Except for a subtle nod by the Google guy, there was no reaction from the jurors. I walked back to the defense table and sat down.
Judge McDaniel turned to Erickson. “Please call your first witness.”
“The People call Sergeant Ignacio Navarro.”
It was a logical place to start. Navarro was the first officer at the scene.
36
“THERE WAS BLOOD EVERYWHERE”
The veteran cop tapped the microphone and nodded reassuringly to the jury. “My name is Sergeant Ignacio Navarro. I’ve worked at Tenderloin Station for twenty-four years.”
You wouldn’t have suspected that the polished professional in the navy suit was the same guy who had stonewalled me in the basement of Tenderloin Station.
Erickson was standing at the lectern. You never crowd a strong witness. “How many homicides have you seen over the course of your career?”
“About two dozen.” Navarro testified in the clipped cop dialect that jurors expect after watching countless episodes of Law & Order and CSI.
“How many resulted in a conviction?”
“Objection,” I said. “Relevance.” I was trying to distract them.
“Sustained.”
Erickson continued as if he hadn’t heard us. “Sergeant, were you working at Tenderloin Station at ten-forty-seven p.m. on December fourteenth of last year?”
“Yes.”
“Do you recall what you were doing?”
“Processing a detainee who had been arrested for public intoxication.”
“Were you escorting the prisoner to a holding cell?”
He smiled at the jury. “Actually, I was carrying him.”
I didn’t want him to build empathy. “Your Honor, we will stipulate that Sergeant Navarro was working at Tenderloin Station on the night of December fourteenth of last year when a nine-one-one call came in regarding a shooting at Alcatraz Liquors.”
The judge was pleased. “Thank you, Mr. Daley.”
Erickson introduced a printout into evidence and handed it to Navarro. “Do you recognize this?”
“It’s the nine-one-one log for the night of December fourteenth of last year.”
“Does it show a call at ten-forty-seven and forty seconds?”
“Yes.” Navarro pretended to study the report. “A person identifying himself as Ortega Cruz, the owner of Alcatraz Liquors, placed the call. A second call came in at ten-forty-eight and thirty-five seconds from Hector Cruz, the security guard. Both reported shots fired. Ortega said that he had shot and killed a man in self-defense during an attempted armed robbery. Hector confirmed his story. Nine-one-one dispatch called us immediately.”
Erickson had put the first points on the board. To convict someone of murder, you need a victim. For good measure, he played the nine-one-one tapes. It was overkill, but it got the jury’s attention.
Erickson lobbed another softball. “What did you do when the call came in?”
“I signed out a police unit and drove the two blocks to Alcatraz Liquors.”
Erickson introduced a poster-sized diagram of the store and placed it on an easel between the jury and the witness box. In our world of elaborate computer graphics, the simple low-tech depiction was effective.
Erickson pointed at the drawing. “Sergeant, could you please confirm that this accurately represents the layout of the store?”
“It does.”
“What time did you arrive?”
“Ten-fifty-one p.m.”
“What was happening outside?”
“A crowd had gathered. I instructed everyone to remain orderly. I called for backup and an ambulance. Among other things, a Honda Civic was illegally parked in front of a fire hydrant. We later determined that it belonged to the victim, Duc Tho.”
“Was anybody in the car?”
“The defendant, Thomas Nguyen.”
“Is he in this courtroom?”
“Yes, he is.” Navarro pointed at Thomas. “He is sitting between the attorneys at the defense table.”
Erickson had another score. He had placed Thomas at the scene.
Thomas leaned over and whispered, “Can you do anything?”
“Not yet.”
“What happened next?” Erickson asked.
“I was met in the doorway by the owner of the store. He identified himself as Ortega Cruz. He confirmed that there was no longer an active shooter inside. I followed standard procedure and searched him. I determined that he was not armed. Then we entered the store.”
“What did you find?”
“A body on the floor later identified as Duc Tho. There was blood everywhere. I surveyed the scene and determined that nobody was in immediate danger.”
“Did you find any weapons inside the store?”
“Yes. An AR-15 rifle and a Glock nine-millimeter handgun were on the counter. There was a Kel-Tec P-3AT handgun on the floor next to the Mr. Tho’s body. Mr. Cruz informed me that he was the licensed owner of the AR-15 and the Glock. He confirmed that he had shot Duc Tho in self-defense with the AR-15. The Glock had been in the possession of his nephew, Hector, the security guard. Mr. Cruz said that he had found the Kel-Tec under Mr. Tho’s body.”
“Were you able to determine the registered owner of the Kel-Tec?”
“No. All of the identifying information had been removed.”
“Were any of the weapons loaded?”
“No. Mr. Cruz informed me that he had disarmed all three firearms and gave me the unused bullets. In accordance with standard procedure, I re-checked the weapons to make sure that they weren’t loaded. As a safety precaution, I maintained custody of all weapons until backup arrived a few minutes later. I logged in all three firearms and the unexpended ammunition into evidence.”
I didn’t expect him to say that he planted the gun.
“Who else was there?”
Navarro confirmed that Tony, Hector, and Isabel were present. “I searched Tony and Hector and determined that they were unarmed.”
“Did you search Mr. Cruz’s daughter?”
“No. Per standard procedure, I waited for a female officer to arrive. Isabel was very upset and I did not believe that she posed a threat.”
“Could you please show us where you found the deceased?”
Navarro pointed at the diagram. “On the floor in front of the cash register.”
“Did you attempt to administer first aid?”
“Yes. He was dead.”
“Move to strike,” I said. “Sergeant Navarro is not qualified to determine whether the victim was deceased.”
“Sustained. The jury will disregard Sergeant Navarro’s statement.”
Erickson held up a hand. “Sergeant Navarro, based upon your decades of experience, did it appear to you that the victim was seriously injured?”
“Yes. I’m not the Medical Examiner, so I couldn’t make an official pronouncement. There was no pulse. It was apparent that the victim’s major organs had been hit by gunfire.” He confirmed that EMTs arrived within minutes and attempted to resuscitate Tho. “They were unsuccessful. The victim was pronounced dead at the scene.”
“Could you please describe Ortega Cruz’s demeanor?”
“He was upset, but he demonstrated good judgment by identifying himself and cooperating. He confirmed that he had used the AR-15 to shoot Mr. Tho in self-defense after he announced his intention to rob the store.”
“Did you place him under arrest?”
“No. After backup arrived, I drove Mr. Cruz to Tenderloin Station, where he provided a full statement. He admitted that he had shot Mr. Tho in self-defense.”
Erickson nodded triumphantly. “In self-defense,” he repeated.
If you say “self-defense” again, we’ll turn it into a drinking game.
Erickson walked over to the cart and introduced the AR-15 into evidence. “Is this the weapon that Ortega Cruz used to shoot Duc Tho?”
“Yes.”
Erickson next picked up the Glock and showed it
to Navarro, who confirmed that Hector had been in possession of the weapon when Tho had walked into the store. He went through a similar exercise to have Navarro identify the Kel-Tec.
“Mr. Cruz’s son was present when you arrived. Could you describe his demeanor?”
“He was upset.”
“Did you question him?”
“Yes. He confirmed that Duc Tho had walked inside the store, reached inside his pocket, and demanded money. He said that his father had shot him in self-defense.”
Erickson asked about the security guard.
“Hector Cruz also confirmed that Duc Tho had entered the store and demanded money. His uncle shot Tho in self-defense.”
Not surprisingly, their stories matched up.
“Did you question Mr. Cruz’s daughter?”
“Briefly. She was extremely upset. She said that she didn’t see Duc Tho enter the store or hear him say anything.”
“Did she see her father shoot Mr. Tho?”
“No. At her father’s instruction, she ducked under the desk when Mr. Tho entered the store and demanded money. She heard shots fired from there.”
“Was anybody else was in the store?”
“A customer named Eugene Pham and a Budweiser deliveryman named Odell Jones were in the back of the store. They left through the rear door. We found both men in the alley and questioned them. Neither of them saw Mr. Tho enter the store.”
Erickson had what he needed. “No further questions, Your Honor.”
“Cross exam, Mr. Daley?”
“Yes, Your Honor.”
Rolanda jotted a note on the pad between us which read, “Little things.”
37
“YOU TOOK HIS WORD FOR IT?”
“May we approach the witness?” I asked the judge.
“Yes, Mr. Daley.”
I buttoned my suit jacket and I moved in front of Navarro. On cross, I was permitted to ask leading questions. “Sergeant, you arrived at Alcatraz Liquors by yourself, right?”
“Yes.”
Unlike during direct exam, his answers would be short. “Do you usually work alone?”
“My partner was off.”
“You knew that shots had been fired?”
“I did.”
“But you still went by yourself?”
“Part of the job. I requested backup.”
“You entered through the front door with your weapon drawn?”
“Standard procedure.”
“Were you scared?”
He hadn’t expected the question. “I was concerned.”
“How long was your weapon drawn?”
“Until I secured the premises and made sure that all weapons were disarmed.”
Good answer. “You testified that Ortega Cruz met you when you came in.”
“Correct. He admitted that he had shot Duc Tho in self-defense.”
He would mention it at every opportunity. “But neither you nor any of your fellow officers saw him shoot Duc Tho, right?”
“Correct.”
“How do know that he was telling the truth?”
“I had no reason to disbelieve him.”
“You took his word for it?”
“Most people don’t admit to killing somebody unless they actually do so.”
“Unless they’re trying to protect somebody.”
“Three witnesses corroborated his account.”
“His son, daughter, and nephew. Did you consider the possibility that he was trying to protect one of them? Or did you take their word for it, too?”
“Objection,” Erickson said. “Argumentative.”
“Sustained.”
I pointed at the diagram. “You testified that Ortega Cruz directed you to two weapons on the counter and one on the floor.”
“Correct.”
I picked up the AR-15 from the cart. “This is the weapon that Mr. Cruz said he used to shoot Duc Tho?”
“Yes.”
“This weapon is illegal in California, isn’t it?”
Erickson was on his feet. “Objection. Relevance.”
“Overruled.”
I didn’t think the judge would give me that one.
“True,” Navarro said. “The AR-15 is illegal in California.”
“Did you arrest Mr. Cruz for possessing an illegal weapon?”
“No. We confiscated the firearm and gave him a warning.”
“Is it Department policy not to arrest people who possess illegal assault weapons?”
“Objection. Relevance.”
“Sustained. Please move on, Mr. Daley.”
I put the AR-15 back on the cart and picked up the Kel-Tec. “You also testified that this weapon was on the floor.”
“Correct. Mr. Cruz informed me that he had found it under Mr. Tho’s body.”
“You took his word for that, too?”
“I had no reason to disbelieve him.”
“Did you consider the possibility that Mr. Cruz or somebody else had placed the gun under Mr. Tho’s body?”
“There was no such evidence. We found Mr. Tho’s fingerprints on the handle.”
“And Mr. Cruz’s prints, right?”
“Yes.”
“That doesn’t rule out the possibility that somebody else could have put it there.”
“Objection. Argumentative.”
“Sustained.”
“You testified that you checked Mr. Tho for a pulse. Did anybody else touch the body?”
“The EMTs.”
“But that was after you arrived. What about Mr. Cruz?”
“He also checked for a pulse.”
“And he said he found a gun.”
“Correct.”
“And his son, daughter, and nephew corroborated his story.”
“Yes.”
“And you took their word for it.”
“Objection,” Erickson said. “Asked and answered.”
“Sustained.”
I may have planted some modest seeds of doubt about his credibility in the minds of the jurors. Or maybe not. I pointed at Thomas. “When did you first meet my client?”
“After backup arrived.”
“Was he armed?”
“No.”
“Had he entered the store?”
“No.”
“Shot anyone?”
“No.”
“Attempted to drive away or escape?”
“No.”
“Resisted arrest, acted belligerent, or otherwise gave you any trouble?”
“No.”
Glad to hear it. “In other words, he was just sitting in the car.”
“Yes.”
Good. “You testified that you’ve worked at Tenderloin Station for twenty-four years.”
“Correct.”
“Have you ever been suspended?”
Erickson was up. “Objection. Relevance.”
“Your Honor, Mr. Erickson introduced evidence of Sergeant Navarro’s experience and qualifications. We should be able to ask about it, too.”
“Overruled.”
Navarro’s tone remained even. “I’ve been suspended twice in twenty-four years. The first time involved a bogus claim that my partner and I used more force than necessary to subdue a suspect. That claim was dropped.”
“That was because the suspect died, right?”
“My partner and I were exonerated.”
That’s true. “You were also suspended more recently, weren’t you?”
“An unsubstantiated claim that my partner and I used excessive force to subdue a serial rapist.”
“Did you?”
“No.”
Right. “But you were, in fact, suspended.”
“I was.”
“And the city paid the victim a substantial settlement, didn’t they?”
“Objection,” Erickson said. “Relevance. And any such information is confidential.”
“Sustained.”
I looked over at the Google guy and arched an eyebrow. Then I
turned back to Navarro. “You’re back at work?”
“Correct.”
“What are your responsibilities?”
“I am the Public Information Officer at Tenderloin Station.”
“That’s because the Department agreed that you shouldn’t be allowed on the street, right?”
“Objection. Relevance.”
“Overruled.”
Navarro exhaled. “I am approaching retirement and I requested duties that aren’t as physically demanding.”
You’re full of crap. The juror from the Verizon scowled. “No further questions, Your Honor.”
“Redirect, Mr. Erickson?”
“No, Your Honor.”
When I took my place at the defense table, I saw a note from Rolanda. It read, “Not bad. Trying to show Navarro was lying?”
I leaned over and whispered, “Yeah.”
“About what?”
“Anything.”
Her mouth turned up.
The judge spoke to Erickson. “Please call your next witness.”
“The People call Inspector Kenneth Lee.”
38
“IT WAS A SIMPLE CASE OF
SELF-DEFENSE”
Ken Lee fingered the snow-white pocket square that was the only adornment of his pressed black suit. “I have been a homicide inspector with SFPD for ten years.”
“What did you do before you became a detective?” Erickson asked.
Lee shot a confident glance at the jury. “I worked undercover in Chinatown.”
Judge McDaniel’s courtroom was getting hotter. I sat on my hands for five minutes as Erickson walked Lee through his spotless record, medals of valor, and community service awards. He was, in fact, a stellar cop.
Erickson moved in front of the witness box. “Inspector, were you called in to investigate the homicide of Duc Tho at Alcatraz Liquors on December fourteenth of last year?”
“Objection,” I said. “Assumes facts not in evidence. It’s up to the jury to determine whether this case involves a homicide.”
Felony Murder Rule Page 16