By Mark Gutglueck
The prosecution in the Charles Merritt murder trial this week sought to fill in three more of the boxes on the checklist of its highly circumstantial case portraying the defendant as the only logical suspect in the horrific 2010 murder of the entire McStay family.
According to the prosecution, Merritt, who manufactured high-end decorative water fountains and artificial waterfalls which Joseph McStay was selling through his business, Earth Inspired Products, was pilfering thousands of dollars from Joseph’s company through fraud and embezzlement to feed his insatiable gambling addiction. When Joseph McStay learned of what Merritt was up to, either shortly before or perhaps even on February 4, 2010, Merritt sojourned from his Rancho Cucamonga home to the McStay residence in Fallbrook that evening, prosecutor’s maintain. There, according to the prosecution, Merritt slaughtered Joseph McStay, his wife Summer, their four-year-old son Gianni and three-year-old son Joseph, Jr., using a three-pound sledge hammer to bash their skulls in.
Merritt then secreted the bodies for two days, in the meantime fraudulently accessing Joseph McStay’s QuickBooks account for the decorative water features business they were involved in, the prosecution maintains, and on the following day, February 5, 2010, issued himself two checks, both backdated to February 4, as well as another check to himself on February 8, 2010, also backdated to February 4. After the murders, the prosecution alleges, Merritt embarked on a gambling binge at a number of casinos throughout Southern California. His gaming frenzy was punctuated only by his transporting of the corpses of the McStay family up into San Bernardino County’s High Desert, an area with which Merritt was familiar since having grown up in Hesperia and attended Apple Valley High School for three years in the 1970s, where he buried all four along with the hammer he had used to bludgeon his victims in shallow graves he dug in a wash off a rarely-traveled dirt road, according to his accusers. To throw authorities off his track, confuse the situation and delay a serious investigation into the matter, the prosecution maintains, Merritt 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.
With the resumption of the trial this week following the President’s Day Holiday which kept the courtroom of Judge Michael A Smith darkened on Monday, the prosecution put on for the jury the testimony of a retired criminalist, a forensic financial accountant and an FBI agent. Those witnesses, respectively, placed Merritt inside the Trooper, gave the jury a glimpse of the intensity of Merritt’s gambling activity and the accompanying utter lack of the fiscal discipline that led to the financial desperation the prosecution alleges was the motive for his larceny and murder, and placed him at the High Desert gravesite where the family’s remains languished until their discovery in November 2013.
The prosecution initiated this week’s testimony by recalling Sergeant Ryan Smith, the sheriff’s lead investigator on the McStay family murder case who previously testified and has been recalled several times by prosecutors to introduce evidence and orient the jury as to the circumstance relating to follow-on testimony from several of the prosecution witnesses.
Smith testified with regard to checks that had been written on the Earth Inspired checking account. He said that the checks were both printed and handwritten. With regard to the checks the prosecution believes Merritt forged on Joseph McStay’s Earth Inspired Products account, Smith said the payee is in lower case, the memo was in lower case and the checks were backdated to February 4, 2010. He contrasted these with valid checks that McStay had previously written to Merritt, Merritt’s company, Idesign, and Catherine Jarvis, Merritt’s common law wife in the period from November 2008 through February 2010. In the handwritten checks McStay filled out, the first letters of the payee and memo were capitalized and the amount of money lowercased, said Smith. The printed checks known to have been drafted by Joseph McStay, Smith said, maintained the practice of using the uppercase in the first letter in the names of the payees as well as each word in the memo line describing what the check was being issued for. The printed checks drafted by Joseph McStay deviated from the format he used in his handwritten checks in that he capitalized the first word of the check amount, Smith said.
Smith said that with a single exception, all checks Joseph McStay wrote to Metro Sheet Metal, a company with a foundry in Azusa which participated in the fabrication of the water features sold by Earth Inspired Products and where Merritt engaged in much of his water fountain and artificial waterfall work, contained a description of the project or customer of the water feature for which the checks were written.
Supervising Deputy District Attorney Britt Imes then displayed on the courtroom’s overhead visual monitors a copy of a check written out to Metro Sheet Metal bearing the date of February 4, 2010, which prosecutors allege was forged by Merritt using McStay’s QuickBooks account and was actually written on February 5, 2010 and backdated to February 4 together with another check written out to Metro Sheet Metal one month earlier, on January 4, 2010 by Joseph McStay. Under questioning by Imes, Smith expounded upon how the earlier-issued check featured capitalization used for the payee and memo lines and the contrast with the check dated February 4, 2010, on which the payee and memo lines were composed entirely of lowercase letters.
Smith further testified that he had been in touch with San Diego County Sheriff’s Department Detective Troy DuGal, who in February 2010 had investigated the disappearance of the McStay family as a multiple missing persons case. Smith said that DuGal informed him that he had found no voice mail message from Merritt on Joseph MdStay’s cell phone.
According to Smith, “The last date Mr. Merritt called Joseph’s phone was on February 9,” which was five days after the family’s disappearance.
Following Smith onto the witness stand Tuesday morning was Donald Jones, a now retired criminalist who had been with the sheriff’s department in 2014 and completed an analysis of the DNA evidence collected in the course of the investigation carried out by San Bernardino County sheriff’s detectives.
Jones said he was provided with the DNA samples from Merritt, Summer McStay’s mother, Blanche Arande, and Summer McStay’s sister, Tracy Anne Russell, as well as samples taken from the remains of Joseph McStay, Summer McStay, Gianni McStay and Joseph McStay Jr., all of which were used by the California Department of Justice laboratory to generate DNA profiles. Jones also obtained DNA samples from Sean and Sandra O’Callahan, the current residents of the home on Avocado Vista Lane in Fallbrook where the McStay family lived at the time of the murders so that he could exclude them in doing his analysis of DNA evidence collected from the residence.
Jones said he had a comprehensive profile of all of the individuals, with the exception of Joseph McStay, Jr., whose remains were so scarce they did not offer sufficient material to allow for an across-the-board reading of the full range of his DNA attributes.
Jones was asked about his opinion about the futility of seeking to recover DNA from sweatpants believed to be those of Summer McStay which were found in the grave with her.
“The object of doing these examinations was part of a request from the investigative team,” said Jones. “They were interested in looking for what they called touch DNA, DNA that didn’t necessarily come from the victim, but came from someone else who may have touched articles that were recovered from the gravesites. In response to their requests, I took a look at these items and tried to evaluate if I thought the recovery of this trace DNA was possible. In my opinion, it is not possible in things that are buried for four years. I expressed that … to our investigative team along with representatives of our forensic biology unit and they were adamant about looking for samples of this trace DNA. I therefore decided I would concentrate on those areas that had the highest possibility, which was still extremely low, of recovering any DNA, and these sweatpants did not qualify for that. They were caked in dirt. In my opinion, there was no way. That would not only recover no DNA from anybody touching the garments, you would probably not recover any DNA from the person who was wearing the garments. The DNA is gone. My opinion was it would have been a futile effort.”
Jones said he took a stab at retrieving touch DNA from some of the fingernails of the victims. “Usually when you’re talking about fingernails, the idea is perhaps someone had a chance to scratch somebody else and there might be tissue underneath the fingernails. I went ahead and swabbed an area of the nail that I thought would have any tissue on it if there was some – and when I say tissue, I mean tissue foreign to the person it was.”
“And what were the results of your analysis,” asked Supervising Deputy District Attorney Sean Daugherty.
“There was no DNA detected,” Jones said, on the fingernails of either Summer McStay or Joseph McStay.
Similarly, Jones tried to extract some DNA from an electrical cord that was wrapped around Joseph McStay in the gravesite. He said he unknotted the cord and swabbed “looking to get some sort of touch or trace DNA. I attempted see if there was DNA present and there was no DNA present on any of the swabs.”
“Why did you pick the area of knotting to swab?” asked Daugherty.
“It was under the idea that perhaps if there were some sort of touch or trace DNA present, maybe the knot area would have protected it from the degradation I felt took place within the entire gravesite. For me it was not a very viable hope.”
He similarly tried to lift DNA from a piece of red strap in the grave that held Joseph McStay and a matching piece of the strap found outside the grave. He found no DNA on either one.
Jones said he tested two swabs from the sledgehammer found within the grave in which Summer McStay and Gianni McStay were buried, saying he did not detect blood on the swabs and that no DNA was recovered.
Jones said efforts to retrieve DNA that might have some evidentiary value from the home the McStays occupied on Avocado Vista Lane in Fallbrook in 2010 which in 2014 was inhabited by Sean and Sandra O’Callahan was unsuccessful. According to the prosecution, the slaughter of the McStays took place inside the residence.
Jones gave further testimony about efforts to extract meaningful DNA evidence from the inside of the Chevrolet truck that Merritt owned at the time of the murders. Inside the cab, Jones said, when he tested what was thought to perhaps be a blood stain on the backrest of the right side of the seat, it turned out not to be blood. “Blood was not detected,” he testified. A further analysis of the what had been picked up on the swab showed, Jones said, that the non-blood DNA collected represented a “mixture” of two people, the major contributor of whom was a female and a low level minor contributor. Those findings in no way furthered the prosecution’s case, however, as he said “I pretty much eliminated everybody as being potential contributors. By everybody I mean all of the reference samples I looked at as being contributors to this mixture with the exception of McStay child Number 1 [i.e., Joseph McStay, Jr.], of which I made no conclusion. I believe McStay Child Number 1 I had less reference profile for, so I couldn’t make a statement one way or the other.”
At that point, Daugherty turned to the issue which the prosecution team hoped Jones would be able to explicate to the jury in a way that would solidly advance the suggestion that it was Merritt who, shortly after the family’s murders, had driven their vehicle to within walking distance of the international border in San Ysidro to mislead authorities and virtually everyone else into believing the McStays had crossed into Mexico to go into hiding.
“With regard to the Isuzu Trooper,” Daugherty began, “did you receive two swabs from the driver’s interior door handle, power window and door lock control?”
“Yes, sir, I did,” said Jones. “All of the swabs from the Isuzu trooper were the first set of samples that I examined.”
“Can you tell us what the results of your analysis of that area was?” asked Daugherty.
“There was a low level of DNA recovered,” said Jones. “There was a mixture of at least three individuals. I felt that Joseph McStay was present as a major contributor and that Summer McStay was present as a trace, a very low-level contributor, and that there was another trace, low-level contributor, but it was not enough information for me to make any sort of conclusionary statements on that.”
“Were you able to conclude whether it was a male or female on the trace contributor?” queried Daugherty.
“No,” said Jones.
When Daugherty asked about his preliminary analysis of two swabs of the front interior passenger side door handle, power window and door locks, Jones said he “recovered human DNA. When I did the typing of the DNA, I got a mixture of at least three individuals and it was kind of a complex mixture and I decided not to make any sort of conclusions regarding contributors to this mixture.”
“Why?” asked Daugherty.
“Bottom line, I felt it was too complex to interpret,” said Jones. “There were too many variables going on. The only interpretation I could make is that there was at least one male contributor.”
Daugherty further asked Jones about his determination with regard to two swabs of the left rear interior door handle and power window control. Jones stated he extracted a mixture of human DNA and that “I felt that the results are consistent with a mixture of Joseph McStay, Sr. and McStay Child Number 2 [Gianni McStay]. I also felt I could eliminate Summer McStay, McStay Child Number 1, Tracey Ann Russell [Summer McStay’s sister], Blanche Arande [Summer McStay’s mother] and Charles Merritt as being contributors to this mixture.”
With regard to the right rear interior door handle and power window control, Jones stated, the low level results and combination of four contributors thwarted his making a reliable analysis.
“Because of the low level results and the fact it was a four-person mixture, I did not feel comfortable interpreting the results,” said Jones. “It was too complex for me to interpret.”
Daugherty asked about the results of a swab of the mouth of a metal coffee cup and the swab of a the neck of a water bottle in the Trooper.
“For both of these samples there was a single source male DNA profile that was obtained,” said Jones, “and that profile matched Joseph McStay, Sr.”
With his sixth query about the inside of the Trooper, Daugherty at last hit pay dirt.
Asking what results Jones had achieved in his analysis of two swabs taken of the gear shift, 4-wheel drive lever, radio controls and heater/air conditioning controls, the criminalist said, “Human DNA was recovered. It was a mixture of at least three individuals. Joseph McStay, Sr. was present as a major contributor and Summer McStay was present as a trace contributor. I felt the remaining alleles included Charles Merritt as a possible trace contributor.”
An allele is a gene form that is a subcomponent of DNA.
“With regard to the statistical analysis you performed, what were the numbers?” Daugherty asked.
“In this instance,” Jones said, “… if you went out and randomly picked an individual from the population to see if they would also be included in this particular sample, there’s one in 4,500 African Americans, one in 3,300 Caucasians, one in 12,000 Hispanics.
“Did you receive two swabs of the steering wheel of the Isuzu Trooper?” Daugherty next asked.
“Yes, sir,” said Jones. “I did.”
“What was the result of your analysis of those swabs,” Daugherty asked.
“Human DNA was recovered from those swabs,” stated Jones. “The results indicated a mixture of at least three individuals. If I assume the presence of three individuals with Joseph McStay, Sr. as the major contributor and Summer McStay as a trace contributor, I felt that there was a minor contributor and that Charles Merritt was included as a potential for this contributor.”
“When you say he was included as a potential, explain that further please,” said Daugherty.
“I then go on to do another population frequency estimate about how common it would be to randomly pick somebody who would be included, as in this case, as a minor contributor.”
“What was the result of that analysis?” Daugherty continued.
Jones indicated the odds were overwhelming that the DNA located on the steering wheel was Merritt’s.
“The probability was one in 4.3 billion African Americans, one in 850 million Caucasians, and one in 10,000,000 Hispanics,” Jones said in delivering what the prosecution hoped would be the coup de grâce.
“Can you tell, based on a DNA analysis, how long that DNA had been present on the steering wheel?” Daugherty asked.
“No,” said Jones.
During his cross examination of Jones, Merritt’s defense attorney James McGee asked, “Does the San Bernardino County Crime Lab own an M-VAC?”
Jones, who still does volunteer work at the lab, responded, “Yes sir, we do.”
An M-Vac is a wet vacuum system used in the collection of DNA evidence, which is touted as being five to 200 times more effective than other methods of DNA collection. In tests it has been verified to collect on the order of 36 percent to 189 percent more DNA from evidence items than is derived in the use of swabbing, cutting, or taping techniques, and is particularly more effective in extracting useful DNA from items that are resistant to traditional DNA collection practices.
“Was that M-VAC ever used on the items in this case?” McGee asked.
“No, sir,” Jones said.
McGee asked about concern within the community of forensic professionals regarding the “enhanced ability to analyze low level DNA,” such that “there must be respect or caution in the analysis on how that got there, based on transfer of DNA.”
“There should be caution with regard to the mechanism in which the DNA is present, became present there,” said Jones.
“They did studies, wherein they had 20 subjects who shook hands and handled an item and afterwards they checked to see whose DNA was on that item, correct?” asked McGee.
“Yes, sir,” said Jones.
“If I shook your hand, and then you picked up an item, in 85 percent of those items tested, my DNA was the major [contributor], even though I never handled the item.”
“That may have been the result,” said Jones. “My takeaway from that particular study was that there is, definitely, the potential for that type of transference to take place, and as such there should be caution when you take a look at these types of results, in terms of understanding the mechanism by which the DNA became present on the sample, and you should give some regard to the potential for secondary transfer. This is not a new concept. There were studies that were reported at some of our seminars and our meetings to indicate this is a potential. The DNA of someone who did not touch something may in fact be potentially detected on there through, the only possible explanation is, the potential for what is called secondary transfer. You have to give that potential scenario of secondary transference some credence. You have to be aware of it.”
McGee then referenced another study into, he said, “the persistency of DNA and how long it survives on a steering wheel, and in that study if you drove your vehicle every day and I drove your vehicle for five minutes, then in their results they saw – you would expect to see two majors equally distributed on the steering wheel. Would that be accurate?” McGee asked.
“I don’t remember the specifics of the individual samples,” said Jones.
McGee said the testing demonstrated that if someone who has never been in a particular vehicle previously drives it for even a short period of time, his DNA can register more prominently on the vehicle’s steering wheel than the owners if a sample is taken before the owner again drives the car.
“One thing they concluded from time,” McGee said, “if the user, the last driver, drives the vehicle for less than 90 minutes, you can expect to see his DNA equally as the primary driver of the vehicle. Is that fair?”
Jones responded, “I think the word concluded is not correct. I think they observed instances where that happened.”
“And if the driver drove for 90 minutes or more, then what they observed was the last driver’s DNA comprised 85 percent of the sample,” said McGee.
“That was part of their results, yes, sir,” said Jones.
“As an opinion after reading that study, if somebody drives a vehicle for 90 minutes, would you expect to see the last driver who drove in that 90 minutes to be a major contributor consistent with their DNA amount being in excess to the normal driver of that vehicle?” asked McGee.
“The direct answer to your question is, ‘No, I would not expect it,’” said Jones. “The more broad answer is ‘I have to accept that might be a possibility.’”
“My client’s DNA being potentially included in the sample, would it be consistent that based on the amount of DNA there and the interaction you understand with my client and the driver…” McGee began.
“Objection, lacks foundation, calls for speculation,” said Supervising Deputy District Attorney Sean Daugherty.
“Overruled,” said Judge Smith.
“Would it be reasonable to conclude that this could be secondary transfer DNA in the vehicle?” asked McGee.
“It is a possible explanation for that,” said Jones.
“Is it a reasonable one?” asked McGee.
“I believe it is reasonable, yes, sir,” said Jones.
McGee’s questions were aimed at two concepts. First, he intended to suggest that Merritt’s DNA made its way into the McStay family vehicle as a consequence of his having shaken hands with McStay at the conclusion of their meeting in Rancho Cucamonga on February 4, 2010 when McStay came there to discuss business issues with him on that day. The prosecution maintains the McStay family was murdered the night of February 4. Second, McGee was seeking to demonstrate that Merritt could not have driven the Isuzu to San Ysidro from Fallbrook as the prosecution maintains, as his DNA would be more abundantly present on the steering wheel than it was if he had made that 90 minute sojourn while gripping the wheel and was the last person to drive the car.
On redirect examination, Daugherty asked Jones if he knew how long it was that the subjects in the DNA transfer studies McGee had referenced had shaken hands for.
“I believe it was two minutes,” said Jones.
At one point, the otherwise earnest and intensely scientific Jones exhibited a flippant bent when, under redirect examination with regard to the consideration that the analysis of the sledgehammer had failed to turn up any DNA that could be usefully identified, Daugherty said, “You were asked several questions about how grip and gripping something tight versus gripping something loose could affect transfer of DNA onto an item.”
“That’s one of several factors, yes, sir,” said Jones.
“Would you say if you were to grab a sledgehammer and beat somebody about the head, let’s say four people about the head, that you’d have to hold onto that pretty tight?” asked Daugherty.
“I wouldn’t know that from personal experience, but it would seem like a logical assumption,” deadpanned Jones.
April Coronado, who in 2010 was a fraud investigator with Union Bank, testified on Wednesday. Coronoado said that in February 2010 she was provided with an alert by Mark Burnell of the San Diego Sheriff’s Department pertaining to possible fraud activity involving an account or accounts held by Joseph McStay and/or Summer McStay. She said she identified the accounts the couple had at the bank and then got into contact with the San Diego County Sheriff’s Department, and subsequently was contacted by Detective Troy DuGal.
She said in her cursory review of the account she noted three things “in particular. I remember a couple of checks that were payable to Charles Merritt and I remember some recurring transactions to what appeared at the time to be some type of storage facility, and a mortgage payment.”
“You indicated there were a couple of checks that appeared to be unusual,” said Deputy District Attorney Melissa Rodriquez. “What was it about those checks that appeared to be unusual to you?”
“From what I remember at the time, the checks appeared slightly different in appearance than other checks I had reviewed, and I noticed a slight variation in signature,” said Coronado.
Coronado said she reviewed other checks that Joseph McStay had written.
Coronado indicated that many of the checks written by Joseph McStay against his account for Earth Inspired Products were handwritten. Rodriguez presented her with a check dated February 4, 2010 issued on the Earth Inspired account to Charles Merritt in the amount of $4,500, displaying it for the jurors and courtroom observers on the courtroom’s overhead viewing monitors.
“What is it about the exhibit that you observed to be different?” Rodriguez asked.
“The check is printed,” said Coronado. “It doesn’t use the proper capitalization on either the payee name on in the memo. In my opinion at that time there was a variance in the signature line.”
Coronado said of a check dated February 2, 2010 payable to Charles Merritt for $2,495 similarly displayed on the courtroom monitors, “In this check also it appears different. The maker area is different. The payee line and the memo line don’t use proper capitalization, which is something we typically look for in looking for unusual transactions, and the signature line shows a variance to the customer’s signature.”
Coronoado said she was subsequently contacted by an investigator with the San Bernardino County Sheriff’s Department with regard to the account.
Coronado testified that the check dated February 2, 2010 for $2,495 was cashed on February 5, 2010.
On cross examination, Merritt’s attorney, Raj Maline, asked about the discussion Coronado had with a San Bernardino County Sheriff’s Department investigator in 2014 relating to the $4,500 and $2,495 checks.
“Do you remember the purpose of the interview?” Maline asked. “Was the detective calling you regarding those two checks?”
“I don’t know if those two checks were the sole thing that we spoke about, but it was in relation to these accounts,” she said.
“Do you recall the detective talking to you about the two checks that you just identified?” asked Maline. “There was some confusion about where those two checks had been cashed.”
“Yes,” said Coronado.
“The detective that talked to you was calling because he thought they were cashed in the San Diego area,” he said. “Is that correct?”
“That’s right,” said Coronado.
“”There was a UTC location…” Maline began.
“Correct,” said Coronado.
“And what is UTC?” he asked.
“University Town Center,” said Coronado.
“And that’s in La Jolla,” said Maline.
“It’s in La Jolla,” she said.
To Maline’s following questions, Coronado indicated she had examined the number sequences printed on the back of the check when it was processed by the bank. “And by that number sequence, you actually caught it that it was not San Diego, correct? You said, ‘Wait a minute. This is Rancho Cucamonga.’ Correct?”
“That’s correct,” said Coronado.
Merritt’s whereabouts on the day of and immediately following the McStay family’s disappearance, which according to the prosecution occurred on February 4, 2010 and the defense believes occurred on February 5, is a critical issue in the case.
Scott Weitzman, a self-employed forensic accountant and certified fraud examiner who was retained by the district attorney’s office in December 2018 to scrutinize Merritt’s banking account activity testified on Wednesday and Thursday.
Weitzman said he had reviewed Merritt’s personal savings account with Union Bank, account number 0481309235, covering the span of January 20, 2009 though May 14, 2009, as well as Merritt’s checking account with Union Bank, account number 0480047966, relating to activity from January 20, 2009 through November 5, 2009. In addition, Weitzman reviewed an account Merritt had with Bank of America that was opened on February 3, 2010 and was closed, he said on “either May 10 or May 12 of 2010. The last four digits of the account are 2519.”
In having Weitzman analyze Merritt’s banking activity, Rodriguez succeeded in illustrating to the jury that Merritt had little in the way of fiscal discipline and that he appeared, extending from the inferences to be drawn with regard to where he was spending a considerable amount of his time, to have an insatiable affinity for gambling, as well.
Between January 20, 2009 and February 5, 2010, according to Weitzman, Merritt had not deposited but rather cashed 25 checks totaling $40,501.85 written to him on the Earth Inspired Products checking account. Displaying a spreadsheet showing the posting dates, the amounts and the memo line contained on the checks on the courtroom’s overhead monitors, Rodriguez asked Weitzman, “Are these all checks that were not deposited into those accounts?”
“Right,” said Weitzman. “None of these checks were deposited in any one of those three accounts.”
“So these were all checks where you walk into a bank and cash it and you get cash?” Rodriguez asked.
“Yes,” said Weitzman.
“And what’s the total amount for these particular transactions that were cash transactions or checks that were cashed?” she asked.
“I found 25 checks that were cashed and their total is $40,501.85,” he said.
Weitzman testified that Merritt was maintaining a negative balance in his checking account with Union Bank for much of the time it was opened. He further testified that in the time prior to the closing out of the account in November 2009, there were an increasing number of transactions with an entity called “Speedy Cash.”
“What is Speedy Cash?” Rodriguez asked.
“Speedy Cash is a short-term lender,” said Weitzman. “They make what’s known as “payday loans,” which is when people may need some money to carry them over to their next paycheck. They’re short-term loans, usually with a pretty high rate of interest.”
Weitzman said Merritt’s Bank of America account was opened on February 3, 2010 with the deposit of a $100 check from Earth Inspired Products, a handwritten one signed by Joseph McStay, and $100 in cash.
On February 19, 2010, Merritt’s Bank of America Account was infused with a $5,000 transfer from an account held by Daniel Kavanaugh at the Gaslight Branch of the Bank of America, Weitzman testified. “Since the balance before that was only $7.50, this brought the balance up to $5,007.50,” he said.
On May 12, 2010, Bank of America forced the account to close as a consequence of it having a negative balance, according to Weitzman.
“As you went through these bank accounts, did you notice there were a significant number of fees related with these transactions?” Rodriguez asked.
“Yes there were a lot of fees,” said Weitzman.
When you say there were a lot of fees, what can you tell us about that?” she asked. “What to you mean?”
“There are a lot of NSF [non-sufficient funds] check fees,” said Weitzman. “There were a lot of overdraft fees and what the bank calls continuous overdraft fees. There were a lot of ATM withdrawal fees. There were a lot of balance inquiry fees.”
Between January 2009 and April 2010, Merritt was hit with $209 in charges for 100 ATM cash withdrawals, Weitzman said. In addition, Weitzman said, he had used ATM machines 42 times to make an inquiry on his account balances at a cost of $84.
Moreover according to Weitzman, Merritt racked up continuing overdraft fees, having been penalized, he said, for having “a running negative balance over several days. These were charges above and beyond the fees he paid for having had non-sufficient funds to cover checks he had written or withdrawals from the account. There were 42 of them,” said Weitzman, “and they totaled $252.”
On multiple occasions, Weitzman said, Union Bank had paid out on checks that Merritt had written when he had insufficient money in his account to cover them. Union Bank then charged a fee for having advanced that money, according to Weitzman
“Can you tell us what the total is for those non-sufficient funds fees?” asked Rodriguez.
“There were 29 of them, and they totaled $2,226,” Weitzman said.
Weitzman said there were also checks that the bank refused to pay on. There were 26 times when the bank refused to make payment on a check. The total fees they charged were $898, he said.
The banks charged Merritt $3,669 in fees, most of which were penalties, in the more than 15 months he had the Union Bank and Bank of America accounts.
“Did you have an opportunity to go through the defendant’s bank records and highlight the transactions that would be consistent with cash withdrawals at casinos?” Rodriguez asked.
“Yes,” said Weitzman.
Referencing the span between January 23, 2009 and April 12, 2010, Rodriguez asked, “Did you notate the number of transactions and dollar amounts?”
“Yes,” said Weitzman.
“Can you tell us what that is?” asked Rodriguez.
“There were 66 cash withdraws and they totaled $15,769,” Weitzman said.
Weitzman said that in the same timeframe, Merritt had made 44 cash withdrawals from ATM machines at bank locations, withdrawing $35,513.56. Beyond that, Weitzman said, Merritt had made cash withdrawals from locations other than banks such as stores or businesses on 28 occasions in the amount of $5,861.12. Aside from all of those withdrawals, Merritt had withdrawn cash from his two banks on seven occasions, coming away with $12,680.
In the 12 months for which there were records available between January 2009 and May 2010, which excluded the time period between November 5, 2009 and February 2, 2010, Weitzman said Merritt had involved himself in 170 cash transactions entailing $110,325.53.
“Did you also have an opportunity to look through the defendant’s bank records to ascertain charges that may be associated with business activity?” asked Rodriguez.
“Yes,” said Weitzman. “I went through the defendant’s bank records for purchases that appeared to be or possibly were supply or tool type purchases.”
“And were you able to determine a dollar amount for those?” asked Rodriguez.
“I listed out each item I could find, and that totaled $2,678.49,” said Weitzman.
Weitzman said Merritt appeared to have spent two percent of the money that came his way on materials relating to his business activity.
Weitzman said that over the 15-month period, Merritt had received $147,188.85 into his bank accounts.
Under cross examination by Raj Maline, Weitzman testified he was not asked to do and had not performed an analysis of Joseph McStay’s PayPal accounts or that of Dan Kavanaugh, who was also involved in the Earth Inspired Products operation.
“What was your understanding of the structure of EIP [Earth Inspired Products]?” Maline asked. “Was it a corporation? Was it an individual? What was it?”
“I don’t know,” said Weitzman.
“Do you know who owned it?” asked Maline.
“I think it was Joseph McStay, but I’m not sure of the ownership characteristics,” said Weitzman.
“You indicated you are a certified fraud examiner, correct?” asked Maline.
“Yes,” said Weitzman.
“So, if somebody other than the owner of the company is going into the owner’s accounts and taking money out unauthorized, would that be a form of fraud?” Maline asked.
“That would be possible theft,” Weitzman said, nodding.
“Which is a form of fraud,” said Maline.
“Yes,” said Weitzman.
“If somebody’s doing a small business and they operate in cash, are you familiar with those types of businesses?” asked Maline.
“Sure,” said Weitzman.
“And in those types of businesses, you’re going to have a lot of cash transactions,” said Maline. “Do you agree?”
“What types of transactions are you referring to?” Weitzman asked.
“Withdrawals,” said Maline. “If the company uses, let’s say it’s a mom-and-pop, uses cash to conduct business, you will see that it will withdraw cash from banks to pay for goods, to pay for materials.”
“It’s possible,” Weitzman shrugged.
“Now, if they’re using cash to pay for goods or to pay materials, then you won’t necessarily have a record of the amount of cash they are spending on the cost of materials, would you?” Maline asked.
“And that’s why that’s a bad habit,” said Weitzman.
“It’s a bad habit, I agree, but many businesses still operate that way,” said Maline. “Is that true?”
Rodriguez objected. “Speculation,” she said.
“Overruled,” said Judge Smith. “He can answer, if he has an opinion.”
“I can’t say many businesses do that,” said Weitzman.
“Okay,” said Maline. “Even if it’s some small businesses that operate that way, it’s very difficult to determine cost of materials if the person is paying cash for many of his items. Would you agree?”
“If there’s no record or any kind of notations or no log of any kind, then yes, it would be difficult to track cash purchases,” Weitzman said.
Maline asked Weitzman how he had come to the conclusion that Merritt had spent only two percent of his income on tools and materials relating to the manufacturing of water features, including water fountains and artificial waterfalls.
“I listed out all those purchases that may have had something to do with the manufacturing of a waterfall-type business and they total $3,678.49, and then I had gone through the defendant’s bank accounts for income related receipts that he had and they totaled $147,188.85. And then I divided the supply purchases by the income, and that represented two percent.”
“So the message you conveyed to the jury was that Mr. Merritt spends two percent of his work receipts on cost of materials,” said Maline.
“Objection, misstates testimony,” said Rodriguez.
“Overruled,” said Judge Smith.
“During this time period, that’s the support that I had, yes” said Weitzman.
“Okay,” said Maline. “And you did this. You indicated, you were generally unfamiliar with the fountain business, correct?”
“I don’t know the details of it,” said Weitzman.
“And did you take into account all the checks that Mr. Merritt wrote to different suppliers when you did this analysis?” Maline inquired.
“I didn’t have checks,” said Weitzman.
“You had bank statements,” said Maline.
“Correct,” said Weitzman.
“So, did you see checks we’re written on the account?” Maline asked.
Yes,” said Weitzman.
“So, why didn’t you ask what those checks were for?” asked Maline.
“I never received the checks,” said Weitzman.
“Did you ask the district attorney’s office for the checks?” asked Maline.
“Yes,” said Weitzman.
“And they didn’t give them to you?” asked Maline.
“She said they didn’t have them,” said Weitzman. “The bank didn’t provide them.”
“Would you agree that two percent would change if you saw multiple checks written for materials and things of that nature?” asked Maline.
“Hypothetically, if there were purchases made by checks, that may change,” conceded Weitzman.
“And I don’t see an asterisk here that says you didn’t have the checks to look at,” said Maline with regard to the charts Weitzman had prepared relating to Merritt’s bank accounts. “That number could change, if you knew what those checks were written for.”
“Objection, argumentative,” said Rodriguez.
“Sustained,” said Judge Smith.
“Aren’t you as a forensic fraud examiner, a forensic CPA, supposed to notify the people you are conveying a message to that ‘I don’t have all the information here so it could be different if I had that information?’” asked Maline. “Aren’t you supposed to do that?”
“Objection, argumentative,” protested Rodriguez.
“Overruled,” said Judge Smith.
“I’ve worked on close to 300 cases,” said Weitzman, “and I’ve never had perfect information.”
“You saw a boatload of checks written on Mr. Merritt’s checking account,” said Maline. “The two that you testified about. You said you had the bank statements for Union bank. You had the bank statement for Bank of America.”
Yes,” said Weitzman.
“You saw in those statements that checks were written, right? asked Maline.
“Yes,” said Weitzman.
“As you pointed out to the jury, there were all those NSF fees, remember that?” said Maline.
“Yes,” said Weitzman.
“So obviously, checks were being written, correct?” said Maline.
“Yes,” said Weitzman.
“And you never wondered, as a forensic accountant, what those checks were for, that they could be cost of materials?” asked Maline.
“Objection, argumentative, asked and answered,” said Rodriguez.
“Sustained, as argumentative,” said Judge Smith.
“You never suspected in your review that those checks could be a part of cost of materials?” asked Maline.
“I could only speculate what those checks were for,” Weitzman responded. “I don’t know what they were for.”
“But you knew they were out there,” said Maline. “You knew that there was information that checks were written, correct?” Maline asked.
“Yes,” said Weitzman.
“In your review, would it have been proper to give a complete picture to the jury, to factor in whether or not any of those checks were for the cost of materials?” Maline persisted.
“Objection, argumentative as phrased,” said Daugherty.
“Overruled,” said Judge Smith.
“I don’t know what those checks are for,” said Weitzman. “So, I can’t say one way or another about those checks.”
“When you don’t have information,” said Maline, “you can ask for it, correct? But you did.”
“Yes,” said Weitzman.
“When you asked for it, you must have thought it was important, correct?” asked Maline.
“I always like to have complete information, but as I said, I can rarely get that,” said Weitzman. “So I work with what I have and I do my analysis with the information I have. I can’t speculate about what’s out there…”
“Mr. Weitzman, my question is: ‘You thought it was important and you asked for it. Is that correct?” Maline asked. “Yes or no.”
“I would like to have that information,” Weitzman said.
Maline wrung from Weitzman an acknowledgment that Merritt had withdrawn only six percent of the money from his account at casinos in February 2010, the month the murders occurred, and that on seven of the 13 previous months Merritt had withdrawn a greater percentage of the money from his accounts at various casinos. In an effort to controvert the prosecution suggestion that Merritt had embarked on an unbridled gambling spree in the immediate aftermath of the McStay family’s disappearance, Maline elicited further testimony from Weitzman that in February 2010, Merritt’s withdrawals of money from casinos consisted of $1,040 withdrawn on February 9, $288 withdrawn on February 12, $488 withdrawn on February 17, $504 on February 22 and $304 on February 23.
Of the $15,769 in cash drawn at the casinos by Merritt in the roughly 14 months between January 2009 and April 2014, Maline asked Weitzman, “how much of that money was used to actually gamble?”
“I don’t know,” said Weitzman.
“What percentage of that money was taken by Mr. Merritt when he left the casino?” Maline asked.
“I don’t know,” said Weitzman.
Before prosecution objections that were sustained by Judge Smith foreclosed his avenue of inquiry, Maline was able to get Weitzman to admit that he had not brought his tools as a forensic examiner to bear on the transfers of money that Dan Kavanaugh had moved from the Earth Inspired Products business account to his PayPal account. “Those transactions don’t stick out in my mind,” said Weitzman. “I may have seen them. I may not have. There wasn’t anything significant that stuck in my mind to make me believe I focused on these transactions.”
It is the defense’s theory that Dan Kavanaugh, another business associate of Joseph McStay who was engaged in selling the water fixtures Merritt was constructing for Earth Inspired Products, was the murderer of the McStay family.
On her redirect examination of Weitzman, Rodriguez asked him to “hypothetically” consider the possibility that some of the withdrawals from Merritt’s account done at ATM machines which Weitzman had not previously identified as occurring at casinos could in fact have actually been money used at the casinos if it could be demonstrated that the cash dispensing machines were ones operated by companies ostensibly unaffiliated with the casinos themselves but which were located on the casino premises. Weitzman said he would have increased the tally of the money that Merritt withdrew from casinos if he had information to that effect.
“Did you ever review a ledger between Mr. Merritt and Mr. McStay that would incorporate the cost of goods, the cost of materials?” Maline asked on recross examination. “Was that ever given to you to review?”
“I don’t recall ever seeing a ledger,” Weitzman said.
After Maline provided him with a document, Weitzman said, “Well, the formula looks a little familiar with an email that I was given. This was an attachment, but I can’t say anything about the truthfulness of this.”
“Do you know who sent this to who?” asked Maline. “Meaning did Joseph send it to Mr. Merritt or did Mr. Merritt send it to Joseph? Do you know?”
“I don’t recall right now,” said Weitzman.
“What was your understanding of what this was?” Maline asked.
“I didn’t know what it was,” said Weitzman.
“Did you ask?” Maline pressed, and as Weitzman shook his head to indicate no, the defense attorney continued, “Did you make any inquiry of Ms. Rodriguez or anyone from the district attorney’s office, what this was?” Objections prevented an answer from being given.
After Weitzman’s dismissal subject to recall, he was followed to the witness stand by Sergeant Ryan Smith in his second appearance this week.
In response to questions by Supervising Deputy District Attorney Britt Imes, Smith delineated how he had cross-referenced Merritt’s cell phone records in most of 2009 and well into 2010 with information he had about the location of cell phone towers both proximate and most proximate to the casinos in Southern California Merritt was known to frequent. Smith’s testimony was clearly intended to suggest that Merritt was frequenting those casinos at the times indicated. In a disclaimer, of sorts, Imes asked Smith, “In all candor, this is what the records show correct?” asked Imes.
“Yes, sir,” said Smith.
“This does not tell you where specifically the defendant’s body was or the phone was in relation to that tower at that time, correct?” Imes asked.
“Absolutely correct,” said Smith. “This is just the towers and his contact when he was either receiving or making telephone calls.”
The implication was nevertheless clear as Smith testified that the prosecution intended the jurors to infer that what Smith was presenting was a history of Merritt’s visits to those casinos.
Smith’s testimony was intended to augment Weitzman’s statement that the amount of money which he said Merritt had withdrawn from his account at casinos would be revised upward if he had information to suggest that some of the ATMs from which Merritt had withdrawn money that Weitzman previously did not connect to casinos could be demonstrated to be located on the premises of those various casinos.
Using charts that had been prepared to show the number of times and the dates when there had been connections registered between Merritt’s cell phone and cell phone towers proximate to the casinos which where displayed on the courtroom’s visual monitors, Smith implied that Merritt had been to the casino in the City of Commerce on 18 days between March 16, 2009 and January 15, 2010, including March 16, March 17, May 9, May 10, May 11, July 19, July 25, July 27, July 28, August 1, August 10, October 3, November 1, November 18 and November 19, all in 2008; and January 12, January 14 and January 15 in 2010. Smith testified that Merritt had been at the Pechanga Casino near Temecula on 11 days during the same time period, including on November 20, November 21, December 5, December 15, December 16 and December 31 in 2009; and January 1, January 2, January 22, February 9 and February 22 in 2010. Smith said that Merritt had been at the San Manuel Casino in Highland on 44 occasions between early 2009 and early 2010, including on February 5, February 8, February 9, March 21, March 23, March 25, March 26, April 3, April 10, April 14, April 21, April 25, May 4, May 8, May 14, May 15, June 11, June 24, July 7, July 13, July 20, August 14, August 18, August 19, August 22, September 1, September 2, September 4, September 29, October 14, October 24, October 26, October 27, November 6, November 16, December 8, December 21 in 2009; and January 19, January 20, February 11 and February 12 in 2010.
Kevin Boles, an FBI agent who in 2014 was a coordinator with one of the agency’s regional apprehension teams in Southern California, was the last witness to testify on Thursday. Among his specializations is cellular device analysis, which he said the bureau uses to locate missing persons as well as to track the whereabouts and activity of suspects and to capture fugitives. The analysis of records kept by cell phone companies and ongoing cell phone activity, Boles said, allows for a determination of the “general location of where somebody has been, and can identify where they might be currently.”
Boles said his role with the FBI’s cellular analysis team had required that he receive education and training to be able to understand how cell phones communicate with cell phone towers and to understand cell phone records in detail.
In making connections, Boles said, cell phones in general seek out the strongest signal from a tower to connect with, and as a user who is traveling passes closer to a tower with a stronger signal a phone’s connection will be “handed off” to the stronger tower. Cell phone companies record these interactions, Boles said. Thereby, he said, the movements of a cell phone, and presumably its owner, can be tracked. Terrain, its contours, unevenness and undulations, as well as the presence of buildings in urban settings, can have a “shadowing” effect in which direct communications between a cell phone and the antenna on a tower can be blocked and a signal weakened so that the phones, in some cases, find a stronger or optimal signal from a tower that is geographically more distant in some locations, he said.
Boles said in August 2014 he was called in to assist in the investigation of the murders of the McStay family and that he was provided cellular phone records for Charles Merritt and Joseph McStay. Boles said the cell phone records provided him with the latitude and longitude, essentially the location, of the cell towers utilized by the cell phones with each call. He said he mapped out Merritt’s and McStay’s whereabouts in February 2010 based on that data. Boles said he went to the north of Victorville toward Oro Grande where the bodies had been discovered and took note of a cell tower on prominent high ground, at an elevation of 4,522 feet, which he said he determined to be approximately 1,500 feet above and at a distance of 1.97 miles as the crow flies from the 3,021-foot elevation burial site.
Boles presented and testified about graphics he had prepared showing McStay’s and Merritt’s whereabouts, surmised from their available cell phone data, on crucial dates relating to the murders.
Based on the records for Joseph McStay’s T-Moble cell phone, 949 2957451, using a map/graphic displayed on the courtroom’s overhead monitors, Boles traced McStay at or near the McStay home in Fallbrook, using his phone at various points between 8:56 a.m. and 11:41 a.m on February 4, 2010, with his phone connected to the closest nearby cell tower, located adjacent to the 15 Freeway and Highway 76. The records then show him at 11:43 a.m. beginning a progress northward along a route consistent with the 15 Freeway, with his cell phone having connected with various cell phone towers along the route of the 15 Freeway northwestward at 11:51 a.m. and 11:53 a.m. near Temecula, 11:57 a.m. north of Murrieta, 11:58 a.m., 12 p.m. at Clinton Keith Road and the 15 Freeway, 12:02 p.m. near Sedco Hills north of Wildomar, 12:04 p.m. near Lake Elsinore, 12:11 p.m., 12:15 p.m. in the Temescal Canyon area, 12:22 p.m. near south Corona, 12:28 p.m. in Mira Loma/Eastvale, and 12:52 p.m., at which time his phone is connected with a cell phone tower in Rancho Cucamonga north of Foothill Boulevard and south of Church Street. That is a point proximate to Merritt’s known residence in Rancho Cucamonga and the Chick-fil-A restaurant where Merritt and McStay met that day for lunch and a discussion regarding Earth Inspired Products-related projects, as established through previous testimony and evidence presented to the jury. The phone records showed, according to Boles, two other calls relayed off of another cell phone tower in Rancho Cucamonga near Fennel Road and Church Street at 1:01 p.m. and 3:03 p.m. Using displays, Boles showed that thereafter at 3:32 p.m. McStay was making his way back toward his residence, with his phone pinging off of a cell tower in Norco at that time. By 4:28 p.m., according to Boles, McStay was back in close proximity to his home in Fallbrook, as his phone registered a connection with the cell phone tower closest to his home near the 15 Freeway and Highway 76. There were a series of calls that connected to that tower, Boles said, between 4:28 p.m. and 8:28 p.m. From previous testimony and evidence presentation, the jury knows that the 8:28 p.m. call on February 4, 2010, one placed to Merritt’s cell phone, was the last one ever made from Joseph McStay’s cell phone.
According to Boles, on February 1, 2010, activity on Merritt’s cell phone occurred between 8:25 a.m. and 10:14 p.m., a duration of almost 14 hours, all of it involving connections with just two towers in Rancho Cucamonga in close proximity to his home.
Boles charted Merritt’s known travel on February 2, showing him in the Temescal Canyon area at 8:43 a.m., near Lake Elsinore at 8:50 a.m., just below Lake Elsinore at 8:53 a.m., at 9:03 a.m in Temecula, and at 8:22 a.m. through 10:01 a.m. in Fallbrook. At 10:17 a.m. he is shown headed north on the 15 at Rainbow, followed by ten connections with cell towers along Interstate 15 consistent with northbound travel, where he reaches the south end of Rancho Cucamonga at 11:05 a.m. At 11:10 a.m. and at 12:05 p.m. there were connections with two cell phone towers near Merritt’s residence. At 12:34 p.m. through 12:47 p.m. Merritt’s phone was in connection with a cell phone tower in Covina and at 12:57 p.m. the phone had connected to a tower in the Upland area. At 1:12 p.m. he was in the Fontana area, and at 1:14 p.m., 1:25 p.m. and 1:45 p.m in Rancho Cucamonga. At 2:26 p.m. he was in the West Covina area near Azusa Avenue, close to the Metro Sheet Metal foundry, and at 2:38 p.m. near the 57 Freeway and 210 Freeway. At 3:33 p.m. his phone connected to a tower near Mission Boulevard in Montclair, at 3:51 p.m. just north of Ontario Airport, at 3:56 p.m. near Cherry Avenue and the 10 Freeway in Fontana, then at 4 p.m. near Cedar Avenue and the 10 Freeway in Bloomington. Records reflect a series of calls between 4:21 p.m. and 5:10 p.m. connecting with two cell towers in the area of south San Bernardino and Loma Linda. There were then contacts with two cell phone towers in east Fontana and then west Fontana near the 10 Freeway at 5:52 p.m. and 6 p.m., consistent with travel in a westbound direction. From 6:18 p.m. until 10:58 p.m. there were a series of calls connecting with three cell towers in Rancho Cucammonga.
Boles similarly charted Merritt in Fallbrook again on the morning of February 3, 2010 and then returning to Rancho Cucamonga and traveling to the area of the Metro Sheet Metal foundry in Azusa before returning to Rancho Cucamonga in the afternoon.
Merritt’s cell phone records for February 4, Boles said, show him in Norco at 9:36 a.m. and traveling north to reach Rancho Cucamonga at 9:51 a.m. His cell phone was then in contact with the two cell phone towers closest to his home for the remainder of daylight hours, until 5:48 p.m.
At that point, the ability to determine Merritt’s whereabouts by means of his cell phone emanations ceased for almost four hours, Boles said.
“The next available call after the last cell tower connection at 5:48 p.m. is at 9:32 p.m., and connects with a cell tower in the Mira Loma area near Interstate 15 north of Norco,” said Boles. “That’s south of Ontario.”
All calls to Merritt during that gap were forwarded to his voice mail, Boles said.
Prosecutors allege that Merritt killed the McStay family the night of February 4, 2010. What Imes was suggesting to the jurors by Boles’ testimony was that Merritt was in some fashion aware his movements could be tracked by his cell phone activity and he had calculatedly turned his device off before departing from Rancho Cucamonga to Fallbrook on the evening of February 4 to carry out the carnage. To emphasize this, Imes displayed the page of Merritt’s AT&T cell phone records covering February 4, 2010, showing that after the 5:48 p.m. call, a six-minute exchange with McStay’s phone, Merritt’s phone went dead. Six calls were made to Merrit’s number at 6:09 p.m., 6:10 p.m., 6:12 p.m., 6:17 p.m, 7:18 p.m. and 9:04 p.m. Those calls did not connect with his phone, however, as was demonstrated by there being no cell tower data relating to any of those calls, all of which were routed to his phone’s voice mail function.
“The lack of the equipment identifier indicates the phone could be off, off the network, in airplane mode, anyone of those,” said Boles.
On February 5, 2010, Boles said Merritt’s phone records show that at 7 a.m. he was in the Upland area near the 210 Freeway. Thereafter, Boles said Merritt’s phone was next used at 10:45 and 10:46 in the Santa Clarita area. At 10:59 a.m., his phone made a single connection in the San Fernando area. At 12:49 p.m. and then at 2:23 p.m. his phone had connected with the two cell towers close to his residence in Rancho Cucamonga. Between 2:32 p.m. and 3:54 p.m., his cell phone connected with four towers in the Rancho Cucamnga area. At 9:17 p.m. and 9:18 p.m., Merritt’s cell phone connected with a tower in the Mira Loma area followed by a 9:25 p.m. connection in the Ontario/south Rancho Cucamonga area adjacent to Interstate 15.
Boles moved onto Merritt’s cell phone activity on February 6, 2010, the day prosecutors allege Merritt buried the McStay family in shallow graves in the desert north of Victorville.
Boles identified the first cell tower connection of that day on Merritt’s phone as being made at 10:46 a.m. near the intersection of Mojave Drive and Interstate 215 in Victorville, followed by some calls between 11:30 a.m. and 11:52 a.m. utilizing a cell tower north of Victorville toward Oro Grande. Then, somewhat inexplicably, there is a call one minute later, at 11:53 a.m. which pinged off a cell tower in Victorville. At 12:49 p.m. there is a call which connected to a cell tower in the Hesperia area. At 1:30 p.m. there is another call connecting to the cell tower in the Oro Grande area.
Boles included a chart of six calls placed from Merritt’s phone beginning at 11:30 a.m. and ending at 11:52 a.m. – at 11:30 a.m., 11:31 a.m.,11:32 a.m., 11:33 a.m., 11:34 a.m. and 11:52 a.m. All of those connected with the Oro Grande cell tower, the one that is at the 4,522 foot elevation level and a distance of 1.97 miles from the McStay family burial site. Boles said that all of the calls with the exception of the one at 11:32 a.m. had connected with the antenna receiver on the cell tower oriented east from the tower. This area of coverage corresponded to the area where the McStay family graves were located.
Boles’ testimony on direct examination had not concluded when court adjourned for the week after 4 p.m. on Thursday. He is due to return to the witness stand Monday for further direct examination to be followed my Merritt’s legal team’s cross examination.
By Mark Gutglueck