HANO

Apr 5, 2023

No photo or video has been presented in court that shows Uber driver Daniel Perry shooting Austin protester Garrett Foster in 2020. Lawyers in the murder trial have had to rely on witness descriptions and recordings of Perry's interviews with police to make their case to jurors whether or not the shooting was in self-defense. On Tuesday, defense attorneys called their first expert witness who presented some mathematical calculations of what could have happened based on the videos and photos that are available. Jason Evans, a forensic engineer who specializes in taking measurements from photos and videos and converting them into 3D images and videos, said he calculated that Foster was standing 18 inches from Perry's car one-tenth of a second before Perry shot him. He also said Foster was standing at an angle in front of Perry's driver's side window with one shoulder in front of the other in what is known as a bladed position, astance police often take when confronting a suspect. Before the shooting, Evans said, Perry turned his car from Fourth Street onto Congress Avenue with a speed of 11.9 mph and then slowed down to a stop amid the marchers he encountered. He said Perry braked his car 6.2 seconds before the shooting happened. Video and photos only captured 1.2 seconds of the 6.2 seconds between Perry stopping and the shooting, Evans testified. Defense witness Emanuel Kapelsohn, a Pennsylvania firearms expert who has trained police across the country, later testified that he practiced shooting an AK-47 18 inches away from cardboard meant to represent Perry's car door. He said it took him one-fifth of a second to raise the rifle after he had the barrel pointed down and fire a shot. Kapelsohn also said that people have a delayed reaction time when faced with someone already ready to attack them. "When a man in a car sees a guy raise his rifle, he can’t afford to wait any longer," he said. "There's no guarantee your first shot will stop the attacker," he said. "Police miss four out of five shots they fire." Prosecutor Efrain de la Fuente questioned the photo from the video that Evans used to calculate the distance that Foster was standing from Perry's car right before the shooting. De La Fuente said the video included the flash of a muzzle, which meant a shot was already being fired. De La Fuente also questioned why Evans said Foster was standing by the car when the shooting occurred because the four bullets found in Foster's body had all traveled at a downward angle. Evans said he was not a ballistics expert. The photo from the video, which was taken by a protester, was blurry and depicted protesters standing on the street and a partial view of Perry's four-door Hyundai Ioniq with an orange flash of gunfire in the background. The calculation that Evans spoke about did not show how Foster was holding his AK-47. Perry told police in an interview shown in court Monday that he shot Foster in self-defense because Foster lifted his rifle at him. Perry, who is an Army sergeant, was traveling on Fourth Street on the night of July 25, 2020, and turned onto Congress Avenue, where a crowd was marching downtown to support Black Lives Matter. Perry stopped, and several protesters approached his car, including Foster, police have said. Protesters have said they feared they were being attacked by someone in a car. Witnesses have said during the trial that Foster never raised his rifle at Perry. One protester fired shots, he said, at Perry's car after Foster was shot as Perry was leaving the scene. Defense witnesses on Monday afternoon included people who saw certain parts of the protest, including one who said he felt threatened by Foster. William Green said that on the night of the protest he stopped at an intersection at Third Street and Congress and saw Foster carrying an AK-47. "It's fair to say I was alarmed by Foster carrying a gun," said Green. "I reached for my handgun to make sure it was still there." Green said he noticed that he had pulled into the crosswalk and backed up because he noticed a woman in a wheelchair needed to use it. Green said Foster waved at him in a friendly gesture after Green backed up his car to let the woman pass. The woman was Whitney Mitchell, a quadruple amputee. The American-Statesman has reported that she was Foster's fiancée, but she described herself in court as his wife. Defense witness Gregory Hano said he saw the protesters when they stopped outside the W Austin hotel during their march. Several of them were carrying rifles, he said. “It made me feel threatened, and I called 911 several times,” Hano said. He said police never came to the scene. Hano said he asked one of the marchers carrying an AK-47 to put down his rifle because it was a residential neighborhood. The marcher didn’t put down his gun but just waved the muzzle of it in Hano’s direction, Hano said. He said the marchers also aimed a green laser at him. Prosecutor Guillermo Gonzales asked Hano to read a description from the police about his 911 call. Hano complained to police about marchers carrying AR-15s during the march but didn’t mention AK-47s, according to the description. Hano said he sells guns at McBride’s gun shop. Defense attorneys also played a 911 call in court on Tuesday from an anonymous caller who said she was driving in the area of the protest when she was stopped by a man carrying an AK-47 who said he was working as private security for the march. She said the man was threatening and "seemed pretty forceful telling me to do this and do that."