The Walker call
On February 4, 2010, right after calling me, Joseph made an eight-minute phone call. The State used that call to tell the jury Joseph was replacing me with other fabricators, and that this gave me a motive to kill him and his family.
The prosecutor told the jury Joseph had “ALREADY CALLED WALKER WELDING,” a fabricator. But Joseph’s own phone record shows the call went to Hopewell, Virginia. And the State’s own detective found the person Joseph called: Nancy Walker, a customer in Virginia, talking with Joseph about the measurements of a waterfall she wanted to order (Bates 008027).
The State knew this five years before trial. Its detectives had found the Virginia customer, and had talked to the California shop it was confused with. That shop’s manager had never met Joseph and had no work orders for his company. The jury was still told Joseph had called a fabricator.
The State said “JOSEPH CALLS A PLACE CALLED WALKER WELDING, ACCORDING TO THOSE RECORDS,” and called it “ANOTHER FABRICATOR.” (Mr. Imes, RT 8195:1-3)
The record: Those records show the call went to Hopewell, Virginia (Bates 005515). The State’s detective identified the person on the other end as a Virginia customer ordering a wall-mounted waterfall (Bates 008027).
The State said Joseph was “LOOKING FOR OTHER FABRICATORS” and had “ALREADY CALLED WALKER WELDING.” (Mr. Imes, RT 8196:16-18)
The record: The State’s detective interviewed the manager of Walker Sheet Metal, the Rancho Cucamonga shop. He had never met Joseph, didn’t recognize his photograph, and found no work orders for Joseph’s company. He first met me after the family had been reported missing (Bates 008029-008030).
The State said I was “CLEARLY BEING SIDELINED FROM THIS BUSINESS.” (Mr. Imes, RT 8269:27-28)
The record: That day, Joseph drove up to meet me. That afternoon, back home, he went over two of our projects with me by phone, Paul Mitchell Studios and the Saudi Arabia waterfall. Detective DuGal checked my account against the phone records and told me it was accurate (Bates 001686).
And my lawyer objected that the Walker claim was “ARGUING FACTS NOT IN EVIDENCE.” The court overruled him (RT 8196:23-24). The jury had the whole phone record as an exhibit, but no one ever pointed them to the Hopewell row, or to the State’s own reports on who answered.
Here is the record, so you can check it yourself.
What the jury was told
In closing argument, the prosecutor, Mr. Imes, walked the jury through Joseph’s phone records for February 4. He pointed to 12:52 himself:
“Then at 12:52 begins a series of events that become important. 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 8194:27-8195:3)
See page 8195
Reporter’s Transcript, RT 8195. The Walker Welding line is at lines 1-3. Tap to enlarge.
12:52 is the Virginia call. He named the right call, and the right records, and told the jury they showed a fabricator.
Then he spoke as Joseph, in the first person:
“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, and now,” (RT 8196:16-18)
My attorney objected:
MR. MCGEE: Objection. Arguing facts not in evidence —
THE COURT: Overruled.
(RT 8196:23-24)
See page 8196
Reporter’s Transcript, May 28, 2019, RT 8196:16-25.
Mr. Imes went on: “That is a reasonable conclusion and inference that could be drawn from all of the evidence that you have seen up to the 4th.” (RT 8196:26-28)
He came back to the sidelining theme twice more: “being sidelined in favor of Metro Sheet Metal and others” (RT 8199:15-16), and “HE IS CLEARLY BEING SIDELINED FROM THIS BUSINESS.” (RT 8269:27-28)
See page 8199
“According to those records,” he said. So here are the records.
The record shows Virginia
At 12:52 p.m. on February 4, 2010, Joseph called me. Right after, he made a second call. It lasted eight minutes. The record lists times to the minute, so both calls show 12:52. Detective DuGal’s report puts them in that order: the second call came “immediately after Joseph called Charles” (Bates 001686).
Here is that call, exactly as the phone company printed it:
See Bates 005515
T-Mobile USA, File 2010-022410, p. 50 of 50 (Bates 005515). Red box added.
The Destination column says Hopewell, Virginia. The Originating Cell Site column shows where Joseph’s phone was: Rancho Cucamonga, just before he met me.
A destination on a phone bill names the area the number belongs to. On its own, that shows the number was a Virginia number. But there is no need to rely on that alone. The State’s own detective found out who answered. Nancy Walker “purchased a wall mounted water feature from Earth Inspired Products in February of 2010.” She spoke with Joseph about “the measurements of the water feature she wanted to order” (Bates 008027).
See Bates 008027
San Bernardino County Sheriff, Det. Smith, interview of Nancy Walker (Bates 008027). Tap to see the full page.
A Virginia number, and a Virginia customer on the other end, ordering a waterfall. Not a fabricator.
Where “Walker Welding” came from
On March 9, 2010, San Diego Sheriff’s Detective Troy DuGal called me to build a timeline of Joseph’s calls (Bates 001685).
See Bates 001685
San Diego Sheriff, Det. DuGal report (Bates 001685).
He told me that after Joseph called me at 12:52, “There was a second telephone call by Joseph to Walker Welding immediately after Joseph called Charles” (Bates 001686).
I had never heard of it. His report says so: I “had no specific recollection of receiving Joseph’s telephone call and he was not familiar with the business Walker Welding” (Bates 001686).
See Bates 001686
San Diego Sheriff, Det. DuGal report (Bates 001686). Tap to see the full page.
So I checked. His report records that too: I “had called Walker Welding to inquire about Joseph’s telephone call. The man Charles talked to on the telephone had no recollection of a conversation with Joseph McStay” (Bates 001687).
See Bates 001687
San Diego Sheriff, Det. DuGal report (Bates 001687). Tap to see the full page.
On September 15, 2010, DuGal called the Rancho Cucamonga shop himself. He told the owner, Ramona Walker, that “During Joseph’s transit home, he called Ramona’s business.” Her “right hand man,” Josh (Josue Villanueva, the same manager Steers later interviewed), “did not recall the phone call,” and “Ramona does not know Joseph McStay” (Bates 001809).
See Bates 001809
San Diego Sheriff, Det. Buckley report of DuGal’s call to Ramona Walker (Bates 001809). Tap to see the full page.
The phone record says otherwise on both counts. The call was not made on the way home. It was made at 12:52, from Rancho Cucamonga, before Joseph and I met. And it did not go to Rancho Cucamonga. It went to Hopewell, Virginia.
The name “Walker Welding” is what the Virginia number was registered as (Bates 008027). That is where the mix-up started: a Virginia number listed under a Walker name, and a shop in Rancho Cucamonga owned by a Walker.
The State could say Joseph really did call a “Walker Welding.” He called a number listed under that name, in Virginia, where the State’s own detective found a customer ordering a waterfall. Mr. Imes didn’t tell the jury Joseph called a customer. He told them Joseph was “LOOKING FOR OTHER FABRICATORS” and had “ALREADY CALLED WALKER WELDING.” The name was right. What he made of it was not.
What the State’s own detectives found
In 2014, two San Bernardino detectives followed up on the call.
Detective Smith reached the person Joseph actually called, the Virginia customer above (Bates 008027).
Detective J. Steers went to the Rancho Cucamonga shop, Walker Sheet Metal, and interviewed its manager, Josue Villanueva, on September 30, 2014. His report says I “employed Walker Sheet Metal to fabricate stainless steel channels and pieces for [my] waterfalls,” and that Villanueva “first met Merritt and began doing these jobs after the McStay family had already been reported missing” (Bates 008029).
See Bates 008029
San Bernardino County Sheriff, Det. J. Steers, interview of Josue Villanueva (Bates 008029). Tap to see the full page.
After checking DuGal’s lead, I later went back to that shop and decided to use it.
Villanueva searched the shop’s records and “did not find any work orders for Earth Inspired Products, EIP.” He “had never had any personal contact with Joseph McStay,” and shown Joseph’s photograph, “he again stated he had never seen McStay before” (Bates 008030).
See Bates 008030
San Bernardino County Sheriff, Det. J. Steers (Bates 008030). Tap to see the full page.
So by 2014, the State’s own investigation had answered the question both ways. The call went to a customer in Virginia. The shop in California had never dealt with Joseph at all. The State had both reports five years before trial.
The State’s investigation corrected who Joseph called. Its closing argument did not.
What Joseph actually did that day
The same records show what Joseph did on February 4.
At about 11:50 a.m., Joseph’s phone left Fallbrook. DuGal’s report reads the towers as “indicating Joseph was likely travelling toward Charles” (Bates 001685-001686). At 12:52, his phone was in Rancho Cucamonga (T-Mobile record).
See Bates 001686
San Diego Sheriff, Det. DuGal report (Bates 001686). Tap to see the full page.
The court, ruling on my motion for new trial, put it this way: “We know on February the 4th that there was meeting between the defendant and Joseph McStay at the Chick-fil-A, or somewhere in that area in Rancho” (RT 8943:12-15). “So after the meeting, Joseph drives back from Rancho back to Fallbrook” (RT 8943:27-28).
Back home in the late afternoon, Joseph called me again. We “were still talking about the position of the electrical box installation on the waterfall for Paul Mitchell studios,” and about “the mounting location for a dry box on the Saudi Arabia waterfall project.” I “needed the box to be moved off center a few inches and [I] wanted Joseph’s approval.” DuGal checked my account against the records: “I told him his recollection was accurate” (Bates 001686).
See Bates 001686
San Diego Sheriff, Det. DuGal report (Bates 001686). Tap to see the full page.
On February 4, the State says, Joseph was sidelining me. The records show him driving to meet me, then working through two of our projects with me that same afternoon.
How a customer became a fabricator
Follow the one call through the State’s own records, in order:
| Where | What it said |
|---|---|
| Joseph’s T-Mobile record, February 4, 2010, 12:52 p.m. (Bates 005515) | Joseph calls me, then makes an eight-minute call from Rancho Cucamonga to Hopewell, Virginia. Both show 12:52. |
| Det. DuGal, March 9, 2010 (Bates 001686) | “A second telephone call by Joseph to Walker Welding.” I tell him I don’t know the business. |
| DuGal’s call to the Rancho Cucamonga shop, September 15, 2010 (Bates 001809) | Joseph called “during Joseph’s transit home.” The owner doesn’t know Joseph; her manager doesn’t recall a call. |
| Det. Steers, September 30, 2014 (Bates 008029-008030) | The shop’s manager never met Joseph and has no work orders for his company. He met me after the family was reported missing. |
| Det. Smith, 2014 (Bates 008027) | The person Joseph called: Nancy Walker, a Virginia customer ordering a wall-mounted waterfall. |
| Mr. Imes, closing argument, May 28, 2019 (RT 8195-8196) | “A place called Walker Welding, according to those records.” “Another fabricator.” Joseph was “looking for other fabricators.” Objection overruled. |
Every step of the State’s own investigation moved away from a California fabricator. In 2010, the shop didn’t know Joseph. In 2014, its manager had never met him, and the State’s detective found the Virginia customer who actually took the call. At trial, the prosecutor went back to the 2010 guess and told the jury it came from “those records.”
That is how the call was used to build a motive. To get from an eight-minute call to a murder, the jury had to accept a chain: that the call went to a fabricator; that Joseph was hiring that fabricator to replace me; and that he was doing it on the day the family disappeared. The record breaks the first link. The call went to a customer, not a fabricator. Without that link, this call is no evidence that Joseph was replacing me. The State’s other sidelining claims are answered on their own pages.
What my own defense did, and did not do
My lawyer did object, at the moment Mr. Imes said it: “Arguing facts not in evidence.” The court overruled him (RT 8196:23-24).
After that, the defense let it go. The phone record showing Hopewell, Virginia, was already an exhibit. The State’s 2014 reports, identifying the Virginia customer and clearing the California shop, were in the State’s own discovery. No one put any of it in front of the jury. They heard “Walker Welding” and “another fabricator,” and nothing to answer it.
Sources
Reporter’s Transcript (RT), People v. Merritt, San Bernardino County Superior Court, Case No. FVI1404194:
- RT 8194-8196, 8199 (May 28, 2019): closing argument, Mr. Imes, and Mr. McGee’s objection.
- RT 8269: closing argument, Mr. Imes.
- RT 8943: the court’s ruling on my motion for new trial.
Documents:
- Bates 005515: T-Mobile USA call detail records for Joseph McStay, (949) 295-7451, File 2010-022410, p. 50.
- Bates 001685-001687: San Diego Sheriff’s Department, Det. Troy DuGal, follow-up report (March 9, 2010 call).
- Bates 001809: San Diego Sheriff’s Department, Det. Buckley, report of Det. DuGal’s September 15, 2010 call to Ramona Walker.
- Bates 008027: San Bernardino County Sheriff’s Department, Det. Ryan Smith, interview of Nancy Walker, 2014.
- Bates 008029-008030: San Bernardino County Sheriff’s Department, Det. J. Steers, interview of Josue Villanueva, Walker Sheet Metal, September 30, 2014.
Where I describe checking DuGal’s lead and later using the Rancho Cucamonga shop, I state what I know personally.
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