Merritt Defense Seeks To Commandeer Prosecution Witnesses To Its Cause

By Mark Gutglueck
In the eleventh week of the trial of Charles Merritt, who is charged with the February 2010 bludgeoning deaths of the four members of the McStay family, the defense concentrated its firepower on two witnesses who had previously testified on behalf of the prosecution.
To Merritt’s co-counsel, Raj Maline, fell the delicate task of questioning Susan Blake, the mother of the patriarch of the McStay family. Blake’s oldest son, Joseph McStay, had been in a business arrangement with the defendant for several years when Joseph and his family in early February of 2010 inexplicably disappeared. Within two weeks of the family last being seen, the San Diego Sheriff’s Department had been contacted, after which the matter was being investigated as a multiple missing persons case, which involved a scouring of the family’s Fallbrook home, from which the four occupants appeared to have abruptly departed. As that search began in earnest and then intensified, it involved widespread media attention and was for a time sidetracked by the consideration that the McStay family’s vehicle, a 1996 Isuzu Trooper, had been found, towed and impounded from a San Ysidro shopping mall parking lot within walking distance from the Mexican border on February 8, 2010. When volunteers assisting the investigation painstakingly combed through the footage from a video camera of the San Ysidro border crossing taken on February 8, 2010, they spotted what appeared to be a family of four that was perhaps the McStays – a man, woman and two children similar in age and the height of the McStay children – crossing on foot over into Baja California amid the constant stream of tens of thousands of pedestrians who walked into Mexico that day. The graininess of the video and the angle from which it was taken made it impossible to say definitively whether those were the McStays or not. The family never returned, and the matter remained a complete mystery until more than three-and-a-half years later. On Memorial Day 2013, a motorcyclist offroading in the desert area off the I-15 Freeway between Victorville and Oro Grande came upon the top part of the skull of the youngest McStay child, whose corpse had been unearthed by coyotes from the grave he shared with his father, whose long decayed remains were yet in place. Next to that grave was one in which the bodies of Joseph McStay’s wife and the couple’s oldest son were crudely interred.
A year later, In November 2014, Merritt was arrested and charged with the gruesome murders.
According to the prosecution’s theory of the case, Charles “Chase” Merritt, through fraud and embezzlement, was pilfering thousands of dollars from his business associate’s company, Earth Inspired Products. Through that company, Joseph was selling high end decorative water fixtures – artificial waterfalls and fountains – which Merritt designed and manufactured out of steel, glass, rock and other components based upon the specifications outlined by the company’s customers and passed along to Merritt by McStay. During the initial nine weeks of the trial, prosecutors presented their side of the case, including evidence which they believe indicates Merritt in early February 2010 gained unauthorized access to one of the QuickBooks accounts for Earth Inspired Products and issued himself a series of checks.
When he learned of what Merritt was up to, either shortly before or perhaps even on February 4, 2010, Joseph McStay traveled to Rancho Cucamonga, where Merritt was then living and confronted him about his larceny, threatening to alert authorities, prosecutors allege. After Joseph McStay returned to San Diego County, the prosecution’s theory continues, Merritt later that afternoon or early that evening drove to the McStay residence in Fallbrook where he killed Joseph McStay, his wife Summer and their two sons, four-year-old Gianni and three-year-old Joseph, Jr.
Merritt then secreted the bodies for two days, in the meantime again fraudulently accessing Joseph McStay’s QuickBooks account for Earth Inspired Products, the prosecution maintains, and on February 4, 2010, February 5, 2010 and again on February 8, 2010 issued himself checks made out to himself for at total of $23,855.  Merritt then transported them up into San Bernardino County’s High Desert, an area with which Merritt was familiar since having grown up in Hesperia and attended Apple Valley High School for three years in the 1970s. It was in that spot where on February 6, 2010 he buried all four along with the hammer he had used to bludgeon his victims in shallow graves he dug in a wash off a rarely-traveled dirt road, according to the prosecution. To confuse the situation, throw authorities off his track and delay a serious investigation into the matter, the prosecution maintains Merritt then drove the McStay family’s 1996 Isuzu Trooper, which yet contained the child seats for Gianni and Joseph, to San Ysidro, where he left the vehicle in a shopping center parking lot roughly a quarter of a mile from the Mexican border.
Susan Blake had been the first witness for the prosecution after opening statements were provided to the jury by both the prosecution and the defense. Her testimony had done much to orient the jury to basic background on the case in the early going, and to put forth elements consistent with the prosecution’s narrative. In January, Blake had confirmed the rough timelines in the prosecution’s case, and she had testified that in the months after her son’s disappearance she had attempted to keep Earth Inspired Products going in anticipation of her son’s eventual return by infusions of cash so Merritt could continue working on water feature projects that were on order at the time of her son’s disappearance. Her testimony in January was that she had not seen any return on the money she had provided to Merritt for the completion of the projects, which comported with the prosecution’s suggestions that Merritt was continuously taking money out of the company and that he was in a financially desperate state, which it maintained was a crucial component of the motive for his murder of his business partner.
In the defense’s direct examination of Blake, the intention was multi-fold. One was to demonstrate that Merritt’s use of the money he was fronted from the company or which he himself accessed consisted of legitimate disbursements to him that were used for purchasing materials necessary to complete the projects he was working on. A second goal was to show the jury that it was others who were looting the Earth Inspired Products accounts rather than Merritt. A third objective was to show that prior to investigators with law enforcement agencies settling upon Merritt as a suspect and the prosecution charging him as the perpetrator, Susan Blake had been far more favorably disposed toward Merritt. Armed with Blake’s statements to detectives during the early phases of the investigation, some of which contradicted the set of assertions the prosecution is now relying upon to make the case against Merritt, Maline set about showing that there were inconsistencies between those prior statements and what she had testified to during trial. By this, Maline was seeking to convince the jury that Blake had been manipulated by the prosecution team to adjust her recollections to assist it in convicting the defendant. Maline’s task required the utmost in tact, however, as being overly aggressive in the questioning of a mother who has lost her son, daughter-in-law and grandchildren in a horrific slaying carried with it the risk of alienating the jury against his client.
Maline endeavored to demonstrate that the suggestion made by the prosecution that Joseph McStay and Chase Merritt were on the outs in the days prior to the family’s disappearance was inaccurate.
“Towards the end of 2009, let’s say November-December, you had indicated that’s the approximate time that your son Joseph had moved into the Fallbrook home,” said Maline. “Is that accurate?”
“Correct,” Blake responded.
“When they moved in, the question was posed to you, about whether or not at that time Joseph was contemplating getting rid of Chase as a welder or somebody who would make waterfalls,” Maline said. “Do you remember that line of questioning?”
“I do,” Blake replied.
“And I think you indicated – I could be wrong and you can correct me if I’m wrong – I think you indicated he was looking for other welders,” Maline said. “Was that your testimony?”
“Correct, at the end of December,” said Blake.
“And that would be ’09, going into 2010,” Maline said. “Now, there was an interview by Detective [Joseph] Steers in August of 2014. Do you recall being interviewed by Detective Steers at that time?”
“Yes,” said Blake.
“He asked you the same question about whether [Joseph McStay was] going to get rid of Chase or Dan or what was the situation regarding Joseph’s business as it pertained to Dan and Chase,” Maline said. “And do you recall him asking about that?”
“Yes,” said Susan Blake.
“Do you recall what you told Detective Steers?” Maline asked.
“Yes,” Blake said.
“What did you tell him?” Maline asked.
“Joey wanted to get a warehouse closer down to where he lived in Fallbrook or Vista so he could be over it with more control, and that he asked me about welders since I’m in the building business, did I know of anyone, because he wanted to leave Chase out and Dan he was paying off, so he would have been completed also,” Blake said.
“So your understanding was he wanted to get rid of Dan, correct?” Maline asked.
“Yes,” said Blake.
“And what about Chase?” Maline asked. “Did he want to get rid of Chase and replace him with other welders? Is that your understanding?”
“Exactly,” Blake said.
“Or add welders?” Maline continued. “Keep Chase and just add additional welders?”
“Objection,” interjected Deputy District Attorney Melissa Rodriguez.
“He wanted to get rid of him,” said Susan Blake.
“Overruled,” said Judge Michael A. Smith. “The answer remains.”
“And do you recall what you told Detective Steers in that regard, whether he wanted to keep Chase or add to Chase?” Maline asked.
“Ask me that again,” said Susan Blake.
“Well, let me just ask you this: Do you recall telling Detective [Dan] Hanke at the time, you indicated, ‘Well, I also…” Maline started.
“Objection, hearsay, improper foundation,” interrupted Supervising Deputy District Attorney Britt Imes, “unless counsel is reading the transcript.”
“I’m going to have you take a look at the transcript, okay?” said Maline.
After Blake read a portion of the transcription of her questioning by Hanke, Maline resumed.
“Does that refresh your memory as to what you told Detective Hanke?” Maline asked.
“Yes,” said Blake.
“You told Detective Hanke Joseph wanted to get additional welders and add to Chase,” said Maline.
“No,” said Blake.
When Maline sought to have Blake read the transcript of her interview with Detective Hanke, Imes interjected, “Objection, lacks foundation for the accuracy of the transcript and hearsay.”
“Sustained,” said Judge Smith. “You can call the witness later for clarification, if you wish.”
“In that line of questioning, you told Detective Hanke that …” began Maline
“Objection, same,” said Imes.
“Overruled,” said Judge Smith.
“You told Detective Hanke that Joey wanted to be his own IT [information technology] guy, right?” asked Maline.
“That is correct,” said Blake.
“And Joseph thought at that point that Dan would be gone, correct?” Maline asked.
“Objection, leading and hearsay,” said Rodriguez.
“Overruled,” said Judge Smith.
“I’m not sure when Dan would have been gone,” said Blake.
“But that’s what you told Detective Henke,” said Maline.
“Yes,” said Blake.
“You also told Detective Henke he’d still have Chase and the welders and everybody in one spot,” said Maline
“Objection,” said Imes. “Hearsay, lacks foundation.”
“Overruled,” said Judge Smith.
“Yes,” said Blake.
“And what you meant by that was Joey’s vision of having one warehouse would include Chase and the other welders…”
“Objection, leading,” said Rodriguez.
“Overruled,” said Judge Smith.
“That’s what he talked about,” said Blake.
“Detective Henke asked you specifically if Joseph wanted Chase out,” said Maline, and then referenced a specific portion of the transcript of her 2014 interview with the detective. “So, Detective Hanke asked you specifically whether Joey wanted a new builder or welder, right?” asked Maline.
“Yes, he asked me about welders,” said Blake.
“And you indicated – you answered – ‘No, he didn’t say much about Chase…’” Maline began.
“Objection, leading, hearsay, lacks foundation,” said Imes.
“Overruled,” said Judge Smith.
“He wanted to get Dan out, right?” Maline said.
“Dan first, yes,” said Blake.
“Because Dan acted as if he could flip a switch and shut his whole business down,” said Maline.
“Objection, leading, hearsay,” said Rodriguez.
“Overruled,” said Judge Smith.
“’And Joey couldn’t get it back up, and this and that’,” Maline continued, quoting from the transcript of her statements to Detective Hanke regarding a threat Kavanaugh had made to her son. “’So his concern was to buy him out, and he’s told me this, Joey, and then start over…’”
“Objection,” Rodriguez interrupted. “Is there a question or is council just reading the transcript?”
“Sustained,” said Judge Smith.
“In other words, you knew about Dan’s threat to shut down the business,” said Maline.
“Objection,” Imes loudly asserted. “It calls for hearsay and speculation.”
“It calls for hearsay and speculation,” echoed Judge Smith in sustaining the objection.
“You knew that Joseph wanted to buy Dan out, right?” Maline asked. “You knew that.”
“Yes,” said Blake.
“And did you know the reason he wanted to buy Dan out?” Maline asked.
“He wanted to have an IT guy in his warehouse where he would have full control,” said Blake.
“Was there a specific reason he didn’t want Dan in the warehouse?” Maline pressed forward.
“Objection, calls for speculation,” said Imes.
“Sustained,” said Judge Smith.
“You know why Joseph didn’t want Dan with him,” said Maline “He wanted to buy him out…”
“I don’t know why,” said Susan Blake.
“Did you tell Detective Hanke that it was because Dan had threatened to shut the business down?” asked Maline.
“Objection,” said Rodriguez.” Improper, violates in limine.”
“Sustained,” said Judge Smith.
In limine is a legal term relating to issues that are deemed by a judge, prior to the start of presentation of testimony and evidence to the jury, to be off limits in the course of a trial.
Maline made inquiries about the status of the relationship between Joseph and Summer McStay, which brought objections from the prosecution team, which were sustained by Judge Smith.
During her testimony as a prosecution witness during the first week of the trial, Blake had maintained that after the disappearance of her son and family, there had been an effort involving herself, her son Michael, Merritt and Kavanaugh to keep Joseph’s company, Earth Inspired Products, up and running in anticipation of Joseph McStay’s eventual return. Maline returned to that subject on Monday of this week.
“When you testified previously, you were asked about some checks that you wrote to Chase,” said Maline. “Do you recall that?”
“Yes,” said Susan Blake.
“You wrote some checks from your personal account,” said Maline.
“Correct,” said Blake.
“And it totaled about $5,000, correct?” asked Maline.
“Correct,” said Blake.
“And you also testified that of that 5,000 [dollars] you had given to Chase that you did not see any reimbursement,” said Maline. “Is that correct?”
Blake confirmed that was so.
Maline reestablished, through a review of Blake’s previous testimony that a bank account for the business, Earth Inspired Products, had been set up with Chase Bank after her son’s disappearance. Blake said the account that Joseph McStay had for Earth Inspired Products had been frozen by Union Bank and she acknowledged opening another account for Earth Inspired Products with her son Michael on March 23, 2010. She said it had remained open for “maybe two-and-a-half months.”
“Were you a signer on that account?” Maline asked.
“Yes,” said Susan Blake.
“Did you receive money from that account?” Maline asked.
“Not that I know of,” said Blake.
In an effort to counter assertions that Merritt had exploited Earth Inspired Products financially after Joseph McStay’s disappearance, Maline endeavored to demonstrate that despite Merritt continuing to work on water features that had been ordered prior to Joseph’s disappearance and orders that came in thereafter, he sometimes was not getting paid or provided with money to pay for the materials he needed to complete the projects. Rather, Maline suggested to the jury by the questions he asked and answers he elicited, it was Joseph’s survivors that were profiting by the extension of Earth Inspired Products.
Blake said she could not remember if a $3,300 check written to Merritt had been returned without payment on it being made, apparently for non sufficient funds. Maline displayed on the courtroom’s overhead viewing monitors a photocopy of the check indicating it had been returned unpaid.
In succession then, Maline displayed an Earth Inspired Products check dated March 31, 2010 for $350 signed by Blake and made out to herself; a funds transfer receipt dated March 20, 2010 for $500 on the Earth Inspired Products account signed by Mike McStay; a funds transfer withdrawal document relating to the Earth Inspired Products account for $5,500 to Susan Blake bearing her signed initials; another funds withdrawal of $4,000 from the Earth Inspired Products account going to Susan Blake bearing her signed initials; a $2,500 check written against the Earth Inspired Products account dated April 6, 2010 she signed made out to herself and which she endorsed; another Earth Inspired Products check for $3,300 dated April 9, 2020 made out to Susan Blake and signed by Susan Blake; an Earth Inspired Products check dated April 12 for $3,000 signed by Susan Blake and made out to Dan Kavanaugh; a check on the Earth Inspired Products account dated April 27, 2010 for $1,500 to Susan Blake signed by Susan Blake; a check dated May 6, 2010 for $1,000 from the Earth Inspired Products account signed by Susan Blake to Susan Blake with “For Dan” in the memo line; a check on the Earth Inspired Products account from Susan Blake to Susan Blake for $1,800 with the memo line “To Dan” dated May 10, 2010; a check written against the Earth Inspired Products account for $500 to Heather Martin and signed by Susan Blake.
Maline also displayed on the courtroom’s visual monitor a portion of the Earth Inspired Products account’s bank statement showing ATM and debit card withdrawals, which included an April 5 payment of $180 to the Department of State’s passport office in Los Angeles, as well as five other card purchases primarily in the Los Angeles area, which Blake said were not hers.
Blake said the checks, transfers and withdrawals were all business related, and that she had provided money to Merritt and for shipping the projects he had completed to customers.
The check made out to Dan Kavanaugh, she said, was given to him for “the business.”
“What was he doing that he needed $3,000?” Maline asked her.
“I don’t know if it was a lead he gave us or if it was for IT,” Blake said. “I don’t know.”
“On this check, this is you giving him money, correct?” Maline asked with regard to one of the checks made out to herself but which carried the notation “For Dan” in the memo line.
“Correct,” Blake said.
“And you don’t recognize, you don’t remember what you gave him money for, correct?” Maline asked.
“No,” said Blake.
Blake acknowledged Kavanaugh “was not building” fountains.
The $500 check to Heather Martin, Joseph McStay’s ex-wife, was a child support payment for Jonah, Joseph’s oldest child, Blake testified.
Maline asked Blake about her testimony under cross examination as a prosecution witness in January.
“So when I asked you when you first testified whether or not you gave your bank records to the detectives, you told me you had given them your bank records,” said Maline. “Do you recall that?”
“My copies?” Blake asked.
“Your copies and you gave them your bank information, correct?” Maline asked.
“I gave them, yes,” said Blake.
“In fact, you had a lot of different bank accounts, right, especially at Wells Fargo?” Maline asked.
“Objection, relevance,” Rodriguez protest.
“Overruled,” said Judge Smith.
“Is that correct?” Maline asked.
“My accounts?” Blake said, sounding a bit unsure.
“Yes,” said Maline.
“I had one at Wells Fargo,” Blake said.
“You had one account at Wells Fargo,” Maline said, sounding skeptical about the number.
“Uh-huh,” Blake said.
“Alright, so did you give the detectives these bank records, permission about the Chase bank account?” Maline asked.
“Asked and answered,” Rodriguez object. “Foundation.”
“Overruled,” said Judge Smith.
“Yes, I gave all the information to the detectives,” Blake said.
“Do you know which detective you gave this permission to, on the Chase Bank?” Maline asked.
“I want to say DuGal,” said Blake, her reference being to San Diego County Sheriff’s Department Detective Troy Dugal.
“Now, when I asked you you more than one time, the last time that you testified, and even again before you started this morning if you’d ever taken money out of that account, your answer was that you had not,” said Maline. “Do you recall that?”
“Yes,” said Blake
“Seeing these checks, I totaled them, and the total of the checks comes to $20,450,” said Maline. “You saw that two of them were for Dan, so we can take 2,800 [dollars] from that, but the rest were made to you. And you don’t have an answer as to what you did with that money, correct?”
“Objection, argumentative,” said Rodriguez.
“She can answer,” Judge Smith said.
“That money would have gone back to Chase or everything towards the business,” Blake responded.
“Well, it’s funny you mention that, because in this statement there’s several checks made to Chase…” Maline started.
“Objection, argumentative,” said Supervising Deputy District Attorney Sean Daugherty.
“Sustained, argumentative,” ruled Judge Smith.
“There were several checks written to Chase to complete waterfall projects on this account,” Maline said.
“Objection, foundation,” asserted Rodriguez.
“Overruled,” said Judge Smith.
“You know that, right?” Maline asked.
“Yes,” Blake said.
“So, if you’re writing checks to Chase, you wouldn’t then cash a check and then give him cash, would you?” Maline asked.
“Objection, argumentative,” Supervising Deputy District Attorney Sean Daugherty interposed.
“Overruled,” said Judge Smith
“Yes, I have given him cash,” Blake said.
“Of the money of the money that we listed out, that I listed and showed you with those checks, did you give any of that money to your son, Michael?” Maline asked.
“No,” Blake said.
Deputy District Attorney Melissa Rodriguez on cross examination sought to offset the suggestion that Susan Blake had in any way profited by her son’s disappearance and death.
When you opened this account – this account was opened in March I believed you said, right?” Rodriguez asked.
“Yes,” said Blake.
“And that would have been after your son went missing, right?” Rodriguez asked.
“Correct,” Blake responded.
“To your knowledge was the other account your son had – Mr. McStay, Joe, Joey – the account he had at Union Bank was frozen, correct?” Rodriguez asked.
“Objection, foundation,” said James McGee, Merritt’s defense co-counsel.
“Overruled,” Judge Smith said. “It was covered on direct [examination].”
“Yes,” said Blake. “I was told it was frozen.”
Maline moved forward with an effort to demonstrate that Merritt was earnestly attempting to keep Earth Inspired Products going in the months following Joseph McStay’s disappearance.
“Did you tell customers, when they called for their waterfalls, that Chase was the one responsible for building the waterfalls?” Maline inquired.
“I don’t remember my conversations with any of the fountain people,” Blake said.
“You said you got calls from different people, though, right?” Maline asked.
“Correct,” Blake said.
“And when they called and said ,’Where’s my waterfall?’ you told them that Chase was the one responsible to build it, right?” Maline asked.
“Objection, assumes facts not in evidence that such a call was made,” Imes said.
“Overruled,” Judge Smith said.
“I would ask Chase, yes,” said Blake.
“I’m asking you what you told the customers,” said Maline.
“I don’t remember exactly what we told the customers,” Blake said. “We were trying to keep them calm.”
“You do recall that Chase went to Saudi Arabia and he finished the Saudi Arabian waterfall, correct?” Maline asked.
“I never received…” Blake began
“Objection, leading and foundation,” Deputy District Attorney Melissa Rodriguez interrupted.
“Overruled,” Judge Smith said.
“I never received confirmation on that,” said Blake. “I did tell Chase those funds needed to go back into the bank of Joey’s.”
“And you recall that when Chase was in Saudi Arabia that he sent you an email,” Maline said.
“Not from Saudi – I don’t know,” Blake said.
Maline then provided her with an email from Merritt in which he complained about her telling customers back in the United States that he was responsible for completing the projects they had on order while he was engaged in finishing the project he was involved with in Saudi Arabia, and that he had not been provided with the funding or materials needed to finish the projects they were inquiring about. After she read it, Blake said, “I don’t remember this email.”
Maline had her review a second email from Merritt sent from Saudi Arabia.
“I don’t remember seeing this,” Blake said.
“So you don’t recall these emails?” Maline said.
“No,” said Blake.
“There were some questions asked of you regarding the payment from Saudi Arabia,” said Maline, referencing Blake’s testimony in January. “Do you recall that?”
“Yes,” said Blake.
“And you indicated your understanding was Chase got the money,” said Maline. “I think you said it was like 16 or 17 thousand [dollars]?”
“Objection,” said Rodriguez. “Misstates testimony.”
“Overruled,” said Judge Smith. “She can answer if that is correct.”
“Is that what you testified to?” Maline asked.
“I don’t know what the exact amount was,” Blake said.
“But you indicated Chase had received that money and they asked if any of that money was ever given to you,” Maline said. “Do you recall that?”
“Objection,” Rodriguez said. “Asked and answered. This was covered in her first testimony, Your Honor.”
“Overruled,” Judge Smith said.
“I never knew that he completed the job or received the funds but that the funds should’ve went back, all of it, into Joey’s account,” Blake said.
“But do you recall Miss Rodriguez asking you when the money came in to Chase did you get any of that money?” Maline asked. “Do you recall her asking you that?”
“I never received any money, any funds,” Blake said.
“Do you know whether or not Dan Kavanaugh was receiving payments from various customers on behalf of Earth Inspired Products?” Maline asked.
“I have no idea what he received,” said Blake.
Kavanaugh, who was assisting McStay in bringing customers in to Earth Inspired Products via the internet, has been pushed to the margins of the case by the prosecution. The defense, however, has sought to portray Kavanaugh as a central figure in the matter, suggesting that he, and not Merritt, slaughtered the McStay family over his bitterness at Joseph McStay for acing him out of the Earth Inspired Products operation. The defense maintains that Merritt lacked any motive in killing McStay in that McStay’s marketing of the water features represented a major revenue stream for him. The defense assigns far greater motive to Kavanaugh insofar that at the time of Joseph McStay’s death he was on the brink of terminating his business relationship with Kavanaugh. After McStay’s death, according to the defense, Kavanaugh succeeded in manipulating Susan Blake and Michael McStay to allow him to take more than $100,000 out of Earth Inspired Products and then profit further by selling the business.
After a series of questions, Maline elicited from Blake that in July of 2010 she had taken possession of a round table that was in the dining area of the McStay home where prosecutors have suggested the murders may have occurred, and that she gave it to one of her friend’s sons in late 2010 or early 2011. She said that the table was since sold. After reviewing a police report, Blake confirmed that she had told the police she had seen no blood on the table.
Called by the defense to testify on Tuesday was another prosecution witness, San Bernardino County Sheriff’s Sergeant Joseph Steers, who in 2014, when he was yet a detective, had covered much of the ground in the department’s investigation into the homicides.
Under questioning by Merritt co-defense counsel James McGee, Steers said he went to the San Ysidro shopping mall from which the McStay family’s 1996 Isuzu Trooper was towed on the evening of February 8, 2010. One issue he took up while he was there was to review the pay phones in the parking lot. Upon getting there, Steers said, he found there was only one pay phone. He then ascertained the phone number so he could, he testified, “determine if that phone number turned up on the call detail records for some of the involved parties in this case.”
McGee asked him if he reviewed the phone records for the home and cell phone of Charles Merritt’s common law wife Catherine Jarvis, Joseph McStay’s cell phone, the McStay residence phone, Summer McStay’s cell phone and Charles Merritt’s cell phone. Steers indicated he had and had not found the pay phone number on any of those records.
McGee also asked Steers about an interview he had conducted with Susan Blake on August 14, 2014.
“During that interview, did you discuss with Miss Blake her receiving a call from Michael McStay?” McGee asked.
“At which time?” asked Steers.
“When he was at the home [of the McStay family] on February 14 of 2010,” said McGee.
“Yes,” said Steers.
“Did she tell you the substance of the phone call she had with Michael McStay?” McGee asked.
“Yes,” said Steers.
“Did she tell you that Michael said he was…” McGee started.
“Objection,” Imes said, interrupting the question. “Hearsay.”
“Overruled,” said Judge Smith.
“And did she tell you that Michael said he was…..
“Objection, leading,” Imes once more interrupted the question.
“Overruled,” Judge Smith said.
“Did she tell you that Michael said he was going to break a window to get in to check the residence?” McGee asked.
“I don’t remember if they said break a window or they were looking for a way to go through a window,” said Steers.
“Do you remember her telling you he said he was going to break a window and she told him ‘No. Look for an open window’? Does that sound right?” McGee pushed.
“Objection,” said Imes. “Asked and answered.”
“Overruled,” said Judge Smith.
“I don’t recall the exact phrasing,” said Steers. “I know their conversation was looking for a window to go through.”
McGee then had Steers review his report.
“What did Miss Blake tell you was the substance of the conversation with Michael McStay just on the entry through the window?” McGee asked. “That Michael said he would break a window to go in and check on the residence, and that Susan told him to look for an open window first and see if he could go in,” said Steers.
Steers acknowledged interviewing Michael McStay on September 20, 2014 and that he spoke to him about his access to Earth Inspired Products’ financial records. Steers testified that Michael McStay possessed financial information relating to the company but that Michael McStay had told Steers he did not have personal access to the company’s financial records.
When McGee attempted to pursue that matter further, prosecution objections were granted and the line of questioning was terminated.
McGee explored with Steers the taps that were placed upon Charles Merritt’s phone, which Steers referred to as “wire intercepts.” Steers said the tracking began in August 2014 and the electronic eavesdropping started in September 2014. He said the department terminated the electronic surveillance and tracking at the end of October 2014.
“You actually got two different types of wire intercept orders for my client, correct?” McGee asked. “One was for like a ping registry locator and one was for a wiretap where you could actually listen. Would that be accurate?”
“There’s two separate types of warrants,” said Steers. “Only one is a wire. The other is a ping.”
“And you got both warrants, correct?” McGee asked.
“Correct,” said Steers.
“Let’s talk about the first, which is a GPS ping,” said McGee. “What kid of information do you get from a wire or a search warrant like that?”
“Once you identify the cell phone number and have it authorized you get call detail records in live time showing phone calls that are being made from that phone number as well as GPS locations of the cell phone towers where that cell phone is interacting in order to complete the calls,” said Steers.
“You say you get like live call detail records,” said McGee. “So, if somebody makes a call, you don’t get to listen to it but you see he dialed this number and it’s this tower. Would that be accurate?”
“Correct,” said Steers. “You do not get content.”
“And what’s the purpose from an investigative standpoint to get that information?” McGee asked.
“You determine if the phone is still in use,” said Steers. “You determine the other phone numbers that person is contacting with, the general areas that person is at or associates themselves to.”
“Is it helpful for surveillance?” asked McGee.
“Yes,” said Steers.
“And was one of the reasons you obtained this was to help surveil Mr. Merritt?” McGee asked.
“Yes,” said Steers.
“Another thing it does is it gives you a ping to the phone at certain intervals, correct?” McGee asked.
“To a cell phone tower that is used in relation to that cell, yes,” said Steers.
“And so it happens every 15 to 18 minutes, I believe you said,” McGee said.
“Yes, sir,” said Steers.
“And the reason for that is if the person’s not using the phone it will still track where they are,” said McGee.
“If their phone is active, yes,” said Steers.
“If it’s receiving a signal you can get a ping to get a registration of where it is,” said McGee.
“Correct,” said Steers.
“And you did that in this case, correct, between late September and through October?” McGee asked.
“Correct,” said Steers, “and because the ping [monitoring] was prior to the wire [monitoring] that was actually August, the end of August until October.”
“Of 2014?” inquired Judge Smith.
“Of 2014, sir, yes,” said Steers.
“You originally received just an initial warrant for ping registry and you got a subsequent wiretap, which encompasses both, correct?” McGee asked.
“Correct,” said Steers.
“And in your report, you noted information when you lost contact with the phone,” said McGee.
“Correct,” said Steers.
“You deemed it to have lost contact when a ping was sent out and nothing was received back from the phone,” said McGee.
“Correct,” said Steers.
“And so it missed one ping, you are like, ‘Okay that’s a 15 to 18 minute interval we don’t know where he is,” said McGee. “Would that be a fair thing to say?”
“Correct,” said Steers.
“And if it was multiple pings, then you could put them together and say, ‘This is approximately how much time we don’t know where he is,’” McGee said.
“Correct,” said Steers.
“And you documented all of those,” McGee said.
“I believe I documented only the time periods he was on the wire, not on the ping, as well,” said Steers.
McGee then went through each of those times a ping did not register for Merritt’s cell phone while it was being monitored and Steers verified it.
Accordingly, Steers confirmed that on September 25, 2014 contact was lost for 18 minutes; on September 26 contact was lost twice, once for a duration of 19 minutes and another time for 18 minutes; on September 29 contact was lost for 19 minutes; on September 30 contact was lost twice, once for 37 minutes and another time for 18 minutes; late in the night of October 2 into the early morning of October 3 contact was lost for 54 minutes; for an extended period of 12 hours and 21 minutes contact was lost during the night of October 4 until the morning of October 5; later on October 5 contact was lost for an hour and 49 minutes and again for 36 minutes; on October 7 contact was lost for 17 minutes; on October 10 contact was lost for 36 minutes; on October 13 contact was lost for 19 minutes; on October 15 contact was lost for 18 minutes; on October 21 contact was lost for 18 minutes; on October 22 the phone lost tower contact for 37 minutes; on October 24 contact was lost for one hour and 30 minutes; and on October 27 contact was lost for 36 minutes.
McGee took the opportunity Steers’ report and the reference to those records presented to drive home the point that cell phones periodically lose contact with cell phone towers without the phones being powered down or being put in airplane mode. An element of the prosecution’s case against Merritt consists of periods of time on February 4, 2010 and again on February 6, 2010, when his phone was not in contact with any cell tower. The prosecution has suggested that those times correspond to when Merritt was killing the McStay family in their Fallbrook home and when he was in the High Desert two days later burying the bodies. Prosecutors maintain Merritt had shut his phone off at those crucial times to avoid his whereabouts being tracked through his cell phone pings.
McGee turned to the eavesdropping the department did on Merritt as he used his phone.
“The wires were obtained in September of 2014, correct?” McGee asked.
“Correct, sir,” said Steers.
“And you wanted to listen to his phone calls,” said McGee.
“Correct, sir,” said Steers.
“Now the disappearance of the McStays occurred basically in February 2010,” said McGee.
“Correct, sir,” said Steers.
“What’s the purpose of getting a wire four-and-a-half years later from an investigative standpoint?” McGee asked. “What were you hoping to hear?”
“As we continued our investigation,” said Steers, “and we would contact the different parties involved in the investigation, it was our hope that we would hear some conversation from Mr. Merritt with possible other involved parties, other suspects if there were any, or any person he was confiding into in reference to the case.”
“[Is it] common practice to get kind of pressure, put pressure on the subject that’s being monitored in the hope it encourages them to say something in a panicked state?” McGee asked. “Would that be fair to say?”
“It puts pressure not directly, but indirectly,” said Steers.
“You attempt to put on pressure, hoping they would talk on the phone,” said McGee.
“Indirectly, yes,” said Steers.
“So, that’s kind of the goal, correct?” asked McGee.
“Correct,” said Steers.
“So you will do these, and you will either contact the person, or contact people they know, so hopefully they start talking about the case,” said McGee.
“Correct,” said Steers.
“And that’s why when the wire tap was up you interviewed Catherine Jarvis?” McGee asked.
“Correct,” said Steers.
The question was in reference to Jarvis, Merritt’s common law wife and the mother of his three children. Last week, when Jarvis appeared as a defense witness, the prosecution during her cross examination played a recording of a phone tap of a call between her and Merritt on October 11, 2014. That call was made the day after homicide detectives had conducted an extensive interview with Jarvis, implying and directly stating throughout the interrogation that Merritt was the murderer of the McStay family, that she had in some way assisted him, and that she was lying to shield herself and him.
“And that’s when you interviewed Mr. Merritt,” McGee added.
“Correct,” Steers said.
“And you said you hoped he would contact other subjects involved in the investigation if there were any, correct?” McGee asked. “That’s one of the things you told us you can observe or obtain that information from these warrants and ping registries, right?”
“Correct,” said Steers.
“And so you followed him and you listened to his phone calls,” said McGee.
“Correct,” Steers said.
“Did you ever see him come into contact with an unknown subject who you considered a target of the investigation?” McGee asked.
“No,” said Steers.
“Did he ever talk to anybody, saying, you know, something about the investigation, something about the murders with an unknown party?” McGee asked.
“No,” Steers said.
In questioning Steers about the probable cause statement he wrote in 2014 to get a search warrant for the McStay family home that at that point was occupied by another couple, McGee dwelt on Steers making reference to there being dried paint in a paint tray when family members and San Diego County Sheriff’s investigators came into the home less than two weeks after the family went missing in 2010 as a fact that supported his supposition that there might be evidence in the home relating to the murders. Steers did not recall making the reference in writing the request for the warrant. When McGee sought to illustrate that Steers had either misunderstood what another witness, McStay family friend McGyver McCarber, had said about the paint tray or that he had misrepresented the facts in the affidavit to obtain the warrant, Imes objected and Judge Smith sustained the objection on relevancy grounds and Imes’ contention that McGee was being argumentative with the witness.
Under cross examination by Imes, Steers said he had measured the travel time from the McStay residence to the parking lot at the shopping mall in Ysidro where the McStay family vehicle was found on February 8, 2010, observing that he had made the drive in 50 minutes. He also told Imes he had traveled the distance between Merritt’s home in Rancho Cucamonga to the McStay’s Fallbrook home in approximately one hour.
On subsequent redirect examination by McGee, Steers said that he had made the drive from Fallbrook to San Ysidro on Tuesday October 14, 2014, leaving at 10:49 a.m. and arriving at 11:39 a.m.
“Not rush hour traffic,” McGee said.
“There was traffic, but it was not rush hour,” Steers said.
“And the distance you traveled was how far?” McGee asked.
“Approximate 60.6 miles,” Steers said.
“And how fast were you driving?” McGee asked.
“The speed limit,” Steers said.
“What did you put in the last line of your report?” McGee asked.
“75 miles per hour,” said Steers.
“And the trip you took from Rancho Cucamonga to the Fallbrook address,” said McGee. “I assume you started there that morning.”
“Yes,” said Steers.
“And what time did you leave Rancho Cucamonga?” McGee asked.
“Approximately 08:31 hours [8:31 a,m.],” Steers said.
“And what time did you arrive at the Avocado Vista Lane address?” McGee asked.
“Approximately 09:31 hours,” said Steers.
“What was the distance?” McGee asked.
“Approximately 68.3 miles,” Steers said.
“How fast were you traveling at that point?” McGee asked.
“Seventy-to-75 miles per hour,” said Steers. “It was moderate traffic.”
“Were you checking the drive time from Rancho [Cucamonga] to the Fallbrook house to see how long it would take for Mr. Merritt to drive down?” asked McGee.
“Objection, that would call for speculation,” Imes said.
“Overruled,” Judge Smith said.
“Yes,” Steers replied.
“And the date was important to see how long the drive would be on February 4, 2010, the date when there was last contact between Mr. Merritt and Mr. McStay that evening, correct?” McGee asked.
“Correct,” said Steers.
“So, why didn’t you drive from 5:30 [p.m.] to Rancho to see how long it took you at that time under the same conditions?” McGee asked.
“I don’t know,” said Steers.
“And you did this in October,” said McGee. “What was the weather like when you did this experiment?”
“I recall that it was clear,” Steers said.
McGee focused on the traveling times for two separate reasons. The travel time from Rancho Cucamonga to Fallbrook is significant because the prosecution’s theory is that Merritt drove from his home in Rancho Cucamonga to Fallbrook on February 4, 2010, where he killed the family, stashed the bodies and then returned to Rancho Cucamonga, having departed on that gruesome errand sometime during the 5 o’clock p.m. hour, at the height of rush hour. Thus, the prosecution’s timeline for these events is a tight one. That Steers chose to time his transit between Rancho Cucamonga and Fallbrook at an hour when the 15 Freeway is relatively free of traffic snarl-ups could represent, the defense suggested, a further instance of the prosecution using questionable evidence to propound its theory of Merritt’s guilt. The travel time from the McStay residence to San Ysidro is of importance because the prosecution has suggested that a trace amount of Merritt’s DNA detected on the Isuzu Trooper’s steering wheel and gearshift is an indication that it was Merritt who drove the McStay family vehicle to the border in an effort to mislead investigators and confuse the situation. Previously, however, McGee had elicited testimony from a sheriff’s department criminalist, Donald Jones, that the DNA of someone who had last driven a vehicle would be present in substantial quantity on that vehicle’s steering wheel, most likely in amounts equal to the regular driver of the vehicle, if that trip was of any substantial duration. The defense contends that the consideration that Joseph McStay is the major contributor of the DNA on the Isuzu’s steering wheel and that Merritt is deemed to be neither a major nor minor contributor but rather an even less substantial trace contributor is an indication that his DNA is present in the vehicle only because of transfer that came about because of his casual contact with Joseph McStay and his previous presence in the car as a passenger. That it would take 50 minutes in light traffic to reach San Ysidro from Fallbrook and likely somewhat longer than that during the time of day when the freeway system is more heavily traveled, together with Joseph McStay being the primary contributor of the DNA on the steering wheel, is an indication it was Joseph McStay and not Merritt who drove the Trooper to San Ysidro, the defense maintains.
In his cross examination of Steers, Imes sought to downplay the defense suggestion that because there was no evidence that Merritt had used the payphone at the San Ysidro shopping mall to summon Jarvis to retrieve him after he took the Isuzu Trooper on its one-way trip to the border, that meant Merritt had not driven the vehicle there. Imes implied there were other was for Merritt to find his way back to Fallbrook.
“Your observations at the San Ysidro lot besides the telephones were taxis, correct?” Imes asked Steers.
“Yes, sir,” said Steers.
“Taxis were plentiful, weren’t they?” Imes asked.
“Correct,” Steers said.
“Isn’t it true there is also public transportation… the metro or the trolley in San Diego, right?” Imes continued.
“Sure,” said Steers.
Imes elicited from Steers that Merritt, who was using AT&T as his cell phone service provider in 2010, was a Sprint Nextel customer in 2014.
In response to Imes’ request, Steers delineated multiple times in October 2014 when the ping connections to Merritt’s phone ended because he had shut his phone off while he was engaged at a casino, including October 4, October 5, October 10, twice on October 14, October 20, October 24 through October 25, and October 26.
The prosecution maintains that it was out of financial desperation that Merritt first stole from Joseph McStay and then murdered him after he was caught doing so. The prosecution has repeatedly throughout the trial portrayed Merritt’s gambling addiction as the morass in which his financial desperation fomented.
Merritt’s misrepresentations to those closest to him are an indication of his involvement in the murders, Imes suggested.
“When you have a wiretap, you monitor calls, isn’t that correct?” Imes asked.
“Yes, sir,” said Steers.
“You actually listen to them and transcribe them,” Imes said.
“Yes, sir,” replied Steers.
“That was actually done in this case, right?” Imes asked.
“Yes, sir,” said Steers.
“Isn’t it true on October 3, 2014 the defendant had a conversation with his sister Juanita after her and her boyfriend were contacted?” Imes asked.
“Yes, sir,” Steers said.
“And isn’t it true during that conversation on October 3, Juanita asked the defendant where the gravesites were located, and he provided a description?” Imes continued.
“Yes, sir,” said Steers.
“In contrast, on October 22, 2014, isn’t it true that he had a phone conversation with Catherine Jarvis?” Imes asked.
“Yes,” Steers said.
“And is it true that during that conversation that Catherine Jarvis asked where the gravesites were located?” Imes asked.
“Yes,” said Steers.
“And isn’t it true that the defendant indicated he only found out where the gravesites were from his sister Juanita?” Imes asked.
“Yes,” responded Steers.
“And in each of those phone calls isn’t it true that he was contacting witnesses after a time he believed they had been contacted or interviewed by law enforcement?” Imes asked.
“Yes,” said Steers.
“In fact, in one of those conversations with Catherine it was shortly after the conclusion of her interview he realized she was still in the presence of the deputy, correct?” asked Imes.
“Objection, vague as to time,” said McGee.
“Sustained,” said Judge Smith. “Calls for speculation and a conclusion.”
Imes came back at it. “On October 10, 2014,” he prefaced, “isn’t it true that the defendant was talking to Catherine Jarvis after her interview?”
“Yes,” said Steers.
“And something occurred during the course of that phone call to make the presence of law enforcement known to the caller,” said Imes.
“Yes,” Steers confirmed.
“What was it?” Imes asked.
“Catherine Jarvis paused and I don’t recall the time it was stated, but I know the other investigators were still with Catherine Jarvis because I was part of that investigation at the time of the call,” said Steers.
“And what happened to that call after that pause?” Imes asked.
“The defendant hung up the phone,” Steers said.
Also called to testify by the defense this week was Alex Quick, a special agent and supervisor with the California Department of Justice.
On February 19, 2010, while working as a member of California’s major crimes unit, he was present at the McStay family residence when San Diego County Sheriff’s Department investigators, led by Homicide Detective Troy Dugal, served a search warrant to advance the missing persons case relating to the McStay family. Quick’s presence had been requested by DuGal.
During that search, Quick’s talent with lockpicking was brought to bear when he was assigned to carry out the search of the room on the ground floor of the McStay residence at the far end of the hall behind the kitchen, which served as Joseph McStay’s home office for Earth Inspired Products. The large lower drawer on the right hand side of the desk in the room was locked, Quick testified, and he used the lockpicking tools he had to defeat the lock.
There was nothing inside the drawer, Quick said, other than “just empty file folders.”
McGee inquired if a box of checks for Earth Inspired Products was actually in the drawer.
“Are you sure you didn’t find those checks in the locked drawer?” McGee asked.
“The drawer was empty that I opened up,” said Quick.
McGee asked if the locking mechanism on the desk was such that the lock to one drawer controlled the locks to the other drawers. Quick indicated it was not.
McGee displayed on the courtroom’s overhead visual monitors a photo of the room taken after the search was underway showing a box sitting on a chair, followed by a closeup of the box and its contents, consisting of Earth Inspired Products checks.
“Can you tell me where those checks were found?” McGee asked.
“No,” said Quick.

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