By Mark Gutglueck
The trial of Charles “Chase” Merritt for the 2010 murder of the four members of the McStay family got under way this week, more than four years after Merritt’s arrest in the horrific slayings.
Public consciousness of the matter, which was initially considered a multiple missing persons case, first manifested shortly after the family’s abrupt and inexplicable February disappearance from the north San Diego County home they moved into in November 2009. The circumstance was further mired in confusion when the family vehicle was discovered to have been abandoned near the U.S./Mexico border in San Ysidro and a video showed what could have been the four making their way on foot south across the border in roughly the same time frame. For more than three years, the matter remained cataloged by civil authorities, law enforcement and family members as a baffling missing persons case rather than one of multiple murders.
That changed in 2013, when an off-road motorcyclist came upon human remains that had been partially unearthed from one of two graves in the desert less than a mile off the I-15 Freeway just north of Victorville. In relatively short order it was determined that there were two shallow graves at the site in which Joseph McStay, 40; his wife, Summer, 43; and their two children, Gianni, 4; and Joseph Jr., 3, were buried. The dormant missing persons case being carried out by the San Diego Sheriff’s Department transformed instantly into a murder case involving the San Bernardino County Sheriff’s Department.
A year later, Charles Merritt, an independent contractor who had been involved with Joseph McStay in the manufacturing of decorative water fountains which were marketed to a largely affluent clientele, was arrested and charged with the murders.
Since that time, four years have elapsed as Merritt was represented by a series of defense attorneys appointed for him by the court, several of whom he fired over differences he had with them on the structuring of his legal defense. For an extended period of time, he represented himself, having obtained a special dispensation to be provided within his jail cell all of the materials relating to the case that was being put together against him, as since his arrest he has not been out of custody.
On Monday of this week, January 7, opening statements in the case were made before the 12 jurors and their 6 alternates, with San Bernardino County Supervising Deputy District Attorney Sean Daugherty offering a preview of the evidence and testimony to be presented against Merritt over the next two to three months. Daugherty’s compressed presentation essentially encapsulated the case against the defendant.
Without any tentativeness Daugherty maintained that Merritt’s motive in the killings was that Joseph McStay had discovered that his partner had pilfered money from the business by forging checks, which were cashed against the account for McStay’s company, Earth Inspired Products.
McStay marketed Earth Inspired Products’ fountains, artificial waterfalls and birdbaths. Those products consisted of ones purchased off-the shelf and ones McStay custom-designed. Merritt was the craftsman who constructed McStay’s custom fountains and waterfalls. Though Merritt attempted to delete the electronic record of checks which Daugherty insisted Merritt fraudulently issued to himself, the prosecutor indicated recovered data betrayed Merritt in the fraud he had carried out, and that the bogus computerized file he created to cover his tracks while accessing Joseph McStay’s “Quick Books” accounting system resulted in a tell-tale redundancy in the creation of a fraudulent entry that was identified by an all-lower case file name that used Merritt’s first and last names, which deviated from the pattern of entries Joseph McStay had used in his accounting efforts in which he capitalized the first and last names of the payees.
Furthermore, according to Daugherty, DNA evidence found within the McStay family Isuzu Trooper which was found near California’s border with Mexico on February 8, 2010 is an indication that it was Merritt who had last driven the vehicle before it was abandoned.
In laying out the highly circumstantial case against the defendant, Daugherty cited the consideration that all of Merritt’s known whereabouts which line up precisely with the prosecution’s theory of the commission of the murders are reflected in data extrapolated from his cell phone’s contact with cell towers during much of the timeframe of the McStay family’s disappearance, and that at the critical junctures in that timeline where his whereabouts cannot be documented, Merritt had turned his cell phone off, making tracking his comings and goings impossible. Daugherty’s suggestion was that this was a calculated move by Merritt. Nonetheless, the prosecution will present evidence that the defendant’s cell phone was pinging off of a cell tower in the desert area north of Victorville between 10:46 a.m. and 1:30 p.m. on February 6, 2010. That was just two days after the McStay family’s February 4 disappearance, and while Merritt was, prosecutors allege, burying the four bodies in two graves carved into a shallow depression in the desert landscape not visible to passers-by in an area proximate to the I-15 Freeway. Merritt had previously been a resident of Hesperia and attended Apple Valley High School in 1972, 1973 and 1974 was intimately familiar with the Victor Valley area. As late as 2012, he was operating, in partnership with Abayomi Adepoju a steel sculpture fabricating business out of the Clock Tower Professional Center in Hesperia.
Daugherty said cell phone records delineate contact between Joseph McStay and Charles Merritt during what would be the last days and hours of the McStay family’s lives, and that Joseph McStay had driven all the way from Fallbrook to Rancho Cucamonga to confront Merritt over his thefts on February 1, 2010. That confrontation over what Merritt was engaged in precipitated the murderous set of events that followed, Daugherty intimated to the jury.
Evidence to be presented in the prosecution’s case will demonstrate, Daugherty said, that Merritt possesses a combination of the genetic markers, a precise pattern which exists in one in 850 million within the human population, that match the DNA material left by the murderer in the McStay family’s vehicle.
Daugherty told the eight woman, four man jury and their four-man, two-woman panel of alternate jurors that the prosecution’s case would contain a fully-satisfactory accounting of three of the classically necessary elements of who, what, where, why, when and how contained in a journalistic narrative, to include who, how and why, of the slaughter of the McStay family. The who, Daugherty insisted, was Merritt, “sitting here in court today.” The why of the case was the defendant’s greed and insatiable need for money, said Daugherty. The prosecution would also illustrate, the prosecutor said, “how this family disappeared off the face of the earth.”
Merritt’s guilt was evinced, Daugherty suggested, by the way in which, before the family’s bodies were found and the murders confirmed as having taken place, Merritt was referring to the victims in the past tense in his exchanges with investigators when the matter was still being investigated as a missing persons’ case.
While acknowledging that “We can’t answer all the questions,” Daugherty said enough of the facts would be clear enough for jurors to come to a conclusion of moral certainty that Merritt is guilty beyond all reasonable doubt. The prosecution is seeking the death penalty in the case.
Daugherty said Merritt, who had characterized Joseph McStay as his best friend, was actually taking advantage of that friendship by writing and cashing multiple checks totaling more than $21,000 on the Earth Inspired Products account, which were entered into Joseph McStay’s QuickBooks accounting system both before and after the McStay family was murdered. Daugherty said Merritt’s efforts to mask what he had done by printing the checks and then seeking to delete any record of the account activity from the QuickBooks electronic registry had not succeeded, as the data had been recovered by investigators. “The defendant was already writing and printing checks on the business, from Joseph’s QuickBooks,” said Daugherty. Merritt’s thefts were augmented by calls to a QuickBooks customer service representative in which he represented himself as McStay in an effort to alter the nature of the account so he would have further direct access to the money in the Earth Inspired Products bank account.
Merritt was a calculating schemer and conman who, Daugherty said, “while claiming to be Joseph’s best friend, was forging checks from Joseph’s business, putting his hands in the cookie jar.”
More than that, Daugherty asserted, Merritt is as coldblooded of a sociopath as is imaginable, one who used a hammer to bludgeon a three year-old child, his four-year-old brother and their mother, in addition to their farther, from whom he had stolen that money. Thereafter, Daugherty said, Merritt “desperately tried to cover his tracks,” which included a host of deceptions in which he “misled investigators, talked in circles, and played the victim.” Merritt then callously used the money he had stolen, to bankroll his depraved wagering and eventual squandering of the ill-gotten proceeds from his thefts in long days and nights at the gaming tables at casinos in San Diego, San Bernardino and Los Angeles counties.
In the conclusion to his opening statement, Daugherty said, “Ladies and gentlemen, there will be some things the evidence can’t tell you, such as whether someone else or two other people helped him in the commission of this crime. But the evidence is clear. Charles Merritt was ripping off his best friend. He got caught. We can tell you the evidence will show the only person associated with this crime who had a connection with the High Desert was the defendant, that man right there. After we tell you the how and why, at the conclusion of this case, we will ask that you find him guilty.”
Daugherty was the only member of the prosecution team, which also features Supervising Deputy District Attorney Britt Imes and Deputy District Attorney Melissa Rodriguez, to offer an opening statement. The counterparts to the prosecution, defense attorneys James McGee and Raj Maline, gave opening remarks on Merritt’s behalf on Monday January 7, with McGee going first.
The defense team’s contention is that the McStay family was indeed killed as the result of a disagreement over money that grew out of the Earth Inspired Products operations, but that the murderer was not Merritt but rather another of Joseph McStay’s business partners, Dan Kavanaugh.
Both the investigation and the prosecution are hampered by what McGee first termed a “conclusionary bias,” in which the law enforcement agencies investigating the crime very early on set their investigative sights and firepower upon Merritt to the virtual exclusion of any other possible suspects. This resulted in the investigators missing evidence crucial to the case and misinterpreting evidence it did come across. The investigators’ incomplete and skewed findings were used to support the erroneous theory that Merritt had been stealing from his friend and business partner, thus giving him a motive for murder after Joseph McStay learned of what he had done, according to McGee and Maline. Rather, according to the defense, Merritt’s past and then-current livelihood was intricately linked to the success of Joseph McStay’s company, Earth Inspired Products. More to the point, Merritt’s future financial well-being was dependent on an even more lucrative prospect that Joseph McStay was pursuing that was potentially worth millions of dollars. In this way, Merritt’s personal financial interests, were absolutely and totally destroyed by Joseph McStay’s death, McGee and Maline maintain in explaining their theory that Merritt could not be the killer.
The prosecution’s suggestion that Inspired Earth Products checks issued to Merritt in the weeks and days surrounding the McStay family’s disappearance are evidence of forgery is an outright misrepresentation of the true facts, according to Merritt’s legal defense team. Those checks were valid ones issued to Merritt as payment for work or to secure materials and supplies for ongoing Inspired Earth Products projects, and evidence and testimony to be presented at trial will verify that, McGee and Maline propound.
Moreover, the accusations that Merritt had attempted to prevent the events surrounding the disappearance and death of the family from coming to light is provably untrue, McGee and Maline said, since evidence and testimony will show that Merritt was the first to alert authorities that something was amiss and was more adamant about those authorities taking the missing status of Joseph McStay seriously than any of his family members in the initial stages of the family’s disappearance.
Rather, McGee and Maline pointed to Kavanaugh as the actual murderer.
The contention by the prosecution that Merritt using the past tense in referring to the McStay family while he was being questioned by investigators then treating the disappearances as a missing persons case was an indication of his guilt is misleading, the defense argued, in that San Diego County Sheriff’s Detective Troy DuGal had utilized the past tense in posing the questions to Merritt during his interrogation with him.
The defense took issue with the prosecution’s narrative, insisting many of its elements, in particular the timeline and location, will ultimately clear Merritt., according to the defense.
McGee said that the autopsies performed on the McStays showed that both of the adults and one of the children died from “multiple injuries to their skulls from a three pound sledge hammer. Blunt force trauma to the head would create a lot of blood. Thirty percent of the blood flow of a person flows from the heart to your brain alone. There would be blood everywhere.”
McGee emphasized that there would have been “blood spatters… cast off stains [from the use of the hammer as a weapon]. Blood would be everywhere wherever this murder occurred and blood would be all over the person who did it. All over the house there would be pools of blood, on clothes, hands, shoes. It would be transferred throughout the house and out int the car. No blood was found in the residence.” One of the early lead investigators from the San Diego Sheriff’s Department, McGee said, stated that the McStay residence “was not a crime scene. It did not happen here.”
Furthermore, according to McGee “No screaming was heard in the neighborhood. There is not one witness who heard anything nor any evidence. That murder did not happen in that house.” Accordingly, along with the consideration that the family was clad in bedclothes such as pajamas demonstrates that the prosecution’s timeline, which is crucial to Merritt being shown to be the actual killer, is off, McGee asserted. While the prosecution maintains the murder occurred on February 4, “The clothes they were wearing indicate they were sleeping,” said McGee. “The family was alive until the morning of the fifth.”
McGee rejected the prosecution’s contention that the burial site was one that was carefully selected by Merritt based upon his long-held familiarity with the High Desert. Rather, McGee suggested, the actual killers had driven northward on the I-15 freeway with the bodies, seeking a place to dispose of them. He said along the entirety of that route, the periphery of the freeway is “developed” and that the desert area north of Victorville was the first place of immediate access off the highway where an ostensibly suitable area for that purpose was encountered. The gravesite eventually chosen by the killer or killers was not that good of one, and Merritt, who was knowledgeable of the area, would have taken the bodies to a more remote and better hidden area just a few miles distant, if he had been the murderer, according to McGee.
McGee hinted that there is a DNA bombshell that will soon explode to destroy the prosecution’s case. DNA extracted from a plastic coated wire that was used to bind Joseph McStay and which was yet wrapped around his remains in the burial site, was subjected to a less than fully exacting analysis by sheriff’s department investigators, McGee said. That analysis found that the DNA on the cord could not be matched with any of the McStay family members nor Merritt. Despite the prosecution’s objection to that assertion being made in front of the jurors, McGee said a yet-to-be provided analysis that is far more precise will confirm the defense contention that one or more person other than Merritt was or were responsible for the murders.
Additionally, McGee said, the DNA linked to Merritt found within the McStay family vehicle on the steering wheel was likely placed there as a result of Merritt and Joseph McStay shaking hands at the conclusion of their meeting in Rancho Cucamonga on February 1, just before Joseph McStay got into the Isuzu to return to Fallbrook.
On Tuesday, Wednesday and Thursday, Imes and Rodriguez undertook to lay the foundation of the case against Merritt. The first witness called was Susan Blake, Joseph McStay’s mother.
Under questioning by Rodriguez, Blake was able to offer some marginal support to the rough timeline the prosecution has laid out with regard to the disappearance and murders, though in some regards her testimony seemed to lend assistance to Merritt in his defense.
Perhaps most pointedly in this regard, Blake said that it was Merritt who first alerted her to the disappearance of her son, and that she had communicated with him when he sojourned to Fallbrook to see if he could locate Joseph McStay.
Blake said that she had continued to hold out hope that the family was alive, even after the few days they were missing stretched into to a week, then weeks, then months and then years.
Her account of when she was informed in a phone call by her surviving son, Michael, that the remains of her son Joseph, daughter-in-law and two grandchildren had been located in two graves in the desert was an emotionally riveting one.
“My son called me,” she said, indicating that before he broke the news to her he had inquired to make sure she was safely ensconced, such that Blake indicated that she may have had to call him back. She said that Michael told her that Joseph and his family had been “found. They were dead, all of them. I fell to the ground. They found them in the desert. He [Michael] met with the sheriff or someone [and was told] that they were dead. I didn’t believe it, or I didn’t want to believe it. I was working in Valencia. My [business] partner got some of my crew. They drove me home. My best friend, Emily, saw something on the news and was already coming over pick me up and take me to her house in Agoura. We had to be at the sheriff’s department the next morning.”
Blake described her excruciation as she learned of Joseph’s death. Upon hearing what she was told, Blake said, “I collapsed and I just couldn’t believe him. It can’t be. I asked about the little guys and he said they were also gone. I literally fell to the floor. How can you take this in?”
Earlier in her testimony, Blake gave an account of having gone down to her son’s home in Fallbrook the day after Valentine’s Day to look into the matter after having been told of the family’s disappearance some days before and being summoned there by her son Michael. She said that when she arrived on February 15, 2010, Michael was there with some sheriff’s department deputies and workers who were there to do renovative and remodeling work on the four-bedroom two-story house, which Joseph had moved into with his family in November 2009 after previously living in San Clemente. When she came inside Blake saw that the house was in a disheveled state, she said, with food out and rotting at various locations in the kitchen, mildew growing in the coffee grounds in a coffee pot, garbage unemptied in the trash containers and a foul odor permeating the downstairs area as a result. At some point she was given permission by San Diego Sheriff’s Detective Troy DuGal to do some rudimentary cleaning, throw out the garbage and wash the dishes. She did not, Blake said, do any sweeping, vacuuming or dusting that would have destroyed or removed evidence. She said she saw no indication of blood in the home.
Blake also testified that in the weeks and months after the disappearance of her son and his family, she had sought to keep the Earth Inspired Products business going by coordinating with Merritt and Kavanaugh. There were outstanding orders for fountains that needed to be completed and provided to waiting customers, Blake testified, and she said she had been contacted by one of her son’s customers in Saudi Arabia who was inquiring about a fountain he had made a large deposit on. Blake said she wrote $4,410 in checks against her own account and gave them to Merritt so that he could purchase materials to complete some of the projects, including the one for the Saudi Arabian. Money available from her son Joseph’s account had been used not to shore up the business but to pay child support for Joseph’s son by a previous marriage, she testified.
“Did you ever meet with Dan Kavanaugh and the defendant with regard to the business?” Rodriquez asked.
Blake said she met twice with Merritt and Kavanaugh at Kavanaugh’s residence in San Diego to discuss efforts at preserving her son’s company. Merritt’s role was to build the fountains. Kavanaugh, whose expertise lay in the area of creating and maintaining a website to promote and sell the fountains, was to continue his efforts in that regard.
Blake described Kavanaugh as an “IT [information technology] guy. Dan was going to put something into my computer to keep the business going. Chase [i.e., Merritt] and I went down there together. We drove together the first time to San Diego, close to the downtown area.” She said Kavanaugh lived in an apartment in a highrise building and that the discussion extended to “how to keep the business together until we could find my son and his family. There was money needed. Chase needed money to complete the orders.”
Rodriguez asked, “At some point in the meeting did it get heated?”
“Just a little bit at that meeting,” Blake said. “They had had their words. He [Merritt] wanted money and Dan didn’t want to put out any money. He [Kavanaugh] said, “You’ve had enough. You were already given money to complete these jobs.’ It wasn’t yelling and screaming at that meeting.”
It was at a subsequent meeting that the relationship between Kavanaugh and Merritt broke into outright hostility, Blake said.
In the last of the two meetings, “They were definitely yelling and screaming, big time, at each other, arguing, and Dan just wasn’t going to budge,” she said. “There was a lot of cussing. Chase wanted to wring his neck. It didn’t feel right. It was very scary. I left. I walked out. I said, ‘If my son loses his business, so be it, I need to find my family’ and I left.”
Blake said she never saw any return on the money she put into the effort to keep her son’s business intact by making sure the outstanding projects were brought to fruition. Blake said Merritt told her “he would receive money from the Saudi job.”
“Did he ever tell you he got paid that money?”Rodriguez asked.
“He said he was paid out $17,000, for sure,” said Blake.
“Did you ask him to be reimbursed?” Rodriguez inquired.
“Yes, sometimes I asked,” responded Blake.
“Did you ever receive that money?” Rodriquez asked.
“I did not,” said Blake.
Blake said that at one point she and her family were attempting to conduct an informational campaign about her son’s family having gone missing to see if leads on where they were might be stirred up. She said she asked Merritt if he would assist with distributing “fliers. I asked him to participate in that, and he wouldn’t.”
Blake testified that Joseph had told her “Chase had a gambling problem. He had paid money here and there to get him out of some problems, but it was costing him a lot of money.”
In the early stages of the attention being focused on the family’s disappearance when she was told the family vehicle had been found at the border and the San Diego County Sheriff’s Department believed they might have crossed over into Mexico, Blake said she was highly skeptical. Asked why, she said, “because my son wouldn’t go to Mexico or take his children over the border.” Later, she said, “when [authorities] showed us a video of a family of four going across the border I knew it wasn’t them.”
When Rodriguez asked how she knew that even though the video only showed them from behind, Blake said, “How they walked. What they were wearing.”
On direct questioning from Supervising Deputy District Attorney Britt Imes, Michael McStay testified that he and his brother had a business together building fountains in the late 1990s but that business collapsed as the result of a lawsuit. He later launched his own business installing fire sprinkler systems, Michael McStay said, with a start-up stake provided to him by his brother.
Michael McStay testified he first became focused on the disappearance of his brother and his family after getting a phone call on February 9. 2010 from his father in Texas. He said his father indicated he had received an email from Kavanaugh saying that he was having difficulty reaching Joseph. He said he attempted to reach his brother by phone but was not successful. He testified he had been “concerned but not alarmed” at the situation because he thought that with Valentine’s Day approaching, Joseph and Summer might have taken their children to Big Bear “to have a little R & R [rest and recreation]” since he knew that Summer’s family had access to some property there.
On February 13, 2010 he testified, he drove out to Fallbrook to check on the situation at his brother’s house, rendezvousing there with Merritt. Michael McStay testified that was both his first meeting with Merritt and the first time he had been to his brother’s house. Neither he nor Merritt had a key to the house, he testified, but when they went into the backyard, Merritt determined that one of the windows, that into a bedroom converted into his brother’s home office, was open. He testified he removed the screen, and sliding the window open, managed to climb up, clear the sill and crawl into the room, holding the internal blinds aside as he did so without any assistance from Merritt, who remained some 20 feet away near the backyard’s still-locked sliding glass door into the house. After he managed his way into the house, Michael McStay said, he went into the interior of the house and opened the sliding glass door to let Merritt in, but that Merritt declined his invitation to come into the house.
Michael McStay said he had hoped to find a phone number in the house to contact Summer McStay’s mother but was not able to locate her actual phone number, but did find one he mistook for being that of his brother’s mother-in-law, only to realize upon dialing it that it was his mother’s phone number. After tending to his brother’s dogs, which were within an enclosure in the backyard, and leaving a written message on the front door to tell his brother to call because the family was concerned about not being able to reach him, Michael McStay said, he left, hoping that his brother and his family would return home by the end of the Valentine’s Day holiday, but mentally committing to make a report to the San Diego Sheriff’s Department by 9 a.m. on Monday February 15, 2010, if his brother had not returned by that point.
On the morning of February 15, while at a work site, he testified, he called the sheriff’s department and was told to come to the San Diego County Sheriff’s Department north substation immediately. He said he drove his work vehicle home, picked up his then-wife and their daughters and drove out to the sheriff’s department substation. There he met Deputy Mike Tingley, and they then drove in their separate vehicles out to his brother’s house. He again, he said, gained entrance to the residence by crawling through the open backyard window into his brother’s home office to allow Tingley in to search the house. It was during his interaction with Tingley, Michael McStay testified, that he learned that his brother’s Isuzu Trooper “had been towed on the 8th as being abandoned somewhere down by the border.” That struck him as completely out of sensible order, Michael McStay said, since he knew “Summer would never take the boys down to Mexico,” which she deemed to be too dangerous of a place.
Michael McStay further testified that at some point later that year, he had set up a business with a similar but slightly different name to that of Earth Inspired Products, which he based out of his home so that his brother’s business could be sustained until his return.
During cross-examination, Maline pressed the witness with regard to the reliability of his recall of the dates he had cited in his testimony under direct examination. Michael McStay acknowledged that the passage of time had rendered him unsure of the precise timeline. Maline queried as to whether February 13, 2010 was indeed the first time he had been to his brother’s house. Michael McStay indicated he believed it was. Maline then confronted him with a statement he had made to investigators indicating he had been there on either February 4 or February 6.
Maline, armed with the witness’s cell phone records, delved into his claim of having gotten a call on February 9 from his father alerting him to his brother’s disappearance. After some examination of the records, it was determined that the phone call from his father had actually been made and received and then responded to in the afternoon of February 10, with the first incoming call at 3:48 p.m. and contact between them occurring shortly after 4 p.m.
Given the prosecution’s timeline, which the defense maintains is of critical importance in supporting the prosecution’s narrative of Merritt’s guilt, Michael McStay’s concession that his recollection was a day off resounded around the courtroom as completely understandable given the passage of nearly nine years since the event. It was, nevertheless, considered to be of weighty significance by the defense camp.
Throughout their testimony, both Susan Blake and Michael McStay came across as strong and credible witnesses for the prosecution, whatever the precise implication of that testimony may manifest down the line. Though each at times grew somewhat emotional when speaking about their son and brother, neither showed any signs of a personal animus toward Merritt, with both referring to him on occasion as “Chase,” Merritt’s chosen diminutive of his Christian name. While the cross-examination of Susan Blake was somewhat less aggressive than the cross-examination of her son, neither one was provoked into showing any hostility toward the defense team. Michael McStay in particular, given the sometimes pointed questioning that was aimed, seemingly, at impugning his credibility or the accuracy of his recollection, maintained his equanimity throughout his responses.
Michael McStay’s testimony began on Tuesday, but had not concluded as the 5 o’clock hour approached. It resumed the next day but his appearance as a witness was bifurcated by the early Wednesday morning appearance of Jennifer Mitchley, who was subjected to direct examination and then cross examination as the first witness of the day. Mitchley, who lived just a few doors up and across the street from the McStay family on Avocado Vista Lane, testified to establish the validity of video footage taken by two external security cameras mounted at her residence facing the street. Those cameras captured moving images of a vehicle that appeared to pull into the driveway of the McStay residence at 7:47 p.m. on Feb. 4, 2010, which prosecutors allege was Merritt’s truck. The video was shown during Mitchley’s testimony, two days after it had originally been previewed during Monday’s opening arguments. It is the prosecution’s contention that the video captures Merritt arriving to carry out the killings at the McStay premises. On Monday, during his opening statement, McGee had made a graphic comparison of the image on the video and a to-scale image of Merritt’s truck in which the headlights and taillights of the two were shown to be out of size proportion and not in alignment with one another. Mitchley testified that investigators downloaded from her home computer a portion of the footage that her that video security system captured, but that due to a malfunction video from February 5 through February 14 were not available.
Early on Thursday, Michael McStay testified that with the permission of the San Diego County Sheriff’s Department, he had removed his brother’s computer from the Fallbrook house, intending to see if he might glean clues from it as to the whereabouts of his brother and his family, as well as get some photos with which to make a flyer. He was unable to access the computer to do so, however, he said because he did not have a power cord for the machine. The computer was later returned to his brother’s house.
During Michael McStay’s testimony, Imes elicited from him an indication that Merritt had told him there was a warrant for his arrest or that he otherwise had a criminal record. Outside the presence of the jury, this elicited a strong protest from Merritt’s defense team, who asserted to Judge Michael A. Smith that this was an unfair ploy being used to prejudice the jury against the defendant.
Indeed, Merritt does have multiple criminal convictions. None, however, are for violent crime.
No record of Merritt’s juvenile convictions, if any, was available to the Sentinel.
All of the crimes contained in Merritt’s available criminal jacket pertain to ones committed by him after he had reached the age of majority.
On February 4, 1977, he was convicted of burglary, for which he served a 66 day jail sentence.
On July 28, 1977, he was convicted of petty theft, for which he was given a 60 day sentence.
On October 24, 1978, he was convicted of criminal trespass, and given a 30 day sentence.
On November 18, 1978, he was convicted of burglary and sentenced to two years in state prison.
On April 16, 1985, he was convicted of receiving stolen property. He was sentenced to 365 days in county jail as a consequence.
On February 4, 1987, he was convicted of receiving stolen property, which netted him 16 months in state prison.
On May 21, 1988, he was convicted of receiving stolen property. He spent 14 days in prison as a result.
On June 17, 1988, he was convicted of a parole violation but was not incarcerated.
On April 2, 2001, he was convicted of burglary and grand theft. He was sentenced to 180 days in jail.
On at least 11 occasions, he failed to appear in court as scheduled. In seven of those cases, warrants were issued for his arrest. At the time of the McStay family murders, he was wanted on a probation violation warrant.
Testifying later on Thursday was Kathleen Conwell, a San Diego County animal control officer, who was dispatched from Carlsbad on February 14, 2010 to the McStay residence to look into a complaint regarding abandoned animals on the property. She said she noted that parked in the house’s driveway was a Dodge pickup truck, which upon her vehicle check request to the sheriff’s department was identified as belonging to Joseph McStay. There was no response to her knock at the front door, upon which she said there were notes to Joseph asking him to contact various people. She opened the gate to the backyard and could see two dogs, including a large Rottweiler, in the backyard. She posted a notice of abandoned animals on the property on both the front door and the gate, which she acknowledged were misdated January 31. She then went to an immediately adjacent home, she said, speaking with the resident there, identified as a Mrs. Anderson, who gave her Michael McStays’s contact information. She called him, but did not reach him immediately. She then contacted the sheriff’s department to have that agency do a welfare check on the property. Michael McStay returned her call at that point. He told her he had called the sheriff’s department already, and a welfare check had been done earlier that week. She testified she called the sheriff’s department and canceled the welfare check request she had just made.
Also testifying on Thursday was San Diego Sheriff’s Sergeant Michael Tingley, who in 2010 was a deputy. Tingley testified that earlier in February, Deputy Craig Hyer had done a check of the McStay residence after a request for one had come in. Tingley said did a check to see if Joseph McStay was in custody, which came up negative. Tingley then carried out a vehicle “registered to” check on Joseph McStay, and learned of the Isuzu Trooper. A further inquiry determined that the vehicle had been towed by Western Towing from the San Ysidro Shopping Mall and impounded. He called Western Towing and asked if there was anything in the vehicle and was informed there was a blanket and a couple of car seats in the back. He then placed a “verbal hold” on the Isuzu, he said, instructing Western Towing not to release it until a detective contacted the tow company with regard to it.
Tingley testified he then spoke by phone with the reporting party that had requested the welfare check, whom he identified as Michael McStay, on February 15. He said he arranged to meet Michael McStay at the substation and after doing so, they both drove out in separate vehicles to the McStay residence in Fallbrook at around 2 p.m. He said that Michael McStay informed him he had previously gained entrance to the home through a back window and he waited at the front of the house while Michael McStay went around to the back of the house and then a short time later opened the front door to let him in. He said he did a brief walk-through of the house and took “four or five photographs, which upon display turned out to number seven, including one of Joseph’s home office, an upstairs bedroom, a room in a mostly empty room which had a small desk in it, a bedroom, a bathroom with clothes on the counter, a closet with clothing in it and a photo taken at the top of the stairs pointing down to the ground level.
Those photos were displayed to the jury and the courtroom observers.
Tingley said he saw no obvious signs that a struggle had occurred in the home and no blood or any indication of tissue or dead bodies. He summoned two other officers and they together did what Tingley called “an area canvas,” which turned up nothing of note. After satisfying himself that there was nothing further to look into immediately, the officers were released from the scene to go write reports.
Though Tingley said that there was no sign of forced entry nor any obvious indication that anyone had been murdered there, he said “It appeared that whoever was there, in my mind, just got up and left. There were plates of food half-eaten. Usually people at least take the plates or dishes to the sink. It was a missing family of four, not something rooted on a daily basis. There was something not jibing. It just didn’t seem normal.”
For that reason, Tingley said, he called the homicide division to bring it’s investigative resources to bear on the matter.
By Mark Gutglueck