Felony Murder Rule

by Sheldon Siegel

  “They did. I therefore concluded that the casings were from bullets fired from that weapon.”

  Big surprise.

  “No further questions.”

  “Cross exam, Mr. Daley?”

  “Just a couple of questions.” I had little interest in prolonging this discussion, but I wanted to give the Google guy something to think about. “Captain Goldthorpe, you said that you were able to determine the precise location from which the shots were fired.”

  “Within a very small range from behind the cash register.”

  “But you can’t see the shooter in the video.”

  “That’s true. However, the video clearly showed where Mr. Tho was standing when he was shot.”

  “But you couldn’t possibly have slowed down the video enough to have seen the trajectory of the bullets.”

  “That’s also true. Even super slow-motion cameras used in sporting events aren’t calibrated to show the precise path of a bullet fired at close range.”

  “So your computations couldn’t have been that precise.”

  “Yes, they were. From the security video, I created a three-dimensional computer model showing Mr. Tho’s position when the shots were fired. I determined that the shots hit Mr. Tho head-on, which means that they were fired from the area behind the cash register.”

  Now for some smoke and mirrors. “You said that Mr. Tho was standing right in front of the register—just like I’m standing in front of you.”

  “Yes.”

  Keeping my feet planted, I rotated my torso slightly to the left. “If Mr. Tho was still turning a little bit as he was shot—like this—might your analysis have changed?”

  “Possibly.”

  “If Mr. Tho had been turning as little as an inch or two at the time he was struck by the bullets, is it possible that the shots could have been fired from somewhere to the left of the register? Perhaps from the area over by the deli counter?”

  “That’s not what happened, Mr. Daley.”

  “But you were looking at a blurry video of an event that took three seconds.”

  “My calculations were very precise.”

  “But it’s possible that Mr. Tho was moving a little as he was shot, right?”

  “Objection,” Erickson said. “Speculation.”

  “Sustained.”

  I was surprised that he hadn’t interrupted sooner. “Let me ask you about one more thing, Captain. You can’t see the shooter in the video, right?”

  “Right.”

  “So you have no evidence that Ortega Cruz shot Mr. Tho.”

  “He admitted it.”

  “He could have been lying. You have no physical evidence other than his word that he pulled the trigger, right?”

  Goldthorpe invoked a grudging tone. “That much is true.”

  “No further questions.”

  It was a small victory.

  “Please call your next witness, Mr. Erickson.”

  “The People call Sergeant Kathleen Jacobsen.”

  Right on cue. Jacobsen was their fingerprint expert.

  41

  “HIS FINGERPRINTS WERE

  ON THE GUN”

  “My name is Sergeant Kathleen Jacobsen. I have been an SFPD evidence technician for twenty-eight years.”

  Erickson was at the lectern. “Do you have a particular area of expertise?”

  “Fingerprints, blood spatter, and chemical and physical evidence.”

  Jacobsen was an unflappable pro with a commanding demeanor. One of the first lesbians to move up the SFPD ranks, she had completed her undergrad degree at USC and her master’s and Ph.D. at Cal. I quickly stipulated to her expertise. Her credentials were not in question.

  Erickson remained a respectful distance from the stand. “Are you the lead evidence technician in the investigation of the death of Duc Tho?”

  “I am.”

  “Were you called to the scene on the night of December fourteenth?”

  “I was.”

  “Did you supervise the collection of the evidence?”

  “I did.”

  Erickson walked to the evidence cart, picked up the AR-15, paraded it in front of the jury, and handed it to Jacobsen. “Can you identify this rifle?”

  “It’s the AR-15 that Ortega Cruz used to shoot Duc Tho.”

  “Move to strike,” I said. “Assumes facts not in evidence. We have heard testimony that the bullets that killed Mr. Tho were fired from that weapon. However, no proof has been entered into evidence that Mr. Cruz pulled the trigger.”

  Erickson shot me a look of disdain. “He admitted it.”

  Yes, he did. “We’ve heard uncorroborated testimony from people other than Mr. Cruz.”

  “He will testify later today.”

  And he will admit it again. “Then we should have this conversation after he does.”

  “Your Honor, we have, in fact, heard testimony that Mr. Cruz shot Duc Tho.”

  “Agreed. The objection is overruled.”

  As it should have been. I was just trying to muddy the water.

  Erickson moved in front of Jacobsen. “Did you find any fingerprints on this weapon?”

  “I did. Ortega Cruz’s.”

  “Anybody else?”

  “No.”

  Erickson picked up a shirt wrapped in clear plastic. He introduced it into evidence and handed it to Jacobsen. “Could you please identify this item?”

  She touched her wire-rimmed bifocals. “It’s the shirt that Ortega Cruz was wearing on the night of December fourteenth.”

  “Did you find traces of gunpowder?”

  “I did.”

  “Were they consistent with the gunpowder found in the bullets that killed Mr. Tho?”

  “They were.”

  “Were you able to draw any conclusions?”

  “I was. Mr. Cruz had fired a weapon causing gunpowder traces to embed in this shirt.”

  Erickson took the shirt from Jacobsen and returned it to the cart. He picked up the Kel-Tec and gave it to Jacobsen. “Do you recognize this firearm?”

  “I do. It’s a Kel-Tec P-3AT found at the scene under the victim’s body.”

  “Did you find any fingerprints on this weapon?”

  “Yes. Duc Tho’s.”

  “Anybody else’s?”

  “Ortega Cruz’s.”

  “Do you know how Mr. Cruz’s fingerprints found their way to this weapon?”

  “He informed us that he disarmed this weapon for the safety of himself and others present in his store.”

  “No further questions.”

  Our turn. “May we approach the witness?” I said.

  Judge McDaniel nodded.

  I addressed Jacobsen in a respectful tone. “Nice to see you again, Sergeant.”

  “Nice to see you, Mr. Daley.”

  I handed her the AR-15. “Who is the registered owner of this weapon?”

  “Ortega Cruz.”

  “Is it legal to possess this firearm in California?”

  “Objection,” Erickson said. “Relevance.”

  “Overruled.”

  Jacobsen shook her head. “It’s illegal in California.”

  “Was Mr. Cruz arrested for possessing an illegal weapon?”

  “Objection. Relevance.”

  “Overruled.”

  “Mr. Cruz was issued a warning and the weapon was confiscated.”

  “I trust that you aren’t planning to give it back?”

  “Correct.”

  On to business. “Where on this weapon did you find Mr. Cruz’s fingerprints?”

  “On the handle and the barrel.”

  “What about the trigger?”

  “We found a smudged print that we could not identify.”

  “You have no physical evidence that Ortega Cruz pulled the trigger on the night that Duc Tho was killed, do you?”

  “He admitted it. We also found gunpowder residue on his shirt.”

  “Which proves that the shirt was in the vicinity of gunpowder a
t some point. But it’s impossible to know precisely when the traces landed on his shirt, isn’t it?”

  Erickson was on his feet. “Objection, speculation.”

  Not so fast. “Your Honor, Mr. Erickson introduced Sergeant Jacobsen as an expert on evidentiary issues. If he’s allowed to ask for her expert opinion, I should be able to do so, too.”

  “Overruled.”

  Jacobsen eyed me with a bemused look. “In my expert opinion, it is theoretically possible—albeit very unlikely—that the gunpowder became attached to Mr. Cruz’s shirt at some time other than the night of December fourteenth.”

  “It could have happened at the shooting range, right?”

  “Right.”

  “Or somebody else could have been wearing his shirt and fired a weapon, right?”

  “Sure.”

  “And it’s also possible that the gunpowder residue landed on his shirt because he was standing next to somebody who fired a weapon, right?”

  “It’s possible.”

  “You testified that you found a smudged print on the trigger. It’s possible that somebody other than Mr. Cruz fired this weapon, right?”

  Erickson was up again. “Objection. This is pure speculation.”

  Yes, it was.

  “Sustained. Please move along, Mr. Daley.”

  “Sergeant Jacobsen, in addition to testing somebody’s clothing for gunpowder residue, you can also test their skin, right?”

  “Right.”

  “Did you test Mr. Cruz’s hands?”

  “Yes. We found gunpowder residue on his hands.”

  “There were several other people in the store that night. Did you test their hands and clothing for gunshot residue?”

  A hesitation. “No.”

  “Why not?”

  “Because Mr. Cruz admitted that he fired the shots that killed Duc Tho.”

  “You didn’t consider the possibility that somebody else fired the shots?”

  “Objection. Argumentative.”

  “Sustained.”

  I took the AR-15 from Jacobsen and handed her the Kel-Tec. “Sergeant, you testified that Ortega Cruz told the police that he found this weapon under the victim’s body and he disarmed it, right?”

  “Correct.”

  “And you found Mr. Cruz’s fingerprints on this weapon?”

  “Yes.”

  “Where?”

  “On the handle.”

  “That means that Mr. Cruz must have touched this weapon, right?”

  “Yes. We also found Duc Tho’s fingerprints.”

  “How do you know that Ortega Cruz didn’t plant this weapon under Mr. Tho’s body?”

  “Objection. Speculation.”

  “Overruled.”

  “I don’t know, Mr. Daley.”

  “You would therefore acknowledge that Mr. Cruz could have placed this weapon under Mr. Tho’s body, right?”

  “Objection. Speculation.”

  “Sustained.”

  I took the Kel-Tec back from her and held it up. “You don’t know for sure how this weapon made it to the floor underneath Duc Tho’s body, do you?”

  “Mr. Cruz told us that it probably fell out of Mr. Tho’s pocket when he was shot.”

  “If it was inside his pocket at the time.”

  “Mr. Cruz said it was. His son and nephew corroborated his story.”

  We would get to that later. “You testified earlier that you found Duc Tho’s fingerprints on this weapon.”

  “Correct.”

  “Which hand?”

  “Right. Thumb, index finger and palm.”

  I couldn’t dispute this. “Sergeant Jacobsen, is there any physical evidence proving that Duc Tho had this weapon in his possession when he walked into the store?”

  “His fingerprints were on it.”

  “But you found it after he was killed. Is there any physical evidence proving that this weapon was inside his pocket when he walked inside the store?”

  “Ortega Cruz said so.”

  “His statement isn’t physical evidence. Isn’t it possible that somebody wrapped Mr. Tho’s hand around this weapon to produce fingerprints, and planted it under his body?”

  “Objection. Calls for speculation.”

  “Your Honor, I’m not asking Sergeant Jacobsen to speculate.” Yes, I am. “I’m asking her for her expert opinion.”

  “I’ll allow the witness to answer.”

  Jacobsen shook her head. “Yes, Mr. Daley. It’s theoretically possible.” She looked at the jury. “It’s also theoretically possible that I will be the starting point guard for the Golden State Warriors when the season opens next month.”

  The tension was broken by uncomfortable laughter. I glanced at the juror who worked at the Verizon store. Her expression indicated that she wasn’t convinced.

  I walked to the front of the witness box. “You said that the fingerprints on the Kel-Tec were from Duc Tho’s right hand.”

  “Correct.”

  “Were you aware of the fact that Duc Tho was left handed?”

  “Yes.”

  “Doesn’t it seem odd that he would have been holding the gun in his right hand?”

  “Not really. According to his mother, while Duc Tho used his left hand to throw baseballs, he also did many things with his right hand, including writing.”

  I should have let it go. “No further questions.”

  42

  “SOMETHING IS COMING DOWN”

  Thomas was frustrated. “You should have known that Duc did stuff with his right hand.”

  I tried not to sound defensive. “His mother told us that he was left-handed.”

  “And I could have told you that he wrote right-handed. You should have asked.”

  I probably should have. Rolanda, Thomas, Melinda, and I were sitting around a table in a closet-like meeting room during the mid-afternoon break. The ninety-degree heat was making my headache worse. “We’re going to take some lumps during the prosecution’s case.”

  Melinda had been glaring at the ceiling. She lowered her eyes and spoke in a muted tone. “You need to slow them down.”

  “It isn’t always possible.”

  “Then make it possible.”

  “You need to be realistic.”

  “You need to be more assertive.”

  “We are going to continue to challenge every piece of evidence. For now, it’s the best that we can do.”

  “Then what?”

  “We’ll go after them during our defense.”

  * * *

  “How bad was it?” I asked.

  Rosie shrugged. “Not so bad. You don’t have much to work with.”

  I felt worse. Rosie never sugarcoated anything. We were standing outside the courtroom. The trial was going to resume in five minutes.

  She read my expression. “You’re doing everything you can, Mike.”

  “Can you stick around?”

  “I have a conference call. I’ll try to stop by at the end of the day.”

  “Any advice before you go?”

  She smiled. “Let Rolanda do most of the talking.”

  * * *

  My iPhone vibrated as we were about to re-enter the courtroom. Pete’s name appeared on the display. “How’s the battle, Mick?” he asked.

  “Not great. Got anything we can use?”

  “Inspector Lee went down to San Bruno after he testified.”

  “It might not have anything to do with our case.”

  “He was in a big hurry to talk to somebody. He got a police escort.”

  “What do you think it means?”

  “Something’s coming down. Who’s their next witness?”

  “Ortega Cruz.”

  43

  “I THOUGHT HE WAS GOING

  TO KILL ME”

  “My name is Ortega Cruz. I am the owner of Alcatraz Liquors on Eddy Street.”

  Erickson was at the lectern, arms at his sides. “How long have you owned that business?”

  “
Twenty-six years.”

  Clean-shaven and sporting a going-to-church suit, Cruz looked more like a banker than the proprietor of a liquor store in the Tenderloin.

  Erickson moved in closer. “Mr. Cruz, were you at work at ten-forty-seven p.m. on December fourteenth of last year?”

  “Yes.”

  “Who else was there?”

  “My son, Tony, my daughter, Isabel, my nephew, Hector, a deliveryman named Odell Jones, and a customer named Eugene Pham.” Cruz confirmed that Tony was behind the deli counter, Isabel was at the desk in the alcove, Hector was next to the window, Jones was filling the refrigerator, and Pham was looking at wine in the back of the store.

  “Where were you?”

  “Behind the register.”

  Cruz was following Erickson’s lead and keeping his answers short.

  “Did someone come into the store at ten-forty-seven that night?”

  “Yes. A man named Duc Tho.”

  “Had you ever seen him before?”

  “Once or twice.”

  “What happened next?”

  “He reached inside his pocket and started to pull out a gun.”

  “You’re sure he had a gun?”

  “Yes.”

  “Anything else?”

  “He demanded money.”

  “How close to you was Mr. Tho?”

  “About five feet.”

  “And you saw him reach for a gun?”

  “Objection,” I said. “Asked and answered.”

  “Sustained.

  “Your store is in the Tenderloin, isn’t it?”

  “Yes.”

  “That’s a rough neighborhood, isn’t it?”

  “One of the most dangerous in San Francisco.”

  “Why?”

  “Crime. Drugs. Violence. Prostitution. Poverty. Unemployment.”

  “Has your store ever been robbed?”

  “Dozens of times.”

  “How do you protect yourself?”

  “I keep a gun under the register.”

  “Did you have a gun behind the counter that night?”

  “Yes.”

  Erickson showed him the AR-15. “Is this the gun that you had behind the counter?”

  “Yes.”

  “You purchased it legally?”

  “In Nevada. I completed all of the necessary paperwork.”

  Erickson lowered his voice. “How did you feel when Duc Tho walked inside your store?”