“Sixth Street.”
It was the skid row area near Moscone Center. “What do you do there?”
“I’m an entrepreneur.”
“Really? What do you sell?”
“Stuff that I scavenge on the street. Household goods. Watches. Cell phones. iPads. You’d be amazed what people throw away.”
I’m never amazed at the lies that people tell. “Why were you arrested this time?”
He shot another glance at his lawyer, who nodded. “The police believe that I was dealing in stolen goods. They’re wrong.”
Hard to imagine. “Are you charged with a felony?”
“Yeah.”
“Your first?”
“No.”
“So you’re looking at some substantial jail time.”
“Yeah.”
“I take it that Mr. Erickson might be willing to reduce the charges if you cooperate?”
“I’m a concerned citizen who decided to come forward with information.”
“And you just happened to come forward today?”
“Seemed like the right thing to do.”
“You’re prepared to testify that you provided this gun to Duc Tho?”
“I sold it to him.” His expression turned smug. “It happens to be the truth.”
And I happen to be the Easter Bunny. He was getting more self-confident as his story became more preposterous. I looked over at Erickson. “I take it that you aren’t planning to charge him for selling the gun to Tho?”
“No.”
“What deal did you offer him on his current charge?”
“Nothing out of the ordinary.”
“Let me guess. His case is a ‘wobbler.’” It was the euphemism for charges that fell somewhere in the gray area between a misdemeanor and a felony. “You were going to charge him with a felony. If he testifies, you’re going to knock it down to a misdemeanor.”
“It could go either way.”
“Or maybe you’ll just give him immunity and dismiss the charges.”
“Possibly.”
“Bad form, Andy.”
“You know how things work, Mike. We make judgments every day. Mr. Vu has agreed to provide testimony that’s relevant to your client’s case. How we deal with his situation doesn’t concern you.”
“Judge McDaniel isn’t going to let him testify.”
“I think she will.”
Vu’s attorney stood up. “I think we’re done.”
49
“HE CAN’T BE SERIOUS”
“That was a crock,” Rolanda said. “He can’t be serious.”
I scanned Erickson’s motion to add Vu to his witness list. “Evidently, he is.”
We were sitting in my office at a quarter to twelve on Wednesday night. Rolanda was tired and frustrated. I was just tired.
She wasn’t finished venting. “You said that we could trust him. Why did he wait until the last minute to spring this?”
“Maybe he just found Vu. Or maybe this is coming from Ward.”
“Or maybe he isn’t as trustworthy as you think.” She flipped open her laptop. “I’ll put together our opposition motion. It won’t take long.”
“Thanks.”
She glanced at her computer. “Did Pete find out anything about Vu?”
“He’s a small-time fence in the Tenderloin. He sells anything he can get his hands on. Mostly cell phones. Some iPads and laptops.”
“Guns?”
“Not as far as we know.”
“Seems he’s branching into new markets.” Rolanda grimaced.
“You okay?” I asked.
“Fine.”
“Is your stomach bothering you again?”
“Too much pizza and Diet Coke.”
“I don’t want you to get an ulcer, Rolanda.”
“I’m fine, Mike.”
I recognized Rosie’s “Don’t even think about questioning me” tone. “I’ll stick around and take a look at your filing.”
“That would be great.”
“You think we can keep Vu from testifying?”
“Yeah, but we might not want to.”
“How do you figure?”
“We’ll make it clear to the jury that Vu is testifying only because he cut a deal with the prosecutors. It brings his credibility into question. More important, if Erickson is willing to put a witness like Vu on the stand, it looks like he isn’t confident about his case.”
“Do you think we should agree to let him testify?”
“No, we should fight it. Even though we should be able to destroy Vu’s credibility, we don’t want to have testimony on the record that puts a Kel-Tec in Tho’s hands.”
“I think that’s the right call.”
“Besides, it will be fun to wipe that smug grin off Vu’s face on the stand.”
Rosie would have said the same thing. “Would you like to do the honors in the morning?”
“Love to.”
* * *
“I didn’t expect you so late,” Rosie said.
We were sitting at her kitchen table at one o’clock on Thursday morning. Tommy was asleep. Sylvia was watching TV in the living room.
“We had a little unexpected news after you left tonight,” I said. I told her about Erickson’s motion to call a new witness.
Rosie shook her head. “Betsy won’t go for it.”
“She might. Vu has relevant information. Andy will argue that we’ve had a chance to question him.”
“Maybe you shouldn’t have gone over to meet him.”
“Hindsight is twenty-twenty. We’ll fight it in the morning. If the judge lets him testify, Rolanda will destroy his credibility on cross.”
“She’s a pit bull when she needs to be.”
“Just like her aunt.”
Rosie reached over and slapped my hand. “How are you holding up?”
“I’m fine.”
“And Rolanda?”
“She’s okay, but she’s having stomach trouble again.”
“It’s been going on for a couple of weeks. She doesn’t like to talk about it.”
“She reminds me of your mother.” I waited a beat. “Is she pregnant?”
“I don’t think so.”
“I hope it isn’t anything serious.” I took Rosie’s hand. “Would you talk to her about going to the doctor? She might be more receptive if it comes from you.”
“I will.”
“Thanks. Do you have time to watch the trial in the morning?”
“I’ll see you there.”
50
“HE CHANGED HIS MIND”
An irritated Judge McDaniel templed her fingers in front of her face. “You can’t be serious, Mr. Erickson.”
“We are, Your Honor.”
We had convened in the judge’s chambers at ten o’clock on Thursday morning. She was annoyed by Erickson’s last-minute motion to add Vu to his witness list. She was furious that she had to put a sitting jury on ice while we argued about it.
She speed-read Erickson’s motion. “Why wasn’t this witness added earlier?”
“He came forward on Sunday.”
“Why didn’t I hear about this on Sunday?”
“We wanted to interview him and verify his story.”
I interjected. “They’ve spent four days trying to cut a deal in exchange for his testimony.”
“Is this true, Mr. Erickson?”
“We’ve been discussing various scenarios with his attorney.”
I spoke up again. “All of which involve granting him immunity on certain charges and reducing other charges if he agrees to testify in our case.”
Erickson kept his tone measured. “His testimony is relevant to Thomas Nguyen’s case. It has substantial probative value.”
“What kind?”
“He sold the Kel-Tec to Duc Tho.”
Rolanda corrected him. “He claims that he sold a Kel-Tec to Tho. He admitted that he didn’t know if it’s the same gun that they found under Tho’s body.”
&nbs
p; The judge took off her reading glasses. “Is that true, Mr. Erickson?”
“Yes.”
Rolanda tried again. “We learned of this at ten o’clock last night. We haven’t had time to check out his story or prepare for his testimony.”
Erickson disagreed. “Ms. Fernandez and Mr. Daley met with Mr. Vu last night.”
“For ten minutes,” Rolanda snapped. “Then Vu’s lawyer pulled the plug.”
This was slight misrepresentation of how we concluded the interview, but I had no intention of pointing it out to the judge. We went back and forth for another ten minutes. Erickson kept repeating his point—which was legitimate—that Vu would provide relevant testimony. Rolanda and I countered with an equally valid argument that Vu was unreliable. We played to the judge’s sense of order by claiming—justifiably—that it was too late to include a new witness after the prosecution had concluded its case.
Judge McDaniel listened patiently. Finally, she spoke to Erickson. “I am very disappointed in you, Andy. You know that it is inappropriate to add a witness at this point.”
“But Your Honor—,”
“I’m not finished. While I believe that your behavior has been less than exemplary, you have persuaded me that this witness does, in fact, have information with probative value.”
Rolanda interrupted her. “But Your Honor—,”
“Let me finish, Ms. Fernandez. I have decided that I will allow this witness to testify.”
Erickson nodded. “Thank you, Your Honor.”
“But I have some conditions. First, I am going to call a recess for the rest of the day to let Ms. Fernandez and Mr. Daley interview Mr. Vu at length and otherwise conduct whatever additional due diligence they need to prepare. In particular, I am ordering you to provide Mr. Vu’s arrest record and the police reports for the crime for which he is accused. I will also expect you to make the arresting officer available for Ms. Fernandez and Mr. Daley to interview.”
“Yes, Your Honor.”
“Second, given the circumstances, I am going to give Ms. Fernandez and Mr. Daley great leeway in conducting their cross examination of this witness. I am also going to let them add the arresting officer to their witness list.”
“Yes, Your Honor.”
She was going to let us ask Vu anything that we wanted.
“Finally, I want to make it clear that any attempts to add another witness will not be well received. Understood?”
“Yes.”
The judge started to gather her papers when there was a knock at the door. Her clerk came inside. “Excuse me, Your Honor. One of Mr. Erickson’s colleagues is here. She needs to talk to him. She says it’s urgent.”
Now what?
Erickson looked relieved to have an excuse to exit the room. “Pardon me.”
Rolanda, Judge McDaniel and I sat in silence for five minutes as we waited. The judge stared at her computer and pretended that we weren’t there.
Erickson returned a few minutes later and spoke to us in a muted tone. “Your Honor, we will be withdrawing our motion to include Mr. Vu on our witness list.”
Though she tried to hide it, I could see the hint of a smile on Judge McDaniel’s face. “Really? May I ask why?”
“He changed his mind. He’s decided not to testify.”
Their deal fell apart.
“So we’ll pretend that this conversation never happened?”
“Yes, Your Honor.”
“Fine.” She pushed back her chair and stood up. “Let me give you a little friendly advice, Andy. If something like this happens again, I would encourage you not to waste this court’s time by trying to introduce new witnesses or making other frivolous motions.”
“Yes, Your Honor.”
“Let’s get back to work. The jury is waiting for us.”
* * *
“Do you think Erickson was really planning to call Vu as a witness?” Rolanda asked.
“Probably,” I said. We were walking down the corridor toward Judge McDaniel’s courtroom. “Andy isn’t the type to sandbag.”
“Maybe he was trying to distract us.”
“I don’t think so, Rolanda. He’s already introduced evidence that Tho had a gun. Vu’s testimony would have been helpful, but not essential. Besides, his credibility would have been questionable and it’s a bad idea to irritate the judge.” I opened the heavy door to the courtroom. “Ready to roll?”
“Absolutely.”
51
“IT IS IMPOSSIBLE TO DETERMINE
THE PRECISE SPOT”
Rolanda stood at the lectern. “Please state your name for the record.”
“Dr. Robert Stumpf.” He spoke in a commanding baritone.
“Are you a medical doctor?”
“No. I earned my Ph.D. at UC-Berkeley. I also received my bachelor’s and master’s degrees there.”
Go Bears!
“What is your specialty?”
“Forensic ballistics.”
From his full head of meticulously coiffed hair to his custom Brioni suit, everything about Bob Stumpf was in muted shades of gray. Forty years earlier, the lanky Modesto native went to Cal on a basketball scholarship, where he was Tommy’s fraternity brother. A torn ACL had cut short his athletic career, so he focused on his studies in criminal justice. He was now a world-class authority on firearms. When I explained the circumstances of our case, he graciously agreed to testify for free, which was helpful, because we couldn’t have afforded him otherwise.
Rolanda edged closer to him. “Dr. Stumpf, what is your current occupation?”
“I’m a full professor of forensic ballistics at the University of California at Berkeley. I’ve held that position for thirty-three years.”
“Could you please explain what you mean by ‘forensic ballistics’?”
“It’s the study of evidence relating to firearms at a crime scene. It includes matching ammunition to weapons, analyzing bullet fragments, and investigating projectiles.”
“Would it include determinations of the path of bullets?”
“Absolutely.”
He was smoother than the bottle of Glenfiddich that I would present to him as a thank-you for his testimony.
Rolanda was standing perfectly still. “You’re familiar with the facts surrounding the death of Mr. Duc Tho at Alcatraz Liquors on December fourteenth of last year?”
“I am.”
“You have had an opportunity to review the police reports, the security video, the autopsy report, and the ballistics report prepared by Sergeant Kathleen Jacobsen?”
“I have.”
“Do you agree with the conclusions of Sergeant Jacobsen’s report?”
“For the most part.” Stumpf cleared his throat. “As you know, I have great respect for Sergeant Jacobsen.”
Even when you’re prepared to testify that you think she’s wrong.
“Could you please tell us the portions of the report that you agreed with?”
“The six bullets that killed Mr. Tho were fired from the AR-15 found in the store.”
“Is there something that you didn’t agree with?”
“Yes.” Stumpf lowered his voice. “I disagree with Sergeant Jacobsen’s conclusion regarding the location of the shooter.”
“Could you be more specific?”
“Certainly.” Stumpf took off his aviator-style glasses. “Actually, I think it would be more accurate to say that I think her conclusion was a little too specific.”
He was getting a little too cute.
“How so?” Rolanda asked.
Stumpf glanced at the jury. “The ballistics and autopsy reports concluded that Mr. Tho was struck in the chest by six bullets.” He used his right index finger to make a circle in the middle of his chest. “The bullets entered Mr. Tho’s body within a one-inch radius which created a single contiguous wound. This indicated that the shooter was an experienced marksman and an excellent shot.”
“How long did it take to fire the six shots?”
&nb
sp; “Based on my review of the security video, my calculations indicate that it was approximately 2.4 seconds.”
“That seems like a lot of shots in such a short time.”
“It’s about average for someone who is familiar with an AR-15. It’s a semi-automatic firearm, which means that you need to pull the trigger each and every time you fire a shot. That distinguishes it from a fully automatic weapon, such as a machine gun, where you can fire multiple rounds with just one tug of the trigger.”
“How many shots can a person fire in one second with an AR-15?”
“It varies. If you’ve never shot the weapon, you would be lucky to fire more than one round per second. However, if you’re experienced with the AR-15, it isn’t uncommon to fire three, four or even five rounds per second with reasonable accuracy. I’ve heard claims that people have fired eight rounds a second, but I have never personally seen anyone do so.”
He was a natural teacher. The jury was dialed in.
Rolanda got down to business. “The fact that Mr. Tho was hit by six bullets fired in less than three seconds wasn’t extraordinary, was it?”
“Not at all—especially if the shots were fired by somebody familiar with an AR-15.”
“Are you sure that all six shots were fired by the same person?”
“It is theoretically possible that someone could have fired one or more of the shots and handed the weapon to someone else who fired the rest, but it would have been virtually impossible given the timing.”
“Is all of this consistent with the results of Sergeant Jacobsen’s report?”
“So far.”
“But you mentioned that there was at least one element that you disagreed with.”
“There is. Sergeant Jacobsen concluded that the shots were fired from directly behind the cash register. I am not sure that this was the case.”
“Would you explain why?”
“Of course. Would you mind if I step out of the witness box for the moment?”
Erickson offered no objection.
Stumpf left the stand and took up a spot in front of the jury. He acted out Tho’s actions as he spoke. “When Mr. Tho entered the store, he turned to his right to face the counter. As he was turning, he was hit by six bullets, all of which entered his chest while he was still on his feet. My review of the video indicated that Mr. Tho was still turning when the first bullet struck. He was still rotating slightly as the second and third and fourth bullets struck.”
Felony Murder Rule Page 21