Det. Ryan Smith · the State’s witness · Mr. Imes objected, then let it stand · February 19, 2019

“Admitted to receiving checks on the 4th, not writing them”

What was said

Mr. McGee asked Det. Smith about my interview: (RT 4138:8-23)

Q. Did you get that from the fact that Merritt admitted in his interview that he wrote those checks?
MR. IMES: Objection. Assumes facts not in evidence. Misstates testimony.
MR. MCGEE: That statement is in evidence.
THE COURT: Overruled. He can answer — well, overruled. He can answer.
THE WITNESS: My understanding is Mr. Merritt admitted to receiving checks on the 4th, not writing them. I’d have to review whatever transcript you are talking about.

What the record shows

Det. Smith was not in my October 22, 2014 interview. The transcript opens “Detective Bachman and Detective Hanke” (p. 1), and his name appears nowhere in its 365 pages. In that interview I told the detectives I wrote the checks (pp. 121, 137, 140, 187, 201). The State’s own case summary says: “Merritt admitted to making the checks and had no explanation as to why he backdated the checks. Merritt estimated he wrote ahd signed over 30 checks during his partnership with Joseph” (Bates 000038). The same summary also records that at one point I “was not sure if the checks were made out to Metro Sheet Metal, or if he wrote the checks himself.” Nowhere did I say I only received them. His answer was false.

Det. Ryan Smith · redirect by Mr. Daugherty · January 29 and 31, 2019

“The storage shed that Mr. Merritt and Mc Stay had”

What was said

On January 29, answering my lawyer: “THERE WAS THE STORAGE SHED THAT MR. MERRITT AND MC STAY HAD, YES.” (RT 3448:8-9) Two days later Mr. Daugherty asked him to explain it, and he said it again: (RT 3487:26-3489:22)

A So we went to the storage unit — it was AMS Storage, had changed it name to Storage Etc. — to see if we could find any records regarding the storage shed that Mr. Merritt and Joe had —
…
A No, we weren’t able to find any concrete records. … Through testimony — well, through interviews, we determined that’s where they had a storage shed. I don’t believe we ever found a unit number or anything like that.

What the record shows

The court struck the second answer, the one Mr. Daugherty drew out on January 31, for lack of foundation. On recross: “Were you able to get any records showing ownership of a storage unit by anybody of interest, when you visited that scene?” “No.” (RT 3504:17-28) The only record of that storage unit is my own bank statement: one payment, “Ams Mini Storage Pomona CA … 134.50” (Bates 010011). Searches under Joseph’s name and his company’s found nothing (Bates 008017-008018). The first answer, on January 29, was never struck.

Dave Sequeida Jr. · direct by Mr. Imes · January 17, 2019

The undelivered check

What was said

Sequeida Jr. told the jury he was in his father’s office for a speakerphone call in which Joseph said he had given me a check for Metro, and that I later said I used the money for supplies. He did not remember what I supposedly said until Mr. Imes handed him a detective’s summary, Bates 7398, to refresh his memory. (RT 2781:1-2783:11) Mr. Imes then asked him whether I had paid Metro anything after the McStays went missing: “No, sir.” (RT 2787:8-22)

What the record shows

Five days later, on cross: “Did you happen to be there for that conversation?” “No.” “So you heard, what, bits and pieces of it?” “Yes, sir.” (RT 2843:17-28) He didn’t know the amount or the job (RT 2843-2845, 2850). Earlier, the judge had asked him whether it was 2008, 2009 or 2010: “No. I couldn’t tell you.” (RT 2783-2784) The summary Mr. Imes used to refresh him begins: “Joe never recalled anything being wrong with any checks from McStay or Merritt” (Bates 007398). The State’s own detective listed every check Joseph wrote to Metro, 26 of them, all deposited by Metro (Bates 007409-007417). Metro’s bookkeeper told the jury every job had been paid but one insurance remake (RT 3569:9-17). And Sequeida Jr. had left Metro: “Shortly after that, me and my father parted ways again.” (RT 2787)

Agent Kevin Boles · the State’s cell-phone expert · called by Mr. Imes

“That’s my understanding, based on the training”

What was said

On cross, Boles explained why his earlier testimony in another case, People v. Pape, did not apply: (RT 4639:1-16)

Boles on cross: “Yes, this testimony was for a Sprint phone. And Sprint, their records do not collect the tower data when it’s routed to voicemail.”
…
McGee: “And so your testimony is that an AT&T phone, if the phone is on and goes go voicemail, it should record a cell tower?”
Boles: “That’s my understanding, based on the training from our CAST training.”

What the record shows

The Pape records were not Sprint. Directed to the transcript in his hands, he read it: “It just says, ‘Yes, I knew they were Verizon wireless records.’” (RT 4655:2-3) AT&T’s own custodian had already told the jury: “Typically, there is no cell data on the voice mail calls.” He added that a phone that is off the network or powered off also generates no cell site (RT 3614:11-26). Either way, no tower does not mean off. Boles then agreed, call by call, to voicemail calls with no tower while the phone was on (RT 4646:24-4652:9), and conceded “I was portraying what I was told in training” (RT 4654:13-21).

Mr. Imes · redirect of Agent Boles

“A majority, if not all of them”

What he asked

(RT 4694:4-9)

Imes, redirect: “So in the calls that you were shown on cross-examination, a majority, if not all of them, isn’t it true, showed some type of cell phone activity occurring on the previous line followed by another activity being forwarded to voicemail; is that correct?”
Boles: “Yeah, I recall some of those entries that were shown had that information.”

What the record shows

Boles had just agreed, call by call, to calls with no other call on the line: Joseph’s 6:26 p.m. call on January 5 shows no tower, between two calls on my home tower, with no other call on the line; January 31 at 12:40 p.m. the same (RT 4647:23-4648:1; 4654:2-8; AT&T items 8135, 8839). Some calls did come in while I was on another call. “A majority, if not all” was not what the records showed, and Boles himself would only say “some.”

Agent Kevin Boles · direct by Mr. Imes

“Statements that he had not been up there”

What was said

(RT 4578:14-4579:1)

Mr. Imes: “Were you made aware of statements by the defendant about his activity in the desert and time frame?”
Agent Boles: “Yes.”
…
Agent Boles: “I was told that there were statements that he had not been up there.”
…
Mr. Imes: “And that was relating to February 6th?”
Agent Boles: “Yes.”

What the record shows

Det. Bachman’s own reports record that I said “it was possible he was in the High Desert,” and that what I denied was being at the grave site (Bates 006753; Bates 007863). Boles had no personal knowledge; he repeated what he “was told,” and it was admitted “not for the truth.” There is one line that cuts the other way: on page 277 of that interview, after the detective put my truck and my phone at the grave site, I said, “Matter of fact, I wasn’t there. And I definitely wasn’t at the desert.” The rest of the interview, and both of Bachman’s reports, show what I meant.

Agent Kevin Boles · direct by Mr. Imes

“Just plotting data that’s found in the CDR”

What was said

(RT 4571:1-3)

ADA Imes: “So you are just plotting data that’s found in the CDR?”
Boles: “Correct. Creating graphical representation of what’s in the call detail record.”

His map showed my 12:38 p.m. call on February 10 (the transcript reads 12:48), and asked by Mr. Imes what he had documented, Boles answered: “There’s a cell tower connection on a tower near Lake Matthews in Riverside County.” (RT 4558:27-4559:16)

What the record shows

The call detail record puts that call (item 9218) on cell 05264/41453, and the only location AT&T gives for that cell is 33.51286, -117.26251, about 45 miles from my home. The call one minute earlier is on my home tower (Exhibit 794, items 9217-9218). Boles’s map put it near Lake Mathews, 18.8 miles away. Either AT&T’s coordinates for this cell are wrong, or Boles’s map is not the records. Either way, “just plotting data” was not true.

Det. Troy DuGal · direct by Mr. Imes

“No” evidentiary value on the parking-lot tapes

What was said

(RT 2337:4-8)

ADA IMES: “Okay. Did you see anything of any evidentiary value on any of the surveillance tapes?”
DET. DUGAL: “From these lots?”
ADA IMES: “Yes.”
DET. DUGAL: “No.”

What the record shows

This was false. Camera 16, in one of those lots, recorded a woman and two small children at 5:52 p.m. on February 8, and all four together, with a man, by 5:53, and the group again at 6:58 p.m. Camera 16 also recorded the McStays’ Trooper being towed at 11:08 p.m. DuGal’s own reports called it “probable,” and later “likely,” that the family crossed into Mexico (report of his call with Patrick McStay, p. 13; Bates 001785).

Det. Troy DuGal · Mr. Daugherty objected to the follow-up

“It’s not my belief”

What was said

Asked whether he had told family members he “personally believed that it was Joseph, Summer, and the kids,” DuGal answered “No” (RT 2468:19-24), and later, “It’s not my belief. … I don’t know the McStays, so it’s not my belief.” (RT 7611:4-7) He told the jury it was “almost equally probable it was not them” (RT 2469:27-2470:10). When Mr. Maline asked whether he had told family members it was “a pretty big coincidence,” Mr. Daugherty objected, “Misstates the testimony,” and the court sustained it as cumulative (RT 2470:11-16).

What the record shows

DuGal’s own reports: “I told Michael there was strong circumstantial evidence, that it was more than possible, that the missing McStay family members crossed the border into Mexico.” (Bates 001783) “… made this likely that it was his family crossing the border.” (Bates 001784-001785) “Almost equally probable it was not them” appears nowhere in his reports. The State had those reports, and did not put them before the jury.

Susan Blake · direct by Ms. Rodriguez · January 8, 2019

“I knew it wasn’t them”

What was said

(RT 1765:22-1766:1)

Q Was there a time when he asked you to come in and look at video from the border?
A Yes.
Q Did you do that?
A Yes.
Q Okay. What can you tell us about that?
A He showed us a video of a family of four going over the border, and I knew it wasn’t them.

What the record shows

In 2010, the San Diego reports recorded that she “believed it was probably her missing family, but wished she could see their faces to be sure” (Bates 006112-006113). DuGal told the jury: “Not one person said, no, that’s not them … the mothers’ were much more affirmative.” (RT 2469:12-26) The reports also record doubts, which my page sets out in full.

Ms. Rodriguez · cross-examining Susan Blake · March 18, 2019

“Just Dan” became “Yes”

What was said

(RT 5535:6-28)

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.”
…
Q (BY MS. RODRIGUEZ:) “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.”

What the record shows

The “first couple of lines” on page 158 are the detective’s words, “Joey was going to buy Dan and Chase out,” and Ms. Blake’s “Uh-huh.” Right after them, on the same page, the detective asked whether Joseph had ever said he wanted a new builder or welder. Ms. Blake answered: “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) Earlier that afternoon Mr. Maline had put the same page to her. Ms. Blake’s trial testimony went both ways: she also testified that Joseph wanted to “phase out Chase also” (RT 1849) and to “weed Chase out” (RT 5489-5490). The full record of what she said is on her page. But on page 158, what she actually told the detective was “No.”

Det. Troy DuGal · cross by Mr. Maline

“A right to transfer money in EIP PayPal’s account”

What was said

(RT 2482:4-9)

A “I don’t know if I asked specific dates and amounts, but I asked the defendant if he had access and a right to transfer money in EIP PayPal’s account and the answer was yes.”

What the record shows

DuGal’s own report of March 9, 2010: “Charles is not familiar with how PayPal worked” (DuGal follow-up report, p. 18 of 27). In our recorded call of June 21, 2011 I told him I had access to Joseph’s PayPal and did not use it after Joseph was reported missing (pp. 31:23-32:21). Nothing he recorded says I claimed a right to move money through it.

Det. Dan Hanke · direct by Ms. Rodriguez · February 14, 2019

“I had to screenshot”

What was said

(RT 4055:16-4058:4)

“But I had to view the dashboard and each screen I had to screenshot.”
…
“No, there was no way to copy it. It was — it was an online subscription, so there was no way to copy data and transfer it. So like I said, I had to go through and take out — snipping — snipping tool, and I did screenshots.”
Q “So you literally had to take a tool and do a snipping tool, make a screenshot of that, and print out every single page?”
A “Yes.”

What the record shows

His own report: “QuickBooks cloned both accounts which allowed me to view and print records… I printed copies of the reports, and later placed them onto an evidence disk. I used screen shots to assist the writing of this report.” (Bates 007451) At the preliminary hearing: “I could view and print the records, only.” The exhibits themselves carry browser headers and print dates of 10/13/2014 (Exhibits 421, 425-427, 429).

Susan Blake · the State’s witness · January 8, 2019 · the State let it stand through closing

“There wasn’t money coming in”

What was said

Answering the court: (RT 1825:17-28)

THE COURT: “So after — let’s say after February 10th, of 2010, were you involved in handling funds when money would come into the business?”
THE WITNESS: “There were no funds that came into the business because I was not involved with money prior to those fountains coming into the business.”
…
THE WITNESS: “I don’t remember receiving any funds.”

When Mr. Maline asked how she could sign checks for Earth Inspired Products and not know what came in, Ms. Rodriguez objected, and the court told the jury: “It assumes fact not in evidence that any funds did actually come. Objection sustained.” (RT 1826:11-17) Then Ms. Blake said: (RT 1834:9-16)

“Obviously, there wasn’t money coming in. I was paying for money going out.”

What the record shows

The account she signed on, in Earth Inspired Products’ name, took in $36,460 between March 16 and May 7, 2010, including a wire from Geis Construction referenced “Susan Blake Inv.” $19,950 was paid out to Susan Blake herself, by check and cash withdrawal. The records came in on my lawyers’ subpoena and were returned to the court on January 29, 2019.

On March 18, Ms. Rodriguez used that same account, Exhibit 985, on recross, pointing the jury to the Geis wire and the checks to me written the same day (RT 5544:3-5545:16). When Mr. Maline tried to give the jury the total, “I’ll let you know it’s 36,000,” she objected, and the objection was sustained (RT 5546:1-3). From that day the State knew what was in the account. Neither Ms. Blake’s testimony nor the court’s statement that no funds came in was ever corrected.