Erickson shook his head. “I’ll rephrase. Were you called in to investigate the death of Duc Tho?”
“I was.”
“What time did you arrive?”
“Eleven-seventeen p.m. Approximately thirty minutes after Mr. Tho was shot.”
“Could you please describe the scene?”
“Our officers had secured the entries and established a perimeter. They were monitoring a small crowd outside, assisting medical personnel, and canvassing the area for witnesses. Entry to the restricted area was limited to authorized police personnel pursuant to our sign-in procedure.”
I didn’t expect him to say that they were letting people trample the evidence.
Erickson pointed at the diagram of the store. “Who was inside when you arrived?”
“Sergeant Ignacio Navarro along with two officers and medical personnel.” He confirmed that Tho had been pronounced dead at the scene. “Police photographers, videographers, and evidence technicians were starting to process the scene. The owner of the store was also there.”
“What about witnesses?”
Lee named Tony, Isabel, and Hector Cruz, Eugene Pham, and Odell Jones. “They were outside in separate squad cars.”
“Why?”
“We separate witnesses to question them independently so they can’t compare stories.” He noted that Isabel was permitted to sit in the squad car with her mother, who had been called to the scene.
“Where was the defendant?”
“In another squad car.”
“What did Ortega Cruz tell you?”
“He had shot Duc Tho in self-defense when he came inside the store, demanded money, and threatened him with a gun. Sergeant Navarro reported that Mr. Cruz had found a Kel-Tec pistol under Mr. Tho’s body. We later determined that Mr. Tho’s fingerprints were on that weapon.”
“Did anyone corroborate Mr. Cruz’s story?”
“Yes. His son, daughter, and nephew. All were present when Mr. Tho walked in.”
In response to Erickson’s question about weapons, Lee confirmed that the AR-15 and the Glock were on the counter, and the Kel-Tec was on the floor. “All three had been logged into evidence and bagged and tagged in accordance with standard procedure.”
“Did Ortega Cruz explain why he had shot Mr. Tho?”
“It was a simple case of self-defense.”
Erickson glanced at me as if to say, “So there!” Then he turned back to Lee. “Other than the witnesses, did you find any evidence corroborating his story?”
“A security video.”
Erickson turned to Judge McDaniel. “We would like to introduce the security video from Alcatraz Liquors from the night of December fourteenth of last year.”
“Objection,” I said. “We have no way to verify the authenticity of this video.”
Erickson fired back. “We’ve provided affidavits of its genuineness.”
“This could have been made by a high school kid on an iPhone.”
“Mr. Daley is being melodramatic.”
Yes, I was. And I was also sandbagging. Rolanda and I wanted them to introduce the video so that we would have a chance to pick it apart. “Your Honor, this video shows horrific violence. It will be offensive and disturbing to our jurors.”
Erickson stayed firm. “We’ve discussed this issue. It’s an essential element of our case.”
Judge McDaniel didn’t hesitate. “I have already ruled on this issue. It’s admissible.”
“At the very least,” I said, “I would ask you to instruct Mr. Erickson to be judicious.”
“So ordered.”
“And that you warn the jury that its contents are very disturbing.”
“Seems you just did, Mr. Daley.”
Yes, I did. “For the record, I think it should come from you.”
“The jury is cautioned that the video you are about to see contains graphic violence.”
The woman from the Verizon store exchanged a glance with the Google guy.
One of Erickson’s subordinates wheeled in a flat-screen TV and positioned it so that it was visible from the witness box, the bench, the jury box, and the gallery. Erickson spoke directly to the jurors. “This is very short, so I would appreciate your attention. First, we’ll show it to you in real time. Then we’ll play it in slow motion.”
The Google guy was intrigued.
Erickson rolled the video in real time and stopped it an instant before Tho was shot. Then he spoke to Lee. “Inspector, could you please tell us where and when this video was taken?”
“Alcatraz Liquors on December fourteenth of last year. Ten-forty-seven and thirty-three seconds.” Lee pointed at the screen. “The date and time are stamped in the corner.”
“Where was the camera?”
“Directly above the cash register.”
“I’d like you to run the video again in slow-motion. I would appreciate it if you would describe what’s happening as we go.”
“Of course.” Erickson handed the remote to Lee, who narrated as he played the video again. “First you see Duc Tho walking into the store. He turns to his right and faces the register.” Lee paused the video. “You can see something bulky inside his right front pocket. His mouth is open. According to witnesses, it was at this point that he demanded money.”
Lee started the video again, then stopped it. “Here Mr. Tho is starting to pull a gun from his pocket.” He stopped the video just before the shots were fired and handed the remote back to Erickson.
“What did you conclude from this video?” Erickson asked.
“We have visual corroboration that Mr. Tho walked into the store and began removing an object from his pocket that we later determined was a Kel-Tec handgun. This represented a lethal threat to Ortega Cruz and the others in the store. It also corroborated Mr. Cruz’s account that he shot Mr. Tho in self-defense.”
“No further questions, Your Honor.”
“Mr. Daley?”
I walked up to the witness box. “How long was that video, Inspector?”
“Just over three seconds.”
“And in three seconds, you were able to determine that Mr. Tho came into the store, turned to his right, demanded money, and pulled a gun?”
“Correct.”
“Would you mind if I run this video this time?”
“That’s fine.”
I started the video in super slow-motion. I stopped it when Tho entered the store. “You would agree that this is where Mr. Tho came inside?”
“Yes.”
I advanced the video and stopped it again. “Now he’s turned to face the register?”
“Correct.”
So far, so good. “You said Ortega Cruz told you that Mr. Tho demanded money.”
“Correct.”
I pointed at the screen. “His mouth is open. Is this when he demanded money?”
“According to Mr. Cruz, yes.”
“What did he say?”
“‘Gimme the money.’”
I responded with an inquisitive look. “Did he say anything else?”
“Mr. Cruz couldn’t recall.”
“But he definitely said the word ‘money’?”
“Yes.”
I started video again and stopped it right before the shots were fired. “Inspector, you would acknowledge that this is the instant before Ortega Cruz allegedly shot Duc Tho?”
“Yes.”
“Can you see the shooter?”
“No.”
Good. “So you have no visual evidence of the identity of the shooter, do you?”
“Mr. Cruz admitted it.”
I turned to the judge. “Would you please instruct the witness to answer the question?”
“Inspector, please.”
Lee’s tone dripped with sarcasm. “This video does not show the shooter.”
“It’s therefore possible that it could have been somebody other than Mr. Cruz, right?”
“Objection,” Erickson said. “Calls for speculation.”
“Sustained.”
One more time. “Did you consider the possibility that Mr. Cruz took responsibility for shooting Mr. Tho to protect his son, his daughter, or his nephew?”
“Objection. Speculation.”
“Sustained. Please move on, Mr. Daley.”
I pointed at Tho’s right front pocket. “Would you agree that Mr. Tho’s hand is still inside his pocket?”
“Yes.”
“And he was shot a fraction of a second thereafter?”
“Yes.”
“You can’t see a gun.”
“Objection. There wasn’t a question.”
No, there wasn’t. I pretended that I was playing Jeopardy and turned my statement into a question. “Would you agree that you cannot see a gun in this frame?”
“We found it under his body.”
“You didn’t answer my question. Would you agree that you cannot see a gun?”
Lee answered with a grudging, “Yes.”
“Inspector, you testified a moment ago that Ortega Cruz told you that he had acted in self-defense when Mr. Tho demanded money and threatened him with a gun.”
“Correct.”
“Yet you just acknowledged that in this video taken the instant before Mr. Tho died, you cannot see a gun.”
“It was inside his pocket.”
“But there is no evidence of that from this video, is there?”
“Mr. Cruz was certain that Mr. Tho was pulling a weapon and we found a gun with his fingerprints underneath his body.”
“That’s what Mr. Cruz told you, but you have no way to verify his story, do you?”
“His son, his daughter, and his nephew corroborated his story.”
“They could have been lying.”
“Objection, Your Honor. Mr. Daley is testifying.”
Yes, I am.
“Sustained.”
“No further questions.”
I walked back to the defense table and took a seat next to Rolanda, who jotted a note reading, “You okay?”
“Fine,” I whispered. “I thought it went pretty well.”
39
“MULTIPLE GUNSHOT WOUNDS”
Dr. Joy Siu toyed with the collar of her starched white lab coat. “I am the Chief Medical Examiner of the City and County of San Francisco. I’ve held that title for two years.”
Erickson nodded. “What was your position before that?”
“I was the Chair of the M.D./Ph.D. Program in anatomic pathology at UCSF.”
She was very good at her job. Now in her mid-forties, the daughter of a Stockton police officer had worked her way through Princeton while competing as a nationally ranked figure skater. After a knee injury sidelined her Olympic dreams, she graduated at the top of her class at Johns-Hopkins Medical School and completed her residency, two fellowships, and a Ph.D. at UCSF. A couple of years earlier, she had taken over as Chief Medical Examiner from the legendary Dr. Roderick Beckert, who finally retired after four decades of distinguished service. Her early reviews were stellar.
Erickson’s tone was deferential. “Over the course of the past twenty years, how many autopsies have you performed?”
“Hundreds.”
She flew around the world to provide advice on difficult cases. Though diminutive in physical stature, she spoke in precise sentences with an air of authority. We had nothing to gain by letting her talk, and I wanted to get her off the stand as quickly as possible.
“Your Honor,” I said, “we will stipulate that Dr. Siu is an internationally recognized expert in the field of autopsy pathology.”
“Thank you, Mr. Daley.”
Erickson was disappointed. He wanted to spend a few more minutes letting Dr. Siu build rapport with the jury. He introduced her autopsy report into evidence and handed it to her. “When did you conduct the autopsy on Duc Tho?”
“The morning after he died.”
“You were working on a Sunday?”
“I happened to be in the office.”
It was not unusual to find her there on weekends.
“Did you pronounce Mr. Tho?”
“No. He was pronounced at the scene.”
“Time of death?”
“Officially, ten-fifty-five p.m. on Saturday, December fourteenth. Based upon the security video, I determined that he was shot at ten-forty-seven p.m. From this visual evidence and the nature of the wounds, I concluded that he died instantly.”
“Cause of death?”
“Multiple gunshot wounds. Massive injuries to the heart, lungs, spleen, trachea, and esophagus which led to internal bleeding and the stoppage of function of all major organs.”
“No further questions.”
The judge looked my way. “Your witness, Mr. Daley.”
“Thank you, Your Honor. My colleague, Ms. Fernandez, will be handling cross.” It was time for Rolanda to get her feet wet.
Rolanda stood and buttoned her jacket. “May we approach the witness, Your Honor?”
“You may.”
As she walked across the courtroom, I flashed back to the shy eleven-year-old who liked to hang out in her aunt’s office. Out of the corner of my eye, I could see Rosie sitting in the back row, eyes beaming.
Rolanda stood tall in front of the witness box. Her tone was a pitch-perfect mix of authority and empathy. “Nice to see you again, Dr. Siu.”
“Nice to see you, too, Ms. Fernandez.”
“You said that you conducted the autopsy the morning after Duc Tho died.”
“Correct.”
“Were you called to the scene on Saturday night?”
“No.”
“So you were not present when he died.”
“Correct. However, I visited Alcatraz Liquors the following day. I always like to visit the scene if I can.”
Rolanda pointed at the diagram of the store, which was still on the easel next to the witness box. “The security video and the eyewitness accounts indicate that Duc Tho entered the store, then turned to his right to face the counter, right?”
“Yes.”
“Whereupon he was shot six times in the chest.”
“Correct.”
“And he fell backward into a rack of potato chips and slumped to the floor.”
“Yes.”
“Did you find any bullet wounds on Mr. Tho’s arms?”
“There were no defensive wounds.”
Rolanda took a step forward and turned ninety degrees to her right. “So Mr. Tho walked into the store, turned to his right, and was hit by six bullets.”
“Correct.”
“Could you tell which bullet hit him first?”
“No. The bullets hit his chest in rapid succession and fragmented upon entry and lodged inside the body. The entrance wounds were very close together which created a single contiguous wound.”
“Were you able to determine the angle through which the bullets passed into his chest?”
“No.”
“But it’s clear that the shots came from somewhere over by the counter, right?”
“Correct.”
“Based upon the wounds, can you describe the exact trajectory of the bullets?”
“The owner of the store admitted that he shot from directly behind the cash register.”
“I understand.” Rolanda smiled respectfully. “But I’m asking whether you can verify the precise trajectory of the bullets based solely upon the entrance wounds.”
“No.”
Rolanda was still smiling. “Depending upon the precise angle of Mr. Tho’s body when he was hit, it’s possible that the shots were fired from somewhere other than directly behind the register, right?”
“Objection. Speculation.”
“Sustained.”
Rolanda tried again. “It’s possible that the shots were fired from somewhere between the deli counter and the front window, right?”
“Objection. Speculation.”
“Sustained.”
“No further questions.”
/> “Redirect, Mr. Erickson?”
“No, Your Honor.”
Rolanda’s face was flush with adrenaline as she returned to the defense table. As she walked by me, I whispered, “Nice work.”
“We’re just getting started.”
The war was on. I decided that Rolanda would play a larger role in this trial.
40
“MY CALCULATIONS WERE
VERY PRECISE”
The silver-haired sage pulled at the Windsor knot of his Turnbull & Asser tie. “Based upon my analysis of the security video and the entrance wounds, I believe that the bullets that killed Duc Tho were fired from behind the cash register.”
Erickson nodded at the woman from the Verizon store, who nodded back.
Captain Jack Goldthorpe was a studious sixty-eight-year-old white coat who had been SFPD’s ballistics guru for three decades. His friends called him “Captain Jack.” Around the Hall of Justice, the one-time Navy Seal was known as the “Gun Guy.” When he wasn’t in court, he was hunkered down in a windowless office in the basement of the Hall, where he matched bullets to weapons, calculated distances from muzzles to bodies, and analyzed trajectories of bullets. Meticulous in appearance, manner, and speech, he embodied a genial competence. Juries loved him.
Erickson handed him the AR-15, wrapped in plastic. “Do you recognize this weapon?”
“Yes. It’s a Bushmaster AR-15 found at the scene. Ortega Cruz is the registered owner. He admitted that he used this weapon in self-defense to fire the shots that killed Duc Tho.”
Erickson handed Goldthorpe a sandwich-sized evidence bag. “Do you recognize the contents?”
“I do. These are six bullet casings found on the floor of Alcatraz Liquors on the night of Saturday, December fourteenth.”
“Does that mean that six shots were fired that night?”
“It does. I suppose that it is theoretically possible that these casings could have found their way to the floor on another occasion, but that seems highly unlikely.”
“Were you able to determine the type of weapon from which those bullets were fired?”
“Yes. The casings were consistent with bullets fired from an AR-15 rifle.”
Thomas turned to me, eyes pleading. I responded with subtle gesture for him to stay calm. There was no question that the bullets had been fired from the AR-15.
Erickson was taking his time. “Captain Goldthorpe, were you able to determine whether the indentations on the casings matched the firing pin on the AR-15?”
Felony Murder Rule Page 17
