The storage keys

The State asked the jury to infer that a key in Joseph’s pocket had been handed back to him. No witness said so, and the State’s own photographs show two different keys.

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

The meeting nobody witnessed

The State’s motive rested on what was in Joseph’s mind. It told the jury that Joseph had decided to cut me out of the business, and that on February 4, 2010, he did it. When Joseph’s remains were recovered, two Chateau-brand padlock keys were in the pockets of his shorts. One was on his keychain, with his car key and house key. The other was loose. The State used those two keys to put a scene in front of the jury that no witness ever described.

Near the end of his closing argument, Mr. Imes told the jury what the keys meant. This is the whole passage: (RT 8244:28-8246:2)

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? 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.

Closing argument, Mr. Imes, May 28, 2019, RT 8244:28-8246:2

See the trial transcript (RT 8244-8246)

Reporter’s Transcript, May 28, 2019. The passage runs from 8244:28 to 8246:2.

He pointed to no witness who saw a meeting like that, and no witness who saw a key change hands. He called it an inference. He did not say whose lock the keys fit; he set them beside a storage unit and the Chateau company, and left the jury to connect them. For the jury to draw his inference, three things had to be true:

1. The two keys fit the same lock.
2. That lock was on a storage unit Joseph and I shared.
3. A key was handed back to Joseph at a meeting on February 4.

The State established none of them with a tested key, a rental record, or a witness who saw a key change hands. It asked the jury to infer each one from the one before it. This page takes each in turn: the keys themselves, then whose unit it was, then how the State’s own records changed on the way to trial. And there is something the jury heard but was never asked to weigh: Joseph’s family had storage of its own, in PODS.

Two keys that only looked alike

Mr. Imes said the keys went “INFERABLY TO THE SAME LOCK.” Here they are, in the State’s own photographs. First, the keychain from Joseph’s pocket:

Detective Smith pointed out the Chateau key on that keychain, and then told the jury how he compared it with the single key. This was everything he said about the comparison: (RT 3418:22-3419:18)

Q OKAY. WE HEARD TESTIMONY PREVIOUSLY ABOUT ITEMS, I BELIEVE IT WAS, LIKE, E-7 AND E-8. THEY WERE CHATEAU PADLOCK KEYS, I BELIEVE?

A CORRECT.

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.

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 by Mr. Imes, January 29, 2019, RT 3418:22-3419:18

See the trial transcript (RT 3418-3419)

Reporter’s Transcript, January 29, 2019, RT 3418:22-3419:18.

That was the whole comparison: same brand, same gray cover. He did not say the cuts matched. He did not say anyone tried either key in a lock. Here are the two keys, each photographed by itself:

And here are their blades side by side, cropped from those same photographs and scaled to the rulers in each:

The first thing the State’s scene needed was two keys to one lock. Its own photographs show two different keys.

My storage unit

Joseph and I did not run one business. Joseph’s company, Earth Inspired Products (EIP), sold custom water features. I built them, through my own company, I Design 4 U. My shop, my tools and my unfinished projects were mine, and so was the storage unit I kept them in. (Bates 003419-003421)

The one witness who went to that unit with me was David Sequeida Jr. of Metro Sheet Metal. He had helped me load my things from Mr. Aragon’s shop. Mr. Imes, the prosecutor, asked him about the unit. Here is his account of it, in full: (RT 2785:22-2786:22)

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

See the trial transcript (RT 2785-2786)

Reporter’s Transcript, RT 2785:22-2786:22.

I opened the unit. Inside were my unfinished projects, prototypes and tools. In his whole account of the unit, Joseph is never mentioned. That day, by his own account, the unit’s contents did not go with us: the trailer was already full of my things from Aragon’s shop, and he told me, “YOU KNOW WE DON’T HAVE THE ROOM FOR THIS RIGHT NOW.”

In closing, Mr. Imes told the jury this witness “MOVED THE DEFENDANT OUT OF A STORAGE UNIT WHEN HE MOVED STUFF OVER TO METRO SHEET METAL.” (RT 8245:21-22) Mr. Sequeida did not say he moved anything out of the unit. He said there was no room. The only person his account places at the unit, besides himself, is me.

What they swore to the judge

In September 2014, the detectives went through my bank records and found my payment to AMS Mini Storage. To get the storage company’s records, Detective Bachman needed a search warrant, so he swore to the facts in an affidavit to a judge. A search warrant affidavit is not a note in a file. It is the detective’s sworn account of what he knows, given to a judge to get the court’s permission. He wrote the warrant on September 24, 2014, and Judge John Tomberlin signed it. (Bates 008016)

See the report (Bates 008016)

Det. Bachman report, page 2 (Bates 008016).

Here is what he swore about the storage facility, in full: (Bates 006557)

On September 23, 2014, Detective Smith received the records for Charles Merritt’s account with Bank of America. During the analysis, Smith located a transaction on April 9, 2010, at AMS Mini Storage in Pomona, California for $134.50. Smith conducted a records check on AMS Mini Storage and learned it was within ½ of a mile of a business building used by Merritt and McStay. Merritt’s financial records do not show any other transactions for the business in the months before or after the April transaction.

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. I observed Chateau locks displayed for sale on the counter. When McStay’s body was recovered, he was found to have a key to a Chateau lock on the key ring in his pocket and a second loose key inside his pocket. The employees at the business claimed they may still possess sales records for locks purchased by tenants, but would not release any information on past or present tenants without a search warrant.

Your affiant is requesting the issuance of this search warrant for customer records and/or account information for storage units or purchases made by Charles Merritt or Joseph McStay. This information is needed in an effort to develop additional investigative leads that may assist in this murder investigation of the McStay family members, Joseph, Summer, Gianni and Joseph McStay Jr.. The leads may show additional involved witnesses or suspects in the homicide. I request Hobbs’ sealing of the search warrant to protect known facts of the case, based on the fact the case is an ongoing homicide investigation.

Det. Bachman, search warrant affidavit, No. VVSW14-1667, Bates 006557

See the affidavit (Bates 006557)

The affidavit itself (Bates 006557). Boxes added. Tap to enlarge.

He gave the judge the right date, April 9, 2010. He told the judge it was the only payment, with none “in the months before or after.” And he told the judge whose locker it was: “the locker rented by Merritt.”

(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)

Then there is the sentence that brought Joseph in: “It is believed Merritt and McStay used the storage facility to store their business items.” Believed by whom, and based on what? The only basis the affidavit gives is location. The sentence before it reads: “Smith conducted a records check on AMS Mini Storage and learned it was within ½ of a mile of a business building used by Merritt and McStay.” That was not a building Joseph and I shared. It was my business location. Calling it a building “used by Merritt and McStay” is what tied Joseph to the storage facility. Even taken as written, it says where the facility was, not who rented a unit there.

The affidavit names no witness and no interview. Every fact it gives about the locker points to me alone: my bank account, my payment, “the locker rented by Merritt.” Joseph is tied to that locker by an inference resting on that one description, and nothing else. And that inference is what brought Joseph’s keys into the warrant, in the very next sentences: the Chateau locks on the counter, and the Chateau keys in his pocket.

Under oath, the department named one renter. It was me.

What the search found

With the warrant, the detectives asked the storage company, now called Storage Etc., to search its records under four names: Joseph McStay, Charles Merritt, Earth Inspired Products and iDesign. The records they examined showed nothing under any of them. Some of the old owner’s records were missing, and the company later handed over an old computer for analysis. The reports below show exactly what they did, and what they did not find.

Here is Detective Bachman’s report of the next four days, in full: (Bates 008017-008018)

On Wednesday, September 24, 2014, I contacted Storage Etc and spoke with the officer manager Nadine Adkins. On contact with Adkins, I explained to her I obtained a search warrant for the desired records and the search warrant was faxed to the Storage Etc main office. 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. Adkins had yet to locate any information, but claimed she had to go through historical handwritten records from the prior owners AMS Storage. Adkins told me she would re-contact me if she was able to locate any additional information.

On Thursday, September 25, 2014, I contacted Nadine Adkins via telephone to check on the status of the records. Adkins told me she had yet to locate any information and was attempting to contact prior owners and employees to see if anyone was familiar with the information requested. Adkins again stated she would re-contact me with any update when it was available.

On Saturday, September 27, 2014, Detective Ryan Smith and I went to Storage Etc to speak with Nadine Adkins. On contact with Adkins she explained to me she had yet to locate any business records under the requested names. Adkins told me the business did have records of the pin codes used to access the business by customers, but they were kept on an old computer and the customer name would be needed to pull up the logs. Adkins had gone through several of the prior owners handwritten customer records and noticed they were missing information for April, July and August 2010. Adkins allowed Smith to look through several of the old handwritten customer service records, but we were unable to locate anything in the files provided.

Adkins told me several of the customer service records were kept on an old computer in the business. Adkins claimed the computer was not working at the time and needed a piece of equipment in order to get it running. I explained to Adkins we had a Hi-Tech Division which could be used to go through the computer and access the information we were requesting.

Adkins claimed she would have to speak with the former business owner as the computer technically belonged to them and see if she could obtain consent for us to take possession of the computer to search for the records. Adkins told me she would contact the former owner and would let me know what the outcome was as soon as possible.

Adkins had no further information and we concluded the contact.

Det. Bachman report, dated October 3, 2014, Bates 008017-008018

See the report (Bates 008017-008018)

Det. Bachman report (Bates 008017-008018).

Three weeks later, the company released the old computer. Detective Bachman’s report of that, in full: (Bates 008020)

On Wednesday, October 15, 2014, I was contacted by Nadine Atkins the store manager from Storage Etc. I spoke with Atkins on prior dates requesting information with regard to Charles “Chase” Merritt’s account information for the storage facility. Atkins was able to contact the prior owner and obtained permission to release the computer tower to the San Bernardino County Sheriff’s Department for Hi-Tech analysis.

On Wednesday, October 15, 2014, at approximately 1630 hours, Detective Ryan Smith and I spoke with Arianna Cipriani at Storage Etc. Cipriani signed the consent to search form for the media computer systems custom desktop tower computer and provided us with the computer to return to our Hi-Tech Crimes Detail for analysis. Cipriani was given a copy of the consent to search form and advised the computer would be returned upon completion.

Det. Bachman report, dated October 20, 2014, Bates 008020

See the report (Bates 008020)

Det. Bachman report (Bates 008020).

Note how his own report describes what they were after: “Charles ‘Chase’ Merritt’s account information.” Not Joseph’s, and not a shared account.

Put in order: the company searched under Joseph’s name, mine, Earth Inspired Products and iDesign, and as of September 27 had located no records under any of them. Detective Smith went through the old handwritten records himself, and found nothing in the files he was given. The old owner’s records for April, July and August 2010 were missing. The warrant return lists one item taken: “Computer tower to be analyzed for records.” (Bates 006551) I have found no report of what that analysis showed.

See the warrant return (Bates 006551)

Return to Search Warrant, No. VVSW14-1667 (Bates 006551).

The searches documented in the State’s own reports found no record that Joseph ever had a unit there.

April 9 became February 9

Detective Bachman also wrote a report of his first visit to the storage company. It is dated October 3, 2014. The warrant he had sworn to April 9 for is dated September 24, nine days earlier. (Bates 006551, 008015) Here is the report’s account of that visit, in full: (Bates 008015)

On Tuesday, September 23, 2014, at approximately 1750 hours, Detective Dan Hanke and I conducted a follow up at Storage Etc. in Pomona.

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. Hanke and I spoke with Arianna Cipriani at Storage Etc.

I explained to Cipriani the information we were looking to obtain and Cipriani called her regional manger Corey Sulhoff. Sulhoff told Cipriani in order to release any information on current of past tenants we would need to obtain a search warrant for records. Cipriani provided me with the business information and the contact for Sulhoff to fax a copy of the search warrant.

Det. Bachman report, dated October 3, 2014, Bates 008015

See the report (Bates 008015)

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

The report says February 9, 2010, five days after the McStays disappeared. And it gives a reason the affidavit never gave: “based on the payment being within close proximity to the McStay Family’s disappearance.”

Here is the payment itself, on my bank statement:

04/09 · Purchase on 04/09 (Card #469132146), Ams Mini Storage Pomona CA · 404544 · 134.50

My Bank of America statement, statement date April 14, 2010, Bates 010011

See my bank statement (Bates 010011)

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

Line them up in order:

1. My bank statement: April 9, 2010. (Bates 010011)
2. The District Attorney’s own spreadsheet of my account, row 126: “04/09/2010 … Ams Mini Storage Pomona CA … (134.50).”
3. Bachman’s sworn affidavit: “a transaction on April 9, 2010.” (Bates 006557)
4. Bachman’s report, written after the affidavit: “February 9, 2010,” “within close proximity to the McStay Family’s disappearance.” (Bates 008015)

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.

How “mine” became “theirs” at trial

At trial, four years after his department swore it was “the locker rented by Merritt,” Detective Smith told the jury it was a shed Joseph and I “HAD.” It came out when my own lawyer asked him about the Chateau key and the PODS. This is the whole exchange: (RT 3447:16-3448:17)

Q NOW, THE CHATEAU KEY THAT WAS LOCATED, DID THEY MAKE PADLOCKS?

A YES, SIR.

Q AND THEY MAKE REGULAR PADLOCKS, LIKE WE ALL KNOW, AND THEY MAKE DISK PADLOCKS; CORRECT?

A CORRECT.

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, January 29, 2019, RT 3447:16-3448:17

See the trial transcript (RT 3447-3448)

Reporter’s Transcript, January 29, 2019, RT 3447:16-3448:17.

No one objected to his answer about “THE STORAGE SHED THAT MR. MERRITT AND MC STAY HAD,” and it stayed in.

Two days later, on redirect, Mr. Daugherty asked him to explain. Smith said it again. This time my lawyer objected, and the court sustained it. Asked whether he could verify it, Smith said no, and when he said “through interviews, we determined that’s where they had a storage shed,” the court struck that too. This is the whole exchange: (RT 3487:26-3489:22)

Q There was some questions on Tuesday about PODS and, in particular, one of these questions that was within the framework of the direct exam was about the keys that you testified on direct on Tuesday?

A Yes, sir.

Q And there was a question as to whether or not those keys belonged to a POD, and you mentioned something about a storage unit —

A Correct.

Q — do you recall that? Can you explain that further?

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.

Q (BY MR. DAUGHERTY:) You went to a storage unit?

A Correct.

Q Based on the information that you received?

A That is correct.

Q What kind of keys did that — or what kind of locks did that particular storage unit sell?

A They sold —

MR. MCGEE: Objection. Foundation as to time. That was a different owner at the time they went there.

MR. DAUGHERTY: Was Counsel testifying? Move to strike Counsel’s comment.

THE COURT: The objection is sustained. The jury is instructed to disregard comments of both counsel. And remind you, again, the statements of counsel and any information included in their questions, again is not evidence. It’s only the witness’s testimony or answers or a response to questions that is evidence.

Detective Smith, redirect by Mr. Daugherty, January 31, 2019, RT 3487:26-3489:22

See the trial transcript (RT 3487-3489)

Reporter’s Transcript, January 31, 2019, RT 3487:26-3489:22.

And on recross, my lawyer asked him directly: (RT 3504:17-28)

Q And when you went to the storage unit that you had heard about, you talked to a person that worked at the storage unit?

A Yes, we did.

Q Did you learn that the business at that address had a new name?

A Correct.

MS. RODRIGUEZ: Objection. Hearsay. Relevance.

THE COURT: Overruled. The answer remains.

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, January 31, 2019, RT 3504:17-28

See the trial transcript (RT 3504)

Reporter’s Transcript, January 31, 2019, RT 3504:17-28.

Put in order, the sequence is plain:

1. In September 2014, his department swore to a judge it was “the locker rented by Merritt.”
2. That month, the company searched its records under Joseph’s name and mine and located none, and he went through the handwritten records himself and found nothing.
3. On January 29, 2019, he told the jury it was a shed Joseph and I “HAD.” No objection; it stayed in.
4. On January 31, he said it again. The court sustained the objection for lack of foundation. He admitted “we weren’t able to find any concrete records,” and the court struck his claim that “through interviews” they had determined it.
5. Later that day, on recross, asked if he had any records showing ownership by anyone of interest, he said: “No.”

The detective could not support it, and the court would not let him repeat it. But the first time he said it, it went to the jury unchallenged.

Joseph’s own storage

Joseph had storage of his own. Mr. Imes told the jury so himself, early in his closing argument: (RT 8187:14-23)

So in the beginning, the McStays, at the end of 2009, bought the house in Fallbrook on Avocado Vista Lane. And due to the timing of closing escrow and getting — getting out of their house in San Clemente and moving into the Fallbrook house, there was some delay, so they moved in with Susan over at Temescal area in her home, while she was living up in Ventura or Santa Barbara area. 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, May 28, 2019, RT 8187:14-23

See the trial transcript (RT 8187)

Reporter’s Transcript, May 28, 2019, RT 8187:14-23.

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.

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

Mr. Imes asked the jury what reasonable inference it could draw from this “WEIRD CIRCUMSTANCE.” 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. An inference resting on one description became testimony, then an argument to the jury. Not one change ever moved the other way.

That is how the State built this part of its motive. Each of the three things the jury had to accept fails on its own:

1. The two keys fit the same lock. No one tested either key in a lock, and no one compared their cuts. The State’s own photographs show different cuts.
2. The lock was on a unit Joseph and I shared. No rental record, and no witness with personal knowledge, ever put Joseph in that unit. The only sworn record of whose locker it was named me. When the detective said otherwise, the court sustained the objection and struck his explanation.
3. A key was handed back to Joseph on February 4. No witness described any such meeting, and no witness saw any key change hands. The prosecutor, Mr. Imes, called it an inference.

Even if one of these were true, the others would not follow. Two keys to one lock would not show whose lock it was. A shared unit would not show that a key changed hands, or when.

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 lawyers failed in two different ways. They did not examine the keys, and they did not use the records they already had.

They never examined the keys. 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, in full:

(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. Then, in closing, my lawyer told the jury this: (RT 8335:10-19)

You are looking for the truth, you are looking for facts, you want to put pieces together. Well, if the keys to the vehicle are in the victim’s pocket, that doesn’t match your scenario, let’s ignore that fact. 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, May 29, 2019, RT 8335:10-19

See the trial transcript (RT 8335)

Reporter’s Transcript, May 29, 2019, RT 8335:10-19.

A comparison of the cuts, or a single test in a lock, would have answered the prosecutor’s “INFERABLY TO THE SAME LOCK” with evidence.

They never used the records they had. My debit card payment to AMS, dated April 9, was in the State’s own discovery (Bates 010011). So was the affidavit naming “the locker rented by Merritt” (Bates 006557), and the report that moved the date to February (Bates 008015). The defense never showed the jury any of them. And 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) He let the answer stand.

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

Closing

The State told the jury that two keys in Joseph’s pockets went to the same lock, that the lock was on a storage unit Joseph and I shared, and asked it to infer that one key was handed back to him the day he cut me off.

The State’s own photographs show two different keys. The one witness who saw inside the unit saw my things, and never mentioned Joseph. The only sworn record of whose locker it was named me: “the locker rented by Merritt.” My bank records show one payment, on April 9. And the date only moved to February in a report written after the detective swore to April.

My storage unit became our storage unit. Two keys that looked alike became keys to the same lock. A key in Joseph’s pocket became a key handed back to him. And a meeting no one described became the moment he cut me off.

The State never tested either key in a lock. It never produced a record that Joseph and I shared that unit. It never produced a witness who saw a key change hands. It asked the jury to imagine all of it, and then to treat what it imagined as a reason I would kill.

Sources

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

• RT 2785-2786: David Sequeida 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 3487-3489, 3504 (January 31, 2019): Detective Smith, redirect by Mr. Daugherty and recross by Mr. McGee.
• RT 8187, 8244-8246 (May 28, 2019): closing argument, Mr. Imes.
• RT 8335 (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: San Bernardino County Sheriff’s Department, Det. Bachman, report dated October 3, 2014.
• Bates 008020: San Bernardino County Sheriff’s Department, Det. Bachman, report dated October 20, 2014.
• Bates 010011: my Bank of America statement, statement date April 14, 2010.
• Bates 003419-003421: Joseph’s PayPal dispute letter and the Provecho invoice, naming EIP as the seller and I Design 4 U as the fabricator.
• 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 my business, the PODS, what I asked my lawyers, and where the list was sent, I state what I know personally.

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