Felony Murder Rule

by Sheldon Siegel

  “Longer than it took to get the DNA results.”

  “I’m going down to the Tenderloin. I want to talk to the owner of the store.”

  “I’ll come with you.”

  “Meet me there in an hour. I want to spend a few minutes with Rolanda. Then I want to talk to the homicide inspector in charge of the investigation.”

  * * *

  My iPhone vibrated as I was walking out of my office. I didn’t recognize the number on the display. As soon as I heard the smoker’s hack, I regretted my decision to answer.

  “Mr. Daley? Jerry Edwards, San Francisco Chronicle.”

  “Good to hear from you,” I lied. Edwards had been the Chronicle’s in-house pit bull for three decades. Depending on the time of day and how much bourbon he’d consumed, the award-winning investigative reporter operated on a narrow spectrum between angry and hostile. “What can I do for you?”

  “I heard you paid a visit to Thomas Nguyen.”

  “I did.”

  “I understand his case has been kicked over to the P.D.’s Office.”

  “It has.”

  “Judge McDaniel didn’t grant your request for a delay.”

  “She didn’t.” It was a matter of public record that the trial was set for Monday.

  “According to your ex-wife, you’re going to handle the trial yourself. I didn’t realize you were trying cases again.”

  “This one landed on our doorstep at eight o’clock this morning. We need somebody with experience to get up to speed right away.”

  “Your ex-wife issued a statement saying that Thomas Nguyen is your nephew.”

  “Great-nephew.”

  “You shouldn’t be spending the taxpayers’ hard-earned money defending your relatives. It’s a conflict of interest.”

  “He went through our intake procedures and qualified for our services. We have a legal obligation to provide counsel.”

  “He’s your nephew.”

  “Great-nephew. I met him for the first time this morning.”

  “You didn’t know his mother?”

  “I met her this morning, too.”

  “That’s a very interesting coincidence, Mr. Daley.”

  “My older brother died in Vietnam a long time ago.”

  “I know. I was at Cal when he was the quarterback. Nguyen’s mother just happened to wander into your office a couple of days before her son is going on trial?”

  “Yes. His case will be handled like any other client’s.”

  “I’ll be watching. If he receives special treatment, I will make sure that you and Ms. Fernandez are held accountable.”

  12

  “IT HAPPENED VERY FAST”

  “Any surprises on the prosecution’s witness list?” I asked.

  Rosie’s niece pulled at her straight black hair—a gesture she’d picked up from her aunt. “Not really, Mike.”

  Rolanda Fernandez was eleven when I first met her at her father’s produce market in the Mission. Now on the wrong side of thirty and a veteran of five years at the P.D.’s Office, her hair had flecks of gray and crow’s feet were making inroads at the corners of her eyes. I was immensely proud of her—even though she made me feel old.

  At two-fifteen on Thursday afternoon, we were sitting in the windowless office that she shared with two Deputy P.D.s who were in court. The clutter reminded me of my days as a rookie P.D. The walls were filled with photos of defendants, victims, and crime scenes. Files covered the mismatched desks. Rolanda’s going-to-court suit was draped over her chair. The only personal item on her desk was a framed photo of her boyfriend.

  I pointed at the picture. “How’s Zach?”

  “Pretty good. He’ll be home for a couple of days next week.”

  She and Zach had met in law school. They shared an overpriced studio apartment in the Mission around the corner from the house where Rosie had grown up, but it was a stretch to say that they lived together. Zach worked for one of the big firms downtown. He had spent three years living out of a suitcase in Las Vegas working on a class action. I liked him, but I thought he was more committed to his job than his girlfriend.

  “Any light at the end of the tunnel?” I asked.

  “There are kids who haven’t started law school yet who will be working on this case when I’m retired. It was mentioned in abovethelaw last week.”

  Abovethelaw.com is the go-to website for the skinny on who’s who and what’s what at the mega-firms. Its editors are among the most influential players in the legal profession. The managing partners of the power firms are terrified of them.

  “Any chance of a settlement?”

  “Unlikely. It’s a lethal combination of too many clients with deep pockets and big egos and too many lawyers who bill by the hour.”

  I had little to offer. “They pay him well.”

  “They do.”

  “Still glad you became a Public Defender?”

  “I wouldn’t trade places with him.”

  “Neither would I.” I thought about the five interminable years I’d spent at a soulless mega-firm at the top of the Bank of America Building after Rosie and I split up. I took the job because I needed the money. It was an experience that I wouldn’t wish upon anybody except the soulless partners who fired me because I didn’t bring in enough high-paying clients. “Thanks for jumping in on short notice.”

  “I had time.”

  This was technically true, but she could have filled her plate with other cases. “Rosie didn’t try to talk you out of it?”

  “Let’s just say that she gave me every opportunity to decline your generous offer.”

  I’ll bet. “I’m glad we’ll finally have a chance to try a case together. It will be good experience for you. It might even be fun.”

  “I’ll wait until it’s over before I thank you for the privilege.”

  It was like talking to Rosie 2.0. “Anything you want to ask before we start?”

  “Is Thomas Nguyen really your great-nephew?”

  “Yes.”

  “Does that make him my cousin?”

  “Sort of. Ask Grandma Sylvia. She has the final call on family matters.”

  “Where do you want to start?”

  I pointed at the prosecution’s witnesses listed on her whiteboard. “Let’s go through the lineup.”

  She took off her glasses. “The first officer at the scene will probably lead off. The Chief Medical Examiner will confirm that Tho died from six shots to the chest. The forensics expert will confirm that the bullets were fired from the shopkeeper’s gun—an AR-15. The shopkeeper and his son will say that Tho was about to pull a gun. That supports self-defense, and you can bet their stories will match up. The security guard will corroborate their testimony.”

  “What about the daughter?”

  “She’s on their witness list, but she said that she didn’t see Tho come in the store.”

  I did a quick mental calculus on the SFPD and other law enforcement personnel who would testify, all of whom I knew. The first officer at the scene was a solid career cop, but he’d been suspended a couple of times for beating up detainees—something we might be able to use. The evidence techs were competent and experienced. It would be difficult to shake them.

  I looked at the last name on her board. “Ken Lee is the homicide inspector?”

  “Yeah. You know him?”

  “He’s good. As far as I know, he’s clean.” I studied the witness list. “Any holes?”

  “There are always holes, Mike. We just need to find them.”

  Good answer. I asked about the shopkeeper.

  She looked at her laptop. “Ortega Cruz. Sixty. Has owned the store for twenty-six years. His parents came from Mexico. He was born here. Lives in the Mission. Divorced. A nineteen-year-old son works at the store. A seventeen-year-old daughter goes to Mercy High.”

  “Does your dad know him?”

  “No.”

  Rolanda’s father knew everybody who was anybody in the Mission. “Crimi
nal record?”

  “A couple of traffic tickets. No arrests.”

  “What do you know about the AR-15?”

  “Purchased legally in Nevada. He has a full arsenal. About a dozen weapons are registered in his name.”

  “Does he know how to use them?”

  “He was in the army and he belongs to a gun club in South City. His credit cards indicate that he’s bought a lot of ammunition.”

  “Sandy Tran told me that he shot somebody a couple of years ago.”

  “It happened during an attempted armed robbery. The perp survived, but he died later at Pelican Bay. No charges were filed against Cruz. Self-defense.”

  “This may be a recurring theme. If we can show that Cruz has an itchy finger, it might mitigate the self-defense claim.”

  “He runs a liquor store in the Tenderloin. I’m surprised that he hasn’t shot more people.”

  That’s fair. “Any evidence that he has a temper?”

  “Nothing in the police report.”

  “What about the divorce?”

  “Long and acrimonious.”

  “Domestic abuse?”

  “Nothing on record.”

  “This isn’t helping.”

  “You take your facts as they come, Mike.”

  Yes, you do. “We should talk to his ex-wife and kids. The son works at the store?”

  “Yeah. Graduated from high school. Dropped out of City College. He was at the store when Tho walked in. He corroborated his father’s story.”

  No surprise. “Criminal record?”

  “Three hits for shoplifting and two for buying weed. Did community service.”

  I asked about the daughter.

  “Honors student at Mercy High. Never been in trouble. Doesn’t work at the store.” She confirmed that the daughter went to a movie with a friend who had dropped her off at the store. “Her father was going to drive her home.”

  “Where was she when the shooting started?”

  “At her father’s desk in an alcove behind the deli counter. She ducked under the desk when her father started shooting.”

  “It must have been awful.”

  “No doubt.”

  “Who else was there?”

  “The security guard was standing next to the shopkeeper when Tho walked in. Seems his only qualification was the fact that he was the owner’s nephew. Currently unemployed.”

  “Criminal record?”

  “Two arrests for grand theft auto and one for armed robbery. The armed robbery was pleaded down and he got probation.”

  Not a terribly solid citizen. “Others?”

  “A deliveryman and a customer were in the back. They said they didn’t see Tho come inside. They ran out the back door when the shooting started.”

  “So the only witnesses are the shopkeeper, his son, and his nephew?”

  “Correct.”

  It wasn’t much. “Did Tho have a cell phone?”

  “A throwaway purchased for cash the day before he was killed.”

  “No smartphone?”

  “A lot of people can’t afford an iPhone, Mike. Or maybe he was sophisticated enough to use an untraceable throwaway.”

  “E-mail? Facebook? Twitter? Instagram? Social media?”

  “Nothing. He had a laptop, but he didn’t use it much.”

  “Crime scene photos?”

  Rolanda took out a stack of five-by-sevens. “These are pretty grim, Mike.”

  They always are.

  She laid them out on her desk. “It’s a narrow store,” she said. “The register is on the right as you walk in. Tho was standing about five feet from the counter when he was shot.”

  The grisly color photos showed Tho’s body on the linoleum floor. His gray hoodie was drenched in blood. His eyes were closed. “Sandy Tran said Tho was packing.”

  “Ortega Cruz said that he found a Kel-Tec P-3AT underneath him.” It was a light, cheap, semi-automatic pistol at the high end of the Saturday Night Special food chain. “Yellow marker number six.”

  I compared the photos before and after Tho’s body had been removed. The pistol was within the outline of Tho’s body. “Serial number?”

  “The identifying information was removed.”

  “Very professional for a twenty-one-year-old drug dealer. Did they find the gun in his pocket?”

  “No. According to the shopkeeper, it was underneath him. They found Tho’s prints on the gun.”

  “Anybody else’s prints?”

  “The shopkeeper’s. He said he got his prints on the gun when he disarmed it.”

  Interesting. “You believe him?”

  “I don’t believe anybody.”

  “We can argue that he planted the gun.”

  “I know.”

  “You sure that Tho walked in with a gun?”

  “The shopkeeper and his son said he did.”

  “What do you think?”

  She answered honestly. “I don’t know.”

  “The felony murder charge will turn on whether Tho committed a provocative act. If we can show that he was unarmed, we can argue that there was none.”

  “It’s still self-defense if the shopkeeper thought he had a gun, even if he was mistaken.”

  “Maybe he didn’t like Tho or acted unilaterally.”

  “It will be hard to prove.”

  “We don’t have to prove it. We just need to argue it. Video?”

  “Yes.” Rolanda’s fingers flew across the keyboard of her laptop as she pulled up the security video. “Two cameras. One in front and one in back. The one in back was broken.” I looked over her shoulder as she cued the video. “It happened very fast.”

  Rolanda’s office was silent except for the buzzing of the clock. The grainy black-and-white footage was shot from a fixed camera mounted on the ceiling above the cash register.

  I saw a rack of potato chips near the front of the store. Then I got my first glimpse of Duc Tho during the final seconds of his life. He had a slight build and the wisp of a beard. A hoodie was pulled down over his forehead. The white numerals in the upper left corner indicated that he walked into Alcatraz Liquors at ten-forty-seven and thirty-three seconds. He glanced at the chips and turned toward the counter. It was difficult to see his features. His hands were inside his pockets.

  Tho glanced to the left of the register. He smiled or smirked—it was hard to tell. His mouth opened briefly, which suggested that he might have said something—there was no audio. He was still turning as his eyes opened wide for an instant before a hail of bullets blew open the center of his chest. He fell backward into the chips, leaned to his right, and toppled out of camera view. He was probably dead before he hit the floor. Rolanda stopped the video at ten-forty-seven and thirty-eight seconds. Tho had been inside the store for less than five seconds.

  Rolanda pushed “Play” again. The shopkeeper rushed into the frame to check on Tho. Then he dropped out of camera view. A moment later, he stood up and pulled out his cell phone. The video ended.

  “The shopkeeper could have planted the gun,” I said.

  Rolanda nodded. “It’s possible.”

  “Run it again.”

  We watched it again. And again. We studied it in slow motion and in real time. Rolanda enhanced the footage. Tho’s right hand never left his pocket.

  After the fifth viewing, I sat down next to my niece. “Judge McDaniel is going to let the prosecution introduce this video into evidence. You think he said something to the shopkeeper?”

  “Hard to tell. We’ll need a lipreader.”

  “What else did you see?”

  “A kid getting shot.”

  “What didn’t you see?”

  “A gun.”

  “Exactly. That’s one possible line of defense: no gun—no robbery—no provocative act.”

  Rolanda put on her glasses. “Where do we start?”

  “You keep going through the files and the video. I’m going to talk to Inspector Lee.”

  13

>   “PROFESSIONAL COURTESY”

  The world-weary homicide inspector took a swallow of coffee and tossed his paper cup into an overflowing trash can. “Heard you went to see Thomas Nguyen.”

  “I did.”

  “Saw a tweet from Jerry Edwards. Nguyen is your nephew.”

  “Great-nephew.”

  “Interesting.”

  Five years earlier, Inspector Ken Lee had earned a Medal of Valor for his undercover work in busting a Chinatown drug ring run by a small-time thug named Raymond “Shrimp Boy” Chow, who moved up the criminal food chain to cleaner and more lucrative work bribing local officials. Eventually, Chow ended up in jail on a murder charge after he ordered the hit on one of his business associates. Lee was rewarded with a promotion to homicide, where he was paired with the legendary Roosevelt Johnson, who had started his career walking the beat in the Tenderloin with my father. A couple of years later, Roosevelt retired for the third and final time, and Lee had worked alone ever since. Now in his mid-forties, he still had boyish good looks, but his hair was mostly gray, and he had a degenerating hip.

  He gave me a half-hearted handshake. “Figured you’d show up sooner or later.”

  “Guess it’s sooner.”

  He was sitting at a dented metal desk in the bullpen housing SFPD’s homicide inspectors on the fourth floor of the Hall. The fluorescent lights buzzed and an overworked window fan recirculated sauna-like air.

  I sat down and ignored the disdainful glares of Lee’s colleagues who were grinding out reports. This was going to be a finesse game where I had no leverage, so I wanted to engage him. I pointed at the photo of his daughter. “Is Elizabeth in college?”

  “Not yet. She’s a junior at Lowell.”

  “How’s life with a teenager?”

  “Easier than when I worked undercover. She lives with my ex-wife.”

  I responded with an understanding nod. “Grace is a freshman at USC.”

  “I heard. How does a fellow Cal guy feel about that?”

  I grinned. “Bad parenting, but it seems like a good fit for her.”

  He didn’t return my smile. “How do you pay for a private school on a P.D.’s salary?”

  “USC gave her a scholarship.”

  “Think I can get the same deal for Elizabeth?”

  “Maybe. Tell her to apply early.”