution contends her actions were intentional.
The two sides presented arguments in writing, and at a prior hearing in the case earlier this spring took testimony over a defense request to test critical pieces of evidence that parties say are central to either proving Peggy Shores’ innocence or guilt.
At a hearing Monday in Rutland County Superior criminal court, both sides told Judge Thomas Zonay they have been unable to work out an agreement.
“The court was hopeful that counsel would be able to figure out how to do this,” Zonay said during the court session Monday, adding that as a result he will issue an order by July 4 to settle the dispute.
“There will be testing, that’s a given, the court believes it is absolutely necessary,” the judge said. “But, as far as how that goes, it is something that quite frankly neither side may be happy with.”
He then added, “The court has a pretty good idea of what the order is going to be in terms of what it thinks is required given the positions of the parties.”
Peggy Shores has pleaded not guilty to the charge of second-degree murder. If convicted, she faces up to 20 years to life in prison.
According to court records, she called 911 to report a shooting Dec. 11, 2016, later telling police her husband tripped and fell on the stairs while carrying a loaded gun, accidentally shooting and killing himself.
Authorities did not arrest her for more than two months while they investigated.
Police say the downward trajectory of the bullet, the location of the wound on the left upper chest and the lack of gunshot residue in that area make it impossible for David Shores to have fired the fatal shot.
“All we are asking is the use of a work area at the Vermont Forensic Laboratory and the use of the same range used by the State’s expert witness to replicate the tests performed by the VFL,” Steven Howard, an attorney representing Peggy Shores, wrote in a recent court filings.
In a filing from the prosecution, Rutland County Deputy State’s Attorney Travis Weaver replied that under the Vermont lab’s policies and protocols to maintain compliance with its accreditation organization, only VFL personnel are authorized to conduct testing within the laboratory.
And, despite the defense expert’s training and experience, he is not associated with an accredited lab, nor a member of the Association of Firearms and Toolmark Examiners, Weaver wrote.
By having that person use the Vermont lab, it would risk the facility’s accreditation, the prosecutor added.
“The State’s proposal of allowing the defendant to perform the tests at an accredited lab comparable to VFL would satisfy these concerns,” Weaver wrote.
“It would ensure,” he added, “that the evidence was only transferred to, and tested by, an institution subject to policies, procedures, and safeguards that require the proper handling and tracking of evidence.”
Howard, the defense attorney, said the expert, Christopher Robinson, of Sharpsburg, Georgia, is a forensic expert in firearms, gunshot residue, tool marks and crime scene reconstruction.
Robinson had also worked for 10 years with the Georgia Bureau of Investigation and was a crime lab director for two years, according to the defense attorney.
“The idea that he would jeopardize his career and his reputation by destroying evidence in ridiculous,” according to Howard.
The defense attorney wrote in his filing that he hasn’t been able to find a laboratory to conduct the testing without hiring another expert affiliated with that laboratory to do the testing.
“The State’s position, as it currently stands, prevents the Defendant from effectively inspect(ing) and test(ing) the very evidence which provides the only support the State has for its case,” according to Howard.
The defense attorney added that he wants Robinson to test several pieces of evidence, including:
• The shirt David Shores was wearing when he was shot;
• The wooden board in which the bullet from the shooting was lodged after striking Shores;
• The gun that was fired on the night of the shooting.
“There’s a board where the bullet was lodged,” Howard said after the hearing. “All we asked to do is to take a dowel, put it in the hole in the board to determine what’s the angle of entry.”
Many family members of both Peggy and David Shores have attended every hearing in the case in support of Peggy Shores, filling rows of seats behind her and Howard, her defense attorney.
“This is a huge win,” Howard told the family members outside the courtroom Monday following the hearing, though he warned it could be “painful,” as it may prove to be expensive to meet the demands of the judge’s order.
“The court may require us to come up with a laboratory for our expert, the court may require us to compensate the Vermont Forensic Laboratory,” the defense attorney said. “The court may require us to do any number of things.”
He added, “Based on the last hearing that we had, the court made clear they’re not going to send the evidence to our expert. He’s going to have come up here.”
Howard said Robinson has testified as an expert in more than 600 trials over the past decade from Texas to Pennsylvania, but not yet in Vermont.
“If they want to argue his credentials as to how much of an expert he is, great, that’s for the trial,” Howard said.
Rutland County State’s Attorney Rose Kennedy, who is also prosecuting the case, said after the hearing Monday that she “totally” supports the defense’s ability to examine and test the evidence.
“However, the state has a burden to prove the case beyond a reasonable doubt,” Kennedy added, “and wants to make sure the evidence is safe and not altered and an accredited lab is one way to ensure that.”
As the hearing Monday came to a close, Howard told the judge he wanted to make sure one point was clear.
“We’re not asking to use the lab, we’re asking for a workbench,” Howard told the judge. “We will bring in the equipment. We just need access to the evidence.”
“The court understands,” Zonay responded.
