CA - Joey, Summer, Gianni, Joseph Jr., McStay murders 4 Feb 2010 *Trial Transcripts - NO DISCUSSION*

[Tortoise]

PART 17


CM: I mean, this is important to, obviously this is important to all of us, this is, this is crazy, I think, actually I think my wife is taking it and she didn’t even know…. Joseph that well, she doesn’t know him

TD: [x] obvious effect on her life, on top of [x], but on top of that

CM: Yeah she’s [x] financially, because this is

TD: [x] stressful

CM: Matter of fact she just asked me today she said um, when do you think we’ll be getting any money, I’m like errrrrr I don’t know, so um, yeah, it’s, it’s, I mean it’s tougher on her than it is on me. But anything we can think of, anything, I’ll make sure it’s taken care of.

SF: The only other thing that I wanted to say is I understand you’re going to court tomorrow.

CM: Yes.

SF: Um, I’m gonna give you until March 1st and I just realised [x] because took a little bit of you’re going to meet this guy with the felony warrant and talk to him, you understand that,

CM: I understand.

SF: [] permits, come March 1st I’m gonna check your warrant and if it’s still active I’m gonna have to take some action, and what I ask of you is if for some reason you don’t do it by March 1st send me a message with a damn good explanation. That gives you two weeks.

CM: It’ll be cleared, it will be taken care of, not to worry.

SF: And that way I can go to my sergeant and I can say he did what he said he was gonna do, he went to court he took care of it, it worked out.

CM: I very much appreciate it. You know, I, I was, when my wife asked me, she said do you think they’re going to arrest you I looked at her and I said s’kind of a little bit of a coin, I don’t know

[x]

CM: She goes do you think they’re going to arrest you and I said I just I don’t know it’s 50/50 I don’t know, I said she didn’t call me so I said maybe, so I actually um before you got here I gave her my wallet and the little money that I had in my pocket and I went over everything you know, you know,

[x]

CM: I want to get it taken care of in 3 or 4 weeks, you know, I’ll just turn myself in and get 23 days you know it’s not that big a deal but, it was a big deal with my heart condition and stuff because I needed all of the treatments and everything done and just like, yeah. So anyway I was actually in the hospital on the day that I was supposed to turn myself in.

SF: Is that why you got a bench warrant? You were in the hospital?

CM: I called my attorney and I, and I had my wife fax over a statement saying you know, but this, you’ve gotta realise this case has gone on from 7 years or something,

SF: Why?

CM: It’s just an, ongoing continuances and just, and the judge is tired of it, so…

SF: One more delay

CM: One more delay and he just said no if he shows up at the hospital that’s fine we’ll go and do the bench warrant now you know, so I called my attorney and she said she’ll, she’ll get me a continuance for no more than 3 or 4 weeks, she said the judge isn’t going to give you more than 3 or 4 weeks and I said that’s all I need just 3 or 4 weeks.

[x]

TD: [Buccal swab 1:10:50] Take that, put it in between your cheek and gum and just twirl it around.

[x]

CM: Well just, just, just to let you know, it wouldn’t have made any difference whatsoever how much I help you, whether you arrested me or not, because I decided that though before I called you, because I had to, I had to make the, I had to make the decision before I called you back because I was either, it was like if I met with these people the probability of me getting arrested is great, because they’re going to know about my felony warrant and they’re going to probably arrest me for it because they’re supposed to, that’s what their job is, when I called you, when I, when I called you I knew, I actually knew that it was a probability, and I didn’t, I made the decision to call you whether or not I got arrested because I, I, I had to make the decision which one is, which one’s more important…


CM: I will take care of it, it will be taken care of. But in answer your question, it would not have made any difference how much I talked to you or cooperated with you at best because I made the decision, I pretty much realised I was probably going to be arrested before I talked to you I mean I had to make the decision before I called you because when I called you that was pretty much it, I knew that you were going to say probably say we want to see you today, and so I was either going to avoid you until tomorrow, or call you and talk to you.

CM: Ok, realistically yesterday that was, that was pretty much of a legitimate uh my wife got it called in I mean it was just to it was…yeah,

CM: Well that’s, that’s the reason I decided my little is nothing compared to this, it’s just too much too important, Joseph is too important to, you know, it’s just 23 days you know if I…

CM: I had two sentences, one set is for 46 days, but because of my business and my family the judge let me, he was terribly cool, he let me do 23 days and then get out for a few months and then do 23 days, so, he was, he was really really nice about it,

CM: Um, and all I had to, I did the 23 days the first 23 days already and then before I could come in and do the second 23 days I had…

SF: Your heart attack.

CM: …my heart attack and that was, that’s been massive, and I had two stents in my, well I have three now, this is my second, I didn’t have a heart attack first time, second time was a massive heart attack, I was close to dying, if it hadn’t have been for the paramedics I would be dead, my wife was taking me to the hospital

TD: Are we done?

CM: My wife was taking me to the hospital and I said I’m not going to make it because I’m like there’s no way I can’t make it to the hospital she made a U-turn and went straight to the closest fire department which is like 3 blocks away and I tried to get out of the car and just fell over [x] almost unconscious, she ran in they came out, these guys were amazing, had we not gone to the fire department they told me there was no way I’d be alive, it was really close, so we took em a waterfall later, the fire station.

TD: Done? Done. It is 19:10.



END

 

[Tortoise]

TD: Let’s finish THIS thing [refers to CM’s notes again]. Payments to Metro, cheques, then went over [when to bring?]

CM: Went direct to [Jack’s?] [timestamp 1.00.21]

** CORRECTION - TO PART 3 of 17 ** (I couldn't hear what they were saying before but now I hear it - starts at 1:00:12 in first video Day 10 Pt 3)

TD: Let's finish THIS thing [refers to CM's notes again]. Payments to Metro, got cheques, then went over when to write, I don't remember which

CM: When to write the cheques.

 

[Tortoise]

TD: Where did you say you met him?

CM: At Chick-fil-A.

SF: In the same complex we used [x] by the Wendy’s.

** CLARIFICATION - to PART 3 of 17 **

SF: In the same complex we used the restroom by the Wendy’s.

 

[Tortoise]

SF: You got there first?

CM: Yeah. Cos he, he called me and said um ‘what do you want to eat?’ ‘n I said I like Chick-fil-A and just like that he told me where the Starbucks was, told him where it was and I, I got there, I went over and got a Starbucks coffee and then went to Chick-fil-A.

** CORRECTION - to PART 6 of 17 **

CM: Yeah. Cos he, he called me and said um ‘where do you want to eat?’ I said I like Chick-fil-A and just like I was telling you that he told me where the Starbucks was, told him where it was and I, I got there, I went over and got a Starbucks coffee and then went to Chick-fil-A.

 

[Tortoise]

Baseless Complaint by Defense re. testimony about Merritt’s Criminal Record


McGee’s Opening Statement -

Another thing that I saw in the presentation you saw this morning is the picking out of statements of Chase. ‘Well look how guilty he is’. He’s pointing out ‘he’s already referring to him in the past tense. That means he has to be guilty he knows they’re dead, right?’ Well unfortunately now we’re going to have to give you that whole context of that statement. The whole context of that statement was, is, Mr Merritt decided to go down and talk to the police and he was nervous cos he had a felony warrant for him, he says, ‘do I go talk to them? They can arrest me right then for this warrant, I still want to know what’s going on with Chase’, and he said ‘I’m just going to come down’ they said ‘we’re not going to arrest you’, ‘okay good, cos you know what realistically I got to go, I have to go, it’s my best friend, if we find out that I didn’t go down and my information could have saved their lives I’ll be killing myself, and thinking oh my God that was my best friend, and I was too worried about my little crap, to save him.’ That’s what he said.


Michael McStay's Testimony – Direct Examination by Prosecutor Britt Imes:

Day 3 Part 4 [1:06:42]

BI: Back to when you and the defendant were at the house on the 13th, do you recall telling detectives that the defendant gave you a reason why he did not want to go in the house?
MM: Um, I’m not sure.
BI: Do you remember being interviewed by Detective Bachman after San Bernardino County took over the investigation, and mentioning that to him?
MM: I don’t remember.
BI: Showing you a page from that report no.324 the very last paragraph there if you want to read that last paragraph to yourself. Should I take it from that audible ’oh’ you remember something?
MM: Yes sir.
BI: What is it?
MM: He had a record.
BI: Isn’t it, the defendant told you he didn’t want to go in the house because he had a prior record?
McGee: Objection leading – overruled.
MM: Um, he had had some trouble with the law and he didn’t want to go in, I don’t remember the exact wording but um…
BI: That’s what the defendant told you?
MM: I, if I said that I remembered way better back then.
BI: Ok, but the defendant told you something along those lines of why he didn’t want to go in the house?
MM: Yes sir.
BI: You then relayed that to Detective Bachman in 2014.
MM: Yes sir.


Hearing during afternoon recess outside the presence of the Jury: [1:12:02]

Judge: Yes Mr McGee?

[…]

McGee: …in his direct questioning with the witness without getting proper clearance or prior clearance from the court he now brought up his criminal history to the detriment of my client, it’s flagrant disregard for any due process and rights of my client. I would ask that the court admonish the People and if they wish to proceed in any other type of presentation that they actually seek permission of the court and I think at this point the People are attempting to I guess violate the due process rights of my client by presenting character evidence to attack his credibility since the evidence they’ve presented is not coming out as they had hoped.

Judge: Well…

Imes: Your honour, I’m sorry I need to be heard.

Judge: Sure.

Imes: […] as to the defendant’s excuse for not going into the house that’s an admission – there was no motion to exclude by the defense where they’ve had several years to make that in limine motion to exclude it and most importantly Mr Maline mentioned it in his opening statement, that he had a felony warrant. So that cat was already out of the bag by Mr Maline.

Judge: […] With regard to the statement elicited that the defendant offered a reason for not going into the house, being something to the effect of he had a prior record, or had some issue with the law and that’s why he didn’t want to go into the house, that was something that obviously defense counsel is aware of, it was something that we discussed in some of the in limine motions, it is correct that there was never a motion to exclude it.

The prosecution asked Mr McStay or Mr McStay when he testified indicated he opened the door, the sliding, after he had gone into the house through the window he opened the sliding door invited or asked the defendant to enter, he indicated the defendant would not enter, indicated he would not go inside, something to the effect of ‘I’m good’, there were a couple of questions about did he offer any explanation the witness said no, towards the end of the examination the prosecution was clearly showing him a report where he indicated that the defendant gave a reason. Again counsel could have objected or asked to approach. Fact that counsel did not, indicated to the court that counsel had made a tactical decision to permit that question to explain the defendant’s conduct in not going inside rather than have it just the evidence that the defendant refused to come inside and leave the jury to speculate as to why he might not have gone inside. And as pointed out Mr Maline did refer to that in his opening statement, so it’s not something that, since Mr Maline referred to it in his opening statement I assume that that’s something Mr Maline [x] the evidence in the case. So I see nothing improper at all about referring to that. Had there been an objection and had counsel indicated that as a tactical decision they would rather not have the jury hear that explanation and rather just leave it with the defendant didn’t want to come inside I probably would have sustained that, but counsel had an opportunity to do that in in limine motions and counsel had an opportunity to do that when it was obvious that the prosecution was about to elicit that. So I see nothing improper in that.

Maline: I need to respond to that. First of all I didn’t mention it in my opening so I’m not sure where the court’s getting that from and I’m not sure why counsel says it and the court accepts it because I didn’t mention it – maybe Mr McGee mentioned it but I didn’t mention it.

Second thing is the statement that Mr McStay testified to that Mr Merritt says this, and counsel knows this before he asked the question, was not an admission that the statement was made at the time, as if Mr Merritt’s sitting in the back there saying ‘I’m not gonna go in because I have a record’ that’s not what happened, the question is in retrospect Mr McStay’s saying he had a record I’m speculating that he didn’t go into – it’s not a statement that he made. And counsel knows that. Okay? And he asks the question anyway because the way the report is read, and we can’t be put in a position where we have to object-object-object to be hiding things that is a tactical decision we make at the time not to object because the prosecutor’s asking it because it looks to the jury as if we’re hiding something if we’re gonna do that. And we don’t want to look that way. So counsel knew what he was doing, he knew the report is written in a way that would elicit the answer that he wanted knowing that that wasn’t a statement that Mr Merritt made at the time. That is a statement in retrospect – yeah, I think now looking back he didn’t want to go in because he had a criminal history – it’s not that Mr Merritt said that to him.

Judge: That’s not what Mr McStay’s testimony was.

Maline: Because it’s the way it was asked. He was asked to refresh his recollection and look at the report, the way the report is written, counsel fully knows exactly what the context is. And he still asked it.

McGee: And just to point out Mr McStay didn’t testify to anything, he says I don’t remember whatever’s in the report and I objected as to leading because he’s just reading in what the information he wanted before the jury and Mr McStay says whatever it says in the report, I don’t remember. So it wasn’t actually his testimony it was the testimony of the People that the...

Judge: Alright well certainly counsel is entitled to refresh the witness’s recollection with a report if the witness indicates that they still don’t remember it but they know whatever they told the officers at the time was correct there’s nothing wrong with asking the witness you told the officers that at the time whatever it says in the report. And then have the officer come in and testify to what the witness told the officer at the time past-recollection recorded. So there’s nothing improper about that. All of your comments about what the prosecution was doing it was clear that that’s what he was referring to in the report you had ample opportunities before the trial started to bring an in limine motion to exclude them, you had ample opportunity to object to it or to ask to approach before counsel went into that, it was obvious to me that’s what Mr Imes was attempting to elicit and have the witness refresh his recollection with and there was no objection, no decision to, no request to approach on it. As far as I’m concerned that was a tactical decision by defense counsel to allow that rather than not have any explanation given.