By Mark Gutglueck
Over three days during the 15th week of the Charles Merritt murder trial, the defense pressed to further unravel that element of the state’s case pertaining to the defendant’s presence at the McStay family home on the night of the gruesome murders.
Charles “Chase” Merritt is charged with killing the McStay family – Joseph McStay, Sr., 40, his wife Summer, 43, and the couple’s two sons, Gianni, 4, and Joseph, Jr., 3 – an event that prosecutors say occurred in the evening of February 4, 2010.
Merritt, the prosecution maintains, driven by financial desperation that grew out of his unbridled gambling addiction and utter lack of fiscal discipline, engaged in a series of thefts from Earth Inspired Products, a company owned and operated by his business associate, Joseph McStay, Sr. Through that company, Joseph McStay was selling high end decorative water features – artificial waterfalls and fountains – which he and Merritt designed and which Merritt 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. The prosecution’s theory, presented during the initial nine weeks of the trial that began on January 7 of this year, is that Merritt fraudulently obtained access to the QuickBooks accounting system McStay had set up for the Earth Inspired Products enterprise and on February 1 and February 2, 2010 wrote himself $7,495 worth 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 the home he shared with his family in Fallbrook in north San Diego County, the prosecution’s theory continues, Merritt that evening drove to the McStay residence, where he slaughtered the McStays, using a three-pound sledgehammer to bash their skulls in.
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 a total of $23,855.
On February 6, 2010, Merritt transported the corpses up into San Bernardino County’s High Desert, an area with which Merritt was familiar from having grown up in Hesperia where he attended Apple Valley High School for three years in the 1970s, according to prosecutors. There, in a remote area between Victorville and Oro Grande he buried all four of his victims along with murder weapon in two six-foot long, two-foot wide and 18-inch deep 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.
In formulating its narrative of Merritt’s guilt, the prosecution wedded itself to the assertion that Merritt drove from his residence in Rancho Cucamonga to the McStay family’s residence in the late afternoon or early evening of February 4, 2010, where, inside that home he carried out the murders.
From the outset of the trial, which began with opening arguments on January 7, the defense has seized upon that assertion, controverting at every opportunity the prosecution’s contention that Merritt was at the McStay home the night of February 4, the strongest evidence for which is a grainy video from a neighbor’s security camera, which at 7:47 pm captured an image of a vehicle coming out of the McStay home’s driveway the district attorney’s office says was Merritt’s work truck. The defense maintains that assertion does not hold up under an exacting technical analysis of the video, and it has further excoriated the prosecution and several of its witnesses over the lack of any physical evidence to support the contention that the family was killed in the Fallbrook home.
Using two expert witnesses, both of whom boast impeccable credentials as former law enforcement officers or associated professionals themselves, including one who spent three decades with the agency that investigated the McStay homicides, the defense sought to reinforce with the jury the contention that the homicidal scenario at the core of case against Merritt is not only implausible but inconsistent with the evidence the prosecution itself has presented at trial.
To controvert the prosecution’s supposition that the McStay family was killed within the premises of their home, located at 3473 Avocado Vista Lane in Fallbrook, the defense summoned Randolph Beasley to the witness stand on Monday. The founder and owner of Seekfirst Forensic Consulting, Beasley was employed for 30 years as a forensic and crime scene specialist with the San Bernardino County Sheriff’s Department in its scientific investigations division, colloquially known as the department’s crime lab. Beasley processed hundreds of homicide cases in addition to other crimes and officer involved shootings, and his testimony was instrumental in obtaining convictions against hundreds of criminals. His skills included crime scene reconstruction, photography, latent fingerprint processing and comparisons, collection and preservation of physical evidence, shooting scene reconstruction and bloodstain pattern analysis. During the latter half of his career with the sheriff’s department, Beasley trained the technicians and specialists working for the department’s scientific investigations division and administered proficiency tests for the department’s crime scene personnel in the disciplines of crime scene processing and bloodstain pattern analysis. Since 2001, he has taught various courses and workshops related to crime scene analysis and forensic science on behalf of the International Association for Identification, the California Department of Justice, California Association of Criminalists, and for assorted law enforcement agencies.
More than a week after the family vanished, Joseph McStay’s brother, Michael, sojourned to Fallbrook on February 13, 2010 to rendezvous with Merritt and go to the McStay family home, into which the family had moved in November 2009. There, he and Merritt intended to see if the family, from whom they had not heard for nine days, was perchance there or otherwise see if they could locate something to indicate where they might be. After crawling through a closed but apparently unlatched window at the the rear of the house, Michael McStay encountered an eerily abandoned house from which it appeared the family had made an abrupt and perhaps unexpected exodus, which included having left the family’s dogs unattended in the backyard for days. Hopefully thinking the family might have departed for an impromptu and unannounced vacation for the Valentine’s Day weekend, Michael McStay elected to let two further days pass before alerting the authorities. On February 15, Michael McStay contacted the San Bernardino County Sheriff’s Department and again drove to Fallbrook, meeting with then-Deputy Michael Tingley. After again gaining access to the home, Michael McStay and Tingley went through the house room by room, while Tingley used his cell phone to take seven photos of the internal premises. Four days later, the family had yet to return. By that point, San Diego County Sheriff’s Department Homicide Detective Troy DuGal, who was investigating the matter ostensibly as a multiple missing persons case, had obtained a warrant and with a team of sheriff’s department investigators and evidence technicians, augmented by investigators from the State of California’s Department of Justice, searched the home, looking for clues as to what had happened, any evidence that might be useful, while making an extensive photographic documentation of the house.
Unremarked by the law enforcement professionals while they were at the scene, but noticed by by a member of the San Bernardino County investigative/prosecutorial team years later, indeed after Merritt had already been charged with the homicides, was that when a close-up spection was made of certain photos of the round wooden table in the McStay family dining/family room on the ground floor of the house near the kitchen, there were round splotches visible on its top surface, as well as on the table’s wooden legs. By the time Merritt’s trial began early this year, the contents of the McStay home, including its furnishings, were no longer available, which obviated the possibility of determining if the splotches visible in the photos were above or below the varnish. Also lost was the opportunity, if they were indeed on top of the table’s finish, to subject those splotches to an analysis to determine whether they were blood.
During the initial stages of the trial when the prosecution was presenting its side of the case, during the testimony of DuGal as well as the San Diego County Sheriff’s Department evidence technician who had gathered evidence from the McStay family home during the February 19, 2010 search, Denys Williams, enlarged photos of the table were displayed, during which questioning ensued that was meant to suggest to the jury that the red spots were blood spattered during Merritt’s homicidal frenzy.
This week, with Beasley on the witness stand as a defense witness, Merritt’s co-defense counsel, James McGee, asked him if he looked into how furniture is stained and then varnished.
“I did an investigation – I did an experiment on or actually checked into research of how furniture staining is done specific to how spatter effect becomes a part of a furniture finish like I noticed and observed on my wood dining room table,” Beasley said.
Beasley indicated, while side by side comparisons of the photo of the McStay family dining table were made with his household furniture, that splotches – which Beasley referred to as spatters – of stain are a common element of wood staining, and that the stain is not applied in a uniformly even coat. Beasley’s furniture appeared to be stained with a slightly lighter color than the McStay family’s table, which was coated with a reddish brown stain. Upon a close-up examination, the splotches on the McStay family table appeared to be similar in color as the stain, though of a darker shade.
Beasley said he determined that when the wooden circular family room/dining room table was viewed under “certain lighting conditions,” the splotches were apparent.
Beasley said in his analysis he “began with the possibility it could be blood,” but said that without the ability to actually carry out presumptive tests using reagents and then further more exacting tests he could not say with any certainty whether they were blood or not.
With a close focus on one of the photos of the table displayed on the courtroom’s overhead monitors, Beasley identified 33 reddish brown stains visible on a portion of the table top, seven on the left leg of the table and eight on the leg to the right. On the white floor below the table or next to it, Beasley pointed out, there were no reddish brown spatter stains visible. He further noted that there were no stains observed on any of the items on the table, which included a knit hat, a remote control, a dog leash and a calculator.
That the spatter did not extend beyond the wood of the table was an indication that it was likely not blood, Beasley said.
“I would expect to see [blood] spatter on the floor unless there was something obstructing that area of the floor or of course the floor had been cleaned up.”
Beasley said that “based on the consideration there was dirt and grime on the floor beneath and around the table, the floor had not been cleaned sufficiently to remove any stain pattern that would have been on the floor.”
Moreover, there was no visual evidence to suggest the chairs that were seen in photographs around the table had any splotches or spatters on them. Those chairs, which had cushions, were otherwise made of wood stained with a much lighter non-reddish brown pigment. No spatter was visibly evident on the cushions.
Beasley said the splotches were “more visible in photos where glare does not obscure it.” He used a photo of a wood chair he owns that was stained and varnished to demonstrate the phenomenon of stain spattering.
“On my own personal wood furniture, I have the same stains on a chair which again appear to be similar in size and appearance,” he said. Under differing lighting schemes, he said, the splotches or spatters grew more apparent or disappeared altogether. When an intense source of light reflected off the glossy varnish, Beasley said, the glare obscured the splotches. This was an indication, he said, that the dark red-brown spatter was below the varnish, and was therefore stain, not blood.
“Based on this glare, did you start to develop a hypothesis of what you were seeing on the chair?” McGee asked about Beasley’s observations of the spattering he had seen on his own furniture.
“The hypothesis was that when the chair was manufactured as a piece of wood furniture, as I have most often investigated furniture, a topcoat of polyurethane or some other type of substance is used to coat the surface,” Beasley said. “Therefore any stain antiquing-type spatter is underneath that topcoat of polyurethane or whatever and then the glare of light, whether it’s sunlight or any other light, the glare is going to reflect on the surface of the polyurethane of that topcoat and therefore, as observed not cause anything underneath that topcoat to be visualized.”
To test his hypothesis Breasley said he then exposed his chair to a substantial spatter of a liquid which replicated the color, viscosity and characteristics of blood when dried, spattering this ersatz blood onto his chair from a distance of approximately two feet, thereafter noting that under lighting conditions in which there was no glare the replicant blood spatters were visible on the surfaces of the chair as was wood stain spatter that was part of the wood stain finish. Thereafter he photographed the chair in lighting conditions that included glare, whereupon the photos showed that the fake blood spatters above the topcoat of the finish were yet visible in the glare but the stain spatters underneath the chair’s finish were not.
“So based on your review of the photographs from the McStay home, the experiment you did on your own furniture that had similar red stains, were you able to draw a conclusion as to the reddish brown stains that were seen on the table inside the Fallbrook house?” McGee asked.
“Yes,” said Beasley.
“And what is your conclusion and opinion?” McGee asked.
“My opinion after doing all of these experiments and making my observations is that it is not blood that’s on the surface, it’s not anything that’s on the surface, it’s underneath the topcoat, which is why it’s not visible,” Beasley said. “I did not see the red brown stains in the reflection through the glare.”
During his direct examination of Beasley, McGee dealt with other issues relating to whether the murders had occurred inside the Fallbrook house.
“You earlier said you saw no signs of damage to the house with the doors, walls, windows, no sign of blood, there was no sign of blood spatter. Do you have an opinion of whether or not any violent acts occurred within that house?” McGee asked.
“No violent acts that would have caused bloodshed in a way that would be consistent with blunt force trauma,” responded Beasley. “There could be other violent acts, but just not that would cause bloodshed.”
“There are different places of the walls that are bare of pictures or drapes or anything,” said McGee. “There was paint in the house. What if someone just painted over blood spatter? Is that still detectable?”
“Potentially it is, yes,” said Beasley.
“And how’s that?” asked McGee.
”Using an alternate light source, there is a potential of blood, if there’s enough blood on the surface, and it’s painted over, the alternate light source on its own could have that blood absorb the light so it could be visible, potentially, underneath the paint itself,” Beasley said. “You can see that shadowing through the paint.”
McGee asked Beasley, “In reviewing the pictures that were taken on February 19 , did you highlight some for what you felt they do not show?”
Beasley said he had, and thereafter McGee displayed on the courtroom’s overhead monitors 20 photos taken during the San Diego Sheriff’s Department serving of the search warrant for the McStay home on February 19, 2010 along with the seven photos taken by Deputy Tingley on February 15.
Those photos were taken at various spots around the house, including Joseph McStay’s home office, the bedrooms, a large walk in closet, a bathroom, the family room/dining room area as viewed from a position on the stairs, the dining room, the home’s entryway, the living room, the kitchen and the garage.
“Did you notice some things you were not seeing in these photographs?” McGee asked. “Yes,” responded Beasley.
“Please describe to the jury some things you are not seeing you would look for,” McGee said.
“Blood evidence, and specific to really any kind of blood pattern, wipe stains, swipe stains, impact patterns, along with drip stains and a drip trail to indicate that either someone was bleeding at a scene or someone had suffered blunt force trauma within the house somewhere,” Beasley said. “I did not observe any of that type of blood.”
“Did you see any damage to the walls?” McGee asked.
“No,” said Beasley.
“The door?” McGee asked.
“No,” said Beasley.
The windows?” McGee asked.
“No,” said Beasley.
“Flooring?” McGee asked
“No,” said Beasley.
“Anything on the surfaces that were consistent in your experience with major blunt force trauma?” McGee asked.
“No,” Beasley said.
“Anything in that house stand out as a clear indication of extensive violence occurring in that home?” McGee asked.
“No,” Beasley said.
With three photos of the garage in which a multitude of items were stored and stacked displayed on the courtroom’s monitors, McGee asked, “Did you see any kind of swipe pattern or transfer stain or drip trail inside the garage?”
“I did not,” Beasley said.
“If an individual is struck in the skull and the skull injuries would cause lacerations and blood loss, and someone is struck in the head again, with the same item, the same object, would blood spatter result from the secondary or consecutive strike?” McGee asked.
“Yes,” said Beasley. “The first blow that causes a laceration would then result in blood on that person’s head. The second, third, fourth and fifth impacts, I would expect to see impact patterns. As long as it’s close enough to a wall, it will be [on] the wall, or furniture. If it’s in the middle of the room, it may only be on the floor, but I would expect it to go several feet based on the object used and the severity of the laceration.”
“Would you also expect cast-off spatter?” McGee asked, referencing blood from the weapon that would be flung when the weapon was wielded for follow-up strikes.
“Cast-off is possible,” said Beasley. So, I would certainly expect it, but it doesn’t always occur.”
And where would you generally look for cast-off blood evidence?” McGee asked.
“I would look for cast-off on items of furniture, on the walls and even on the ceiling, because I have seen cast-off stains on all of those surfaces,” Beasley said.
“And if an individual suffered the injuries as I described, if they were moved after suffering those injuries, would you expect to see things like the drip trail?” McGee asked.
“Yes, I would.
“And if a body were bleeding extensively from head wounds, and they’re placed inside a vehicle, would you expect to see blood transfer inside the vehicle?” McGee asked.
“Yes, I would,” said Beasley
In the case of a bludgeoning attack of the like that was inflicted on the McStay family victims, Beasley said he would have expected blood spatter on the perpetrator “from head to toe” and most prominently on the assailant at a spot “closest to the victim’s chest and stomach area.” Beasley said someone wielding a sledgehammer to beat someone else about the head would likely also have blood on his “sleeves, pants, shoes.” He said the murderer’s feet or shoes would come into contact with blood that would be tracked around and would very likely end up inside any vehicle the perpetrator then got into. “I would expect to find blood on the door handle, the floor board, the seat, gearshift, steering wheel,” he said. “Blood can be transferred to anywhere that is touched in the operation of that motor vehicle.”
Beasley had prepared a video to show the fashion in which blood spatter occurs, lining the walls of a ten foot-by-ten-foot room with butcher paper and then affixing on two-by-four pedestals at varying heights sponges soaked with red colored liquid to replicate the appearance of blood. He then struck the sponges with a three-pound sledgehammer to illustrate how far and it what direction the spatter would project. Judge Michael A. Smith denied the defense’s motion to play the video for the jury. Judge Smith nonetheless ruled that Beasley could explain different types of blood patterns that occur and, based on his training, experience and expertise along with the photographs of, or descriptions of the scene at, the McStay family home, offer an opinion if the types of blunt force known to have been administered to the McStay family is consistent with the injuries the victims suffered having occurred at the house. Judge Smith also allowed Beasley to make a series of physical demonstrations of examples of contact, cast-off, wipe, swipe, drip and impact spatter within the courtroom in front of the jury box.
Under cross examination by Supervising Deputy District Attorney Sean Daugherty, Beasley testified he was charging $175 per hour for his work and $87.50 per hour for his travel time, and had billed $22,400 for his work for 128 hours between 2015 and October 2018, and had yet to bill for the approximately 157 hours of work done on the case since October 2018. Since retiring from the sheriff’s department, Beasley testified, he had not renewed his licensing as a crime scene analyst and a blood stain examiner.
Daugherty, picking up on the drift of McGee’s questioning of Beasley with regard to what he did not see in the photographs of the McStay home in the near aftermath of the family’s disappearance, explored the degree to which he viewed or did not view the presence of towels, bathmats and robes in the home to be significant, given that fabric around Joseph McStay in the grave was similar to a towel, bathmat or robe.
The presence of that material in the grave was an indication that the family was killed in the home, Daugherty endeavored to suggest.
Daugherty tested whether Beasley recollected previous expert testimony during the trial provided by Diana Wright, a forensic examiner and chemist with the FBI’s laboratory in Quantico, Virginia as to whether paint found on a bra presumed to be that of Summer McStay in her grave matched paint on the sledgehammer also found in the grave which is presumed to be the murder weapon. Beasley responded that he could not remember.
“The fact that the paint on the hammer is consistent with the paint on the bra, you don’t remember that as you sit here today,” Daugherty said.
“I don’t remember what the expert’s opinion is, since it may be consistent with and maybe it’s included as something that could be the same,” Beasley said. “I remember hearing her testimony but I don’t know what her opinion was. I’m sure it’s in her report.”
“You don’t remember, right?” Daugherty said.
“Correct,” Beasley said.
“Because it’s not consistent with nothing happening in the home,” Daugherty said.
“Objection, argumentative,” protested McGee.
“Sustained,” said Judge Smith.
“That could be consistent with something happening in the home,” Daugherty persisted.
“Objection, argumentative and speculation,” McGee said.
“Overruled,” Judge Smith said. “He can answer if he has an opinion.”
“So, specifically something happening in the home related to someone with paint on their hands making contact with the sledgehammer?” Beasley responded, the inflection of his voice at the end of the sentence transitioning the statement into a question.
“Well, the fact that the same paint on the bra matches the paint on the hammer,” Daugherty said.
“Objection, misstates the testimony,” McGee said.
“Sustained,” Judge Smith said.
“That’s what the FBI person testified to, Your Honor,” Daugherty said.
“She did not,” McGee said sharply. “She never said it was a match and I move to strike counsel’s question.”
“Objection is sustained,” Judge Smith said.
“My apologies,” Daugherty said. “So, let’s say the paint on the hammer and the paint on the bra are consistent with each other, and we know the McStay family was painting at the time of their murder. That would all be consistent with something happening in the house potentially, right?”
“Potentially, yes,” Beasley said. “Specifically, it’s just something with paint on it made contact with the sledgehammer. It could have been anything with paint on it.”
“Is the drip pattern consistent with her standing when the paint was applied to the bra?” Daugherty asked.
“Objection,” said McGee. “Assumes facts not in evidence, that she was wearing it.”
“Overruled,” said Judge Smith. “He can answer if he has an opinion.”
“I would not want to make an opinion,” Beasley said. “To me it would not be correct unless I looked at the bra to confirm the flow pattern of paint as it relates to location on the bra.”
“But you looked at the bra in person,” said Daugherty.
“I did,” Beasley said
“Objection as argumentative,” interjected McGee.
“Overruled,” Judge Smith said.
“So, why didn’t you make that determination?” Daugherty asked.
“Why didn’t I?” Beasley said.
“Yeah,” said Daugherty.
“I wasn’t requested to do so,” Beasley said.
To Daugherty’s questions, Beasley acknowledged that a mass of material extracted from one of the graves appeared to have blue painter’s tape intertwined in it and that he had noted in photographs of the McStay home that there was blue painter’s tape there. He acknowledged as well that a paintbrush and a child’s robe depicted in photographs entered as evidence in the case appeared to be consistent with items found in the graves. To Daugherty’s questions, Beasley acknowledged that all of those items were things that could have been missing from the McStay home.
“So, when you were asked, when you were looking for something that’s missing, you didn’t mention those items we just went through, right?” Daugherty asked.
“Objection, misstates his testimony and also goes beyond the scope,” McGee said.
“Objection sustained as misstating his testimony,” Judge Smith said.
“Well, you looked at photographs of the McStay residence, right?” Daugherty asked.
“Yes,” said Beasley.
“And you saw items in person and you saw items from the grave in this case, right?” Daugherty asked.
“Yes,” Beasley acknowledged.
“You didn’t note the items in the grave that are consistent with what would have been in the McStay home,” Daugherty said.
“Objection, argumentative,” McGee said.
“Overruled,” Judge Smith said.
“Did you?” Daugherty prompted the witness.
“I did not mention that in my testimony, no,” Beasley said.
“You didn’t mention it in your report, either,” Daugherty said.
“Correct,” said Beasley.
“So we’re clear,” Daugherty said, “your final conclusion is there’s no evidence of violence that would cause bloodshed in the home.”
“Correct,” Beasley said.
“You are aware that most of – all of – the photos you relied upon were taken February 19 ,” Daugherty said.
“I believe some were taken February 15 from Deputy Tingley, I believe,” Beasley said.
“That’s correct,” Duagherty said. “In any event, some were on the 15th and some were on the 19th.”
“Correct,” Beasley said.
“And the ones taken February 19, it’s fair to say there are more of them, right?” Daugherty asked.
“Yes,” Beasley said.
“And those were taken after the house had been straightened up, correct? said Daugherty.
“Correct,” Beasley said.
“Your conclusion assumes that the person who did this or person who did this along with someone else, or someone else didn’t have adequate opportunity to clean up, right?” Daugherty asked.
“No,” Beasley said. “I’m not assuming that. I’m just making the observation that it did not appear that there was blood evidence in the house, and it certainly potentially could have been cleaned up, yes.”
“How much time would be needed to clean up?” Daugherty asked.
“To be more specific, to clean up exactly what?” Beasley responded. “having three people, let’s say…”
“Well,” Daugherty said. “You tell me. There’s no evidence of bloodshed. Let’s assume…”
“In my opinion,” Beasley resumed. “If three people or four were bludgeoned to death inside the McStay home, there would be blood spatter everywhere within whatever room they were killed in. It would be really difficult – of course, nothing’s impossible – but really difficult to clean up all of the blood spatter, not just what is spattered on walls and furniture, but once spattered, the pooling of blood that’s also either on the floor or carpet. It would be a massive clean-up endeavor if that occurred as you asked me.”
Daugherty sought to suggest that the children might have been cleaned up in the bathtub of the upstairs bedroom, given that there were items of children’s clothing on the floor in the master bathroom.
Daugherty observed that there was a variance in the shade or darkness in some of what Beasley had opined were the spatter spots on the table, in what seemed to be an effort to suggest that some of the spots might be blood and others furniture stain spatter.
“Some are darker than others, which would also be consistent with more volume of liquid within the stain,” Beasley said. “Whatever the substance is, if it’s thicker, then it will be darker.”
“Is it your testimony, based on all you reviewed, that nothing happened in that house that night or early morning?” Daugherty asked.
“No,” Beasley said. “My testimony is there’s no evidence of a violent blunt force trauma event in the house that would have caused blood being spattered,” Beasley said.
“Assuming there wasn’t sufficient time to clean up,” Daugherty said.
“Yes,” Beasley said. “Is there a potential someone could have cleaned up all of that? The answer is ‘Yes, there’s a potential.’ It would be a major, major project is all I can say.”
“You can’t say nothing happened in the house, right?” Daugherty asked.
“Nothing happened as far as what, exactly?” Beasley came back.
“Well, anything,” said Daugherty. “Can you say with any degree of certainty that nothing happened in the house?”
“What is the definition of ‘nothing?’” asked Beasley. “Is it blunt force trauma?”
“Sure,” Daugherty said. “Blunt force trauma.”
“Okay,” Beasley said. “It could have happened in the house, but there is no evidence, in my opinion, to support that it did happen in the house, the murders, itself.”
Under redirect examination, Beasley was asked by McGee, “You were asked multiple times – you didn’t do this, you didn’t do that, correct?”
“Correct,” Beasley said.
“Are you on the investigative team for the sheriff’s department?” McGee asked.
“No,” responded Beasley.
“For San Diego [County] or San Bernardino [County]?” McGee asked.
“No,” Beasley said.
“They didn’t do a lot of stuff either, did they?” McGee asked.
“Correct,” Beasley said.
“Did the house appear to [have been] cleaned after four bodies were murdered as described by Dr. Changsri?” McGee asked.
Dr. Chanikarn Changsri is the pathologist with the San Bernardino County Coroner’s Office who performed the autopsies on the McStay family corpses after they were recovered in 2013. She testified earlier in the trial.
“Objection, calls for speculation, assumes facts not in evidence,” said Supervising Deputy District Attorney Britt Imes.
“Overruled,” Judge Smith said.
“There was no evidence of that type of a clean-up that I observed,” Beasley said.
“And why do you say that?” McGee said
“Because the clean-up that would be needed, in my opinion, to remove that type of blood spatter and pooling of blood would have been more thorough, so that there would not have been the dirt and dust or whatever other debris I observed on the photographs taken at the McStay home.”
Also testifying this week was Gregg Stutchman, a forensic analyst specializing in the examination, enhancement and clarification of recorded audio and video evidence. At one time a police officer with the Calistoga Police Department who subsequently served as a captain with the Pacific Union College Police Department, Stutchman has cultivated an expertise in the evaluation of images and photographic evidence, including photometric analysis. He is the owner of Napa-based Stutchman Forensic Laboratory.
The primary reason the defense retained Stutchman was to contest one of the basic elements of the prosecution’s case, consisting of the postulation that Merritt was at the McStay residence the evening of February 4, 2010. The strongest evidence in support of that proposition is that at at 7:47 pm that evening, two video cameras that were part of the home security system Jennifer Mitchley had installed at her home located across the street and a door-and-a-half down from the McStay residence caught a fleeting and partial electronic glimpse of a vehicle which the prosecution maintains was that belonging to Charles Merritt at that time. In actuality, the prosecution’s experts stopped short of stating unequivocally that the image on the Mitchley video matches Merritt’s truck, stating rather that they could not rule out such a consistency. The first of those, Dr. Leonid Rudin, one of the world’s leading experts in the field of photogrametry, initially basing his analysis on the camera installed beneath the eave above the Mitchley home’s front porch, stated in the data he provided and his testimony during an evidentiary hearing outside the presence of the jury that he could not exclude Merritt’s 2000 Chevrolet truck which had been augmented with cargo boxes on its bed as a match for the vehicle captured on the Mitchley video. Prior to actually testifying before the jury, however, Rudin was provided by the defense with images taken from the video camera located on Mitchley’s side yard, which provided an angle on the back portion of the vehicle as it drove off that the porch video did not provide. At that point, Rudin, who had been paid nearly $20,000 for his work on behalf of the prosecution, indicated he would have to make a finding excluding the vehicle on the Mitchley video system as a match to Merritt’s truck. The prosecution then made a command decision and elected not to call Rudin as a witness.
Instead, prosecutors enlisted Eugenio Liscio, a professional forensic visualization specialist, three dimensional analyst, professor at the University of Toronto and the president of the International Association of Forensic and Security Metrology, to replace Rudin. Utilizing just the porch video to inform his report, Liscio generated findings and then testified to the effect that based on that evidence, he could not rule Merritt’s truck out as matching the vehicle depicted on the Mitchley video.
In doing so, Liscio stopped short of saying images of the vehicle seen in stills from the video positively matched three dimensional images San Bernardino County Sheriff’s Department Scientific Analysis Division Technician Michael Russ had captured of Merritt’s truck. Nevertheless, Liscio spoke with authority in saying that the vehicle had no characteristics which would have forced him to a finding that they were not photos of the same object. In reaching that conclusion, Liscio offered his opinion/interpretation that what appeared to be a light on the passenger side and toward the back of the vehicle seen on the Mitchley video, was not necessarily a light but rather could be the glare of ambient light in the neighborhood such as a streetlight or porch light reflecting off the handle\latch of the truck’s rear storage box/compartment. Merritt’s truck has no such feature. Liscio supported his assertion by noting that as the car begins moving forward the light dims and then disappears altogether for two frames of the video before reappearing and gradually brightening. This was a possible indication that convinced him, Liscio said, the bright spot was not an actual light but something mirroring light.
Under cross examination by McGee, Liscio stood by his conclusion that the cargo box handle/latch could be what was seen on the video and he defended his decision not to include data extracted from the side yard video as a legitimate one because there was nothing important in the side yard video that would aid in his analysis.
McGee was originally slated to question Stutchman. On Tuesday afternoon, however, McGee suddenly took sick and was absent from the courtroom. Stutchman’s direct examination was handled by defense co-counsel Raj Maline.
Stutchman testified that he had looked at the video the sheriff’s department had made of Merritt’s truck and then compared features of the truck captured in that video’s still frames with the features of the vehicle images he had isolated from the Mitchley video “to see what characteristics were in common and what were not.”
Stutchman said he had reviewed a video of Liscio’s testimony and analyzed Liscio’s report.
“What were some of the things you encountered with the Mitchley video in doing your job?” Maline asked.
“The video is very dark; you couldn’t see details of the side of the actual body,” Stutchman said. “There was a beam [roof beam above the Mitchley home porch] that was in the way and cut off anything that was above the hood level. You could see some headlights and some shadows when the brake lights were applied.”
“So it was grainy and poor quality?” Maline asked.
“Yes,” Stutchman said, adding that there was “very limited information available” from the Mitchley video.
In making his analysis, Stutchman was provided with a nighttime video prepared by the San Bernardino County Sheriff’s Department in 2014 that captured Merritt’s truck driving by with its lights on, providing a product that was clearer and had greater resolution than the Mitchley video.
Stutchman said the front of the vehicle shown in the sheriff’s department video could be distinguished in certain respects from the front of the vehicle seen in the video captured by the camera mounted above the porch of the Mitchley home.
Stutchman noted that the headlights of Merritt’s vehicle were reflected on the bumper and that in between the headlights and the bumper reflection what throughout the trial have been referred to variously as parking lights or running lights or driving lights were visible and clearly distinguishable from the headlights. He noted that the “driving lights are wider than the headlights and it goes around to the side.”
“In this video, we can clearly see the running lights clearly separated from the headlights,” said Maline. “Is that correct?”
“We can,” Stutchman said.
“The running lights are clearly visible and distinct from the headlights, is that correct?” Maline asked.
“True,” said Stutchman. “You see those headlights and above the reflection [of the headlights on the bumper] is the dark spot, but there is no lights present as you would see in the parking lights or turn signals in the video we just watched.”
The video Stutchman referenced was that one shot by Russ in 2014.
Stutchman continued, “In the truck owned by Mr. Merritt you can clearly see the very prominent driving lights, signal lights beneath the headlights and above the reflection. On the truck that drives through the video there is no corresponding light there. In fact there’s a dark spot between the bottom of the headlights and the top of the reflection.”
“But that Mitchley video has poor quality,” Maline said.
Stutchman acknowledged the Mitchley video was of poor quality but that objects on it could still be discerned.
“So even with this poor quality, we should still see that running light extending out and being a separate light piece,” Maline said.
“Yes,” Stutchman said.
“Would that be a factor for exclusion?” Maline asked.
“It would be,” Stutchman said.
“So based just on that, would you be able to exclude Mr. Merritt’s truck?” Maline asked.
“That would certainly be an exclusion factor,” Stutchman said.
Stutchman next turned his attention to a marker light at the back of and near the top of the truck’s rearmost cargo box. He said that because the Mitchley video’s visual field is blocked by the porch beam, that tail light would not show up on the video if it were Merritt’s truck.
Stutchman said he had made measurements of the height – that is, the distance from the ground – of the vehicle’s various lights.
“The measurements of how high the headlights are and this side light are, those are important factors?” Maline asked.
“Yes,” Stutchman responded.
“And did you note the measurements of this side light on Mr. Merritt’s vehicle?” Merritt asked.
In response, Stutchman rattled off the pertinent data.
According to measurements of Merritt’s truck made by San Bernardino County Sheriff’s Department Scientific Analysis Division Technician Michael Russ on August 6, 2014, from the top of the headlight to the ground is 39 inches; from the middle of the headlight to the ground is 35 inches; from the bottom of the headlight to the ground is 32.5 inches. Furthermore, Stutchman said, the top of the side marker light at the extreme back of the utility bed is 61 inches from the ground and the bottom of the marker light to the ground is 60 inches.
Stutchman said he had extrapolated the dimensions of the vehicle on the Mitchley video using available tools and technology. “I used a Adobe Photoshop CS 5 Extended which has a measurement tool, very accurate measurement tools, to create a custom scale.” Stutchman said. “So that now gives us a custom scale to calculate other dimensions. So using that custom [tool], what I’ve done here is use photogametry to do measurement calculations of the clip from the Mitchley video.” He said the “bottom of the headlight is 32 inches; the top of the headlight from the ground is 39 inches.
Stutchman thus contrasted the “six-and-a-half inches” of depth for Merritt’s known headlight with the seven inch depth of the headlight in the Mitchley video.
Furthermore, according to Stutchman, the back of the vehicle depicted on the Mitchley video is substantially different from the back of Merritt’s truck.
Images of the vehicle in the Mitchley video and the sheriff’s department video stills of Merritt’s truck were displayed to show that the side marker light is substantially below the level of the 60-inch high side marker light at the top of the cargo box on Merritt’s truck.
“It can’t possibly be the marker light on Mr. Merritt’s vehicle,” Stutchman said.
The side marker light on the vehicle in the Mitchley video, which was characterized by Liscio as possibly being a reflection, is 39 inches from the ground “precluding it from being the marker light on the truck owned by Mr. Merritt,” Stutchman said.
Maline asked if the back light of Merritt’s truck being 60 inches above the ground as opposed to the 39 inch height of the illuminated spot toward the back of the vehicle on the Mitchley video was “an individual characteristic you can use for exclusion?”
“Yes,” Stutchman said.
Stutchman also testified that the height of the illuminated spot seen toward the back of the vehicle on the Mitchley video which Liscio characterized as a possible reflection, at a height of 39 inches above the ground, did not match the height of the cargo box latch/handle, being off by about an inch.
The following day, Wednesday, with McGee yet under the weather, Maline resumed the defense’s direct examination of Stutchman. During Wednesday’s testimony, Maline played on the court’s overhead monitors the side yard and porch videos, left to right respectively in coordination, side-by-side. The side yard video, shot from a slightly different height than the porch video and at a slightly more downward angle, captured even less of the top portion of the vehicle than its porch-based counterpart. Nevertheless, because the side yard camera was laterally angled slightly rightward with regard to its orientation toward the street while the porch camera was laterally angled slightly leftward with regard to its orientation in relation to the street, the side yard camera offered a fuller perspective on the back of the vehicle as it drove past the Mitchley residence, traveling left to right from the cameras’ perspectives. In this way, the vehicle’s taillight, which is at a height roughly on a line with the headlights – calculated at between 32 inches and 39 inches by Stutchman – is entirely inconsistent with the taillight height on Merritt’s truck documented by the sheriff’s department, which has stated the bottom of his truck’s taillights were at a height of 54.6 inches from the ground, 16.1 inches above the level of the top of the headlights.
In cross examining Stutchman, Supervising Deputy District Attorney Britt Imes sought to exploit the consideration that the illuminated spot on the passenger side of the vehicle, which Liscio had said could be a reflection of a streetlight or porch light, fades in intensity and disappears entirely for two frames before reappearing and gradually brightening. This, Imes suggested, was an indication it was not a light.
“You would agree that if that’s the sidelight on that model truck, it should stay illuminated throughout the entire video, correct?” Imes asked.
“To the extent that it’s visible to the camera throughout the entire video,” Stutchman said.
“Well, it starts being visible at this frame, correct?” Imes asked, running the frames one by one.
“Yes,” said Stutchman.
“Okay,” said Imes. “Are you aware of a speed bump in front of the Mitchley residence?”
“I am not,” responded Stutchman.
“A pothole?” Imes proposed
“No,” Stutchman said.
“Did it look like the vehicle drove up on the curb in any way?” Imes asked.
“No,” Stutchman said.
“So it did not change the perspective of the truck as it was driving down the roadway, correct?” Imes asked
“Not that I’m aware of,” Stutchman said.
“So it would be your assumption or reasonable conclusion that that light should remain constant since it’s now in view of the camera and progresses in front of that camera, correct?” Imes asked.
“Unless there’s something that obscures it,” Stutchman said.
“So as we progress to the next frame, where did it go?” asked Imes as the illuminated spot went dark.
“It looks like it went behind the beam,” Stutchman said.
“Oh, but there’s no speed bump there to raise the level of the truck, right?” Imes questioned.
“Correct, unless it’s the angle of the truck,” Stutchman said.
On Monday, the defense called California Highway Patrolman Jeffrey Addls, who testified that in February 2010 he was assigned to patrol the 15 Freeway in the Cajon Pass area.
On February 6, 2010, Addls said he was dispatched to the scene of a fatal accident that had occurred at approximately 7:18 am during heavy rain after a spinout left a Nissan Ultima that had been traveling on the southbound 15 just north of State Route 138 on or against the median. When a tow truck arrived and pulled in front of the car, another vehicle broke traction with the roadway because of the rain, Addls said, and hit the Ultima, which then rear-ended the tow truck, resulting in two fatalities.
Addls said he responded to the scene to take over the investigation of the accident, arriving at around 9 am.
Traffic conditions were light when he arrived and it was “drizzling down the hill” around the time he had been dispatched, he said. The rain had stopped by later in the morning and the weather cleared up later in the day, Addls said.
February 6, 2010 is significant to the case, as on that day the prosecution alleges Merritt transferred the bodies of the McStay family into the desert where he buried them.
Also testifying Monday was Michael Leonard, a
corporate attorney from San Diego. Leonard testified that in July 2011 he represented an entity, whom he did not identify, in the purchase of Earth Inspired Products. Leonard said he drafted a contract relating to that purchase, and that Daniel Kavanaugh was the seller.
The defense alleges Kavanaugh is the actual killer of the McStay family, and that Kavanaugh profited as a consequence of killing Joseph McStay and commandeering the Earth Inspired Products venture and accounts relating to the business.
Leonard indicated that under the terms of the acquisition, Kavanaugh had conveyed to his client rights to use the Earth Inspired Products name and website and “probably” its email address. “I’m going off of memory, but probably, yes,” Leonard said.
“What was offered in return?” McGee asked.
“An amount in cash,” Leonard said. “I think it was $20,000. I believe there was a percentage of the business ongoing after the cash payment.”
“As a part of the agreement did the buyer also promise to assume any liabilities of the company as well?” McGee asked.
“They did,” Leonard said.
“And those liabilities were detailed out by the seller?” McGee asked.
“That sounds correct, yes.” Leonard said. “I’m not sure how the buyer would have known what the liabilities were.”
After McGee detailed him to a specific area of the contract, Leonard testified that liabilities Kavanaugh specified were two lawsuits filed against the company. The buyer in purchasing the company took on the status of the defendant in those suits.
McGee asked if the assumption of liabilities included monetary debt. “Liabilities did include monetary amounts that were owed to third parties,” Leonard said.
Before Leonard’s testimony ended, McGee again referred him to a specific portion of the contract, after which Leonard indicated that the contract entitled Kavanaugh to 20 percent of the company’s net profit, based on sales amounts less cost of overhead, taxes and insurance, for a period of 12 months.