MOTION DAY (TROMBETTA)
By Marty Carlson
There was no morning session today in the afternoon session was scheduled to start it 1330 hrs. but did get started in till almost 1400 hrs. due to meetings with the judge in chambers with the attorneys.
They also have done some scheduling changes I’m in a do my best to keep everyone updated it’s very difficult to follow these constant daily changes. When we went into session 1st thing the judge announced that the motion date that was scheduled for November 7, 2017 is now been vacated and she has set aside November 28 to December 15, 2017 to do in limine motions in addition some 1538 motions and the order to show cause against Detective Bunch. They discussed some other dates about how they have to get their jury questions to the judge I October 6 and some other dates in regard to motions and responses.
We finally went back on the Trombetta motion, which is in regard to missing evidence namely photographs on the CDs and flash drives that involved Derek Perry. Dale Lingerfelt took the stand and stated that in the fall of 2013 David McMillan was seen on photos that were on Derek Perry’s computer. He stated that McMillan was wearing hunting close and had what appeared to be a teenage boy standing nearby. In the background of the photo he said there were trees and dirt.
He interviewed David McMillan with agent Mike Brody and objective Tim Redd from Turlock Police Department. He stated he had a picture of David McMillan from his California driver’s license photo and talk to them at his house in Turlock. He said he had only been there a short time and after he explained why he was there David McMillan immediately brought up his picture was on a game cam in the mountains.
Lingerfelt stated that McMillan was cooperative and all interviews and his conversations were recorded that he was not aware if there was a transcript or if it been discovered. He stated the interview occurred in January 2014 and again on the net very next day he was interviewed again. David McMillan admitted that he had went to the area and had shown friends the area where the body had been found. With him was somebody by the name of Joe Lima and his wife, and two other people is what was stated.
Lingerfelt stated that McMillan was ruled out as a suspect after they checked out McMillan’s timeline of where he said he was in the people he was with. McMillan also apparently took a polygraph. At this point the DA objected stating that Jason Armstrong testimony heard yesterday referenced the polygraph and was not allowed to be asked, the judge advised her to cite the record in the transcript in a brief and she will strike that testimony if the DAs correct.
Dale Lingerfelt stated that he had talked to Gary Crosby and he identified David McMillan that he said McMillan had used a different name, the Crosby had showed McMillan were the remains were found. Lingerfelt stated that McMillan said he had shown the site to Jason Armstrong and his son to Joe Lima and his wife. At this time, there is an objection to the Gary Crosby reference of the tour of the site and the judge asked him what an offer of proof was and Robert Forkner stated the DA is only trying to show his cooperation and it doesn’t go to what this issue is about. The objection was sustained.
Robert Forkner started cross exam on officer Lingerfelt and he said he did not recall if McMillan had a weapon in his hand and not sure if he could even see his hands. He said that McMillan interview was prior to the Robert Woody recording on the body wire with Maranda Dykes. David McMillan had told he took several people and had talked to several other people about the site and everyone in Turlock knew the remains were found and where.
The DA objected to this question and Robert Forkner told the judge it shows what others knew and missing photos and crime scene was not a secret. The judge upheld the DAs objection in Robert Forkner had no further questions.
Attorney Hans asked officer Lingerfelt again about Perry’s picture of McMillan and he said he sought on one occasion and one occasion only and he said he did not know who David McMillan was. He did not recall anyone saying who it was who happened to be in the room at the time. Eventually he learned who the photo was through other officers. He did not recall who told him who it was. Lingerfelt did not need the game cam photo that use the CDL photograph when he interviewed McMillan. He stated that the game cams take numerous pictures based on motion as somebody’s walking up to a camera like McMillan would have done.
So, attorney Hans asked if there should be a series of pictures of McMillan walking up and Lingerfelt was not sure. Lingerfelt said there were some other photos during that time but did not recall of who or what the scene. He stated that he was shown between one and 10 pictures on Perry’s computer that they were focusing on just the one picture.
Peter Rodriguez asked to David McMillan had been to the area numerous times in Lingerfelt stated that McMillan had been going up there since he was a boy. Number of people out there at that time at the scene was unknown. He also stated that the child in the picture was unknown to him also. He was not sure how far back the young man was but he looked fairly close.
Marlisa Ferreira started a redirect asking why he showed a photo of McMillan and he stated that McMillan was simply on a list of people to talk to and he had photos of all the people on the piece of paper. No further questions asked of Dale Lingerfelt.
Again, today they bounce back and forth between hearings and they went back to the 1385 misconduct motion and Robert Forkner gave a stipulation to the court that the probation supervisor had been talk to, by him, and it been determined that they had access to all jail visit logs. Both parties stipulated to that fact.
Final arguments for this motion, Trombetta that is, Robert Forkner stated that the photos had disappeared and then reappeared after Derek Perry had squirreled them away at his house. He stated like the thumb drive that was magically been able to open be opened up just before they had to turn it over to the judge, the DA is downplaying the photos. Forkner said the investigators must’ve felt that the photos were important as he made regular trips to the mountains to retrieve the photos and change the batteries in the cameras, it shows the people’s interest in this case and there must be a mere reason for the photos.
He said photographs are important to a case and he said officer Perry claimed he did not delete the photos on the first trip to the mountains, either on the Sim card or the CD. So that raises a question that is hard to get past why did they delete the photos of the people that were there and say there was only pictures of trees and mountains that were deleted.
He said Kurt Bunch had unfettered access to the dance and the computer and he asked why would Derek Perry make that up. Perry said in his earlier testimony that Kurt Bunch was extremely interested in those photos. And he started referring to the case citation by the court from yesterday and noting the differences in the cases. Robert Forkner stated agree just behavior by the District Attorney’s Office can lead to many different types sanctions can include total dismissal of the charges. He says other photos have been destroyed which could show other people, there is now no chance for a jury to see this evidence since is been destroyed. Even after there was testimony that a photo had been printed out he also stated that the government witnesses keep saying that there’s no hard copy of the person of interest in this case. At that point Robert Forkner submitted.
At this time Mme. district attorney began her final argument in this Trombetta motion, saying first of all of photo did exist and is unknown if it does not exist anymore simply hasn’t been found
she stated that there was a photo of David McMillan that existed and again no one knows if it’s been destroyed or not.
And lastly, she said they’ve never proven that there was an actual sequence of photos that are missing on that one particular disc. She stated maybe not all pictures were transferred, the judge interrupted her at that point and said the picture was seen at the District Attorney’s Office so it must’ve been transferred. Marlisa Ferreira stated the missing photos are all unknown entities and at this point there’s no proof of actual value of those photos in the case. She said the photo at this point is simply missing not destroyed.
She went on to say that Derek Perry had the image on his hard drive and not necessarily a disk, the judge again interrupted her and says that’s not what he had testified to, as she was reading his testimony last night and actually fell asleep reading. She also said that Derek Perry was unclear about the number of the discs.
Mme. DA stated that there were no more Discs all had been accounted for. They had this for all the dates that trips had been made to the mountains. She said that the image has not been destroyed and still allows a defense based on memory of people that saw the photo. She stated the McMillan Armstrong Ticknor crew visits to the site is confirmed by Gary Crosby showing they had knowledge the site. It was close to David McMillan’s campsite and she stated again no defense has been denied, which is one of the elements to approve Trombetta motion. She says there is no validity to defense claims that investigators had destroyed photos of possible real killers. As all this were found in accounted for. There was just some slight problems with the activities of Derek Perry.
Mme. DA went on to say during certain time year there are regular visitors to the area not just hunters. So of course, there were other photos on the discs. She started planning the legalities of the two-part test for a Trombetta motion, and at this point I looked at the judge and she had that look on her face and she was not pleased. Mme. DA started reading sections of the 14th amendment of the Constitution of United States, and the fairness reading amendment and the requirement of exculpatory evidence and its value to the defense. She stated a year and ½ later the pictures did not have an exculpatory value. He stated there is no third-party defense has been denied, the image has not been destroyed in bad faith as required by Trombetta. She stated that even if the defendants were photographed at the scene on the cameras it does not prove guilt.
He stated the people at the scene were connected to pop and cork but again they have no value so there’s no bad faith involved.
Robert Forkner said that a picture has a thousand words and the court is being asked to take the word of a subjected investigation team. As seen in the problem that they have had in listening to the interviews, reading reports, and listening to testimony in court. In addition, if they had no value why would the pictures being taken in the first place. He stated that all the investigators were bringing up that the picture was seen in doing follow-up interviews by all of them, gives it credibility and value. In addition, it was close to the Bobby Ticknor marijuana grow in the Jason Armstrong campground.
Robert Forkner said information that would be helpful to the defense, in this case, has not been recorded, and bad information for the defense is recorded and used against the defendants. He also noted that the District Attorney’s Office never tried to locate game cams prior to Perry’s testimony, it was not done until the judge ordered the be found. In addition, there is no confirmation that these were read only guess on all the missing this. He also stated that they were told all of Turlock knew about the gravesite and Derek Perry testified that he had never deleted any photos as testified by the investigators the last couple of days.
Peter Rodriguez argued that Derek Perry statements why there were no pics in the first trip speaks for itself is he said he did not delete the pictures, and the defense needs those pictures and is a necessity.
All attorneys were done making their final arguments in this Trombetta motion and the judge at this time started making her ruling.
The judge was citing a case law that was cited by the defense, and the actual case law is different than what applies in this case she said there is a hitch motion that does not apply. She was citing California case law of procedures and she said the law does not impose a duty upon the District Attorney’s Office to expose evidence that may be beneficial to the defense. It states that the DA must show bad faith for this type a motion. Evidence must have an exculpatory value.
She talked about Derek Perry looked very uncomfortable on the stand, had very poor body language, and a detective that deleted photos in this type a case is unconscionable. She had reread Derek Perry’s testimony last night and an evidence showed there was a photo of David McMillan. She says there is a logical inference that the missing photo was there but she also stated read only disk is troublesome to her. Obviously, that’s because she does not understand how they work.
She advised the District Attorney’s Office that the search for the photos should continue and a look into the computer that was used by Derek Perry should be made by an expert to locate the photos. She also stated that Derek Perry on the stand was extremely “flighty” and for a young man with his experience was not in character for an investigator or detective that should be involved in a case like this. She stated there is no evidence that the pictures have been destroyed or any type of bad behavior on the government’s part. She stated that David McMillan can be called to the stand among with the others as a remedy to this problem. David McMillan being excluded as some suspect shows that the officers are working in good faith. She stated the defense is not precluded from making another motion to be heard at in the later date. Motion denied without prejudice to review.
At this time, they went into the property seized return motion, and this is property of Frank Carson’s not Georgia. Robert Forkner argued that the District Attorney’s Office has had these computers and phones and devices for about two years to analyze data and to get the information needed. There is also information in regard to Frank Carson’s law practice and it needs to be returned. Forkner stated that a special master has reviewed and found nothing to this point and apparently there are two computers to cell phones and to compact disk drives.
The district attorney argued that the towers and the thumb drive were only search with the generic keyword search but not forensically done to the limitations of what they were allowed to search for. She stated it’s premature at this point because Frank Carson is being prosecuted along with the Atwahl brothers. The Atwahl brothers and Robert Woody had gone to Frank Carson’s office before and after the homicide, in addition there is also a thumb drive. She stated further investigation needs to be done even though it’s been two years. She did say that the cell phones may be done and if so they can be returned.
Robert Forkner argued that the DA stated they may get around to checking the computers, they have had it two years and is been plenty of time, all they have to do is copy the drives and return the computers. He also said there is attorney-client privileged information on those same computers.
The DA admitted that it’s been a long time that they’ve had these computers since they were seized two years ago and asked to allow further testing. She stated the serial master that was appointed to check the computers, hired out the work to be done in fact is not an actual computer technician but an attorney himself.
The judge stated that she has been in contact with this special master and may appoint another but could not elaborate.
Again, Robert Forkner argued Frank Carson need is computers for his law practice as it has client information on them.
Attorney for all done arguing again and the judge began citing case law and sections again, dated there is a proper procedure to follow in this motion was cited under the wrong law. She said to motion had to be cited under 136. Robert Forkner advised the court that’s what he cited in the brief and if she would look at it that’s exactly what it says. The judge again said it was cited under 140 and then read the brief and she read out lie out it said section 136. But she still told Robert Forkner to redo the motion.
At this time, I just felt that the judge did not want to admit that she was wrong.
So, they decided to come back in court on Tuesday would judge Zuniga to talk about the phones and the possible return and also the talk about some of the sanctions and maybe hear arguments on the 1538 motion.
Keep in mind Judge Moody’s in court on Monday at 11 AM and I believe it’s in regards to the minute order that he sent out last week and to see if the District Attorney’s Office has complied.
The scheduling has gotten crazy and it is changing almost daily again I will have to get a schedule put together and I will post it on the site to let every no what upcoming dates they are, right now I personally am very confused about the dates.