The storage keys

When Joseph’s remains were recovered, two Chateau-brand padlock keys were in the pockets of his shorts. One was loose. The other was on his keychain, with his car key and house key. The State used those two keys to argue I had a motive.

The story the jury heard started with one payment. My bank records show I paid AMS Storage once, on April 9, 2010. The detective who went after the unit swore to a judge that it was “the locker rented by Merritt.” By the end of trial, the State had turned my locker into one Joseph and I shared, and one of the keys in his pocket into a key that “WAS RETURNED TO JOSEPH MC STAY FROM SOMEONE ELSE,” at a meeting no witness ever described.

Here is what the State claimed, and what the record shows.

The State said the storage shed was one “MR. MERRITT AND MC STAY HAD.” (Detective Smith, RT 3448:8-9)
The record: The detective had no ownership records (RT 3504:25-28). But in 2014, his own department learned from my bank records that I paid AMS Storage, and found no payment by anyone else (Bates 008015). Its detective swore to a judge that it was “the locker rented by Merritt” (Bates 006557), and its report called it my account (Bates 008020). My bank statement shows the payment (Bates 010011).

The State said the two keys were “INFERABLY TO THE SAME LOCK.” (Prosecutor Imes, RT 8245:8-9)
The record: The State’s own detective compared only how they looked: both Chateau brand, both with a gray cover. And he said the single key was “SIGNIFICANTLY DETERIORATED” (RT 3419:5-12). No witness compared the cuts, and no one tested either key in a lock. The cuts on the two keys are different. See the photos below.

The State said David Sequieda “MOVED THE DEFENDANT OUT OF A STORAGE UNIT.” (Imes, RT 8245:20-21)
The record: Sequieda said the trailer was already full from another shop, and the storage unit’s contents didn’t fit: “YOU KNOW WE DON’T HAVE THE ROOM FOR THIS RIGHT NOW.” (RT 2786:9-10)

The State said one key “WAS RETURNED TO JOSEPH MC STAY FROM SOMEONE ELSE” at a meeting where Joseph “BASICALLY KICKS THE DEFENDANT TO THE CURB.” (Imes, RT 8245:17-26)
The record: No witness testified that any key was returned to Joseph, or that any key changed hands. And Joseph had storage of his own. The prosecutor himself told the jury that “most of their belongings remained in PODS, those moveable storage units that you heard about” (RT 8187:21-22). There were three. I know, because I packed them myself when the family moved out of their duplex in San Clemente; Joseph was ill at the time. The detective admitted: “I DID NOT GO TO PODS TO SEE IF THE CHATEAU LOCK WAS THERE.” (RT 3448:15-17)

And my own lawyers put the keychain on a list of items to view in August 2017, seventeen months before trial. No one ever looked. At trial, my lawyer told the jury: “I would have loved to have looked at those keys a little bit closer.” (RT 8335:16-17)

Here is the record, so you can check it yourself.

What the jury was told

In closing argument, the prosecutor, Mr. Imes, turned to the keys:

TWO PADLOCK KEYS. ONE FOUND IN JOSEPH’S FRONT POCKET. IF I RECALL THE TESTIMONY, THE SINGLE KEY WAS FOUND IN THE FRONT RIGHT POCKET ALONE. THE SECOND KEY AND KEYCHAIN THAT YOU SAW PREVIOUSLY IN HIS BACK LEFT POCKET. I MAY HAVE THOSE SWITCHED. I WILL TRUST YOU TO DETERMINE THE EVIDENCE. HOWEVER, THAT SIGNIFICANCE AND THAT DIFFERENCE IS THAT ONE IS ON A KEYCHAIN AND ONE IS NOT. WHEN IN A LIFE OF A HOMEOWNER HAVE YOU BEEN IN POSSESSION OF TWO PADLOCK KEYS THAT APPEAR TO BE VISUALLY SIMILAR AND INFERABLY TO THE SAME LOCK WOULD YOU HAVE THEM ON YOU AT THE SAME TIME? THE DAY YOU BOUGHT THEM. MAYBE THE DAY YOU GAVE THEM TO SOMEONE ELSE. WHATEVER REASONABLE INFERENCES CAN YOU DRAW FROM THIS WEIRD CIRCUMSTANCE THAT ONE KEY IS ON A KEYCHAIN, ONE IS NOT? ONE KEY IS IN A DIFFERENT POCKET THAN THE OTHER?

RT 8244:28-8245:13

See page 8244

See page 8245

Then he went back to February 4:

WELL, LET’S THINK BACK TO FEBRUARY 4TH. I GAVE YOU SEVERAL INFERENCES THAT YOU COULD DRAW FROM THE EVIDENCE OF WHETHER THERE WAS MEETING OR NOT. LET’S TAKE ONE OF THOSE INFERENCES AS A POSSIBILITY. THAT IS A SHORT BRIEF MEETING WHERE JOSEPH MC STAY BASICALLY KICKS THE DEFENDANT TO THE CURB SAYING, I’M DONE. FORGED CHECKS HAVE BEEN CASHED. YOU OWE ME $42,000. YOU HEARD EVIDENCE FROM JOSEPH SEQUEIDA THAT HE MOVED THE DEFENDANT OUT OF A STORAGE UNIT WHEN HE MOVED STUFF OVER TO METRO SHEET METAL. YOU ALSO HEARD EVIDENCE THAT THE DETECTIVES CONTACTED THE CHATEAU COMPANY TO DETERMINE THE TYPE OF LOCK, WHERE IT WAS COMMONLY SOLD, ET CETERA. IS IT REASONABLY INFERABLE THAT ONE OF THOSE KEYS WAS RETURNED TO JOSEPH MC STAY FROM SOMEONE ELSE? THUS IT’S A SINGLE KEY PUT INTO A POCKET RATHER THAN ON THE KEYCHAIN. THAT IS A REASONABLE INFERENCE YOU COULD DRAW.

AND WHEN YOU TAKE THAT INTO CONSIDERATION WITH ALL OF THE OTHER EVIDENCE, IT IS ONE THAT CAN POINT TO GUILTY.

RT 8245:14-8246:2

See page 8245

See page 8246

He pointed to no witness who said a key was returned to Joseph. He called it an inference.

The keys

These are the State’s own photographs.

Detective Smith pointed out the Chateau key on the keychain:

Q OKAY. I DON’T HAVE THE PICTURE HANDY. IN EXHIBIT 311, IS THAT ONE OF THOSE KEYS?

A YES. SO THE CHATEAU KEY IS ACTUALLY HIDDEN UNDERNEATH THIS ALBERTSONS, SUPERMARKET CARD. IT WOULD BE TO THE MIDDLE, KIND OF, I GUESS, TO THE LEFT OF THE SCREEN. BUT THIS KEY RIGHT HERE. THAT IS THE SMALL LOCK KEY, THEN THERE IS A CHATEAU UNDERNEATH IT.

Detective Smith, direct examination, RT 3418:26-3419:4

See page 3418

See page 3419

The keychain key and the single key, each photographed by itself:

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Detective Smith compared them only by how they looked:

Q DURING THE COURSE OF THIS CASE, DID YOU HAVE AN OPPORTUNITY TO VIEW THAT IN COMPARISON WITH THE SINGLE KEY THAT WAS FOUND IN THE POCKET OF MR. MC STAY’S CLOTHING?

A I DID.

Q AND WERE THEY VISUALLY SIMILAR?

A YES. THEY ARE BOTH VISUALLY CHATEAU-BRAND KEYS. THEY BOTH HAVE A GRAY COVER ON THEM. HOWEVER, THE SINGLE KEY IS SIGNIFICANTLY DETERIORATED.

Q DID YOU INVESTIGATE WHAT CHATEAU IS?

A I DID.

Q WHAT IS IT?

A CHATEAU IS A LOCK COMPANY. THEY SPECIALIZE IN PADLOCKS, AND THEY ARE COMMONLY FOUND AT STORAGE UTILITY. STORAGE COMPANIES, STORAGE SHEDS.

Detective Smith, direct examination, RT 3419:5-18

See page 3419

No witness compared the cuts. Here they are side by side:

Look at the cuts. They are not the same. The State told the jury these keys went “INFERABLY TO THE SAME LOCK.” No one ever tried either key in a lock, no expert ever compared them, and the State’s own photographs show two different cuts.

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Whose unit it was

The one witness who went to the unit with me was David Sequieda Jr. He said I opened it, and what was inside was mine:

Q I’M SORRY. WE GOT OFF TRACK A LITTLE BIT. I ASKED YOU ABOUT A STORAGE UNIT.

A YES, SIR.

Q THAT WAS NOT AT MR. ARAGON’S SHOP; CORRECT?

A NO.

Q THAT WAS A STAND-ALONE —

A IT WAS A STORAGE FACILITY. ONCE WE HAD LOADED UP EVERYTHING THAT HE HAD, HE HAD ASKED ABOUT SWINGING BY THE STORAGE FACILITY, WHICH I WAS NOT REALLY LOOKING FORWARD TO. WE HAD WASTED QUITE A BIT OF TIME GATHERING HIS THINGS AT ARAGON’S. WE WENT TO THIS STORAGE FACILITY, AND AT WHICH POINT HE OPENED THE ROLL-UP DOOR, AND HE HAD SOME UNFINISHED PROJECTS IN THERE. I GUESS MAYBE PROTOTYPES OF WATER UNITS WITH MISCELLANEOUS TOOLS AND THINGS. I THINK I RECALL A COUPLE OF, LIKE, ROMAN PILLAR COLUMN-TYPE THINGS IN THERE. AND AT THAT TIME I SAID, YOU KNOW WE DON’T HAVE THE ROOM FOR THIS RIGHT NOW. WE HAD A TRAILER FULL OF STUFF THAT BELONGED TO HIM.

Q THAT STORAGE PLACE, KIND OF A NORMAL RETAIL MINI STORAGE TYPE PLACE?

A YES. LIKE A BUDGET STORAGE OR —

Q AND THAT STORAGE SPACE, THAT WAS ALSO LOCKED WHEN YOU WENT TO THAT WITH HIM?

A YES, SIR.

Q WITH A PADLOCK?

A YES, SIR.

Q OKAY. AND IT CONTAINED FOUNTAIN SUPPLIES AND OTHER STUFF?

A OTHER THINGS, YES.

David Sequieda Jr., questioned by Mr. Imes, RT 2785:22-2786:22

See page 2785

See page 2786

In his account of the unit, Joseph is never mentioned. And the trailer was already full of my things from Aragon’s shop; the unit’s contents did not fit. He did not move me out of that unit.

What the detectives knew in 2014

In 2014, the detectives went through my bank records. Their report says:

During the analysis of Charles “Chase” Merritt’s bank records we learned Merritt made a payment to a storage facility “AMS Storage” in Pomona on February 9, 2010. No other transactions for AMS Storage were located during the analysis and based on the payment being within close proximity to the McStay Family’s disappearance we attempted to obtain records for Merritt’s contact at the business.

Det. Bachman report, Bates 008015

See Bates 008015

The report itself (Bates 008015). Tap to see the full page.

They got a search warrant and searched the facility’s records under Joseph’s name and mine:

Adkins had been contacted by the main office and was in the process of looking through business records for any customer service account information under the names Joseph McStay, Charles Merritt, Earth Inspired Products or iDesign.

Det. Bachman report, Bates 008017

See the report page

Their follow-up report called it my account:

I spoke with Atkins on prior dates requesting information with regard to Charles “Chase” Merritt’s account information for the storage facility.

Det. Bachman report, Bates 008020

See the report page

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What they swore to the judge

Detective Smith received my bank records on September 23, 2014. The next day, Detective Bachman wrote a search warrant for the storage facility’s records (Bates 008016). In his sworn affidavit, he gave the judge the right date, and told him it was the only payment:

During the analysis, Smith located a transaction on April 9, 2010, at AMS Mini Storage in Pomona, California for $134.50. … Merritt’s financial records do not show any other transactions for the business in the months before or after the April transaction.

Det. Bachman, search warrant affidavit, Bates 006557

Then he told the judge whose locker it was, and what he believed:

It is believed Merritt and McStay used the storage facility to store their business items. On Tuesday, September 24, 2014, I went to the storage facility to ascertain records for the locker rented by Merritt.

Det. Bachman, search warrant affidavit, Bates 006557

(The affidavit’s date for his visit is its own. September 24, 2014 was a Wednesday, and his report puts the visit on Tuesday, September 23 (Bates 008015).)

See Bates 006557

The affidavit itself (Bates 006557). Tap to see the full page.

“It is believed.” Believed by whom, and based on what? The affidavit doesn’t say. It names no witness, no record and no interview. Every fact in it points to me alone: my bank account, my payment, “the locker rented by Merritt.” Joseph is tied to that locker by a belief, and nothing else. And that belief is what brought Joseph’s keys into the warrant: in the next sentences, the Chateau locks on the counter and the Chateau keys in his pocket.

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Nine days later, the date changed

Bachman’s report of his September 23 visit is dated October 3, 2014, nine days after he swore to April 9. It says February 9 (quoted above, Bates 008015). And it gives a reason the affidavit never gave: “based on the payment being within close proximity to the McStay Family’s disappearance.”

My bank statement says April 9. The DA’s own spreadsheet of my account says April 9. His own sworn affidavit says April 9. The only record that says February is the one he wrote after swearing to April, and February is the only month that puts the payment “within close proximity” to February 4.

04/09 · Purchase on 04/09 (Card #469132146), Ams Mini Storage Pomona CA · 134.50

My Bank of America statement, Bates 010011

See Bates 010011

The statement itself (Bates 010011). Tap to see the full page.

The State could call the February date a typo. But a typo changes a number. It does not add a reason. “Close proximity” appears nowhere in the affidavit, because with April, there was none.

And when the facility went through the prior owner’s handwritten records, the months missing were “April, July and August 2010” (Bates 008017). No record was found under Joseph’s name, or mine.

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The “shared” claim

At trial, Detective Smith said the storage shed was one Joseph and I “HAD.” It came out when my own lawyer asked him about the store:

Q AND DID YOU REVIEW THE TYPE OF PADLOCKS THAT ARE SOLD BY PODS WHEN YOU WENT THERE?

A NOT THE PODS COMPANY. WE DID GO TO THE A.M.S. STORAGES COMPANY, AND THEY SOLD CHATEAU LOCKS THERE.

Q THOSE ARE THE DISK ONES AS WELL?

A I BELIEVE THEY HAD A VARIETY.

Q AND THE KEY THAT YOU FOUND WOULD BE CONSISTENT WITH THE TYPE OF LOCKS THEY WOULD GENERALLY SELL WHERE YOU RENT A POD?

MR. IMES: OBJECTION. CALLS FOR SPECULATION.

THE COURT: SUSTAINED.

Q (BY MR. MC GEE) THE STORE YOU WENT TO, IS THAT WHERE MR. MC STAY RENTED THE POD? IS THAT WHY YOU WENT THERE?

A THERE WAS THE STORAGE SHED THAT MR. MERRITT AND MC STAY HAD, YES.

Q AND THE PODS COMPANY SELLS THOSE DISK ONES TO SECURE THE PODS WHEN YOU RENT THEM?

MR. IMES: OBJECTION. MISSTATES HIS TESTIMONY IT WAS PODS.

THE COURT: OVERRULED. HE CAN ANSWER.

THE WITNESS: AGAIN, I CAN TELL YOU THEY ARE PADLOCKS FOR STORAGE SHEDS. I DID NOT GO TO PODS TO SEE IF THE CHATEAU LOCK WAS THERE.

Detective Smith, cross-examination by Mr. McGee, RT 3447:22-3448:17

See page 3447

See page 3448

No one objected to that answer.

Two days later, when Smith said it again, my lawyer did object, and the court sustained it. Asked whether he could verify it, Smith said no:

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 —

MR. MCGEE: Your Honor, I object as foundation, because there’s actually no evidence that they presented that my client and Mr. McStay owned a storage POD or storage unit together, so I would move to strike that answer.

THE COURT: Sustained on foundation grounds.

Q (BY MR. DAUGHERTY:) Did you receive information about a storage unit that was owned by either the defendant or Joseph McStay?

A Yes.

Q What did you do in response to that information?

A We attempted to verify that.

Q Were you able to verify it?

A No, we weren’t able to find any concrete records. We were able to get — they let us have the computer, but I don’t recall any — actually, strike that. 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.

MR. MCGEE: Your Honor, I object as to “they” and move to strike as foundation.

THE COURT: Sustained. That portion of the answer is stricken. The jury is instructed to disregard it.

Detective Smith, redirect by Mr. Daugherty, RT 3488:8-3489:5

See page 3488

See page 3489

And on recross:

Q (BY MR. MCGEE:) Were you able to get any records showing ownership of a storage unit by anybody of interest, when you visited that scene?

A No.

Detective Smith, recross by Mr. McGee, RT 3504:25-28

See page 3504

This was not a detective who never checked. His department did check, and he took part. After the warrant, the facility searched its records under Joseph’s name, mine, Earth Inspired Products and iDesign, and found nothing. On September 27, 2014, Smith himself went through the old handwritten records, and found nothing (Bates 008017). Four years later, he told the jury it was a shed Joseph and I “HAD.” Two days after that, he admitted, “we weren’t able to find any concrete records.”

The only record that ever said whose locker it was is his department’s own sworn affidavit, and it named me: “the locker rented by Merritt.”

Joseph’s own storage

Joseph had storage of his own. The prosecutor told the jury so himself:

And then they eventually moved into the home in Fallbrook, while most of their belongings remained in PODS, those moveable storage units that you heard about, and most of the furnishings and belongings were there.

Closing argument, Mr. Imes, RT 8187:20-23

See page 8187

There were three PODS. I know, because I packed them myself when the family moved out of their duplex in San Clemente; Joseph was ill at the time.

The detective never checked them. He said so, in the transcript above: “I DID NOT GO TO PODS TO SEE IF THE CHATEAU LOCK WAS THERE” (RT 3448:15-17).

Padlock keys in the pocket of a man whose family’s belongings were sitting in storage are no mystery. The State never ruled it out.

How one payment became a motive

Follow the one payment through the State’s own records, in order:

Every retelling moved the same way: away from what the records showed, and toward Joseph. The date moved toward February 4. My locker became theirs. A belief with no source became testimony, then an argument to the jury. Not one change ever moved the other way.

That is how the State built its motive. To get from my payment to a murder, the jury had to accept a chain: that the unit was shared; that Joseph cut me off from it; that a key was handed back to him; and that it happened at a meeting on February 4 where he “BASICALLY KICKS THE DEFENDANT TO THE CURB.” No witness testified to any link in that chain. The first link rests on a belief with no source. Every record that names a renter names me: my payment, “the locker rented by Merritt.” No record, and no witness, ever put Joseph in that unit. Without that first link, the rest has nothing to stand on.

The prosecution had the affidavit; it is in the State’s own discovery (Bates 006551-006557). They knew the payment was mine, that it was the only one, and that it was made in April. They put a detective on the stand who called it a shed Joseph and I “HAD,” and they told the jury a key was returned to Joseph. I don’t believe any of that was an accident.

What my own defense did, and did not do

My defense team put the keychain on a list of items to view from the evidence. The list went to the District Attorney on August 15, 2017, seventeen months before trial. Item E-7 reads:

(1) Corroded key chain w/ (1) “Gatehouse” key, (1) “Chateau” key, (1) “Albertson” plastic rewards card, (1) “?ilco” key, (1) unknown brand key from the left pocket of the pair of shorts

Defense list, “Items To Be Viewed from Evidence/Property Reports,” item E-7

See the defense list, item E-7

The list itself. Tap to see page 1. Page 2.

The single key, the one the prosecutor’s argument depended on, is not on the list at all.

More than once, I asked my lawyers to go look at these keys and compare them. They told me they would. They never did.

At trial, it was my own lawyer’s question that brought the “shared” shed into the record: “THE STORE YOU WENT TO, IS THAT WHERE MR. MC STAY RENTED THE POD?” (RT 3448:6-7, above). He let the answer stand.

My debit card payment to AMS was in the State’s own discovery (Bates 010011). The defense never showed it to the jury.

And in closing, my lawyer told the jury:

Then they present this whole argument — well, the other keys in his pocket are of the same key. Really? I didn’t hear testimony about that, did you? This is something new. I would have loved to have looked at those keys a little bit closer, taking different keys, if you notice that this is an issue, but they sandbag it and try to prove a fact without testimony to match some weird theory.

Closing argument, Mr. McGee, RT 8335:13-19

See page 8335

My lawyers had the keychain on their list for seventeen months. They never looked. That was not strategy. It was incompetence.

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Sources

Reporter’s Transcript (RT), People v. Merritt, San Bernardino County Superior Court, Case No. FVI1404194:

• RT 2785-2786: David Sequieda Jr., questioned by Mr. Imes.
• RT 3418-3419, 3447-3448 (January 29, 2019): Detective Ryan Smith, direct examination by Mr. Imes and cross-examination by Mr. McGee.
• RT 3488-3489, 3504 (January 31, 2019): Detective Smith, redirect by Mr. Daugherty and recross by Mr. McGee.
• RT 3518 (January 31, 2019): Carmen Garcia (“he’s David Jr.”).
• RT 8187, 8244-8246 (May 28, 2019): closing argument, Mr. Imes.
• RT 8335, 8349 (May 29, 2019): closing argument, Mr. McGee.

Documents:

• Exhibits 311, 316 and 258: the State’s photographs of the keys. The side-by-side image is cropped from Exhibits 316 and 258, contrast-enhanced, and scaled to the rulers in each photograph.
• Bates 006551-006557: San Bernardino County Sheriff’s Department, Det. Bachman, search warrant and affidavit for Storage Etc. (formerly AMS Storage), No. VVSW14-1667, September 2014.
• Bates 008015, 008016, 008017, 008020: San Bernardino County Sheriff’s Department, Det. Bachman, reports dated October 3 and October 20, 2014.
• Bates 010011: my Bank of America statement, April 14, 2010.
• San Bernardino County District Attorney, summary of my Bank of America account, row 126: “04/09/2010 … Ams Mini Storage Pomona CA … (134.50).”
• “Items To Be Viewed from Evidence/Property Reports”: my defense team’s list, August 15, 2017.

Where I describe the PODS, what I asked my lawyers, and where the list was sent, I state what I know personally.