TRANSCRIBED

Good morning everybody this is Marty from Dawgs Blog. The noon time report on Frank Carlson et al trial on October 4, 2018.

Court was supposed to start at 9:30 this morning and the jury came up around 9:47. Judge was on the bench around 9:58 and at 9:58, the jury was sent back to the jury room.

The court had not resolved the issues of some of the pictures that were going to be allowed; that were taken during the search warrants of different properties at different times, mostly, I think they’re going to talk today is around 3-30-2014, March 30, 2014. Not knowing exactly what these pictures are, the DA was trying to organize some pictures that did runoff, for the judge, was trying to display on the overhead the other day. The judge wanted some hardcopies looked at, that she kept in front of her on up on the bench. She only wanted of this group, she had about 13, for some reason, only wanted six to be admitted and the judge asked if it’s one that was I’d 3542 of the stacks and she had a very serious look on her face. I don’t know what was in the picture, but she didn’t like what she saw. She gave the stack back and told her she picks out the six photos that she had referred to yesterday.

Jai Gohel objected to all the pictures because they were taken two years after the alleged homicide. The guns that were shown in these pictures, were gun and ammunition, mostly I believe, are legal guns and he said the DA was only trying to show to the jury that his client Baljit Atwal is a dangerous person that owns this type of guns which they were legal 22 caliber, mostly 22 caliber guns. He also noted that rifles are not consistent with the DA’s theory, in this case Robert Woody said a handgun was used not a rifle. Baljit Atwal was never ID, as one of the people seen on the property and he says the 22 caliber bullets are prejudicial. Marlissa Ferreira said there was evidence of people on the property with long guns as of some of the witness from the Cooley property and she said Baljit Atwal was identified properly and a long rifle will show his ability to carry a gun which also has a strap on it and Dalgit Atwal has that type of gun in his house. This is direct evidence to show the witness testimony as credible. It goes to prove a material fact that he had a gun in his house. The ammo found was a 22-caliber ammunition in the same use that was found by the body, which was 22 caliber that means the same type of ammunition. The rounds are interchangeable with handguns and rifles. She also noted that Victor Navarre will testify that Daljit and Baljit Atwal admitted the homicide while they were in jail and that he had given the gun to Robert Woody and then took it back again from him later. Jai Gohel argued, he said even if this was relevant it was way out of line and with the theory of the victim and the Navarre was convicted of homicide and a proven liar, appalled the DA would even consider using them in the first place. He said the search was done two years later and was prejudicial and irrelevant.

Attorney Hans said Robert Woody said it was them; but never saw a gun, let alone a rifle now when he said it was them, it was meaning the Atwals were there. Some people did testify they saw people on the property, but the Atwals were never specifically identified. Judge Zuniga said it is her 352 discretion; the evidence code discretion, and the People’s argument was persuasive. There was testimony of long guns on the property and Baljit Atwals still has a gun. Though many people do have guns in this area, but she’s only allowed two pictures to be shown, and I don’t know what specifically two they were. But this is what she typically does, split the baby.

Next issue was the search warrant photos of Scott McFarlane’s residence. Again, there were two rifles and 22 caliber rounds found and they were talking about that picture number 9686 and also picture 9696, and I throw out those numbers out there because it was a little confusing and hard to me to keep it straight in my mind. Marlissa Ferreira noted that the long guns and McFarlane’s house could not be excluded as firing that bullet. Now she’s not saying there’s a ballistic match; she’s saying it cannot be excluded as being a possible match. That’s the best they could do on ballistics. She also noted Scott McFarlane had a close relationship with the Atwals and she said that the barrel was separated from the stack when they found the gun and needed noted in the picture, so she said that as an interchangeable barrel. There’re other pictures that showed long guns, also picture of a 22-caliber handgun. She said many of the guns could not be excluded by ballistics, but basically what it sounded like, she was saying, the ballistic showed the type of twist that the gun had been but here was no ballistics match. She did withdraw some of the pictures, but had kept several others, so Judge Zuniga noted that the DA wanted the guns because they cannot be excluded, and one was a handgun. She said, after all the testimony and motions prior to this, she has not been shown anything that Scott McFarlane had any firearms at Pop n Cork unlike Eddie Quintanar did. Marlissa Ferreira then said well they may, and I put in quotation marks, may, have been stored there. The witnesses said there were more than one long rifle, long guns on the property. Now, she said some of them saying that Frank Carson was there. She wants to ask Scott McFarlane when he testifies on the stand if the guns were stored at Pop n Cork. Percy Martinez made an objection to relevance. Attorney Hans said there was a picture of a handgun, but is not a 22 caliber, then the DA piped up, well she’s not offering that, but she just argued there were several there, there was a 40 caliber’s nine-millimeter and such. Jai Gohel said that he’s going to pretty much submit but the DA was now saying a rifle, was now contradicting her main witness of use of a handgun named Robert Woody. The DA started bouncing in her seat again. She got very, very pissy very quick. Judge Zuniga said the DA was saying the long guns cannot be excluded and she did note that Robert Woody did said it was a handgun that was used. The DA also, after bouncing in her seat, said that there had been two shots that can be, so there also could be another shooter, so the barrel cannot be excluded. Scott McFarlane said he kept one gun, a rifle at Pop n Cork. The rifles and bullets were relevant, as 22 caliber rounds can be interchanged between handguns and rifles. Attorney Hans argued that the DA said these were facts and now saying she may not put that information on and that’s exactly what Marlissa Ferreira said that she may not put some that in, this information in, and first said there were facts and now she may not even use them. Hans was making his wiring, was based on her representations and as fact was not relevant unless she puts it to the jury. Marlisa Ferreira agreed to drop one of the pictures and all the defense, at the same time, virtually said they will not submit to any interest now based on her arguments that she had made to the court. Judge Zuniga then said the objections were sustained at this point when Scott McFarland testifies in regard to the guns at Pop n Cork that could change things, may not be clear until she hears the testimony. The internal affairs report may clean things up some. She also noted that the DA’s motion may be problematic if she has to research as her aid or her researcher advisor. There was a problem with a motion that was submitted by the District Attorney’s Office and so that’s got to be looked at some more. Also, they showed a picture of Frank Carson with a box, a 22 caliber rounds and Judge Zuniga found it relevant as he was standing there with a box in his hand and a box of shells in his hand and just posing for pictures.

We took a break and then after the break, the jury was called up backup at 11:11 hrs. Gary Martinez, a DA investigator was called to the stand. He had 31 years’ experience with the Modesto Police Department, he had four years investigations experience and he is there with the DAs office now, six years. He said he had assisted at least 50 search warrants, 31 years. Had assisted on 3-3 of 14, that’s March 30, 2014. He did a search warrant at Baljit Atwal’s house in Ceres. There was also, Steve Jacobson was there. He was there, investigator Hermosa was there and there were multiple Sheriff’s office deputies there and a technician to receive some evidence was also shown. They’ve shown the photo of the Ruger rifle that was found in a bedroom closet, was a 22-caliber long rifle was shown, she put it up on the overhead to be seen too. And then she showed picture number 433, two boxes of 22 caliber ammo. He said the ammunition was seized and booked, they also had it brought, that same ammunition with him in court today. It was in the sealed envelope, of manila envelopes sealed with evidence tape and they had them opened up, the envelope and there were two boxes, I believe she’d said it was 375 rounds in each box of 22 caliber, was copper plated ammo. There was also an empty magazine in the rifle. They had a sidebar. Marlissa wanted to check this out before she asked the next question. The 22 rounds were located in the kitchen on a shelf. There was an iPhone taken from the kitchen. There were two iPads that were also taken with the laptop taken from the kitchen, Samsung galaxy 4 cell phone was taken, another two Apple, two more Apple cell phones that were taken that had cracked screens and there was a compact desk computer that was also seized. She said that she had no further questions.

Jai Gohel started cross mainly concerning his client, so he started on the cross for the defense and he was looking at the ammo box within the envelope. There was one box of ammunition that was still unopened. The witness did not know who opened the other box. Looking in picture number 432, which was the rifle, rifle was found in a closet out on the bed that was shown in the picture and it was unloaded. The witness said that that type of rifle can be used for a variety, of a variety of unknown things and it could be used for honey. The witness did not personally do any testing on the ammunition, he was asked about how many DA investigators were there at the search warrant and he said it was the investigator Hermosa, also investigator Jacobson and himself, Martinez. The reports that were written were done by, written by DA investigators on DA letterhead and the evidence process, with the process that the District Attorney’s Office not turned over to the Sheriff’s Department. It was processed by the District Attorney’s Office and he did note there was three, two years later 3-3 of 2014 when the search warrant was done, that was two years after the alleged homicide. He was asked about. Jai Gohel asked about the cell phone that was seized, what time of day it was and there were massive objections by Marlissa Ferreira because it was done at 7 AM and she felt that that was going to go into the family issue with his kids were home and things like that to the jury. They went to a sidebar, very animated sidebar, they got a little loud, but I could hear they’re saying so finally the judge sent the jury back, the attorneys back and set the jury out to lunch at 11:45 this morning. So, they’ve had a total of about 35 minutes of testimony heard.

The judge did apologize if they heard any comments that were made. After the sidebar, officer Martinez was sent out of the stand.

Jai Gohel addressed the court saying evidence presented has nothing to do, that you’re trying to present had nothing to do with a homicide. He said the witness memory can be questioned. His motives can be questioned. It could go to bias in such things like that that the weapon is legal to own. Anyone can own this, anyone who can legally own a weapon, can own this weapon. The defense has a right to question his actions as memory is credibility and the evidence, this evidence showed nothing. He noted that the four phones taken where seized, some, most of them had cracked screens as it would belong to his daughter, Baljit Atwal’s daughter. The DA entered this evidence to influence the jury that he has a right to defend his client and show this is a wrongful prosecution, trumped up charges and he has a right to question the witness on his activities. Again, Marlissa Ferreira was bouncing on her seat. She said it’s a blatant attempt by the defense to get the information of the children into in front of the jury. The DA’s complained about what she has been limited to and now the defense wanted to ask more questions and going to other areas. There was nothing in regard to the children. Law enforcement had a search warrant, a legal search warrant signed off by judges legally and saying the defense was making invalid arguments, she also mentioned that there were Ceres officers, but there were none that were assigned to the case other than briefly with Derek Perry and then she threw in our high plea too so there were two Ceres police officers on this case.

Jai Gohel argued that the court allowed the DA to introduce this evidence in regard to the broken cell phones. The DA went into who was present, not him, showing the DA officers, was the district attorney officers were running this case. Percy Martinez made a quick argument saying that it goes to bias motive and prejudices of these officers. Also noted too, before the jury left the room and did Marlisa Ferreira was making her objections. She would not. The judge told her no speaking objection. She kept talking again. The judge that told her to stop and again she kept talking, Marlissa Ferreira was pretty upset and not sure make a good presentation in front of the jury and the judge advised her to stop. That’s when she decided to send the jury out. She told her not to do this again, not stopping her talking objections in front of the jury, she will deal with it if she doesn’t stop, that’s what she always says. She also noted that the DA’s tone of voice, when she makes some of these objections was not resonating well with the jury and she may want to consider, changing too her failure to comply with the court has not resonated well with the jury either.

So that’s where we left for the lunch hour. We’ll be back at 1:30 and don’t forget the podcast tonight.

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