Recanted testimony (Susan Blake)
I write this with respect for Susan Blake and for all she has lost. I would rather not have to show where her accounts differ. But the court called her testimony critical evidence, so her own words are here, side by side.
Susan Blake is Joseph’s mother. She was the State’s very first witness at my trial.
On March 4, 2019, the court ruled on the motion to dismiss under Penal Code section 1118.1. It started with her.
“Critical evidence”
“So we start off, really, with the testimony of Susan Blake, the very first witness in the trial. And it turns out at least from my perspective, when combined with much of the other evidence, her testimony is critical evidence.”
(RT 4994:8-11)
The court then described what it understood her to have said:
“She then indicates that Mr. McStay, Joseph McStay, had indicated to her that it was his intent or desire to phase, actually, both Mr. Merritt and Mr. Kavanaugh out of the business…”
(RT 4994:16-18)
See RT 4994:8-28
Reporter’s Transcript, March 4, 2019, RT 4994:8-28.
This page lays out what she told detectives, what she said on the stand, and what the court and the jury were told she said. Her own words sit side by side. Read them, and decide for yourself.
What she told detectives, August 2014
In August 2014, Detective Steers and his partner, Detective Dan Hanke, interviewed her. The interview was recorded, and a certified transcript was made.
She told Detective Steers about a conversation with Joseph in December:
“Joey, I have to say, in — in — in December when me and him had talked and stuff, he had said, you know, mom, I’m thinking about combining my business. I want to get rid of Dan and — him [Joseph] and Chase have it like — like you — you know, you suggested. Like why don’t I buy a warehouse and work out of a warehouse like you did when you worked at GreenWorks? And then I’m in full control of everything being welded here, I.T. here. And that was his goal.”
(Interview, p. 78:16-23)
See interview p. 78:16-23
Recorded interview of Susan Blake, August 2014, certified transcript, p. 78:16-23. Tap to see the full page.
Later in the same interview, she told Detective Hanke:
MS. BLAKE: “Well, and I also knew that Joey was wanting to get his own I.T. guy and — and — and mentioned from Joey to me that, I’m buying him out, mom. So I just thought Dan the man was going to be gone, and then he’d still have Chase and the welders and everybody in one spot. That was his goal.”
DETECTIVE HANKE: “That was my next question.”
(Interview, p. 157:19-25)
See interview p. 157:19-25
Recorded interview of Susan Blake, August 2014, certified transcript, p. 157:19-25. Tap to see the full page.
Detective Hanke went on. He summed up what she had said, then asked her directly:
DETECTIVE HANKE: “So you talked about buying Dan — that Joey was going to buy Dan and Chase out.”
MS. BLAKE: “Uh-huh.”
DETECTIVE HANKE: “Did he ever tell you that he was planning on getting a new — you say I.T. guy — but did he ever say that he wanted a new builder or welder?”
MS. BLAKE: “No. He didn’t say as much about Chase, wanting to get Chase out. He wanted to get more Dan out.”
(Interview, p. 158:1-8)
See interview p. 158:1-8
Recorded interview of Susan Blake, August 2014, certified transcript, p. 158:1-8. Tap to see the full page.
“Dan and Chase out” were the detective’s words, right after she said Joseph would “still have Chase.” When he asked her directly, her answer was “No.”
On the stand, January 8, 2019
The prosecutor did not ask her about a phase-out. It came up on cross-examination by my attorney, Mr. Maline. He had her review page 78 of her interview (RT 1848:6-10), then read it to her:
Q “…MOM, I’M THINKING ABOUT COMBINING MY BUSINESS. I WANT TO GET RID OF DAN. DID YOU TELL DETECTIVE STEERS THAT?”
A “I DID.”
Q “AND THAT’S WHAT YOU REMEMBER YOUR SON JOSEPH TELLING YOU; CORRECT?”
A “HE WANTED TO BUY OUT DAN.”
(RT 1848:14-20)
Then:
Q “WHERE HIM AND CHASE WOULD BE IN ONE SPOT WHERE THEY COULD BUILD WATERFALLS BECAUSE THEY HAD ALL THESE BIG PROJECTS; RIGHT?”
A “WRONG.”
Q “OKAY. THEY DIDN’T WANT TO GO INTO ONE WAREHOUSE?”
A “THEY DID, BUT IT WASN’T ONLY CHASE. HE WANTED OTHER WELDERS. HE WANTED TO PHASE OUT CHASE ALSO.”
Q “WELL, YOU DIDN’T TELL DETECTIVE STEERS THAT?”
A “I’M SORRY, BUT THAT’S WHAT HE TOLD ME.”
Q “OKAY. BUT IS THERE ANY REASON WHY YOU DID NOT TELL DETECTIVE STEERS HE WANTED TO PHASE OUT CHASE AS WELL?”
A “NOT PHASE HIM OUT. HE WANTED HIS BUSINESS TO HAVE OTHER WELDERS THERE TO KEEP BUSINESS GOING, MAKING IT GROW.”
Q “OKAY. SO HE WANTED TO HAVE MORE THAN ONE?”
A “SEVERAL WELDERS.”
Q “OKAY. IN ONE LOCATION?”
A “CORRECT.”
(RT 1849:13-1850:1)
See RT 1849:13-28
Reporter’s Transcript, January 8, 2019, RT 1849:13-28.
She said he wanted to phase me out. Two answers later: “Not phase him out.”
Mr. Maline then read her own words from page 157 of the interview:
Q “…SO I JUST THOUGHT DAN THE MAN WAS GOING TO BE GONE, AND HE WOULD STILL HAVE CHASE AND WELDERS AND EVERYBODY IN ONE SPOT. THAT WAS HIS GOAL.”
MS. RODRIGUEZ: “OBJECTION.”
MR. MALINE: “DO YOU RECALL SAYING THAT?”
MS. RODRIGUEZ: “OBJECTION. HEARSAY. IMPROPER QUESTION FORMATION.”
THE COURT: “OVERRULED.”
THE WITNESS: “YES.”
(RT 1850:17-28)
See RT 1850:17-28
Reporter’s Transcript, January 8, 2019, RT 1850:17-28.
On redirect the same day, the prosecutor asked only about Dan:
Q “…THOSE CONVERSATIONS CENTERED AROUND HAVING DAN MOVE OUT OF THE COMPANY; IS THAT CORRECT?”
A “YES. JOEY WAS TRYING — BUYING HIM OUT.”
(RT 1854:23-25)
What the court relied on
On January 24, 2019, with the jury out, the court ruled that Ms. Fonseca’s testimony could come in. It said:
“So I think that Ms. Fonseca’s testimony demonstrates — if accepted by the jury to be true, demonstrates, or could demonstrate, an ongoing course of conduct between the defendant and Mr. McStay and Earth Inspired Products, and that would support Ms. Blake’s testimony that Mr. McStay had indicated his intent, at some point, to discontinue the association with both Mr. Merritt and Mr. Kavanaugh — Mr. Merritt because of financial issues.”
(RT 3050:16-23)
See RT 3050:16-23
Reporter’s Transcript, January 24, 2019, RT 3050:16-23.
On March 4, 2019, ruling on the motion to dismiss, the court described how it had gone about it:
“…this is strictly a circumstantial evidence case, and so I did spend a fair amount of time going through the testimony and the exhibits to thoroughly examine the evidence that was presented.”
(RT 4993:10-13)
After calling her testimony “critical evidence,” the court pointed to my bank records:
“…that depiction that Joseph McStay gave to Susan Blake, his mother, appears to be accurate.”
(RT 4995:2-4)
“So that’s substantiating the information that Ms. Blake related.”
(RT 4995:12-13)
See RT 4995:1-13
Reporter’s Transcript, March 4, 2019, RT 4995:1-13.
It came back to her twice more:
“Again, substantiating the information provided by Susan Blake.”
(RT 4996:24-25)
“And, again, that corroborates and supports the information that Susan Blake provided as to Joseph McStay’s feelings and intent with regard to Mr. Merritt.”
(RT 4998:4-6)
See RT 4998:1-6
Reporter’s Transcript, March 4, 2019, RT 4998:1-6.
Nowhere in the ruling (RT 4993:10-5007:6) does the court mention “Not phase him out” or “still have Chase.”
The court called her account “critical evidence” (RT 4994:11). By then she had already told the jury, “Not phase him out” (RT 1849:24).
The court then explained the standard it was applying:
“Now, certainly all of that information that I’ve just gone over is subject to considerable cross-examination, and I have no doubt that Mr. McGee and Mr. Maline could give their closing argument now on that information and which would probably take the better part of a day and with a different argument, a different analysis, different inferences and different conclusions to be drawn. But that really is not the standard for the Court to look at with regard to an 1118.1 motion to dismiss. The standard on an 1118.1 motion is not that all other analysis or conclusions can be eliminated, but rather the standard is if the jury were to accept — and, of course, I’m not going through every exhibit. I’m not going through every item of evidence and every point that the prosecution may argue that support a verdict of guilty. I’m only considering what the Court considers the primary or major factors. There are a lot of other potential issues that the prosecution may argue support guilt. But I’m not considering those in the 1118.1 motion.
“So as I was saying, the standard is not can the Court eliminate all of those other analysis or conclusions but rather the standard on the 1118.1 motion to dismiss is if the jury were to accept the prosecution’s evidence and arguments and analysis and conclusions and conclude that that is sufficient to prove guilt beyond a reasonable doubt, and, therefore, return a verdict of guilty and, thereby, at least by inference was rejecting the defense evidence, the defense arguments, and the defense analysis, would that decision by the jury be supported by substantial evidence? The points that I just went through in the Court’s view do support or would support such a finding by the jury. The Court finds if the jury accepted the prosecution’s evidence, arguments, and conclusions, and returned a verdict of guilty, that there is substantial evidence to support such a finding. For those reasons, the motion to dismiss pursuant to Penal Code section 1118.1 is denied.”
(RT 5006:1-5007:6)
Recalled, March 18, 2019
My defense called her back to the stand. Asked what she had told Detective Steers, she said:
“Joey wanted to get a warehouse closer down where he lived in Fallbrook or Vista, so he could be over it with more control, and that he asked me for welders. Since I’m in the building business, did I know of anyone because he wanted to weed Chase out and Dan he was paying off, so he would have been completed, also.”
(RT 5489:22-27)
Q “…Did he want to get rid of Chase and replace him with other welders was that your understanding?”
A “Exactly.”
Q “Or add welders — to keep Chase and just add additional welders?”
MS. RODRIGUEZ: “Objection. Leading.”
THE WITNESS: “No, he wanted to get rid of him.”
THE COURT: “Overruled. The answer remains.”
(RT 5490:3-10)
Mr. Maline then asked about what she told Detective Hanke:
Q “Isn’t it true you told Detective Hanke that Joseph wanted to get additional welders and add to and keep Chase?”
A “No.”
(RT 5491:8-10)
See RT 5491:8-10
Reporter’s Transcript, March 18, 2019, RT 5491:8-10.
Q “And you also told Detective Hanke that he’d still have Chase and the welders and everybody in one spot; isn’t that –“
MR. IMES: “Objection. Hearsay. Lacks foundation.”
THE COURT: “Overruled.”
Q “Isn’t that what you told him?”
A “Yes.”
Q “Okay. And what you meant by that was Joey’s vision of having one warehouse would include Chase and the other — other welders?”
MS. RODRIGUEZ: “Objection. Leading.”
THE COURT: “Overruled.”
THE WITNESS: “That’s what he talked about.”
(RT 5492:11-22)
See RT 5492:11-22
Reporter’s Transcript, March 18, 2019, RT 5492:11-22.
First “No.” Then “Yes.” Then “That’s what he talked about.”
Then the prosecutor, Ms. Rodriguez, cross-examined her. At the start, on another subject, she asked Ms. Blake to keep reading past the highlighting:
“…if you could read the next line that’s not highlighted.”
(RT 5525:27-28)
“If you can just read that whole paragraph.”
(RT 5526:21-22)
On page 158, it went the other way:
Q “And do you recall being asked that Joey was going to buy Dan and Chase out?”
A “Just Dan.”
Q “Well, let me ask you to review page 158 of that transcript.”
THE COURT: “This is of an interview?”
MS. RODRIGUEZ: “This is of an interview with Detective Steers.”
Q “If you could just review the first couple of lines there. That’s it. Do you recall talking to that — with — talking about that with Detective Steers?”
A “Yes.”
Q “And did you tell Detective Steers that Joey was going to buy Dan and Chase out?”
A “Yes.”
(RT 5535:15-28)
See RT 5525:24-28
Earlier: RT 5525:24-28, March 18, 2019.
See RT 5535:6-28
Page 158: RT 5535:6-28, March 18, 2019.
From where I sat, I watched Ms. Rodriguez grab the transcript from her hands before she could read past the first couple of lines.
The first couple of lines of page 158 are the detective’s summary: “Dan and Chase out.” The lines after them are his direct question and her answer: “No.”
Ms. Rodriguez ended her cross-examination: “I don’t have anything further” (RT 5537:23). Mr. Maline questioned her again on redirect and further redirect (RT 5537-5546). He never returned to page 158 or to “Just Dan.”
McGyver McCargar
McGyver McCargar, a longtime friend of Joseph’s, testified on January 14, 2019. He was at the house painting on January 31 and February 2, 2010, when Joseph and I were there talking. On cross-examination, he was asked about those conversations:
Q “So they were talking about how this is something we have to implement into all of our waterfalls in the future?”
A “Correct.”
(RT 2266:21-23)
Q “It was — the sole conversation was talking about the lights and the waterfall and the projects coming up?”
A “Correct.”
(RT 2267:12-14)
Q “The whole time you saw my client and Joseph talking, it always seemed appropriate about business?”
A “I think so.”
Q “There was no — never arguments?”
A “Not that I noticed.”
(RT 2278:22-26)
In his complete testimony (RT 2216-2312), McGyver never said Joseph planned to phase me out, sideline me, or replace me with other welders.
Michael McStay
Joseph’s brother, Michael McStay, testified for my defense, beginning at RT 5647. This is the only place in his testimony where he spoke of replacing me:
Q “– Joseph had his, and even prior to 2007, you didn’t have much to do with Earth Inspired Products, did you?”
A “No, but my brother, literally, for about the last two years was asking me to learn how to weld. He wanted me to learn how to weld, but I didn’t have any involvement in his business. So he wanted me to weld to replace Chase.”
Q “Okay. Had you ever welded before?”
A “I have not. We do in my — my industry, but you need a C60 license for it, and I just don’t have the experience. So I kept telling him I would need time to do that, and doing it on weekends is not enough time to do — and I’m running my business and family. It’s — it’s too difficult.”
(RT 5654:13-24)
What Joseph asked of him was to “learn how to weld.” The words “to replace Chase” are Michael’s own conclusion. He never said Joseph told him that.
What the jury was told
In closing argument on May 28, 2019, the prosecutor, Mr. Imes, told the jury:
“Well, what’s more important about those, is that you also learned that the defendant was being sidelined.”
(RT 8186:26-28)
“You heard from Susan and Michael — I think even McGyver, if I recall correctly — that Joseph was looking for other fabricators and welder-type people to do the work.”
(RT 8187:6-9)
See RT 8187:1-9
Reporter’s Transcript, May 28, 2019, RT 8187:1-9.
On the stand, Susan Blake said, “Not phase him out” (RT 1849:24). McGyver’s testimony is above.
“Joseph calls a place called Walker Welding, according to those records. Why? Well, put it into context with what you heard from Mike and Susan and McGyver — another fabricator.”
(RT 8195:1-3)
What that call really was: The Walker call.
Speaking as if he were Joseph, Mr. Imes said:
“I was already of the mindset of sidelining you and looking for other fabricators, I had already moved business to Metro Sheet Metal, I’ve already called Walker Welding…”
(RT 8196:16-18)
MR. MCGEE: “Objection. Arguing facts not in evidence –“
THE COURT: “Overruled.”
(RT 8196:23-24)
See RT 8196:16-25
Reporter’s Transcript, May 28, 2019, RT 8196:16-25.
He came back to it:
“…confront Joseph over this $42,000.00 debt, being sidelined in favor of Metro Sheet Metal and others…”
(RT 8199:13-16)
“Because he owes $42,000.00, he forged checks, he’s being sidelined.”
(RT 8213:22-23)
“…a person that he was clearly not trusting and attempting to sideline.”
(RT 8224:6-7)
The new-trial ruling
On January 17, 2020, ruling on my motion for a new trial, the court said:
“So we know that sometime during January, perhaps late January of 2010, Joseph told his mother and his brother and a friend that he planned to phase the defendant out of the business, and he stated the reasons for that were the quality of the work that the defendant was doing recently, that’s defendant was costing him money. He had loaned the defendant money and hadn’t been repaid, that Summer was also complaining about the defendant.”
(RT 8942:23-8943:2)
See RT 8942:23-28
Reporter’s Transcript, January 17, 2020, RT 8942:23-28.
The court’s next sentence names the friend:
“On January the 31st of 2010, their friend, McGuyver, was at the residence, and he indicated that he noticed tensions between the defendant and Summer, and that Joseph had discussed, again, phasing the defendant out, moving into a warehouse with several welders to expand the business.”
(RT 8943:3-7)
See RT 8943:1-7
Reporter’s Transcript, January 17, 2020, RT 8943:1-7.
Here is what each of them actually said on the stand:
His mother, Susan Blake: “Not phase him out” (RT 1849:24).
His brother, Michael: Joseph asked him to “learn how to weld.” “So he wanted me to weld to replace Chase” was Michael’s own conclusion (RT 5654:15-18).
The friend, McGyver: he did describe tension, “between Summer and he” (RT 2231:19), and the court had that part right. In his complete testimony, he never said Joseph discussed phasing me out or a warehouse with several welders (RT 2216-2312).
The court went on:
“Certainly supports the — and corroborates the information that Joseph had said to others as to his reasons for wanting to terminate his relationship with Mr. Merritt.”
(RT 8943:24-27)
See RT 8943:24-27
Reporter’s Transcript, January 17, 2020, RT 8943:24-27.
My attorney at that hearing, Mr. Maline, did not object to any of it, or challenge it.
After she took it back on the stand, the same account came back four times: in the Fonseca ruling, as “critical evidence,” in closing argument, and in the new-trial ruling.
The law, in plain words
On January 8, 2019, the evening she first testified, the court ruled with the jury out that her accounts of Joseph’s plans for Mr. Kavanaugh and me could come in as evidence of Joseph’s state of mind, under Evidence Code section 1250 (RT 1883:17-27).
Before deliberations, the jury was told how to judge circumstantial evidence. This is CALCRIM 224, as it was read to them:
“Also, before you may rely on circumstantial evidence to find a defendant guilty, you must be convinced that the only reasonable conclusion, supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence, and the other to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any unreasonable conclusions.”
(RT 8164:13-25)
The State’s motive, piece by piece
Mr. Imes’s closing gave the jury these reasons I was being “sidelined.” This table shows where each one is taken up on this site.
| What the jury was told | Where it is taken up |
|---|---|
| “You heard from Susan”: Joseph was looking for other fabricators (RT 8187:6-9) | This page |
| Joseph called “Walker Welding” (RT 8195:1-3; 8196:18) | The Walker call |
| Joseph had moved business to Metro Sheet Metal (RT 8196:17-18; 8199:13-16) | Coming soon |
| A $42,000.00 debt and forged checks (RT 8196:20-22; 8213:22-23) | Coming soon |
| “…and Michael”: the same (RT 8187:6-9) | This page (Michael McStay) |
Sources
- Recorded interview of Susan Blake, August 2014. Certified transcript, Case FVI1404194, File ID 2013-104 SUSAN.BLAKE.081314.1809. Transcribed by Jordan M. Flores, CSR 13757 (Mander Reporting).
- Reporter’s Transcript, January 8, 2019, RT 1718-1884 (Susan Blake).
- Reporter’s Transcript, January 14, 2019, RT 2216-2312 (McGyver McCargar).
- Reporter’s Transcript, January 24, 2019, RT 3049-3053 (Fonseca ruling).
- Reporter’s Transcript, March 4, 2019, RT 4993-5007 (ruling on the Penal Code section 1118.1 motion).
- Reporter’s Transcript, March 18, 2019, RT 5484-5555 (Susan Blake, recalled).
- Reporter’s Transcript dated February 3, 2019, RT 5643-5698 (Michael McStay, recalled by the defense).
- Reporter’s Transcript, May 28, 2019, RT 8154-8295 (instructions and closing argument).
- Reporter’s Transcript, January 17 and 21, 2020, RT 8836-9003 (motion for new trial).