today on "the best defense," a miami man is on trial for the fatal shooting of a 9-year-old girl. while damon darling admits he was involved in a shootout, he claims he acted in self defense. and "the best defense" starts right now. this is "the best defense." i'm ron kuby in for jami floyd.

jenkins, her little sister and a friend were playing outside the jenkins' apartment in the infamous pork n beans housing project when gunfire broke out. darling claims he fired the gun in self defense. good morning, beth. >> reporter: good afternoon, ron. >> i guess i'm thinking of the morning because an issue has come up with respect to a little selective editing that the police may have engaged in as a general rule, the police are required to provide copies of all statements a defendant makes to defense counsel before trial. it seems as though the police provided most of the statement, but they left out the little "not guilty" part. >> reporter: well, okay. it's not as easy as that, but generally you're right. and they are supposed to turn over what's in their control, okay, what they have access to.

here is what happened. the defense learned about the existence of a portion of the police interrogation of damon darling three weeks after the incident, which was done at police station, videotaped by police equipment aired on a television show qurks the first 48," an episode called innocence lost. it's been aired a number of times during this pendency of this case. many misrepresentations, the first being that there were two arrests made in the first 48 hours, and there were not. one arrest five days later and another one three weeks after the incident. but there are a few portions of damon darling's police interrogation that are on the show. the defense learned for the first time about a portion that existed on tape that was never given to him by the state

attorney in discovery. so, it is possible that the "first 48" producers were present in another room listening and rolling on their own tape and the police didn't roll their tape. that may be one explanation. i'm not sure. in any event, it is the lead detective, orlando garcia, saying to damon darling, in essence, we know you fired in self defense, we know the other guy is trying to kill you. just tell us what happened. it's okay if police don't believe that. they can coax some statement out of a person. but he does get damon darling to place himself on the scene and a weapon in his own hands. so, let's play for you the portion that aired on television that was never given, apparently, by the state attorney to the defense.

here is that section. >> this guy provokes you, draws down on you and fires at you. you did what every normal person would do. but by you saying that, no, it didn't, i didn't have a gun, i just ran away, all it makes it look to everybody's statement that you're lying. they're going to convict you of the death of a little girl. >> this whole issue arose, ron, at the end of the day yesterday because the prosecution filed a motion seeking to eliminate the cross examination of the defendant whenever he takes the stand later this week because so much is scripted in this show and the prosecution knowledges it's not all factual, that it's not fair.

they shouldn't be able to go into it. this is a tv show and it's not the police investigation. what is relevant is what happened during the police interrogation and the judge has basically agreed with the state, yes, you, mr. meltz, can cross examine on both portions, the police interrogation, what you learned for the first time on tv as well as what you were given, but not stop that a & e scripted for their show. i don't think we've heard the end of this, because i believe that the defense wants to be able to question garcia about the show. are you getting paid? you're talking to these people about a case, an ongoing case. you're making mus representations or the show is making misrepresentations with your character on a case that's pending. >> okay, beth. there's a lot here. let's cycle back a little bit to the snippet we saw, the snippet in which garcia says, i know you acted in self defense, which is fairly powerful exculpatory

evidence for the defense. obviously, garcia can come in and say i was lying, i didn't know anything of the type. nonetheless it's powerful when the cop says something like that in the course of the conversation. we all know the piece we saw was the actual interrogation. these aren't actors, right? >> correct. correct. that's the actual interrogation. >> and we all agree that the police were taping the interrogation, correct? >> reporter: well, he was spoken to three times and state attorney gordo referred to preinterviews and then the tape recorded ones. and the tape recorded one, 40-page transcript, which you should now have in new york. we just sent it up to you. that's what the jury apparently is going to see. and so they did talk to him before they hit the record

button and apparently notes about that has been turned over, but apparently the police didn't record until the third time they talked to him and a & e may have recorded before. i think. i think that will be the explanation. >> okay. so the a & e camera is there with police permission, right? they didn't -- this wasn't some sort of secret a & e plant, right? >> no, it definitely was with permission. i don't know that they have their own camera, but may be plugged in to the police equipment. >> they're plugged in to the police equipment or maybe even have their own camera. the police are watching and listening while garcia, you know, knows what he's saying. he's saying, i know you acted in self defense. even if the police decided, you know what? let's just shut off the recorder for this, because this isn't going to look too good in mr. darling's trial, they nonetheless knew that those tape i ings were made, they have a duty

to provide even if they didn't record it. if they did record it and selectively edited the not guilty part out of the tape and handed over a tape that was fixed in post production, another television term, they're in big trouble. this is not okay. >> reporter: i can't say that the statements weren't turned over in a report, because i don't know if a report was written about all of these previews, pretape recording interviews. i don't know how detailed it was. i do know that the defense attorney said yesterday i didn't know about this until i saw it on tv. he was at least talking about a tape recording. and it's possible, ron, that at the time of the interrogation, it's possible that garcia believed that. >> oh, sure. >> what he was saying was right. >> it's entirely possible that he believed it was right, which would be relevant in significance. what is the state's attorney say about mr. mystery tape? >> reporter: i don't have the

explanation yet. we're waiting for the -- there will be further matters. it's going to be taken up again, maybe not until the cross examination of garcia or just before, but the judge told the attorneys to get together yesterday, try to figure out how they're going to extract from the a & e show those portions he has found admissible and then create a recording for the jury to see without, you know, stopping and starting the tape and leaving out the narration, the scripted stuff. we haven't heard the end of it yet. >> we have two great guests with us today. both are criminal defense attorneys, and both are former prosecutors, joseph dematoe and steve razer. his sister is drea demateo of "sopranos," now currently in "desperate house wives." i'm a huge fan. this, to me -- perhaps i shouldn't editorialize unduly.

by why not? this really stinks. >> let me lay it out for you, as best i can. i agree with you wholeheartedly. even having been a former prosecutor. the whole concept that half the interrogation is taped and given over to the defense, and that's the good part. and the other half where they lure the guy into giving a statement, offer him this, that, the other thing, i promise the prosecutor is going to go easy on you, because oh, my goodness, you only acted in self defense, and then they bury that? that's reprehensible. abuses that have been found, people who are not guilty, confessing to crimes after a skilled detective has employed all of these psychological tactics. i don't know if that's what went on here. i also find it absolutely stunning that, with all due respect to the media, that the police are allowing the media to

tape into a confession, into police work. i guess that happens, but it's another issue. it's amazing to me. >> right. steve, let me go out to you. there's something i don't quite understand. we're all talking about possibilities. beth, very much raised the possibility that a & e was filming this independently of the police. that certainly may be the explanation. but how stupid are the cops here? they are seeing this on the "first 48." it's like, wow, they got a tape. where's our tape of that? they have to know eventually this is going to come out and it's going to look terrible. >> the whole thing doesn't make any sense to me at all. i'm looking at this recording, and i'm seeing this interview. i don't see any place for a & e to have their own camera in there. it seems to be quite clear that the footage they're relying on is the very footage that the police filmed, not a & e. a & e was taking that film and

utilizing it for their own purposes and just, in fact, used more of the tape than the police had. there doesn't seem to be any question in my mind, based on what i'm looking at here, that this is all police tape video. i will agree with the point made before, which is i never had a case where there's been video where you see the entire footage where it does not help the defense. >> right. i have to say this, beth. we're busy dumping on a & e here. let's face it. if it weren't for a & e and "the first 48," it sounds like defense counsel never would have known that the interrogating officer insisted that the defendant was innocent. i think a & e ought to get part of the fee. >> reporter: are you asking me, ron? i don't know about that. >> answer it any way you want. >> reporter: i don't know about that. you used to be able to see it online, by the way. but they've since yanked it, since there's a little controversy in this case.

apparently, there have been issues in other cases because of "the first 48." so, we'll see how it shakes out in this case. >> well, remember, folks, it is the media out there that has the duty to report and often times we do report. sometimes it hurts the defense. sometimes it hurts the prosecution. i, for one, i'm really glad a & e aired this. at least we know what happened. i have a hunch the cops -- they must have just forgot. you know how busy they were. you forget about the little not guilty part. sen me an e-mail, let me know what you think about this case. what is damon darling's best defense? logon to cnn.com/crime.

welcome back to "the best defense." i'm ron kuby. the darling case, they're take tharg lunchtime recess. as soon as they get back into the courtroom, we'll get you back into the courtroom. it gives us an opportunity to talk about some of the issues in this case, one of which is the issue of self defense. the florida legislature, in its

infinity wisdom, decided to expand the common law right of self defense. usually common law, you had a duty to retreat in the face of deadly physical force, if you could do so with perfect safety to yourself and if, in fact, you saw the place where you could run to. you basically had an obligation, in public at least, not to use deadly physical force if you could avoid it. the legislature said don't be silly. that's for those blue state liberals. we want you to shoot it out in a public place. in fact, you can even shoot people in the back, as they're fleeing. how cool is that? that law was passed. and mr. darling apparently seems to be trying to take advantage of that. steve raiser, i think the whole "stand your ground" issue is overblown here. i don't see that as an issue in darling's case. either he was acting in self definutáhju he wasn't. it didn't look like there was any place for him to flee to. >> it doesn't seem to have any place here, because let's face

it, this guy had no legal right to even have a weapon, much less an ak-47. >> what does that have to do with anything, steve? >> the idea of the law was to protect your joe shmoe citizen, who is going to have a gun to protect himself. it is never intended to help criminals to defend themselves when they are, in essence -- they are committing a crime by the very possession of that weapon. >> okay. but, frequently, the law has unintended consequences. a hypothetical. a 16-year-old boy is at home. bad guy breaks in, kills mom, dad and little sister and is coming for the 16-year-old. he reaches in to his mom's drawer, pulls out a .38 special, which he's not allowed to possess because, hey, he's a juvenile. he shoots the bad guy. he certainly can claim self defense even though he wasn't in lawful possession of the weapon because of his minority, he wasn't allowed to possess a weapon. it's still self defense.

>> that's true. can you find a gray area in anything. in this particular situation, how did he get the ak-47? he wasn't in his house. he wasn't sitting there, where someone else had legal possession to this weapon. the analogy is not quite proper. he didn't just grab it off his shelf because it was his spouse's weapon, which he had a legal right to and, therefore, transferred her legal right to him. >> that's a distinction without a difference for purposes of this law. you want to draw a moral distinction. frankly, i get it. but the law says if you are engaged in unlawful conduct, you can't use the "stand the ground" defense, and it applies equally to little johnny as it does to mr. darling, to the extent it applies at all. >> you're going to be making the argument to the jury and the jury will be willing to hear that argument, the 16-year-old protecting his mother, but they're not going to want to hear it from a convicted felon.

>> accused of killing a 9-year-old little girl. those pesky facts. beth karas, i understand you have some updates for us. >> reporter: yes. i have confirmed that the defense did not learn from the police report either. so, they did not -- jonathan meltz did not get the tape of garcia saying, we know you shot in self defense, nor did garcia put it in his police report. the first time he learned about it was on "the first 48." it wasn't in the case tapes that were provided to him. you know, there's video of the scene. you see david jenkins when he comes home in his security uniform learning that his daughter is dead, crying. it's really heartbreaking on the show. they were there on the scene. and they have some video, very close to the actual scene. i don't know if they were inside the crime scene tape or outside, but they're shooting their own video that day. >> right. but, again, even if a & e was shooting their own video and the police technically didn't have control of that video -- although they could have gained control if they wanted to -- the

fact that garcia omitted that little detail from his report, taken in the totality of circumstances, beth, strongly suggests -- although, obviously, it doesn't prove, that this omission was deliberate. >> reporter: you may make that argument. i think you may say, look, a report doesn't have every detail. i don't put everything that i say and everything a suspect says to me in a report. it's a summary. and i didn't find that this was all that important. you take the opposite position. i'm just saying there may be an argument like that. >> i'm sure there will be an argument like that. in terms of the way the world functions, here is a videotaped statement of the cop saying, i know you acted in self defense, basically establishing the defense the defendant is now asserting. that s inform ippet of tape never make it is into the

defense's hands. it's sort of an important detail. >> as far as this detective's credibility, okay, he left that out. what else did they leave out? what else didn't make its way on to film? what else didn't make its way into the report? if this is -- if the jury buys that there is some suppression of evidence here purposely by the police -- and i think there's a great argument for that, obviously -- then the jury can draw other conclusions about how complete this report is. the other thing is, this would also play in terms of trying to get that confession suppressed, and that might be something that's still at play here. although given the way the judge is reacting to these issues, it doesn't sound very likely. >> let me go back out to you and pose this question. as a defense lawyer, not only is this a gift to me, it can easily be a gift that keeps on giving. as joe points out, this crucial detail was omitted.

we happened to find out inadvertently. what else is there? where is the actual full, unedited, not fixed in post tape of this interrogation? who has it? let's get it before we proceed any further. i would anticipate defense counsel would do that. if they're not, i'm telling them, they should. >> i heard some mention of attempting a subpoena from a & e. i don't know if it was litigated. i haven't discussed that with him. i will try to find out. but there was -- he did mention that. >> that should be interesting to see how that plays out. media tends to fight these things and they usually win. this case might play out a little differently. beth, ind there was some disturbance in court this morning, a spectator ejected. tell us a little bit about that. >> reporter: yeah. finally got the story on that. it was after the morning break -- no, when the day started at the beginning, late morning. the judge has a calendar every morning. the judge did not have the

defendant or jury in there and was speaking to the courtroom. it was a small public gallery and it's pretty full. she was very concerned that somebody had defied her orders for decorum in the courtroom inside and in the immediate vicinity outside the courtroom and said this can result in jailing of someone, or contempt, and then asked the bailiff, the court officers to escort out of the courtroom for the rest of the trial a woman who had misbehaved. it was someone on damon darling's side. i don't know the relationship to him. she had seen monica gordo, lead assistant attorney in this case in the hallway, flipped her a bird and called her a bitch. >> well, that is exactly the kind of thing that will and properly should get you ejected from the trial. spectators are just that. they're not participants. thank you for clarifying that. it was unclear what had precipitated. this was precisely in -- i think

the woman is lucky that she is not looking for bail money herself. tell us a little bit about what happened this morning and what we can look forward to when court reconvenes. >> reporter: today was all about crime scene evidence that was collected, and the three bullets that were found. one was recovered from the medical examiner's office. he removed it from sherdavia jenkins' neck, a bullet fired from an assault weapon and 20 spent shell casings in the vicinity where damon darling had been, all consistent -- all fired from the same weapon. the weapon never recovered, by the way. it was an assault weapon also. the witness, ballistics expert could not say whether it was a semi automatic or full, fully automatic ak-47. most of them are semi automatic. that's probably what it was, but he couldn't tell. the difference is that you have to pull the trigger each time with a semi automatic, or just

keep your finger on the trigger for the fully automatic. two bullets consistent with the ak-47 traveling west to east, the direction where darling was to where sherdavia jenkins was, penetrated the same tree, a palm tree. and there were photographs of dowells going into the tree. the bullet recovered from sherdavia jenkins had damage to it. he opined it had hit another obstacle before hitting her neck, still having enough velocity to go into her neck, but didn't exit her neck. it was an ak-47, if it was a direct hit, it would have gone through her. probably in the tree, but there were strike marks in the wall to the doorway to her house as well. >> that fact, that was obviously known to the d.a.'s office in advance would probably explain why mr. darling is charged with depraved indifference rather

than intentional murder, while he didn't intend to kill the little girl in question. if he intended to kill somebody else and then accidentally killed a third person, it still can be prosecuted in many jurisdictions as intentional murder. on the other hand if he was simply shooting, not really paying attention to where he was aiming, bullet hits a tree, ricochets and kills somebody, it still can be prosecuted as murder. are they using both intentional and depraved heart or just opraved? >> just depraved here. >> did the testimony of the victim's family help the prosecution? so far, 79% of you are say iing yes. 21% of you are voting no. logon to our website to cast your vote. this is the best defense. we'll be right back. !d!d!d!d!d!d

welcome back to "the best defense." i'm ron kuby in for jami floyd. the darling trial, the jury is taking it their lunch break. court is in recess. as soon as it resumes, we'll bring it right back in. it gives us the opportunity to play some of the legal arguments

that were held last night over this issue of the tape. it all began with the prosecution filing what's known as a motion in lemne. it's a motion at the threshold, a motion at the beginning of the case or before the evidence comes in to try to prevent defense counsel from cross examination about what he had seen on a dramatized television show called "the first 48," quickly spiraled into a discovery of arguably when would or deliberately suppressed evidence. these are arguments last night on the state's motion to stop defense counsel from cross examination in certain areas. >> filed -- i think the court has a copy of it -- motion in lem inform e regarding the defense bringing up any mention of a show that was tape recorded that's a dramatization, name of the show being "the first 48."

i think the episode that deals with this case is called "innocence lost" or something like that. it was turned over to the defense because it does have footage of the defendant's statement. in our motion, we laid out some facts. i have detective garcia here present to testify outside the courtroom regarding the issues in this case. interestingly, as he explained to me, is he one of the stars of the show. everybody who does homicide in the city of miami is regularly taped and several other police departments across the country. i don't know all of them. but basically the show is a complete dramatization and the camera crews follow the detectives during different periods of the case, but many times the taping is done separate and they are given scripts to read, and to read from. i'm concerned that the defense, at some point, whoo try to impeach detective garcia about anything that was said on that show regarding the case, because he can testify in front of the presence of the court that anything he said were scripts.

i'll give you a couple of examples of this particular show. this particular episode begins with the detectives boating, then they're called to this homicide. detective garcia will tell you he was home sleeping or he was home, off duty, and he wasn't actually boating that same day. the taping of the boating was on a totally separate day. the way the episode starts out, it looks like these detectives are out boating, they're called to the scene and they stagger there, over to where the scene happens. we go on from there. for example, the co-defendant, leroy larose makes a call into homicide. the detectives tape recorded the phone call, but there are parts of that phone call that later are recorded and the detectives act with a script and replay this role for the cameras. it's a complete dramatization. in other words, if there was something on that show i would like the jury to see, there's no way i could bring it into

evidence because i couldn't authenticate it. that it's relevant somehow, i suppose it's somebody's idea of what occurred in this case, that it may have portion that are relevant, but it's not authentic and i don't think it should be brought in, in any manner in this case. specifically not to impeach when they're reading from a script and it can be testified to prior to and outside the presence of the jury. this would be tantamount to an actor who regularly alcohols. let's say sally fields, hypothetically, was getting a divorce in real life and her ex-husband wanted to play what a horrible wife she was by putting in a video of a role she did as a horrible wife. it's really irrelevant. whether she was a bad life and this may seem what her life was like, they're role playing. they're acting. this is not a real live documentary that was occurring. detective garcia can testify to that. matter of fact, there's a case that i guess is what they're filming currently that they've

been working on. i just got this last night. i'll give it to counsel and pass one out for the judge. this is a script that detective garcia claims he received on a very active media case. i prefer we not maybe discuss the facts of the case as it's an open investigation. this is what the show gives them. it literally tells them, detective garcia, you are going to say this and you are going to say this. they gave him a script. they don't keep them in the cases. they take them to show. it's a complete different thing than real life. most of them don't watch the show or follow the show. now, that's the state's argument as to why it should be kept out and any mention of the show should be kept out. >> this is the first time i'm hearing about this.

your motion last week, we're taking it up now. i haven't even seen this tape. >> which i would suggest would be a good start, to watch your episode yourself. here's what happened. some of the parts i found quite amusing, because i did know from our case detective garcia was home sleeping when the call came in and my client was arrested. however, on the show, three or four detectives huddled around a desk, sort of like waiting for a call and saying, oh, yeah, you got him in custody? okay, we're right there. i found that amusing. however, what i didn't find amusing was the part on the tape where he's interrogating my client. it's real. it's actual, and it's happening. and, unfortunately or fortunately, that part doesn't appear on the tape in evidence in the case. so, it absolutely opened -- shows all kinds of -- i won't say motive, but it's relevant

and it's directly on point. i don't particularly care that they were fishing one day when the call came in about the case. no. what i'm concerned about is that the interrogation of my client -- as your honor remembers on motion to suppress the statement that the tape went on, tape went off. tape went on, tape went off. tape was still rolling for "first 48," but not the tape in evidence in this case. >> judge, i don't mind giving the court a copy. if the court wants to take it home and take a look at it. i also would say that any part of the defendant's testimony or interrogation with these detectives, so long as there's no narration by the "first 48." their narrators from the show are talking as the tape is rolling. that's extremely suggestive and extremely inappropriate. i would argue that basically any conversation that is taped that the detective is having live

with the subject, that that would potentially be admissible. if defense counsel wants to redact it to -- but the -- being able to authenticate the entire tape or impeach the officer with any narration statements or anything he even says on there that he can testify to that was pulled as a script is a separate issue. >> let me ask you this. of this whole tape -- during motion to suppress, i watched -- we watched -- >> one tape. >> one tape of the period of time of the interrogation. >> that's how would you say, the defendant's final story. we'll say stories one, two, and three in the finals taped by the detectives. >> what does this depict as far as the interrogation? >> this has some parts of the preinterview that the detective testified about and that part,

so long as the narrator is not involved, i don't have an issue if we're able to redact it. i do think the court should watch it. i think we maybe -- maybe if defense counsel, since he has this motion and he hadn't told me this, we could possibly watch it tonight and discuss it and see if we could come to an agreement on t i think that's reasonable. if he wants to bring in some part of the interrogation tape without the narration as issue with his the preinterview, i don't have an issue with that at all. >> doesn't that go tonding limited -- wouldn't that ultimately go to the jury being able to make this determination independent of whatever the court previously ruled as to the voluntariness of the statements? >> yes, so long as the narration is not involved and no statements that are part of the script that the detective was ordered to say, yes. >> i disagree on that last part. i don't care if it's a script or an ad lib. if he's saying it to my client, it's relevant. why wouldn't that be relevant,

to get my client to talk? that's absolutely relevant. some third person back in the studio saying, oh, he's really got him now, that's not relevant, i agree. what he says to my client is not relevant? >> judge, what he says to the client, i don't have an issue with. what i do have an issue with is what anybody else says or what the detective is saying on the show, separate and apart from his client. >> so, the detective gets paid money to lie about a real case on camera, and he shouldn't be questioned about that. that's the state's argument. and, number two, gosh, the police cameras went on and off, but that pesky a & e camera just kept on rolling. hey, go figure. where is the full tape? it is time for another break. first, let's take a look at what a couple of viewers are saying about this case. darryl in pennsylvania rights, darling has a simple defense. s.o.d.d., some other dude did it. karen in texas says this

defendant was on parole and lost the right to defend himself with a weapon when he got into trouble. this story was so sad. enough. but for him to have the nerve to say he was standing his ground with an ak assault rifle in a housing community where children play speaks volumes about what we allow to go on in the low-income communities. thanks for those comments. keep them coming.

a 9-year-old girl is caught in a crossfire during a shootout in her housing project. she dies. who fired the fatal shot and why? (announcer) listening to you. it's how we save you money nationwide insurance. my name is sandy garza and i am on your side. only nationwide gives you an on your side review. you tell us about your life and your insurance. sometimes you don't have enough coverage. or you may even have too much. we'll let you know. we listen and build you a custom policy of just the coverage you need at the right price for you. (announcer) only a nationwide insurance agent can give you an on your side review. call this number to save up to $523. we take a look at the policy and look to see if there's any gaps in coverage.

you know, in addition, we talk about discounts that are available. and we try to save you money. i mean we really do. (anncr:) call this number now or call a local agent. switch today and save up to $523. listening and saving you money is how... ♪ nationwide is on your side ♪

welcome back to "the best defense." i'm ron kuby. media and law intersecretary in the courtroom as the prosecution is asking the judge to prevent defense counsel to cross xm the lead detective about his starring role in the television show featuring the very case on trial. let's go back inside the courtroom and watch the end of that argument about that motion. >> his statements to the defendant, i think, are absolutely relevant. >> any interrogation that happened or any interaction between the detective and the subject that are live and taped, i agree with, so long as the narration and other things are not. >> i'll tell you what. the two of you really should look at it again and you would have to -- you want to show that portion to the jury, would you have to come up with the

redacted portion and just transfer -- if there's a way that could be done -- the redacted portion of the tape, or not transfer. the problem is going to be if you can't use that tape. you would have to -- unless you put the -- because you need the sound up for conversation between the detective and your client. you're going to have to be turning the sound on, off, on, off. i think you need to listen to it, figure out which portion you want to use and come up with a way to accomplish that. >> we'll talk after we leave here, judge. >> you may have some ideas on how you can do that and, you know, make it work. anything else but that portion of preinterview or through the interview is going to be excluded. so we're granted in part and

denied in part. >> so, the judge appears to side with the defense to the extent that the defense is permitted to show the tape and cross examine the detective, and in part to the prosecution, what garcia says is part of the dramatization without the client present. joe dimatteo, i'm glad you're here, because your sister is adreana in the sopranos. it would be completely unfair to question her about things that she said as adrianna on "the sopranos," right? >> she is such a fine actress that i agree with you. but if you were using the anger and emotion she might generate for her role to prove on anothero occasion she might get angry and emotional, maybe you have something there.

what baffles me here is the police department is allowing their detectives to be filmed in the course of their duties and then allowing them to role play into like some kind of an imaginary detective in the context of a real case. so, i don't think the judge is really analyzing this thoroughly. i don't think the deference attorn attorney is. i don't think the prosecutor is. there's something there. you have to see that tape and get a sense of what are they doing that doesn't relate to the case and is for purely entertainment purposes, and does that have anything to say about this detective's state of mind when he actually took this statement from the defendant? >> steve raiser, as i'm watching this argument, i'm saying, okay, but garcia is a real detective and is portraying a real detective, himself, about a real case. but the things he's saying about the real case may be lies that he's being paid to tell and

defense counsel shouldn't be able to ask about that? i remember a case, fairly high profile case where another detective was saying some bunch of words that he claimed was all just part of a movie -- oh, yeah, yeah, o.j. simpson case. i knew it would come to me. >> good one. >> detective mark furman. it seemed pretty relevant to me. is that this case or is this something different altogether? >> i think joe made the point. the judge needs to listen to what was said and needs to not simply make these line rules about somehow separating out the media portion from the actual interview or criminal portion. it's the police's duty here -- they're the ones that agreed to sign up to this script. his client certainly didn't agree to this. his client wasn't making any money on it, and his client certainly wasn't looking for the fame. any way we're going to look at this, as far as from a judicial perspective, the judge should be favoring the defendant's arguments and at least look at the tape before she starts making some of these rulings. >> right.

joe, in listening to this, i don't know what garcia says that the prosecutor doesn't want him cross examined about. but we should at least find out what the contents were, and if they're innoccuous, like he was fishing at the time. who cares. >> if they're trying to do something realistic on this show, where are they getting this information from? if it's not the own detective's information, is he adopting this? this is how we do things, hanging out on a boat, stagger over to the crime scene. if that's the way you do things, sure, the jury should know about that. you put yourself out there. you're doing something very sensitive and important and you put yourself and your technique out there and you dramatize it. are you adopting what you're saying when you do that? and shouldn't you be able to be cross examined about it if it's relevant to the case? i think you should be. >> steve raiser, the part that really became the tail end of

this -- though i think the tail will be wagging the dog -- is the revelation that the police camera goes on and off and now we know it went off at a particularly interesting time, when garcia was saying, i know you acted in self defense. i know he was trying to kill you. somehow they didn't film that. it does raise the question as to what other times the camera went off and what other evidence favorable to the defense was switched off. >> absolutely. and i think that's -- at this point, it's a gift to the defense. any time that the defense can switch the focus off the defendant on to the police and what type of investigation they actually do, they were under a tremendous amount of pressure to get somebody to milwaukee an admission in this case. they had a dead 9-year-old girl and very highly volatile case. yes, it is very important, all the context. if they don't give that all to the jury, that's not fair to the

defense. the defense deserves to have that. and they're not being given it. the more i hear about this, the more strange and bizarre it sounds. to try and fit this into some sort of dramatization and at the same time say, okay, we're just going to supplies out the parts that we say are narrative and the parts that we say are not part of this investigation. who is making that determination, the police, the media? i don't think they should be making that determination. they should hand over everything to the court and the judge should make the determination as to what is relevant to this trial which, in my opinion, if it all has to do with this case, it's all relevant. let the detective explain to the jury why he said what he said. let him explain why it's part of this dramatization. let him explain it. that's what redirect is for. >> all right. i think the media lawyers might have a different view of it. right now there's an argument going on outside the presence of the jury. defense wants to engage in a demonstration of a shell catcher. prosecution objects.

let's go inside and take a look. >> 20 casings. >> yeah. but this is evidence that was found at the scene. were there any shell catchings found at the scene? >> shell catches would be attached to the weapon. weapons weren't found at the scene. that's what everybody said. directly relevant. the state will argue there's only one gun used in this case, those casings came from the gun. he doesn't know what gun these cases came from. it's possible for a second gun to be out there, to be shooting and there will be no casings left at the scene because those casings are within the shell catcher. as you know, you heard the evidence in this case, testimony the state's own witness, leroy larose will say there was a second shooter with an ak. you'll hear the state ask witnesses about the crime scene. and did you go north? did you look around? and that evidence was there. so, they tell the jury whether or not they found shell casings.

mr. yen told us today, he didn't find any shell casings. directly relevant the reason they didn't find shell casings, the second shooter had a shell catcher. so just add this. the state can show the ak work. he's going to admit it on cross. i should be able to demonstrate what a shell catcher does. he showed them the little part on the ak where the shell comes out or casing comes out. i should be entitled to let them show the jury where it comes out if a shell catcher was used. >> the predicate is -- the question is anything that will mislead the jury. and the predicate is that there is evidence in the record that an ak-47 was used. there is no evidence in the record that a shell catcher was used. not that he can't pose those questions on cross examination in possible ways in which you could not leave case iings at t

scene, but there is no witness, including leroy larose, who says i saw an ak-47 with a shell catcher on it. >> reversing my prior determination, you're not going to use the shell catcher demonstratively. i will let you ask questions of the witness, in your cross examination about the means by which shell casings can be collected. i don't believe the -- there is sufficient evidence in the record that there was a shell catcher in this case or involved in this case. under mckinney verse state provided to me earlier by the state, i read the case again. 951, florida third district 2007, i don't believe that the

demonstrative exhibit is relevant to any of the issues in the case. and the fact that i understand the state's theory -- defense theory of defense, but i think that it would be outside the realm of what would be permissable as far as a demonstrative aid. >> confused ? don't be. we'll explain it all when "the best defense" returns. .

up next on "the best defense," a miami manson trial for the fatal shooting of a 9-year-old girl. while damon darling admits he was involved in a shootout, he says he acted in self-defense. a new hour of "the best defense" starts right now. this is "the best defense." i'm ron kuby in for jami floyd today. two men have been charged in connection with the fatal shooting of 9-year-old sherdavia jenkins. one man, leroy "yellow man"

larose has pled guilty to second-degree murder, and he's serving a seven-year sentence. he's now the state's key witness against the other man, damon "red rock" darling. the child was accidentally shot while larose and darling were engaged in a shootout at 3:00 p.m. on saturday afternoon in the middle of a housing project. darling claims he acted in self-defense, and further claims that another man was involved. "in sessions" beth karas is outside that miami courthouse. beth, as we finished listening to argument, there was something about a shell catcher. where does this come in? >> reporter: yes. the defense wanted to ask the ballistics expert who he is cross-examining just beginning now about that, because there is a modification that can be made to weapons and assault weapons to catch the shells that are being ejected as the weapon is being fired. now, here's the reason. only spent shell casings from one gun were found at at scene.

there were 20. this witness has already said that in his opinion they were all fired from the same weapon. larose and darling both said there was a third shooter, right. they each ad mitt having guns and there was a third shooter with a big gun. darling says it is -- he named the person and gives him a chopper and takes a chopper himself, a street name for ak-47. there were no spent shell casings for another weapon, but it's not just these two who were charged with the murder who say there was a think shooter. there's another witness samd sam brown who testified at a hearing in a police report. he says he saw three shooters, two black men and one white man with the dread locks. he's referring, of course, to larose as the man with very light skin. larose does have a jewish grandmother, and he has long dread locks, so there is an independent witness who sees three guns, and there has to be some explanation if one of them is an assault weapon that --

that there are no spent shell casings, so this -- this is the explanation. he can't use, the shell catcher as a demon strative aid, but he can certainly cross-examine this witness. this witness, already when he was deposed, you know they do depositions of material and key witnesses in florida of key witnesses is and he did talk about shell catchers. >> if andrews had a shell catcher on his ak-47 it would explain why they saw three people firing but there were only spent shell casings from one ak-47 found at the scene. >> correct. that makes sense. >> reporter: one edit to that statement. we don't know really that it was andrews. that's what darling says. andrews testified at a hearing two weeks ago and he denied being there and having anything to do with it. >> well, i'm shocked that mr. andrews would do that, and he has a jewish grandmother. i mean, haven't the jews suffered enough, we're responsible for him, too? watching the trial with us in our new york studio, two criminal defense attorneys, jetformer prosecutor joseph

dematteo and stave raiser. i want to ask you to stand by. george hertel, the firearms expert, is undergoing cross-examination so let's watch. >> the 20 casings would come out of the area that you just told the jury. >> that's correct. >> and it would go on to the ground around the area where the person is shooting? >> approximately, yes. >> now that means they would come out of the gun on to the ground unless there was some device attached to the gun itself, correct? >> yes. >> and there's a bunch of devices which allow you to capture or collect the casings, correct? >> yes. there are devices called brass catchers which can you collect to a firearm to collect your brass typically used by shooters so they don't have to find their brass for reshooting purposes. >> you can buy these items over the internet. >> that's right. >> $10, $15. >> number of different prices. >> no permit, no license, recht. >> in essence if someone utilize the this type of device there would be no shell casings on the ground? >> assuming they fall into the

brass catcher, yes. >> you're saying unless there was a hole in the brass catcher or something? >> correct, or they dump out the contents or something. >> the brass catcher, do you remember the dimensions of the brass catcher? >> no, not in particular. >> would anything refresh your memory if you were shown one? >> possibly. >> judge, may i refresh his memo memory? >> the answer is no. there's no evidence of that being at the scene. >> to refresh his memory as to the dimensions of a brass catcher. >> it's not warranted in this case. >> sustained. >> show us exactly where it goes. >> it would be mounted somewhere on this area on the firearm. >> it covers this hole or actually this hole, correct? >> it has to be allowed for the shooter to charge the weapon which means they can't impede the process so it would have to fit somewhere on the firearm to catch the brass to work for this type of weapon.

>> usually they are like a ballistic nilon material? >> i've never personally used one. i don't know what they are manufactured of. i have seen them roughly in pictures, you know, at a distance, but they would affix to the firearm somewhere in this location and catch the brass. >> and so too are commercially produced for the firearm industry, correct? >> as far as i understand, yes. >> as a matter of fact, they are actually within your work at the crime lab, you've actually come across a case where somebody made one themselves, correct? >> there was one instance where somebody used a plastic bag but it was unsuccessful. it was on a handgun as i remember. >> it was a publix bag or something like that? >> that's what i remember, yes. >> mr. hertel, if somebody used

a brass catcher, a shell catcher, a casing catcher in this case, there's no way you'd be able to tell from your examination, correct? >> there was no other evidence emitted from any other firearm so i don't have any indication whether there was or was not a brass catcher used. >> you could not tell. >> i could not tell. >> thank you, sir. >> any redirect? >> you cannot tell us, let me make sure i understood this correctly, that the projectile that came from the medical examiner's office was fired out of one of the ak casings that was submitted in this case, correct? >> that's correct. >> but the .44 projectiles that are there. >> yes. >>y in definitely could not have

been fired out of those casings on the scene? >> that is correct. they are much larger in diameter as far as their caliber is concerned but have been loaded in a different cartridge and were fired from a different weapon based on the classification of caliber and the rifle characteristics. >> and the only weapon they could have been fired from is a .44 caliber pistol, is that correct? >> that is correct. >> okay. >> you may step down, sir. >> thank you. >> well, it's time for a quick break, but first let's take a look at what a couple more of you are saying about this case.

thank you for those comments. keep them coming. visit our crime page at cnn.com/crime. we'll be right back. (announcer) what do people notice about you? people notice my devotion to family. people notice my love for animals.

my smile. my passion for teaching. my cool car. people notice i'm a good friend and a good listener. people notice that i'm a good boss. people notice my love of nature. people notice i can fix anything. (announcer) thanks to miracle-ear what people don't notice about you is your hearing aid because, look closely, our hearing aids are nearly invisible. our exclusive line of open fit products are so lightweight, so small and so natural sounding even you won't know you're wearing one. you know, most people don't know how good or bad their hearing is... they just know when they're missing things or hearing words incorrectly. miracle-ear can help. with a quick, free hearing test. miracle-ear has been helping folks for nearly 60 years. we're the number one choice in hearing aids. get your free hearing test today. it can change your hearing-- and your life-- for the better. (announcer) call now. our simple process can have you hearing better than you ever thought possible. and our full range of products are designed

to suit your needs and your budget. people notice my zest for life. my great sense of humor. what sense of humor? people notice my beautiful wife! (announcer) let people see the best in you, nothing more nothing less. try the nearly invisible hearing aid at a nearby miracle-ear location. every miracle-ear hearing aid is backed by a risk-free 30-day money-back guarantee. find out for yourself what has made miracle-ear a household name for better hearing, miracle-ear. what will your miracle sound like? call 1-877-908-4327 to schedule your free hearing test or for a free information kit with complete details about hearing loss and how we can help you. call 1-877-908-hear to take one of these easy steps toward better hearing. that's 1-877-908-4327 call now!

welcome back to "the best defense." i'm ron kuby. on the witness stand now, a new witness, shatara hanks, an acquaintance of damon darling. she was a bit older than him. she met him while he was in high school. she knew him by the nickname red rock. let's go inside the courtroom and watch. >> so you've always lived there with your family? >> yes. >> now that address, and i'm going to reference you to july 1st, 2006, the day of the shooting, you know where that took place, right? >> yeah. >> how far away is your house from that shooting scene. >> like two or three blocks. >> two to three blocks. >> okay.

>> now back on july 1st, 2006, during the afternoon, late morning or early afternoon hours, did you see the defendant in this case, damon darling. >> yes, ma'am. >> okay. where did you see him, do you remember? >> 52nd and 13. >> just met him to talk? >> yes. >> okay. did you -- at some point did you guys stop talking? >> yes, right. >> was there an agreement to get back together that day. >> yes, ma'am. >> okay. how were you guys going to contact each other? >> over the phone. >> so where did you go from there? >> i went home. >> okay. did you later call him, or did he call you? >> i called him. >> so did you meet again? >> yes, ma'am. >> do you remember exactly where you met? >> where the shooting happened. >> okay. >> exactly there or a block from there or -- >> on 13, on the end of the block. >> okay. >> somewhere very close to it, okay.

and were you -- you just met outside on the corner? >> yeah. >> and were you guys talking again? >> yeah. >> do you remember how long you were there before you -- you both left? >> no, no, ma'am. >> 10 minutes, 15 minutes. >> 10 or 15 minutes. >> okay. you weren't there two hours? >> no, ma'am. >> now the time we're talking about now, is this in the afternoon? >> yes. >> do you know about what time? >> maybe like 3:00 or 4:00. >> and this is on a saturday, right? >> yeah. >> okay. at the time that you stopped talking, okay, why did -- why did damon leave, and why did you leave? >> he didn't say. he just said he'd be back or just call him and he walked off. >> okay. >> so he didn't give you a reason. he said what, just call me? >> i'm fixing to go, i'm fixing to go. >> okay. >> and he said call me? >> yeah.

>> okay. which direction did he walk off? >> the opposite direction that i walked from. >> okay. was he walking towards where the shooting eventually took place? >> yeah. >> okay. >> now you walked the opposite direction? >> yes. >> and where were you going? >> i was going to my brother's friend's house. >> a friend of your brother's house? >> yeah. >> was it located near there? >> yeah. >> a couple blocks? >> it was a short distance, didn't take me long to get there. >> okay. now as were you walking after the defendant in this case damon -- did you call him damon or did you call him red rock? >> red rock. >> after he left going one direction and you left going the other direction, did you see a person come by? >> yes. >> okay. could you describe the person you saw come by? >> he was a light skinned guy. he was black. >> what kind of hair? >> he had lange dreads. >> yes. >> had you seen him in the area

before? >>, never. >> did you notice anything unusual about him at that time? >> no. >> not really? >> no. >> okay. but he walked by you? >> yes. >> okay. so was he going in the same direction that red rock, damon darling, had just gone in a few minutes before? >> yes, ma'am. >> okay. now at that point did you see a car? >> after i walked past him? >> mm-hmm. >> yeah. >> or did you see it before you walked past him? >> no. after i walked past him i seen the car. >> what kind of car did you see? >> a silver car. >> a silver car. >> yes. >> did that car make you nervous? >> it was just slow rolling so i didn't like -- yes. >> it was slow rolling and that kind of made you nervous? >> yes. >> okay. so at that point did you -- did you start running to where you were going to go? >> yes. >> okay. now -- now you ran to your brother's friend's house at that point? >> yeah. >> before you got to your brother's friend's house, did

you hear anything? >> no, ma'am. >> did you ever hear any shots that day. >> yeah. >> okay. when did you hear them? >> once i made it in the house. >> once you made it in the house. >> okay. could you tell what kind of shots, where they were coming from? >> they were loud shots from the direction i was coming. i heard them. >> was there anybody else in your brother's friend's house besides he and you? >> his friend. >> so there was the three of you. >> yeah. >> do you remember how many shots you heard? >> no, ma'am. >> okay. but it was multiple. >> yes. >> all right. did you stay in the house until the shooting stopped? >> yes. >> in fact, you probably got down, right? >> yeah. >> all right. after the shooting, did you -- after all the shots stopped, did you go to find out where they came from? >> not immediately. they wouldn't let me, but when -- after the shooting stopped, i come out of the house. >> okay. and when you say they, you mean

your brother. >> yeah. >> your brother's friend and your brother? >> yeah. >> okay. so you guys came out of the house. did you actually go over to the area where the shooting occurred? >> yes. >> okay. did you learn what happened there? >> yes. >> and what did you learn happened there? >> they said a little girl had been shot. >> a little girl had been shot. >> yes. >> okay. did you see at that time damon darling, red rockne where in the area? >> no, ma'am. >> okay. did you see -- did you know the name of the guy that came by you. did you ever learn his name? >> i eventually learned it but at the time i didn't know his name. >> what did you learn his name to be? >> yellow man. >> yellow man. >> yeah. >> okay. did you see him anywhere in the area when you went back to where the shooting took place? >> oh, no ma'am. >> okay. now sometime later that day did you call damon darling, or did he call you? >> i think i probably called him. >> okay. >> to find out how he was.

>> yeah. >> and at that time what conversation did you have with him? >> i asked him -- he asked me what happened. and i told him the little girl got shot and we didn't talk with whatever happened over the phone. >> he didn't want to talk about it on the phone at that time. >> yeah. >> okay. now the next day, did you -- hold on one second. the next day which was july 2nd, okay, did you -- the day after the shooting, did you have a conversation with damon darling? >> yes. >> was it a phone conversation

or was it in person? >> i think it was in person. >> in person, you went to see him. >> yes. >> did he tell you anything about the shooting at that time? >> yes. >> what did he tell you? >> he thought the boy yellow man was coming to squash the beef but he didn't. >> okay. so he thought that yellow man was going to come to him the squash the beef. >> mm-hmm. >> but that's not what happened. >> no, ma'am. >> okay. and did he tell you anything else? >> he -- he was shooting and defending himself. >> okay. now the next day, the 3rd of july, did you talk to the police? >> detective. >> okay. >> they came to you, didn't they? >> yes, ma'am. >> okay. and they asked you about the defendant in this case, damon darling, right? >> yes, ma'am. >> they asked you if you knew him, right? >> yes. >> did you tell them that you knew them? >> no, ma'am. >> did you tell them that you had spoken to them on the telephone? >> no, ma'am. >> did you know that they were looking for him? >> yes, ma'am.

>> now you went again i think around july 6th and met with damon darling again, right? >> yes. >> and at that time you got together in person, right? >> yeah. >> did he ever tell you anything about another person by the name of juvaris being involved in the shooting? >> no, man -- no, ma'am. >> now this area in the pork 'n

beans, did damon darling, red rock, did he live in that area? >> no, ma'am. >> and javaris, do you know a person by the name of javaris andrews? >> yes, ma'am. >> does the defendant damon darling know him? >> yes. >> no further questions. >> cross-examination. >> hi miss hanks. >> hello. >> you were asked if you know mr. damon by another name, is that right? >> yes. >> the prosecutor keeps saying red rocks, it's actually red rock. >> yes. >> and it's not uncommon for people to go by their nickname, is it? is it uncommon or it's not uncommon. >> it's not uncommon. >> most people you don't even know their real names, right? >> yes. >> forget their last name, you may not even know their first name. >> yes. >> there's people called like old man. >> javaris andrews was called

old man, right? >> i don't know. >> but there's other people called shorty but they are really tall, all kinds of things like that, right? >> yeah. >> yellow man, nicknames, right? >> yes. >> you don't think that's his real name, do you? >> no. >> let's talk about yellow man. you told the jury that you saw yellow man walking past you, is that right? >> yes. >> and then you saw a silver honda sort of creeping by. >> yes. >> made you nervous. >> yes. >> yellow man wasn't driving the honda, right? >> no, ma'am, i mean, no, sir. >> no, sir. because he was walking, right? >> yeah. >> the car didn't crash or anything, right? >> no, sir. >> kept on driving. >> yes. >> you couldn't see who was driving it though? >> no. >> the car had tints. >> yeah. >> you testified about a cell phone. you called damon on his cell phone, right? >> yeah. >> before he called you. >> yes. >> do you remember the phone number? >> no. >> but you guys called a few times right around the incident date, july 1st, 2006? >> yes.

>> and you always called his cell phone? >> yes. >> and you always used your cell phone? >> yes. >> do you remember your provider, your phone company back then? >> it was metro. >> do you remember his? >> metro. >> you got free calling or something like that? >> yeah. >> this yellow man character, you had never seen him before, right? >> no, sir. >> so he was a strangener that area? >> yeah. >> and damon darling had been in that area a lot of times. >> yeah. >> as you, right. >> yes. >> and javaris andrews was there a lot of times. >> yes. >> but the stranger was yellow man. >> yes. >> he walked right by you. didn't say a word. >> no. >> he was just focused on straight ahead. >> yeah. >> and that was the area where damon went, right? >> yeah. >> so he made you nervous and then you ran to your friend's brother's house. >> yes.

>> you fast forward later spoke to damon about the incident. >> yes. >> and you told the jury that he actually said that he thought yellow man was there to end their problem. >> yeah. >> but he was surprised. >> yes. >> because then yellow man tried to kill him. >> yes. >> and he said he defended himself. >> correct. >> and -- and did he ever say anything about javaris andrews and you said no. >> yes. >> you never asked him about mr. andrews. >> no. >> you never asked him anything about it. >> no. >> you believed him and let it go. >> yes. >> redirect? >> one moment.

>> now javaris andrews didn't live in that area either, did he? >> no. >> when -- on july 1st after this happened. >> yeah. >> you and the defendant in this case, red rock, you became more than just friends, didn't you? >> yes. >> okay. in fact, you went to see him you knew the police were looking for him, correct? >> yeah. >> but you never told the police where he was or that you had seen him. >> yeah. >> and in fact you guys started to have a sexual relationship at that point, didn't you? >> yes. >> okay. it wasn't until 20 days later that he was finally found by the police, is that right? >> yeah.

>> all right. you may step down. thank you. >> state your next witness, please. >> that was like a fantastic example of great cross-examination by the defense lawyer. didn't take a long time, a lot of -- in about six minutes he established every crucial part of the defense, truly awesome job. it's time for a break and another look at our 13th juror question. today we want to know if you think the testimony of the victim's family helped the prosecution. so far 80% of you are saying yes andy 20% of you vote no. logon to our website to cast your vote. this is "the best defense," and we will be right back. consider

stay any 2, 3, or 4 nights between september 13th and november 22nd, and you can earn double, triple, or even quadruple points when you pay with your mastercard card. triple-a members can get even more. better values, best western. for details, visit bestwestern.com.

welcome back to "the best defense." i'm ron kuby. as we wait for the next witness to be called, it gives us an opportunity to talk a little bit about the examination we just saw of shatara hanks. joe dematteo. i think that she was much more helpful to the defense. >> absolutely. >> than prosecution. >> as i was watching the prosecutor i was wondering why the defense attorney was not objecting to all of the tremendous leading that the prosecutor was doing, and when you understood exactly what exculpatory evidence that witness had, you knew why he

didn't want to make himself any trouble with her, just wanted to get out of her what he needed to help establish his defense so it was very well done. >> steve raiser, as i was watching this, i'm ticking off the points, okay. here is yellow man. he's a stranger in the neighborhood. he was frightening to the witness, and he is going in the direction of damon, and damon's statement, i thought this was going to get settled between us, but he was surprised and yellow man tried to kill him. the defendant doesn't have to testify now, does he? >> he certainly doesn't. i mean, that was an amazing witness for the defense, and you could tell. it was not just merely the cross-examination that pointed to that, but when you looked at the redirect on that, what was the prosecution doing there? >> impeaching. >> exactly. she was impeaching her own witness because she was so bad for the prosecution, and what you said, ron, is exactly rights. she just made the case for the defense and now the defendant does not need to testify. he can just sit there and they will hammer her testimony home.

the prosecution's witness made their case, slam dunk. >> now joe, it's a little difficult to explain to a lay audience, but an admission is an exception to the hearsay rule and usually if it's the defendant, anything the prosecutor can -- wants to get into evidence that the defendant said can get into evidence as an admission, but the defense can't do that. the defense can't say i want my client's prior exculpatory statements introduced. >> well -- >> unless. >> in this instance you have a witness who actually does relate some incriminating evidence, that the defendant spoke to her and put himself at the scene of the crime with a gun i suppose and admitted participating in the crime. those are all admissions, but if -- that witness can be asked further questions about what the defendant said if the prosecutor does not bring that out, but if the defense just finds somebody and says i didn't do this, period. you can't pull that person into

court. >> right. >> and say, you know, didn't the defendant tell you that he didn't do this? that's not permitted. >> but if the prosecutor chose not to call shatara hanks, the defense would not be able to call her to testify that red rock said this was, you know, i thought he was going to settle it, but he surprised me by trying to kill him. that testimony never would have gotten into court unless the prosecutor did what she did which was to call shatara and under the rule of completeness you have to allow the whole statement. you can't just cherry pick apart. big mistake. >> exactly right. >> was this -- was this a mistake for the prosecution? mean, she didn't add that much to the mix? >> i'm wondering if they feared that she was going to be called in some fashion as a defense witness, and, therefore, they put her on in order to kind of neutralize her or whether they made a decision that she did have some good, you know, incriminating evidence and it was worth the risk to bring her on.

i mean, they have a lot of other evidence in the case, 20 spent shell casings. >> right. >> and it was a little surprising. >> look, we're still awaiting the next witness. there appears to be a long wait for some reason for the witness to enter, so it's probably a snitch. we'll see when we get you back inside the courtroom in just a minute. we'll return. consider

damon darling says he acted in self-defense when he opened fire in a housing project, but is he responsible for the death of a child caught in the crossfire? we'll be back in just 90 seconds. vyou money at nationwide insurance. my name is sandy garza and i am on your side. only nationwide gives you an on your side review. you tell us about your life and your insurance. sometimes you don't have enough coverage. or you may even have too much. we'll let you know. we listen and build you a custom policy of just the coverage you need at the right price for you. (announcer) only a nationwide insurance agent can give you an on your side review. call this number to save up to $523. we take a look at the policy and look to see if there's any gaps in coverage.

you know, in addition, we talk about discounts that are available. and we try to save you money. i mean we really do. (anncr:) call this number now or call a local agent. switch today and save up to $523. listening and saving you money is how... ♪ nationwide is on your side ♪ welcome back to "the best

defense." on the witness stand right now is leroy larose. he is being conducted through his direct examination. he just finished showing the jury where he had been shot two months before the shooting that is at issue here. apparently mr. larosa bit of a bullet magnet. let's go inside the courtroom and watch. >> yes. >> when you were shot that time, where did you go afterwards? >> i went to the hospital. >> were you treated? >> yes. >> and as a result of that shooting, did you do anything? >> yes. >> what? >> i went and purchased a firearm. >> why did you purchase a firearm? >> for protection. >> and did you carry that

firearm? >> only when i went into the liberty city area. >> why when you went in that area? >> that's where i was shot the first time. >> what type of gun did you purchase? >> a .44. >> a .44 what? >> revolver. >> and when you say revolver, can you describe it? >> it's like a round cylinder, snug knows, black and brown color. >> how many shots can that revolver fire? >> six. >> did it have any extra magazines or ability to fire more? >> no. >> bullets? >> no. >> did it have any extra equipment that allowed it to add more bullets without physically opening the -- the chamber and putting them in? >> no. >> where did you buy it? >> on the street. >> for how much? >> $100.

>> july 1st, 2006, does there come a time when you go to the liberty square housing project? >> yes. >> why do you go there? >> to buy some weed? >> re. >> what are you armed with? >> the .44 revolver. >> where do you is your firearm? >> moo n my right pocket. >> and why did you go to that area again? >> to buy some marijuana. >> what car did you drive in? >> a gray honda accord with some rims on and some dark tints. >> is it the same honda accord that you were driving when you were shot at? >> yes. >> i'm going to ask you to step down. do you recognize what i'm showing you?

>> yes. >> for the record i'm showing you state's exhibit 19. what is it? >> it's the pork 'n beans. >> okay. now there's some markings on this exhibit, right, some black mark marker? and you haven't put that there, right? >> no. >> okay. >> do you recognize the main streets here? >> yes, yes, i do. >> okay. >> this would be fourth avenue this, would be sixth and seventh street. >> okay. you're indicating to the street at the top of the picture the major large road at 12th avenue, is that right? >> yes. >> now over to the right you're showing the right most corner has a street which ends off the corner of the picture and you're calling that what avenue or what street? >> 67th street. >> that's 67th street, okay, sir. when you arrived that day at the pork 'n beans, where did you park your car? >> i parked in this area here. >> okay. and what street is this on? >> that's 13th avenue. >> why did you park your car here? >> because i was going to walk around the corner to go buy the

weed. >> wait, wait. because i was going to go around the corner to go buy weed and i didn't want the police to catch me from the car. >> now you walk over to buy your weed? >> yes. >> and do you normally buy your weed over where these cars are? >> yes. >> and once you go over to this area do you find the people you normally buy the weed from? >> no. >> at some point do you walk westbound? >> yes. >> okay. go ahead and have a seat for a minute. >> know as you walk west, are you walking on a walkway? >> yes. >> are there apartments on both sides of you? >> yes. >> as you're walking up that walkway, where are your hands? >> at my side. >> where's your firearm? >> in my pocket. >> is it visible? >> no. >> what kind of shirt are you wearing? >> a long white t-shirt, white

t-shirt, plain white t-shirt. >> is it tight to your body? >> no. >> now, why are you walking in that direction? >> because i'm walking back to my car. >> is your car in that direction? >> yes, it's west of where i was. >> now as you walk that way, does there come a time when a person said something to you? >> yes. >> prior to that person saying something to you, what do you see? >> i looked up and i saw somebody sitting at the end of the alleyway in a chair with an assault rifle beside him. >> and what did you think? >> i said this asshole is going to jail. >> why? >> because he's sitting out there in broad daylight with a gun. >> then what happened? >> i kept walking west on 65th terrace. >> does this come a time when that person speaks to you? >> yes. >> what did he say? >> he said what are you doing back there? >> describe what that person was wearing. >> he had on a hat and baseball

cap, undershirt, some shorts and some brown timberlapd boots. >> do you remember remember the timb timberland boots? >> yes. >> why do you remember the boots? >> just because i liked sdplem did it seem strange to you that a person would be wearing timber land boots in july in miami? >> yeah, because it was hot out. >> it was hot out. so the person says what to you? >> what are you doing there back there? >> speak up for a minute. >> what are you doing back there, yo? >> and what, if anything, did you do? >> i didn't think he was talking to me. i looked behind me as i was walking because i thought he was talking to somebody behind me. >> and when you looked behind you, did you see anybody behind you? >> no. >> what happens next? >> i kept walking. >> then, i'm sory. >> then he says it again. i kept walking. >> okay. i'm going to ask you to speak in that microphone and direct your answers to the ladies and the gentlemen of the jury. >> okay. >> so then he said that again. what did he said the second time? >> what are you doing back

there, y sno. >> and what did you respond? >> i threw up a weed sign like i was looking for weed. >> what happens next? >> he upped the gun on me. >> when you say he upped the gun own, can you tell me what you mean by that? >> pointed the assault rifle at me. >> can you describe the assault rifle? >> it was all black. >> and at the time he pointed the assault rifle at you, do you have your gun up? >> no, i threw my hands up when he pointed the gun at me. >> when y did you throw the hands up? >> because he was pointing the gun at me. >> were you afraid? >> i wasn't like really terrified that he was going to kill me. i thought he was going to rob me or something. >> so what do you do next? >> he asked me what was i doing back there? >> and what do you remember say? >> i told him i was looking for weed, and he said, no, you're the one that drive that gray honda with the rims on it. >> and when he says that, what happened? >> he said am i supposed to be looking for him and i told him, no, man, i'm looking for some weed. i don't know what you're talking about. >> so you guys are having a back

and forth, right? >> yes. >> and as this discussion is going on, where's your firearm? >> in my pocket. >> and where's his firearm? >> pointed at me. >> what happens next? >> that's when he told me do i have anything on me, and i told me to put my shirt up before before i could even move he turned and looked to the side and looked to the other side and that's when i looked to the side and saw is there was somebody else. >> okay. >> and you saw somebody else doing what? >> standing by a pole. >> okay. >> and did you see anything else that that person had? >> yes. >> what? >> he had an assault rifle next to him. >> okay. so you saw a second person with an assault rifle in their hand? >> yes. >> and you saw the person with the timberland boots that was right in front of you pointing the assault rifle at you motioning to that other person? >> no, he didn't motion and just looked towards that way and when he looked back at me that's when he opened fire on me. >> before that had he said yo, yo, y no that direction? >> when i looked up on the sidewalk. that's what made me look up at

him again. >> again, sir, i'm going ask you to step off. now does there come a point -- do you keep walking forward as he has the gun pointed at you? >> no, i stopped and threw my hands up. >> can you show the members of the jury where you were standing when that happened? >> i was standing in this area, like not past the corner of this building but on this -- stepped off the side. >> and where is the person with the timberland boots standing? >> over here. >> right here. >> yeah, right off this porch in the grassy area. >> okay. so he's pointing an assault rifle at you. at what point do you see another person with a gun? >> when he looked over this way and that's when i turned my head and looked and saw the guy was standing here. >> okay. you say the other guy is down there. point for the members of the jury where the other guy is with the other assault rifle. >> i can't hear you. >> on the other porch by the poles. >> okay. now i'm going to have you mark

with blue, since there's already black writing on this, i want you to mark with blue where that second person with an assault rifle was standing. >> this porch. >> okay. put an "x," please, and then put your initials there next to it. okay. go ahead and have a seat. >> now what does the person who is standing directly in front of you do at that point? >> after he focused back on me? >> yes. >> he opened fire on me. >> and what, if anything, do you do? >> i was shocked. i stood still until i was hit in the face and then hit in the arm. >> at some point do you pull out your gun? >> yes. >> when did you pull out your gun? >> after i was hit. >> and what do you do? >> i shoot back. >> how many times did you shoot back? >> four. >> did you get to empty your gun? >> no. >> why not?

>> because he turned to run. >> and what did you do? >> i turned to run. >> why didn't you keep firing the other two? >> because i wasn't in danger from him anymore. >> were you there to kill him? >> no. i don't even know who it was. >> now you say you see that person turn and run, right? >> yes. >> and you turn and run? >> yes. >> at that point as you turn and run, what do you do with your firearm? >> i put it in my pocket. >> and where do you go? >> i run back around the block. >> when you say you run back around the block, which way did you meet? >> i left going east and then i went north on the next avenue and went back north -- west again and back to my car. >> again. i'm showing you exhibit 19. can you point for us where you ran back? >> i ran back this way and back around and i looked down this way to see if the guy was still

there because i was going to make my decision if i was going to run back to my car or not. >> and when you looked this way, did you see the person that was on the porch? >> no. >> what did you do? >> i ran back around and got back in the car. >> and what happened as you went to pull off? >> just stepped back off the porch and i saw him raise the gun up at me and i hit the gas and put my head down. >> now as you pull out, which way do you leave? >> this way. >> now you just said that the guy with the gun who is over here with his ak and had been shooting at you, why do you pull off that way? >> because this guy was talking at me and if i were to make a u-turn i would have hit rocks and so i had to go straight across. >> when you're leaving the area, are your windows up or down? >> they are up. >> and as you're driving off, are you trying to fire out of your window? >> no. >> are you doing anything?

>> no, i'm just ducking down trying to get out of the area. >> why? >> because someone is shooting at me. >> as you're running away, once the first shots are fired, do the shots continue, or do they stop? >> they stop. >> once you get back in your car, do the shots continue? >> yes. >> and as you're driving away, are shots being fired at you? >> yes. >> and that second person you saw with an assault rifle is still on that porch that you described to the jury over by 67th? >> yes. >> the second guy that was standing in the porch over by 67th, what kind of gun did he have? >> an assault rifle. >> can you describe it?

>> it looked like it was black and brown. >> was it a shotgun? >> no, it looked like an assault rifle, like it had a club hanging out the bottom. >> and with that, unfortunately, "the best defense" will rest for the day. thanks to joseph dematteo and steve raiser for joining me today, and tomorrow "the best defense" continues. our live coverage of florida versus damon darling. i'm ron kuby in for jami floyd today. thanks for watching. have a good night. y i help you? we're shopping for car insurance, and our friends said we should start here. good friends -- we compare our progressive direct rates, apples to apples, against other top companies, to help you get the best price.

how do you do that? with a touch of this button. can i try that? [ chuckles ] wow! good luck getting your remote back. it's all right -- i love this channel. shopping less and saving more. now, that's progressive. call or click today.