By Mark Gutglueck
Through sheer determination and force of will, the defense in the Charles Merritt murder case this week redirected the jury’s focus to an alternative suspect as the perpetrator of the horrific 2010 murders of the McStay family
From the outset of the trial last week the prosecution has sought to paint the trail of evidence implicating Merritt as a lock tight circumstantial case. Supervising Deputy District Attorney Sean Daugherty and Supervising Deputy District Attorney Britt Imes ushered four witnesses before the jury on Monday, Tuesday, Wednesday and Thursday of this week in an effort to further structure the narrative of guilt around Merritt.
According to that account, Merritt used a three pound sledge hammer to bludgeon all four members of the McStay family in their Fallbrook home sometime on February 4, 2010. The following day, February 5, 2015, according to prosecutors, between six minutes after noon and 33 minutes after noon at his home in Rancho Cucamonga, Merritt used the internet to fraudulently gain access to Joseph McStay’s Quickbooks account for McStay’s company, Earth Inspired Products, and issued himself a $4,500 check backdated to February 4 which he printed and deleted, issued a $1,650 check to Metro Sheet Metal backdated to February 4 which he printed and deleted, issued another $250 check backdated to February 4 to Metro Sheet Metal which he printed and deleted and issued himself another $6,505 check backdated to February 4 which he printed and deleted. All of the checks, according to prosecutors, bore Joseph McStay’s forged signature. Merritt then, according to prosecutors, immediately drove to the Union bank in Rancho Cucamonga and cashed the $4,500 check. Within days according to prosecutors, he transported the lifeless bodies of the McStay family to an area just north of Victorville, where less than a mile distant from the I-15 in a ravine that was not visible from a distance, he buried Joseph McStay and his son Joseph Junior in one shallow grave and, some 15 feet distant, Summer McStay and Gianni in another shallow grave.
The witnesses heard from this week were McGyver McCarbar, one of Joseph McStay’s closest friends, who had introduced Joseph and Summer and was with them at their Fallbrook home on both February 2 and February 3, the two days before prosecutors say the family was killed by Merritt; San Diego Sheriff’s Homicide Detective Troy Gugal, the first law enforcement officer to take an in-depth look at family’s disappearance; former San Diego Sheriff’s Technician Denys Williams, who shadowed DuGal and collected and cataloged evidence at his direction during the initial stages of what was then a missing persons investigation of the four-member family, and David Joe Sequeida, the son of the owner of Metro Sheet Metal. Metro Sheet Metal was the manufacturing concern where Merritt did the fabricating work on the fountains designed by Joseph McStay for the customers of Earth Inspired Products.
The premise of the defense is that prosecutors in San Bernardino County reached an erroneous conclusion of Merritt’s guilt that was based on underlying inaccurate assumptions that grew out of investigations in both San Diego and San Bernardino County that neglected, overlooked and/or failed to secure crucial evidence early in the case when it was being investigated by the San Diego County Sheriff’s Department as a missing persons case, and that the subsequent focus on Merritt as the sole conceivable perpetrator by San Bernardino County investigators failed to bring into examination the motive, character, action, whereabouts and evidence implicating another of Joseph McStay’s business partners in the murder.
While the prosecution this week continued to methodically lay out the circumstances relating to the family’s then-seeming inexplicable disappearance and the diligent and energetic efforts by members of the San Diego Sheriff’s Department to get a handle on the events, defense attorneys Raj Maline and James McGee doggedly spared no opportunity to undercut the aura of professional authority and thoroughness of both DuGal and Williams, and they sought to wring from McCargar whatever they could to demonstrate that it was Dan Kavanaugh, who was also involved with Joseph McStay in his business operation, who perpetrated the crimes their client stands accused of.
Building on the foundation of factual detail laid before the jury thus far, prosecutors headed into the second week of the trial on Monday by calling McGyver McCargar to the witness stand. McCargar was among McStay’s closest friends and confidants, a former roomate who had introduced McStay to his wife, Summer.
Testifying in the morning and into the afternoon, McCargar recounted that he and Joseph McStay worked together as bartenders and had shared an apartment together in San Clemente in the early-to-mid 2000s, before Joseph McStay initiated his relationship with and subsequently married Summer. McCargar’s testimony is of moment from several standpoints, in particular that he was one of the last people known to have had interaction with the McStay family on February 2 and 3, 2010 just before their disappearance, which the prosecution projects as having occurred on February 4 and which the defense theorizes did not take place until February 5.
McCargar said he had shown up at the McStay residence in Fallbrook on February 2 to assist in interior painting after having previously committed to being there on February 1 but having to cancel because he needed to accompany his girlfriend to an ultrasound examination of their unborn child, which disappointed Summer McStay and brought from her a rebuke, as the new flooring purchased for the McStay home was scheduled to be laid down on February 4 and the painting was supposed to be completed by then.
McCargar testified that Merritt was present at the McStay home during a portion of the time he was there on February 2 and that Joseph McStay’s and Merritt’s conversation in part dealt with issues relating to the waterfalls Merritt built and which Joseph McStay sold, including the lighting for the decorative products.
McCargar testified he had taped the areas around the door jambs and the baseboard and made other arrangements to paint such as removing the doors from the cupboards. Painting was initiated, he said, using an off-white shade of paint that Joseph had selected, and that he left the McStay residence sometime between noon and 1 p.m. He testified that he returned on February 3, at which point it was learned that the shade of paint had not met with Summer’s approval, and that the painting had to be redone.
McCargar testified that either because of the rain on February 4 or a forecast of rain that day, the crew that was expected to put in the home’s flooring postponed the job, giving him and the McStays more time to complete the painting. When he attempted to reach them by phone on Friday February 5, McCargar said, he was unable to do so. He again sought to reach them on February 6, but could not that day either.
“I tried to contact them on Friday night,” he said. “I just got voice mail. I left messages with both. I tried Saturday morning.”
When Supervising Deputy District Attorney Brit Imes asked him how he tried to reach them, he indicated he also left text messages “Friday and Saturday, Summer and Joe, both days,” McCargar said. “There was no response.”
He said he did not grow alarmed at his inability to reach them, saying it was “not unheard of them to kind of go dark. In the past they had gone to the mountains, Big Bear.”
When Imes asked McCargar when he next heard from either Joseph or Summer, he responded, “I never did hear back.”
McCargar said he received a call from “Joseph’s brother maybe a week-and-a-half later. It might have been on a Monday [February 15].”
Michael McStay, Joseph’s brother, McCargar said, “asked if I had spoken to them or seen them.” Michael McStay told him that Bear [the McStay family’s rottweiler] and another puppy had been left outside with no food or water. I tried to reassure him – ‘I think they went to the mountains,’ though it was odd they left the dog there. Later, he called me and said he had filed a missing persons report.”
McCargar said the dogs being neglected and left alone for so long was incongruous, especially given that he had a clear recollection that when he was assisting with the painting the first week of February, Summer had told him that “during her pregnancy she had hypnosis in preparation for childbirth. She identified her dog as her guardian angel and it went everywhere with them and they didn’t leave the dog.”
McCargar said that Summer had said something “about Bear being so protective of the children since they were born. I can’t recall exactly, but that the dog would protect the family.” He said that Bear routinely slept in the house. He said it was a clear indication that something was amiss when the family was gone for an extended period of time and Bear and a puppy the family also owned was left neglected in the backyard. “Summer would never have left Bear outside,” McCargar said.
McCargar said that he then got a call “from Susan [Blake, Joseph McStay’s mother]. She said she was going to their house and could I meet her out there. I believe it was the Wednesday [February 17] after I first heard from Mikey [Michael McStay].” He later said it could have been either February 16 or February 17. He said she was going to the house “to check on things” and that he went there to offer her “emotional support.” He said that when he got there Susan Blake “was cleaning the kitchen.” He said he realized that there was food left out on the counter and that “she was pretty much cleaning it all up.”
McCargar said “I was a little concerned she was cleaning the kitchen too soon” and he wondered to himself “have the investigators completed their job here? They take fingerprints or what have you. She was pretty much wiping everything clean.”
McCarger said he had noticed that “tucked underneath one of the shelves was the paint pan with a foil liner with a paint roller and dried paint in it.” McCargar suggested this was the paint tray that Summer had been using. This was jarring, McCargar said, because the reason for using the foil liners was to make it easy to clean up when a painting session ended, and the tray had just been left the roller and the liner not having been rinsed out. McCargar said he had told Summer that was why they were using the foil liners and when he saw it as it was he wondered “Why would she just leave it there to be dried up? It appeared something may have happened and she didn’t follow up with the easiest of tasks of cleaning up the liner.”
McCargar said that he had looked about the house and upstairs in the large walk-in closet accessed through the bathroom of the master bedroom. He had been “struck that every inch of the floor seemed to be cover with clothes,” he said. “That seemed odd and kind of frantic.”
In response to questions about Summer McStay posed to him on cross examination by Merritt’s co-defense counsel James McGee suggesting she had “lots of trust issues with people,” McCargar said, “She was territorial. I think she had good intuition. She was protective of Joseph and the kids.” McCargar said Summer had bristled at Merritt’s suggestion that she wasn’t raising her children properly.
McCargar said that Joseph McStay’s longtime friend and fellow surfer, Guy Joseph, had introduced Joseph McStay to Dan Kavanaugh. McCargar said Joseph McStay had brought Kavanaugh into the operation of his waterfall manufacturing company, Earth Inspired Products, to “optimize the website” Joseph had already set up. When McGee in one of his questions asked if or suggested that Kavanaugh had lived with Joseph McStay prior to the McStays’ marriage, McCargar said that Joseph McStay “didn’t live with Dan. I lived with Joseph.” in an apartment in San Clemente. He said that on perhaps a few occasions Kavanaugh while adjusting the website “working late he crashed there a couple of times. He lived around the corner.”
McCargar said that Kavanaugh had considerable computer and informational technology skills and that he was known as “Hacker Dan” or the “hacker kid.”
In a series of questions, virtually all of which were objected to by the prosecution and sustained by Judge Smith, McGee angled for information about Kavanaugh and his reputation. McGee asked if Dan was known as or recognized to be “some kind of irresponsible person” or if everyone “knew Dan as a loose cannon.” Because of the prosecution’s objections and Judge Smith’s sustaining of those objections and because Judge Smith then deemed McCargar’s statements as “speculation,” the jury did not hear McCargar give answers to McGee’s questions relating to McCargar having told Joseph McStay that a vindictive Kavanaugh “is going to come back at you” if Joseph McStay cut Kavanaugh out of the Inspired Earth Products business and that McStay should keep Kavanaugh occupied because he didn’t want him “screwing up the business or causing problems with his waterfall website.”
When McGee stated that McCargar’s information was not speculative “because we have Dan [Kavanaugh] threatening” Joseph McStay, Judge Smith said “I have already rule that is not relevant.” The judge said that Joseph McStay intending to “buy out Kavanaugh or was in the process of buying him out are relevant and you can inquire about that but speculation as to what McGyver or Joseph McStay thought Mr. Kavanaugh’s reaction to that [was or would be] are not relevant.”
Nevertheless, the jury did hear the questions and McGee did get McCargar to indicate that McStay wanted to exclude Kavanaugh from the business and had attempted “buy him out” by giving him an old BMW automobile.
The defense made further headway when Judge Smith stated “If Kavanaugh got proceeds, that is relevant,”an indication that the jury down the line will hear testimony and see evidence that shortly after the McStay family’s disappearance, on February 6, 2010, as well as thereafter, Kavanaugh transferred money out of the Inspired Earth Products account to himself.
McCargar testified that he and Joseph McStay had discussed the buy out of Kavanaugh and that McCargar believed the buyout “had already been done” prior to the family’s disappearance.
McCargar testified that subsequent to the family’s disappearance he had contact with the San Diego Sheriff’s Department investigators looking into the matter and that he had skepticism about reports that the McStays had fled into Mexico. Nevertheless he indicated that he had provided those investigators with a particular photograph of Summer wearing a jacket that was similar to that worn by the woman in a presumed family of four thought to possibly be the McStay family crossing into Mexico from Ysidro on February 8, the same day the family’s Izusu Trooper was found in a shopping center parking lot proximate to that border crossing. To questions about San Diego Sheriff’s Detective Troy DuGal’s inquiry of him in which DuGal referenced that there had been internet searches on the McStay home computer about “traveling into Mexico with children less than a week before the family went missing,” McCargar said, “At first I didn’t believe it.” Despite the disbelief of many close to the family, including himself, that the McStays had sought refuge in Mexico for one reason or another, McCargar said everyone went along with exploring that scenario because “We were searching for an answer.”
To Imes’ question, “At anytime during that relationship [McCargar’s with Joseph McStay] did he give you credit card numbers to buy stuff?” McCargar answered, “No.”
“Did he ever give you checks to fill out?” Imes asked.
“No,” McCargar said.
The next witness, San Diego County Sheriff Homicide Detective Troy DuGal, the primary investigator initially brought into the case, reinforced in his testimony the descriptions by previous witnesses of the McStay property as being in a state of disarray that was consistent with the house being remodeled when the family abruptly vanished. Questioning DuGal underwent related most particularly to the inside of the home after authorities had been alerted to the family’s disappearance in mid-February 2015.
DuGal offered insight on the limitations he and the investigative team he led were faced with under the initial circumstance, which was that the matter was not being treated as a homicide at that point but a multiple missing persons case involving a family of four. DuGal said there was a degree of tentativeness on the part of some of the extended family members about the need for a full blown inquiry, since some felt that the family might have simply left on an unannounced vacation from which a return at any moment might be imminent. Nevertheless, DuGal said he took the indications that the family was missing seriously from the outset, and that his instincts and professional orientation based on the appearance of the family’s abrupt departure led him toward an unpleasant premonition that he was in fact investigating a murder. Despite that feeling, DuGal said, there were no classic indications of foul play in or around the home, such as signs of forced entry or a struggle, broken glass, blood or physical mayhem.
DuGal testified that he had gone to the McStay home on February 15 in response to a call to the department’s homicide division from a patrol deputy, Michael Tingley, who testified last week.
He said upon coming into the house at 3473 Avocado Vista Lane in Fallbrook he observe newspapers all over the floor and spotted blue painters tape along certain spots around some of the house’s door frames and cabinets, that many of the kitchen drawers had been pulled out of their places inside the cupboards and cabinets, and he encountered the smell of fresh paint as well as yet-to-be-installed open casings of wood flooring that was curing, which he recognized as an indication the house was undergoing renovations. He said he walked through the house to “clear” it, meaning to satisfy himself that none of the residents were present, no one was in distress and that no one unauthorized to be there was on the premises. He said he observed a house that was in large part “empty of furniture,” with toys in many of the rooms, which he associated with children residing there, mattresses and bedding on the floors in the bedrooms upstairs, clothes lying about in the master bedroom’s bathroom and walk-in closet as well as an open and roughly half full carton of eggs on the kitchen counter along with fruit in the kitchen area that was left out and spoiling. His descriptions were augmented by photos taken of the premises earlier that day by then-Deputy Tingley that were displayed on the courtroom’s overhead and side wall projection screens for observation by the jury and the courtroom’s spectators.
He said he learned from the patrol deputy that it appeared the family had been gone for an extended period of time. He said he talked to Michael McStay, who told him his brother and his family did not typically leave for 11 days and that he did not know where the family had gone. Michael McStay said that things seemed out of the ordinary but that the family had previously headed out on an impromptu vacation that was pretty much unannounced. Michael McStay told him, DuGal said, that he had come to the McStay house two days previously, on February 13, with Merritt to look into the situation relating to his brother’s disappearance.
Despite the fact that he was working another breaking homicide and was involved in a number of other homicide investigations, DuGal said he moved forward rapidly, logically and methodically with regard to leads that rapidly developed in the case, in particular Tingley’s discovery through a routine check of vehicles registered to Joseph McStay that the family’s 1996 Isuzu Trooper had been towed from the parking lot of the San Ysidro Mall at the extreme end of San Diego County, roughly a quarter of a mile distant from the border crossing into Mexico.
DuGal said he sojourned to San Ysidro with evidence technician Denys Williams and he carried out a thorough examination of the Trooper and its contents, while Williams did extensive photographing of the vehicle and its contents, DNA testing on and finger print lifting from some of the vehicle’s contents, as well as an extensive collecting and cataloging of the items found in the vehicle. DuGal said he learned from the towing company where the vehicle had been towed from and went to the San Ysidro Mall, where he spoke with the security detail there, ascertaining where precisely the vehicle had been parked and ascertaining which stores in the mall had video cameras. He obtained all of the video available that was focused toward the parking lot and also sought to obtain video from the larger mall located across the street, Plaza De Las Americas, which had a more robust video system, including footage of one of the entrances into the San Ysidro Mall. After an exhaustive review of the available video that might contain images of the Isuzu Trooper being driven into the parking lot and being abandoned, DuGal said he was able to turn up nothing of evidentiary value.
On February 16, DuGal said he spoke on the phone with Susan Blake, Joseph McStays’s mother, who told him she was cleaning up the house and that her other son, Michael, had removed Joseph’s computer. DuGal said he told Susan Blake to stop cleaning the house and have her son return the computer.
DuGal said that on February 17, he called Merritt and arranged an interview with him and that he and Detective Suzanne Fiske then drove to the condominium complex in Rancho Cucamonga where Merritt lived, conducting the interview with him in the clubhouse of the condominium/townhouse complex where he lived because Merritt’s wife and child were home. That interview commenced at 4:26 p.m., according to DuGal. DuGal said that during the interview, Merritt provided him and Fiske with an email he had received from Joseph McStay on February 1, 2010 and a spreadsheet relating to water fountain jobs.
At that point, according to DuGal, he had been working on investigations practically nonstop since February 15 with just about five hours of sleep.
While he and Fiske were with Merritt, DuGal testified, they obtained from Merritt a DNA sample, a swab of the interior of his mouth, DuGal said, “for exclusionary purposes,” as they intended to do an extensive examination of the McStay home. DuGal said Merritt agreed to providing the sample voluntarily and it was taken back to San Diego and put into evidence.
DuGal said Merritt explained to him that he was involved in building the custom water fountains Joseph took orders for and that Joseph was not involved in the construction end and that there was communications between them on a regular or everyday basis and that there was money that had to be exchanged between them as part of the business. He said Merritt told him that on February 4, Joseph drove to Rancho Cucamonga to meet him at the Chick-fil-A fast food restaurant there where they ate lunch and had a meeting/discussion that lasted a couple of hours. Merritt claimed that they had to exchange money or checks and that Joseph went home thereafter. DuGal said he sought to obtain from the Chick-fil-A the security video taken on February 4, but that after 13 days the video footage was no longer available.
DuGal said he obtained search warrants for the McStay residence and Isuzu Trooper on February 19, 2010 and executed them.
DuGal said there were two homicide detectives beside himself, a forensic technician, a detective assigned to the local substation, a representative from the Department of Justice, two criminologists, two cadaver dogs and their handlers participating in the search.
DuGal said the house looked different on February 19 than it had when he was there on February 15 in that the area around the kitchen had been cleaned up somewhat, the newspapers covering the carpet in the living area and floor in the dining room were picked up and gone, and the drawers were back in place.
“It was cleaner,” DuGal said.
DuGal said he observed at that point what appeared to be a bleach stain on the carpet near the entranceway.
DuGal said it was noticed by someone that there was what appeared to be blood on the cover of a book found upstairs but that a test done on the spot determined that the brownish-red dry stain was not blood.
During his testimony, DuGal was shown a photograph taken of the McStays’ round wooden dining table taken during that search using a high intensity flash. In the photo were visible well over a score of small reddish brown spots that were of a slightly different shade than the reddish brown finish of the wooden table that appeared as if they might have been blood spatters. DuGal testified that the spots visible in the photo, which he had only been shown in the week running up to his current testimony, appeared to be blood, but had not been visible to the naked eye in the normal lighting of the dining room at the McStay residence. He and others involved in the search at one point had been sitting around the table, DuGal said, and had not noticed them. “It could be blood,” DuGal said. “You couldn’t see it with the naked eye. The table is highly illuminated with a flash [in that photo]. Because of the bright light source, they are much easier to see. Our whole hold team sat at that table.” DuGal said, “It puts a pit in my stomach,” considering that the investigation he had carried out missed that evidence, which was neither remarked upon, collected or analyzed.
The McStay home was foreclosed upon several months after the disappearance of the family. The current whereabouts of the table is unclear.
DuGal said efforts had been made to obtain cell phone records from the service provider that the McStay family had for their phones. DuGal said the last known phone call going out from Joseph McStay was made on February 4 at 20:28, i.e., 8:28 p.m. It lasted, DuGal said, for less than one minute. The last outgoing call from Summer McStay’s cell phone was at 14:11, i.e., 2:11 p.m. on February 4. Asked if he had obtained the defendant’s cell phone records at that time, DuGal said he had not. When Supervisng Deputy District Attorney Sean Daugherty asked why, DuGal said, “I didn’t have probable cause to believe he had committed a crime at that point.”
DuGal also said he also went to the banks the McStay family and Joseph used for his business to see if he could learn of any activity, based upon the belief that it would provide leads to the family’s whereabouts.
Asked if there was any non-automatic activity on those accounts past February 4, DuGal said, “None that could be directly related to Joesph or Summer.”
DuGal said that at some point months later, when the family had not turned up, a bank official froze the accounts.
DuGal said he also put a request bearing the sheriff’s department’s letterhead out to PayPal for billing and payment records relating to Earth Inspired Products. He also, he said, obtained dental records relating to Joseph and Summer McStay and distributed those to missing person registries and law enforcement agencies nationally and worldwide.
He said he attempted to get the entirety of the security surveillance unit that Jennifer Mitchley, who lived across the street and one house up from the McStays, had which featured a camera that might have captured video of vehicles passing down Avocado Vista Lane, including ones pulling into the McStay’s driveway. Mitchley, however was only willing to provide the department a limited amount of the video.
DuGal said he also obtained all of the video from two cameras in place at the international crossing into Mexico in San Ysidro, which represented an overwhelming task of evaluation as, he said. There were “over 100,000” who walked over that border, he said. He said with the assistance of volunteers with groups dedicated to assisting exploited children who watched the video, they tracked what appeared to be a family of four – a father and mother and two young children – who could have been the McStays, crossing into Mexico on February 8.
DuGal said he also solicited tips from all order of sources including television programs such as America’s Most Wanted, and that he was inundated with tips, all of which he followed up on.
Cross examination of Dugal was handled by Raj Maline, one of Merritt’s defense attorneys. Maline probed for shortcomings in the investigation, alighting first on the sheriff’s department not having taken precautions to secure the McStay premises and allowing Joseph McStay’s mother, Susan Blake, to clean an extensive portion of the downstairs between February 15, when the sheriff’s department was first at the house and February 19, when a search warrant was executed there.
DuGal said the matter was initially considered a missing person’s case and there was no legal basis for excluding the family from being on the property. He said that he and the deputies were legally entitled to enter and clear the residence when they were there in response to the initial call by Michael McStay on February 15, but once they cleared it and saw no overt signs that anything was amiss, “I have no right to be in that residence or to go back into that residence at any time. I don’t have probable cause to secure that residence.”
Maline asked him if during the February 15 “welfare check you didn’t see anything that caused you to have any type of suspicion?”
DuGal responded, “I didn’t see anything evident that would give legal reason lock down that property and get a warrant.”
DuGal acknowledged that when he spoke with Susan Blake on February 16, she said she was cleaning the residence. “She told me she was cleaning,” DuGal said. “I told her to stop it. I told her please don’t disturb anything. That could affect the outcome of the evidence [he anticipated finding when he finally did get a search warrant]. I didn’t order her out of the residence. I forcefully asked her to stop and have Michael put the computer back.”
When Maline asked DuGal if he had given Blake permission to clean the house and Michael McStay clearance to remove his brother’s computer from the premises, DuGal said “That would be inaccurate” and “That is incorrect.”
DuGal told Maline that when he left the McStay residence on February 15 “I didn’t have enough probable cause to author an affidavit for a search warrant. I wanted to, but I wasn’t there. Based on the totality of the statements from family members and friends and the general behavior of the McStay family, all I really had to say was it was suspicious but there was no smoking gun.”
In reviewing with DuGal the seven photos that Deputy Tingley had taken on February 15 which showed a tangle of clothes virtually covering the floor of the master bedroom’s walk-in closet and on the counter in the master bedroom, a lamp lying on the ground of the master bedroom and a certain degree of dishevelment throughout the house, Dugal said, “It was suspicious but not crazy suspicious.”
At that time, DuGal said the newspaper spread out on the floor in the kitchen and on the rug in the living room appeared to him to have “been laid out to protect carpeting from paint. That was my assumption.”
Displaying a photo taken during the search on February 19 that showed what looked to be newspapers in the trash at the side of the house, Maline asked “Did you ask Ms. Blake if she threw those papers away? There was a lot of paper in the outdoor trash can.” Said DuGal, “I was more focused on finding documents than newspapers.”
When Maline took issue with the consideration that Tingley had taken only seven photos of the interior of the McStay home on February 15 before Blake had rearranged things through her cleaning efforts, DuGal said, “I was proud of him for doing that. It was out of the protocol of a welfare check but it is good. There is a legal line you are dancing on. A welfare check is for people.” DuGal said going beyond the bounds of strictly looking to make sure no one is in jeopardy inside the premises where a welfare check is being carried out “is almost intruding.”
Maline asked about messages left by Daniel Kavanaugh on Joseph McStay’s cell phone.
DuGal said the messages were “consistent with somebody looking for them.”
Maline asked whether the McStay family’s extended family members and friends believed the family of four seen crossing into Mexico on February 8 were the McStays.
“Each person had a different opinion,” Dugal said. “Not one person said it wasn’t them.” Some he said were “essentially on the negative side. The mothers were much more affirmative.”
Dugal said that he did not initially evaluate the PayPal records for Earth Inspired Products but had instead handed them off to the sheriff’s office’s financial crimes unit “to see if there were other persons we should look at in this case.”
Maline asked about transactions made within the PayPal account by Dan Kavanaugh starting on February 6 and if DuGal spoke with Kavanaugh. DuGal indicated he had.
“What did you ask Mr. Kavanuagh when you talked to him?” Maline asked.
“If he had a legal right to be involved in the business’s finances,” said DuGal.
“What did he say?” asked Maline.
“Yes, he had access,” said DuGal.
Maline inquired if Kavanaugh said he was authorized to remove funds from the account. The prosecution objected to the question on relevancy and hearsay grounds. Judge Smith sustained the objection. To Maline’s further questions with regard to communication between DuGal and Kavanaugh, in particular an email from Kavanaugh to DuGal containing attachments that apparently related to the Earth Inspired Products operation and money that was flowing from the company’s accounts to Kavanaugh, the prosecution interposed objections which Judge Smith sustained.
DuGal gave indication that he eventually developed questions with regard to money that was coming out of Earth Inspired Products’ PayPal account, but as Maline broached those issues, prosecution objections that were sustained foreclosed his pursuit of that information before the jury.
DuGal stated that he had obtained from the bank where Earth Inspired Products had its account information relating to the company’s business transactions. Maline asked DuGal “Did you take what Mr. Kavanaugh sent and compare it to the actual PayPal records?”
“No,” said DuGal.
To Maline’s inquiry as to why he had not gotten warrants to go through the Earth Inspired Products accounts, DuGal said he “needed probable cause” and he did not want to interfere with the efforts by the family and Kavanaugh to sustain the business in Joseph McStay’s absence.
Maline asked DuGal “Did you ask Mr. Kavanaugh if he had a right to to transfer EIP’s [Earth Inspired Products’] PayPal account [to himself]? Did you talk to Dan Kavanaugh about what he sent you? Did you question the accuracy of it?”
DuGal responded, “Both business partners said they had a legal right and were continuing to sell and distribute water features. I was suspicious of the money flow but there was no way to prove anything without Michael McStay’s word that the money flow was illegal.”
When Maline asked DuGal about a transfer that Kavanaugh made from the Earth Inspired Products account to John Moxley, who is Kavanaugh’s grandfather, the prosecution objected and Judge Smith sustained the objection.
“Did you check what Mr. Kavanaugh sent you was accurate information?” Maline asked.
“I don’t know if I asked on this specifically at this time,” said DuGal. “What I asked was general questions as to ‘Do you have a legal right to transfer money through the account?’ and the answer was, ‘Yes.’”
Maline asked, “Did you request any other PayPal records?”
“I’ve already stated, ‘No,’” said DuGal.
“How about any other banking records for Earth Inspired Products and Joseph McStay’s financial documents?” asked Maline.
“No,” said DuGal.
“Any banking information of Dan Kavanaugh’s?” Maline continued. “Did you request Mr. Merritt’s?” asked Maline.
“No,” said DuGal. “I had no probable cause to reach out and look at any other citizen in America.”
Maline asked DuGal if during the February 19 search of the McStay home he had his investigative team “collect any clothing as evidence?”
“No,” said DuGal. “There was no evidentiary value of the clothes I was observing at that point.”
Maline asked if the forensic technician had lifted any fingerprints at the house, and he cited specific areas such as door and window handles.
DuGal said fingerprints had not been collected because “There was nothing suspicious that would have led me to collect fingerprints at the places you deemed.” He further indicated that he did not remember any documentation of footprints at the house, either. With regard to Maline’s suggestion that he and his investigative team had not been aggressive, energetic or intensive enough in their investigation, DuGal said, “I am not going to start fingerprinting the whole house for fun. That would take every resource we had and last forever. It’s not logical. It’s just not done.”
DuGal defended his not having pursued obtaining DNA samples for Gianni McStay and Joseph Jr., stating that DNA on them was available from their placentas which were kept in the family’s freezer.
After pursuing the case for three years and doing his level best to solve it, DuGal, indicating he believed he had come up against a dead end, said he turned the entire investigative file over to federal authorities. “At a March 12, 2013 10 a.m. meeting with the FBI I gave them all of the evidence, which included the Trooper,” he said.
Asked whether animosity had developed between him and Patrick McStay, Joseph McStay’s adopted father, DuGal said that was not the case. Rather, he said, he felt that James Spring, a private investigator that Patrick McStay had hired who was pursuing supposed leads relating to the McStay family being in Mexico, was defrauding his client to make money and grab attention for himself. “He had the media chasing him,” DuGal said of Spring.
Prior to DuGal being excused from the witness stand subject to recall, Judge Smith posed some questions to him directly. Referencing DuGal’s testimony with regard to Joseph McStay’s “last outgoing call on his cell phone on February 28 at 8:28 p.m. that lasted less than a minute, were you able to determine if the call was answered?”
“No,” said DuGal.
“Whose number was it?” Smith asked.
“The defendant’s,” said DuGal.
Brought in to testify after DuGal was the forensic evidence technician who had assisted DuGal during his investigation into the McStay family disappearance, Denys Williams.
After it was established that Williams had a twenty year career as an evidence collection specialist with both the San Diego Police Department and the San Diego County Sheriff’s Department along with various credentials and training related to her areas of expertise, Williams testified that she accompanied the investigative team led by DuGal in the serving of the search warrant at the McStay home in Fallbrook on February 19, 2010. She said that team included criminologists Rosanna Chang and Dana Castro, Detective Suzanne Fiske and some other detectives. She said that she worked the premises primarily in coordination and at the direction of DuGal.
Williams said she arrived there at around 10 a.m. and was “the first one in that day” as is part of the normal procedure to photograph extensively before others come in to disturb the scene. She said she was primarily concerned that day with taking photographs and securing and packaging evidence. She was on the premises for 6 hours and 13 minutes, she said, and took 745 photographs, including ones of all of the rooms in the house as well the outside of the house.
Williams testified that she collected several cameras and old cell phones at the house. “I think there were about six,” she said with regard to cameras. She quantified the number of cell phones at four.
Also seized she said were two desktop computers, one of which was an Emachine model 2040.
She also testified that two days previously, on Thursday January 17, 2010 at Detective DuGal’s direction she had subjected the McStay family’s 1996 Isuzu Trooper to a thorough forensic examination which was documented with extensive photographing. She said she used DNA swab kits to take samples from the steering wheel, the gear shift, the console, other areas in the vehicle, a metal coffee mug and what was either a plastic or glass water bottle that was inside the Trooper.
Williams testified that she “used swabs” to “focus on areas that potentially had DNA.”
Based on photos she took during the course of that examination of the car and its contents which were displayed for the jury on the courtroom’s overhead and sidewall large-scale viewing monitors, Williams gave a description of the items found in the car, which included child car seats; a checkbook issued by Union Bank for Earth Inspired Products, account #0480043626; a video camera; a box of prescription medication which included prescription bottles and medications, including Sudafed, Levaggi, Allegra and Prednisone; and a business card for Charles Merritt which had writing on the back, among other items. The carbon impressions of several of the checks in the check book were then individually displayed for the jurors on the projectors. These included ones made out, between December 2009 and February 2, 2010 to Metro Sheet Metal, Charles Merritt, Lloyd Dusch, Metro Sheet Metal, Metro Sheet Metal, Adagio Massage, EDDN LLC, Charles Merritt, Charles Merritt, Metro Sheet Metal, Lloyd Dusch, Charles Merritt, Charles Merritt, Metro Sheet Metal, Charles Merritt, and Accents in Water.
After Supervising Deputy District Attorney Britt Imes had concluded his direct examination of Williams, defense attorney James McGee in his cross examination sought to further extend the theme propounded in co-defense counsel Raj Maline’s cross examination of Detective Dugal, that the initial missing persons investigation relating to the McStay family had been inadequate.
An early issue of focus in McGee’s cross examination of Williams was a device that had been photographed sitting on the McStay family’s kitchen table by then-Deputy Michael Tingley when he had come to McStay house on February 15, 2010 with Michael McStay. That item was a hand held alternative light source, somewhat similar to a flashlight but capable of emitting black light, i.e, ultra violet light. Such items are not commonly employed in everyday life, but are a standard tool of law enforcement officers and agencies. An alternative light source is a crime scene investigator’s and lab technician’s tool for enhancing observation, photography and collection of evidence including latent fingerprints, body fluids, hair and fibers, bruises, bite marks, wound patterns, shoe and foot imprints, gun shot residues and drug traces. Tingley testified the item was not his, and its presence in the McStay home is a mystery that has yet to be explicated by either the prosecution or defense as the trial has proceeded.
To McGee’s inquiry as to what it was, Williams identified it as a hand held black lighting device.
McGee explored with Williams the methodology of finding and lifting or photographing of fingerprints, and to which objects fingerprint impressions are most likely to clearly adhere. She said that nonporous, smooth items offer the best results in providing clear fingerprints, but did say that doorknobs often prove disappointing to forensic technicians seeking to glean fingerprints from them. Also dealt with was use of powder and brushes used to highlight or find fingerprints, and the potential that DNA might adhere to a brush and that DNA might be transferred from one surface to another if the same brush is used. Williams indicated that the brushes are disposable and are changed frequently or discarded to avoid cross-contamination of DNA.
“Have you ever heard the term ‘transfer DNA?’” McGee asked.
“It’s considered extremely rare and unlikely,” said Williams. “I have not seen it happen, but I wouldn’t say it can’t happen. I’ve not seen it, but that’s why I change brushes, to avoid that question.”
Also explored was in which order a technician would seek to obtain fingerprints or a DNA sample from the same item.
McGee asked her whether she did one test “before or after as a general practice?”
Williams replied, “I base it on what item I am processing. Latent [fingerprinting] sometimes happens before DNA processing.”
McGee inquired as to how many violent crimes Williams had investigated and she estimated 300, of which she said roughly 280 were death investigations. Of those she said “maybe 250” involved blood evidence. Seeking to obtain a contradiction between her standards and those of DuGal, McGee asked Williams if she thought it “reasonable not to collect evidence from a crime just because it would take too long?”
“No,” Williams responded.
“Have you ever spent more than eight hours at a crime scene?” McGee asked.
“Many, many times,” Williams said.
“Could be hundreds of times?” McGee asked.
“Yes,” said Williams.
McGee asked about the use of luminol, a chemical which reacts to the presence of blood, seemingly seeking to suggest that the investigators had been indolent in not ferreting out the presence of blood at the McStay house, where, pointedly, former San Bernardino County District Attorney Mike Ramos more than four years ago publicly stated the family had been killed.
“We quit using it because it is bad for DNA,” Williams said. “It destroys DNA.” She said a product called “Blue Star” is now used to locate blood.
“Is it possible to test for blood that has been painted over?” McGee asked.
“I’ve heard that it’s been done,” Williams said.
McGee asked, “Did anything stand out when you were looking through the vehicle [the Isuzu Trooper] to say a crime happened here?”
“No,” said Williams.
“Even though you didn’t see anything in there, you still processed it?”
“Yes,” said Williams.
McGee noted that included lifting fingerprints from inside the car, and he recounted with Williams that she had done extensive collection of DNA inside the car.
McGee contrasted that with the less energetic collection and testing at the McStay house.
He asked about the cleaning of the house by Joseph McStay’s mother, Susan Blake, that occurred on February 16
“That was disconcerting,” Williams said.
McGee asked if she processed the evidence collected “as if it could be a murder case?”
“I knew to process it that way, yes,” said Williams.
Williams said that the decision to not do extensive fingerprint lifting at the McStay residence had come about because “we were very aware this family might come back.” She said the powder used to highlight fingerprints is damaging, likening it to the “soot” from a “smokey oven fire. That is something you really have to think about when you do that.”
When McGee pointed out that she had no such hesitation in seeking fingerprints inside the Isuzu Trooper, Williams shot back that in that circumstance there was “a good chance of finding out if someone else had moved that vehicle. I’m sure at that point there would have been hundreds of people in that house,” such as friends, workers and family.
“If you don’t collect, you just have nothing,” said McGee.
“That’s true,” said Williams.
McGee asked what Williams would have done if she had spotted any shoe prints or shoe impressions.
“I would have taken photographs of them if there had been any,” she said. “I didn’t see any.”
McGee displayed on the courtroom’s overhead and sidewall monitors photos that Williams herself had taken on February 19, 2010 of shoe prints on the linoleum.
McGee asked about the extraordinary nature of the McStay family disappearance.
“It was different from anything I had been to in terms of trying to find out what was going on,” Williams said.
McGee then cataloged the decisions by Williams, DuGal and the rest of the investigative team. “You made the choice not to fingerprint the front door… to not process the open window that was used by Michael McStay to gain entrance… to see if someone unknown entered the home… Did you know the office window was a point of entry of somebody? The sliding door?”
“I didn’t do it,” said Williams.
“Instead did you do a DNA swab?” McGee asked.
“No,” said Williams.
“Fingerprints?” asked McGee.
“No,” said Williams.
“You did not take shoe print impressions.”
“I didn’t see any,” said Williams.
McGee then reversed course, his questions seemingly aimed at illustrating that the home was not the place where the murders occurred.
That there were no towels in the bathroom, McGee suggested in one question, “was part of the renovations.” McGee asked if there was blood visible on the top of the sink counter in the bathroom. Williams said there was not. Nor did she notice any blood on the carpet or bedding, mattresses, or cast off blood on the ceiling. She said she saw no reason to do any presumptive test on any of those items. She saw no blood in the bathrooms nor the water closet within the upstairs bathroom nor the master bedroom closet nor in the sink in the bathroom, nor the rug in the living area downstairs. McGee asked if Williams had done any presumptive tests for blood. “No,” she said.
“Did you find anything in the office to make you want to do a presumptive blood test?” McGee asked.
“No,” said Williams.
McGee displayed photos of the garage and asked about the crowded conditions therein. To his question, Williams acknowledged that it was “crowded in the garage.”
Asked if anything was found to indicate a murder had taken place there, Williams said there was nothing “but that doesn’t mean there wasn’t anything.”
“Did you find anything in the Isuzu Trooper which gave you the suggestion that the detectives should go back to that house?” McGee asked.
“No,” said Williams.
McGee asked if Williams saw any “cleaning marks” at the house to indicate blood or other signs of mortal mayhem had been washed away, disposed of or obscured.
“I didn’t notice any,” said Williams.
The last witness testifying this week was David Joe Sequeida.
The witness testified that his father, David Daniel Sequeida, was the owner of Metro Sheet Metal and that one of his father’s golfing acquaintances introduced his father to Joe Aragon the proprietor of a heating, venting and air conditioning company where in 2008 Charles Merritt was working, engaged in manufacturing indoor water features. Aragon convinced his father to allow Merritt to relocate his operation into the Metro Sheet Metal foundry, where the Sequidas were engaged in the manufacturing of custom stainless steel restaurant equipment.
David Joe Sequeida testified that he accompanied Merritt in relocating his tools and equipment, which consisted of “a lot of plumbing, fittings, electrical parts, hoses used for water features and a homemade tool cabinet” to the premises of Metro Sheet Metal. Sequeida said they did so utilizing one of the Metro Sheet Metal’s company vehicles.
Imes made a point of asking how Merritt secured the tool chest. Sequeida. said that he used padlocks.
Sequeida said through an arrangement that grew out of a meeting involving his father, Joseph McStay, Metro Sheet Metal’s then-secretary Carmen Garcia, himself and Merritt, the water fountains and water features were fabricated by Merritt at the Metro Sheet Metal factory, with Metro Sheet Metal providing all of the sheet metal, Merritt doing the fabricating – “plumbing, electrical, rocks and tiles,” in Sequeida’s words – to the orders provided by Joseph McStay, who lined up the customers and marketed the fountains and features.
Once the fountains were completed, they would be videotaped to be shown as functioning, and then packaged and shipped to the customers, according to Sequeida.
“We were getting paid through Mr. McStay,” Sequeida testified. “Sometimes Mr. Merritt would drop them [the checks] off to us. Sometimes they were mailed.”
The witness denied that the defendant was an employee of Metro Sheet Metal. He said Merritt did not have unfettered access to the Metro Sheet Metal factory as he had when he was working at Aragon’s business.
“Did you consider yourself a subcontractor to Mr. Merritt?” Imes asked. That was not the case, Sequeida said. “I don’t want to say we were partners with him,” the witness said. “Along those lines we all had a part to play.”
His father was not involved in the manufacturing end of the McStay/Merritt business, Sequeida said, but he was. “I was in the back,” he said, where he had a lot of conversations with Merritt and became familiar with what he was doing.
“Did you start filling in for the defendant?” Imes asked.
“That was more toward the end of the business relationship,” Sequeida said. “Several times.”
Sequeida said that Merritt was frequenting gambling facilities and was approaching gambling as a money-making venture. He said Merritt claimed to have a system by which he could make more money than he lost gambling.
Sequeida said Merritt was becoming less productive and “We were having trouble maintaining this three-person partnership with that happening. It became two-person.”
“Did you believe it could continue with a two-person relationship?” Imes asked.
“No,” said Sequeida. “We had a conversation with Mr. McStay that we couldn’t continue this way and in order for us to continue doing what we were we could no longer deal with Mr. Merritt and it was up to where we were basically shouldering the whole burden of fabricating.”
Imes asked Sequeida if he was “personally aware where your payment from Mr. McStay did not arrive?”
Sequeida said he was present in his father’s office when his father took a call “on the phone hands free [i.e., using a speaker]. Mr. McStay said a check was given to Mr. Merritt. We told him we had never got it.”
“Where did the defendant say that check was?” Imes asked.
“I don’t recall,” Sequeida said, but then said, “He mentioned he had used those funds to purchase material he needed for one of the fountains.”
“At some point did you go with the defendant to a storage unit?” Imes asked.
Sequeida said he had done so to potentially move equipment from the storage unit to the Metro foundry but that a decision against allowing Merritt to do so was made. “My father just wasn’t digging him,” Sequeida said.
Imes asked how the storage unit was secured. Sequeida said Merritt utilized a padlock.
Sequeida testified that at some point, “Mr. McStay could not be contacted. It was about a month or so before they [the family] were known to be missing.”
Asked when that was, Sequeida said “I think it was in ’09.
“Did you ask the defendant about it?
“He was constantly on the phone,” said Sequeida. “He wasn’t concerned. He didn’t seem like he was alarmed or it was anything out of the normal.”
The questioning of Sequeida was not finished yesterday and he is to return to court for further testimony on Tuesday, January 22.
By Mark Gutglueck