Prosecution Preps Show Of Cell Phone Data They Say Ties Merritt To Burial Site

With the last two witnesses called in the fourth week of the trial of Charles Merritt, the prosecution bought itself to the brink of demonstrating a connection between the defendant and the horrific 2010 murders of the McStay family.
Michael Dominic Bosillo, who was himself a former homicide detective and is now the custodian of records for T-Mobile, and David Lipnitzky, the custodian of records for AT&T, were utilized by Supervising Deputy District Attorney Sean Daugherty on Thursday to provide the jurors and courtroom observers with a glimpse of the cell phone communications of the accused on the day of the murder and those immediately surrounding it as well as the cell phone activity of Joseph McStay on the day prosecutors say Merritt used a three-pound Stanley sledgehammer to bash his business partner’s skull in. The prosecution maintains that Merritt’s homicidal frenzy continued, and he used the hammer in the same fashion on Joseph’s wife, Summer, and their four-year-old and three-year-old sons, Gianni and Joseph, Jr., in their Fallbrook home.
Bosillo and Lipnitzky were the final witnesses the eight-woman and four-man jury heard from this week, after hearing the testimony of eight other witnesses on Monday, Tuesday and earlier Thursday. Also this week, the jury toured the site in the High Desert north of Victorville where the prosecution alleges Merritt disposed of the bodies in two shallow graves on February 6, 2010, two days after the slaughter.
The prosecution doggedly proceeded with presenting a miscellany of pertinent if somewhat disjointed events, findings, measurements, connections, documents and vignettes which taken together they hope propound the narrative that Merritt was the sole perpetrator. The defense continued with its relentless effort, at every opportunity that arose, to vector the jury’s attention to the man they suggest is the true murderer who was overlooked by the prosecutors and two law enforcement agencies and their investigative teams that were focused on what was first thought to be the McStay family’s mysterious disappearance and, after their bodies were found, their murders. Along the way, it appears that the defense has made inroads in convincing Judge Michael A. Smith, who is presiding over the trial and earlier seemed intent on foreclosing the defense’s presentation of any evidence or testimony that lent itself to the alternative killer theory, that he should indulge the defense team in exploring avenues relating to the involvement of Dan Kavanaugh in the family’s demise. Kavanaugh was  Joseph McStay’s one-time business partner, who, the defense team suggests, was the actual perpetrator of the gruesome murders.
The prosecution team led the week off with testimony from Susan Heckaman, an assistant to Jeff Martin, the president of Geis Companies of Streetsboro, Ohio. That company in early 2010 had ordered, through one of its employees, Christina Martini, two fountains, or water features as they were referred to in the testimony, from Earth Inspired Products, the company owned by Joseph McStay. A delivery date of April 1, 2010 on both fountains, at a total cost of $12,750 or $6,375 each, was arranged for, and an up-front payment of $6,250 was provided, according to a receipt document produced by Joseph McStay on February 2, 2010, two days before the family’s disappearance.
Heckaman testified that the fountains were not received by the April 1 delivery date and that she had made inquiries about the water features. She said that she eventually reached Merritt and spoke to him about “finances and to secure the water features,” she said. “I had contacted Chase Merritt several times and didn’t receive return phone calls. At one point I finally got a hold of him and there were several issues going on. He was in the hospital at one point and the water features weren’t here. There were times when he needed more money. I know we sent him more money several times just to get the water features.”
Merritt arranged for Geis Companies to pay his wife, Catherine Jarvis, who has also been identified during the trial as his girlfriend, for the features.
Acknowledging statements she had made previously to investigators, Heckaman said she told a detective the defendant told her the fountains “were ready to be crated and he needed additional funds to get them crated, I believe, and sent to Ohio.” She said the company provided extra funds that Merritt requested.
Heckaman said she also spoke with Joseph McStay’s mother, Susan Blake, at one point about getting the fountains delivered and that she had also gotten in touch with the San Diego Sheriff’s Department over the matter. Through a presentation of documentation while she was on the witness stand, it was determined and Heckaman acknowledged that there was an email exchange with Merritt on May 10, 2010. Displayed for the jury on the courtroom’s visual aid monitors was a document Heckaman generated which had lines for both Merritt’s and Geis Company President Jeffrey Martin’s signatures, stating that Geis Companies would send Merritt in the name of Catherine Jarvis a check in the amount of $2,000 and that Geis Companies would also overnight Walker Sheetmetal a check in the amount of $1,950, that the checks would be payment in full and that the fountains would be delivered.
Jeffrey Martin then testified, confirming there had been a hold up in the delivery of the fountains, and validating the documents that had been displayed to the jury, saying they were “documentation of the arrangements I made to try to get these fountains moving out of where they were at and into my possession.” Martin said he “vaguely” remembered that one of checks was made out to Catherine Jarvis.
Martin testified that he continued to have difficulties getting the fountains but said others in the office dealt with Merritt. Eventually, Martin said, the fountains were completed and he had to send one of the company’s superintendents out to California with a truck to pick them up and bring them back to Ohio.
The prosecution aimed at illustrating that Merritt had not held up Earth Inspired Products’ end of the bargain when Martin was asked what condition the fountains were in when they arrived in Ohio.
“They were not assembled,” said Martin. “We brought pieces and parts back to Ohio. We had to hire an electrical contractor to complete the wiring and a plumber to finish putting the pieces together before we could install them.”
With his cross examination of both Heckaman and Martin, however, Merritt’s defense co-counsel, Raj Maline, succeeded in illustrating to the jury that mix-ups relating to the fountains had come about not as a consequence of Merritt’s failure to perform but because of the interruption in the operations of Earth Inspired Products brought on by Joseph McStay’s disappearance. Heckaman acknowledged that she had not been involved in the origination of the order in February 2010 and had never dealt with Joseph McStay. Moreover, it was shown that the invoice that acknowledged payment generated on February 24, 2010 showed that the $6,250 deposit on the project had been routed to Dan Kavanaugh, the defense team’s alternative suspect in the matter.
Maline also successfully refuted the suggestion that the $2,000 paid to Merritt through his wife and the $1,950 paid to Walker Sheetmetal was an overcharge. When Martin was pressed to do so, he could not provide any documentation to show that his company had paid anything other than the $6,250 deposit, the $2,000 to Catherine Jarvis and the $1,950 for the water fountains, $10,200 total, which was $2,550 less than his company had agreed to pay for the fountains in February 2010. Maline further discredited Martin’s suggestions that there was any shortcoming in the manner in which the fountains arrived disassembled, as Maline had him admit that the fountains were the only two he had ever incorporated into a project and he was not familiar with how water features were packaged and shipped.
The prosecution after Martin’s testimony sought to counter the defense’s suggestion that Merritt had not grifted money out of the water feature construction deal with Geis Companies. With the jury absent from the courtroom, prosecutors obtained clearance from Judge Smith to make a visual display of Kavanaugh’s bank statement of February 23, 2010 and Charles Merritt’s bank statement from March 15, 2010.
With the jury present, without any verbal presentation, Kavanaugh’s bank statement was displayed, showing a wire transfer of $6,250 into his account on February 19, 2010 from Geis Construction Inc. and that Kavanaugh’s account also showed on February 19 a transfer to the “Chk 2519 Banking Ctr Gaslamp #0001647” of $5,000.
The prosecution then displayed Charles Merritt’s Bank of America bank statement dated March 15, 2010, which under the heading Deposits and Credits showed “CA Tlr Transfer Banking Ctr Gaslamp #0091647” in the amount of $5,000.
The implication was that Merritt had been provided with $5,000 on February 19, 2010 toward the acquisition of materials for and the construction of the water features for Geis Construction.
The prosecution thus deflected an element of the defense’s own deflection. Nevertheless, the prosecution had itself been lured into making reference to  Kavanaugh. Previously, the prosecution had been loathe to so much as acknowledge his existence, having objected at virtually every previous mention of his name by the defense. The prosecution’s presentation of his banking records, an indication that at least some level of investigative scrutiny was cast Kavanaugh’s way, turned what is potentially an important corner for the defense.
Dr. Chanikarn Changsri, the chief forensic pathologist for the San Bernardino County Sheriff’s Department Coroner’s Division, testified on Monday afternoon. Changsri has been a forensic pathologist in San Bernardino County for 13 years and was previously  with the Los Angeles County Medical Examiners Office for two years.
Changsri said she conducted four separate autopsies on November 14 and 15, and that Detective Jose Avila, Crime Scene Investigator Aurelio Martinez and forensic anthropologist Dr. Alexis Gray were present. She said three sets of the McStay family’s remains were in boxes and one was in a body bag. She said she did not have identities of the victims at the time of the autopsy. She was provided with the investigative reports relating to the discovery, unearthing and removal of the bodies, she said, after the fact and used that information to supplement her final report.
In describing the type of trauma that had been inflicted on the McStay family members, Changsri spoke in terms of antemortem, perimortem, and postmortem, meaning, respectively, prior to death, at or near the time of death and after death. Changsri explained that injuries, in particular bone injuries inflicted at a point prior to death, would begin to heal and that signs of healing would indicate that the wounds or trauma were inflicted while the victim was yet alive. At the other end of the scale, according to Changsri, postmortem trauma to bones would be indicated by cracking with no indication of a healing process whatsoever.
Joseph, Jr.’s remains were in a sealed box, she said, which were photographed and x-rayed. A photo of those remains displayed on the court’s monitors showed eight bones or fragments, including one recognizable piece of the skull, three longer bones and four chips or fragments.
Changsri said a half circle defect on the back right side of Joseph Jr.’s skull was apparent. “The cause of this is unknown,” she stated. “There’s also a fracture or broken piece of bone on the right side [of the skull] and this fracture was determined to be not antemortem” because, she said, it had no indication of healing.
With regard to Joseph, Jr., Changsri said, “The cause of death is undetermined. The manner of death is homicide,” she concluded, based on the circumstances surrounding the death.
Gianni McStay’s remains examined by Changsri consisted of a much larger skeletal inventory than that of his brother. His bones, as were those of Joseph McStay Sr. and Summer McStay, were placed into position by Dr. Gray, said Changsri.
Based upon her examination of Gianni McStay’s remains, Changsri said, he had a minimum of 6 strikes to his head perimortem, that is, right around the time of his death, resulting in five fractures to the skull that were apparent. She said she detected a skull fracture on the left top side of the head in the shape of a half circle; on the left front side a linear fracture down toward the forehead; a large open skull fracture to left back/side of the head; a fracture to the skull sutures; and a fracture to the right parietal bone. Changsri said she did not observe any trauma to Gianni McStay other than that to his skull.
Changsri said the skulls of children are more flexible and pliable than those of adults and that as a result, the impact to a child’s head might not be apparent in an autopsy setting. The cause of death to Gianni, according Changsri, was “blunt force injury to the head, and the manner of death was homicide.”
With regard to the remains of Summer McStay, Changsri said she examined in addition to the arranged skeleton removed from the grave two “clumps,” which consisted of “dirt, fabric, clothing and brown hair” and the other which contained “bones, dirt and some fabric” and, she said, “teeth.”
On the left parietal of Summer McStay’s skull, Changsri said, was a “curvilinear line, which is a fracture.”
Prosecutor Melissa Rodriguez then displayed a photo of the remnants of Summer McStay’s skull, which was shattered into 40 larger and smaller pieces.
“What can you tell us in terms of the level of trauma to Summer McStay’s skull based on the number of amount of pieces we have here?” Rodriguez asked.
“Well, based on the number of pieces you have here, examining it shows a lot of blunt force trauma and that it would be more than one impact to cause this much injury,” said Changsri.
Changsri described two fractures to the right side of the frontal bone of Summer McStay’s skull.
Changsri said there were two areas of broken bone in Summer McStay’s lower jaw, “one on the left mandible and the other on the body of the jaw near the midline.”
Changsri said she saw no sign of healing to any of the fractures.
“How would you characterize this in terms of ante- or perimortem?” asked Rodriguez.
“Perimortem” said Changsri.
Rodriguez asked, “Could an injury like this occur without there being any actual blood that comes out on the outside of the skin?”
Changsri said, “Yes.”
“How could that occur?” asked Rodriguez.
“Because you would have blood coming out of the skin if there was a laceration, an open wound,” said Changsri. “With trauma like this, you are going to have external injuries, but it could be a bruise or an abrasion. It doesn’t have to be a laceration.”
“How about some of the other fractures that we looked at with respect to Summer McStay?” Rodriguez asked. “Is it possible for those injuries to have occurred without external lacerations?”
“Based on the number of pieces of skull that were broken, you would expect that there would be some lacerations but not all of the skull fractures need to have overlying laceration,” said Changsri.
“Is it possible you could incapacitate somebody to a certain degree without causing a laceration to the skull with blunt force trauma?” asked Rodriguez.
“Yes,” said Changsri.
“Are you able to provide any information related to the minimum number of impacts that you believe Summer McStay had?” Rodriguez asked.
Changsri said it was “a minimum of six.”
Changsri said their was no tissue present when she did the autopsy of Summer McStay.
“Was there any medical evidence that you observed that could tell you if she was raped?” Rodriguez asked.
“No,” said Changsri.
“What type of evidence would you need, actually, to determine whether or not a rape had occurred in terms of tissue?” Rodriguez asked.
Changsri said such a determination would require evidence of “trauma to the soft tissue of the vaginal area.”
“And because there was no tissue attached, you cannot make any medical determination that occurred,” said Rodriguez. “Is that correct?”
“Correct,” said Changsri.
“Were you able to determine a cause of death?” asked Rodriguez.
“Yes,” said Changsri.
“What was that?” Rodriguez continued.
“Multiple blunt force injuries to the head,” said Changsri.
“And were you able to determine the manner of death?” Rodriguez asked.
“Yes,” said Changsri. “It was homicide.”
Changsri said that after completing the autopsies of Joseph Jr., Gianni and Summer on November 14, she performed the autopsy of Joseph McStay on November 15.
She said that Joseph McStay was brought into the coroner’s examination room in a yellow body bag. A display of the corpse, consisting of essentially intact skeletal remains above the level of the knees, dark in color and wrapped in dirt saturated and encrusted fabric, was displayed on the courtroom’s monitors.
“You see that the body is encased in dirt, cloth, extending from the head to the upper thigh,” said Changsri. “Around the pelvic area there is a white electrical cord that is tied to a red strap that’s knotted in the back. There’s also an S-shaped metal hook that’s attached to that strap. On the neck area, there’s a white electrical cord tied in the back.”
She said x-rays were done to the corpse.
“We’re you able to determine if there was any sort of trauma to Joseph McStay?” Rodriguez asked.
“Yes,” said Changsri.
To the “left chest area,” Changsri said, “you could see that the fabric was still on the body.” Amidst that, Changsri said, was “ tip of a rib. That was a fracture site.”
“How or what level of force would be required to cause a rib like that to fracture?” Rodriguez asked.
“It could be due to an object impacting the body,” said Changsri. “It could be due to also if there was impact to the front, because if you think about the rib cage, the rib will break wherever it bends out. So whenever you are compressing in the front, the rib on the side will bend outward, causing a fracture. Those are the two possibilities.”
“Can you characterize the fracture of this rib, whether it is antemortem, postmortem perimortem?” asked Rodriguez.
“It is perimortem,” Changsri.
Two photos of the skull, both showing an intact row of upper teeth but without the jaw bone or lower teeth below those upper teeth were displayed together, one with hair still intact on the top of the head in the upper left side of the courtroom’s front and four dual sidewall monitors and the other, without hair on the lower right side of the monitors.
“This is a picture of the front of the skull,” Changsri said, using a laser pointer to indicate the lower right photo, “and the picture on the left is with the hair and some fabric still intact, and it is removed in the picture on the right hand side.”
When dual photos of the skull taken from behind were displayed, Changsri said, “You see a hole in the left back side of the head. To confirm that that’s due to impact, you see there’s a fracture, a linear fracture going upward towards the front and you also see a triangular-shaped broken bone still attached to the skull.”
On the right portion of the skull, Changsri said, was “a two-fracture site, one on the right back side of the head, a round depressed fracture, and the other one, near the right cheekbone, we see the space between his cheekbones.”
A photo of 11 bone fragments were shown on the monitors, and Changsri said, “These are pieces of the skull that came from that open hole.”
Changsri said the large hole on the left side of the head, in addition to causing the linear fracture going upwards to the top and front of the head, had also resulted in two further substantial cracks in Joseph McStay’s skull.
“The impact that caused this fracture also caused a fracture radiating to the left base of the skull and one going up to the upper palate of the mouth,” said Changsri.
Are you able to tell us approximately how many minimum impacts there were to Mr. McStay’s skull?” Rodriguez asked.
“Yes,” said Changsri. “There were a minimum of four.”
Changsri said there was not a complete set of hands contained with Joseph McStay’s corpse.
Changsri said that Joseph McStay’s right “tibia has a fracture on the back side.”
“Could this type of fracture to the tibia impact somebody’s ability to walk freely?” Rodriguez asked.
“If the person’s other leg does not have trauma, the person can move, but they would not put weight on the right leg with the broken bone,” said Changsri.
“Were you able to determine whether this fracture was antemortem, perimortem or postmortem?” asked Rodriguez.
“This fracture is perimortem,” said Changsri.
“Were you able to determine a cause of death?” asked Rodriguez.
“Yes,” said Changsri. “The cause of death is multiple blunt force injuries to the head.”
“And what is the manner of death?” asked Rodriguez.
“The manner of death is homicide,” said Changsri.
Rodriguez then showed Changsri the sledgehammer removed from the grave in which Gianni and Summer were buried.
“Was this item significant for you?” Rodriguez asked.
“Well, it was significant in that it was in one of the graves and it was a possible object that was used to cause these injuries,” she said.
Changsri said that based on the circular or half circular shape of several of the head wounds of the victims “you start to think the object used to cause that broken bone had a round or oval shape” similar to the head of the sledgehammer. “Knowing about the sledgehammer in the grave and the characteristics of some of the fractures, I could say that the sledgehammer is a possible weapon that was used.”
Merritt’s defense attorney, James McGee got Chagsri to acknowledge that “Twenty percent of the blood volume of the boy goes to the head” and that there is dense composition of blood vessels in the head. She said that the head is the most susceptible to blood injuries and lacerations of any part of the body.
“And lacerations, as you said, tends to be a cut, correct, in the skin?” asked McGee.
“A laceration is an open wound,” said, Changsri. “It looks like an open wound. It looks like a cut from the outside, but when you open the wound up, you can see that there’s still tissue bridging the two sides. So you know it was a blunt force trauma.”
“It can also be a tear?” asked McGee.
“Correct,” said. Changsri.
“So, if you had a blunt force object like a three pound sledgehammer,” McGee said, and then handed Changsri the sledgehammer that was pulled from Gianni’s and Summer McStay’s grave contained in a plastic bag, he said, “so you have an understanding of its weight – Now, if you were to take that hammer and hit me in the back of the head, is it likely I would probably bleed, if you hit me hard enough to cause a fracture?”
“Yes,” said Changsri.
“With Joseph McStay, you said the cause of death was multiple blunt force trauma to the head, correct?” asked McGee.
“Correct,” said. Changsri.
“And it was a minimum of four impacts?” asked McGee.
“Yes,” said Changsri.
Speaking with regard to the fracture near Joseph McStay’s cheekbone, McGee asked, “So if somebody was hit in the face with a sledgehammer, a three-pound sledgehammer, would you expect that to have a laceration and bleed?”
“It depends on the amount of force used in that sledgehammer,” said Changsri.
“Is it reasonable to think it probably would have a laceration?” asked McGee
“I really can’t answer that,” said Changsri. “There would be some external injuries, but not necessarily a laceration.”
McGee turned his attention to the fracture to the right back side of Joseph McStay’s head.
“This compression injury caused multiple line fractures, right?” McGee asked.
“Yes,” said Changsri.
“And you have bone chips, so it seems the fracture went all the way through the skull,” said McGee.
“Correct,” said Changsri.
“So, how much force would you expect for this type of decompression fracture to happen, using that three-pound sledgehammer?” McGee asked.
“A lot of force,” Changsri said.
“With that amount of force would you expect to see a laceration on the side of the scalp?” McGee asked.
“Yes, I would,” said Changsri.
Turning his attention to the large gaping wound on the left back side of Joseph McStay’s head, McGee asked, “This appears to be larger in size than the decompression fracture and also probably larger than the head of the hammer, would you say?”
“Correct,” said Changsri.
“Would you expect this to be the most force out of all the strikes to the head?” McGee asked.
“Yes, and there would be more than two impacts. Let’s say there would be at least two impacts to the back of the head,” she responded.
“At least two,” said, McGee. “Could be more.”
“Correct,” said Changsri.
“So when you say minimum…four. It could be five. It could be six. You don’t know,” said McGee.
“Correct,” Changsri said.
“To fracture the skull into pieces like we saw, fracturing into small pieces, that would be significant force?” he asked.
“Yes,” Changsri said.
“Would you expect to see a laceration or multiple lacerations of the skull?” McGee said.
“Yes, I would,” she said.
“If somebody suffered these amount of fractures in their skull that might result in lacerations, how much blood would you expect to be around that body at the time of impact?
“I wouldn’t  know how to quantitate exactly how much blood, but it would be noticeable blood that would be right around the head and around the body,” said Changsri.
“And when we say blood, would it be just a couple of drops or would we be talking it’s starting to pool?” asked McGee.
“It’s starting to pool,” Changsri said.
Elva Fonseca who worked for Merritt from March until December of 2007, testified on Tuesday January 29.
Fonseca said she had been interviewed about the case by the San Diego County Sheriff’s Department in 2011. She said Merritt hired her through the Appleone employment agency in March 2007 as a personal assistant to “manage his calendar, files and answer the phone.” She worked the hours of 8 a.m. to 5 p.m. with Merritt at a foundry located on Mission Boulevard, which she referred to as a “street” in Pomona. She said Merritt engaged in the manufacturing of large artificial waterfalls through his company, I Design For You. She said the products were constructed at the Mission Boulevard facility and that she came into contact with Joseph McStay there when he visited the operation on occasions. Some of the features were built for Joseph McStay, who paid for components that went into the creations, and who paid I Design For You for the features upon completion, she said.
Fonseca said Merritt’s company used the QuickBooks accounting system.
At one point in her employment by Merritt, Fonseca said her duties changed.
“There were many gaps in the running of the business,” she said. Initially she said, “I didn’t do bookkeeping. It evolved into me being a part of the hiring process and doing bookkeeping and checking quality control.”
Fonseca said she did not have direct access to the company’s bank accounts but reconciled them. She said that some of the business transactions involved the account for, or were carried out under the name of, Catherine Jarvis.
Fonseca said she “did not know the split” in profits between McStay and Merritt with regard to the projects they were doing jointly. She said there were different size projects involved and that their prices generally varied between $2,000 to $8,000.
She said that Joseph McStay purchased the pumps for the Earth Inspired Products waterfalls that Merritt constructed. She said that on one occasion Merritt had used a pump that belonged to Joseph McStay on a project he was doing that was separate from the projects being done for Earth Inspired Products.
“To your knowledge was the defendant using pumps that he had received from Mr. McStay for his own personal projects?” Rodriguez asked
“Yes,” said Fonseca.
“Did you ever have an opportunity to tell Joseph McStay the defendant was doing that?” Rodriguez asked
“Yes,” Fonseca said.
Fonseca also said that she was aware of a time when Merritt had made a misrepresentation about the completion of a job in order to get money from McStay that was used to meet payroll for the business which employed her and at least one other fabricator working for Merritt.
“There was an occasion where we were paying our rent and there was no funds to do payroll and Charles had called Joseph and told him a water feature was complete in order to get payment and funds into the account and we spoke about that water feature, the status of it being completed when I spoke to Joseph and told him that it wasn’t complete,” said Fonseca.
Under cross examination by Maline, Fonseca indicated that Joseph, once he was informed that Merritt was having difficulty meeting payroll, had come through and assisted Merritt in meeting that obligation.
Carmen Garcia, who worked as the office manager for Metro Sheet Metal in Azusa, where Merritt fabricated the water features for Earth Inspired Products using stainless steel frames supplied by Metro under an arrangement Metro owner David Sequeida had with both Joseph McStay and Charles Merritt, testified on Thursday.
Garcia’s best estimate was she met Merritt around 2009, when he started working out of the shop and he had entered into an arrangement with Dave Sequeida pertaining to the manufacturing of fountains. She said that Metro Sheet Metal did the framing and Merritt handled “the more creative aspects” of constructing the fountains. She said she met Joseph McStay “a couple of months after Dave started doing business” with Merritt, and that she was introduced to Joseph McStay by Merritt.
Asked if Merritt had access to the shop after hours, Garcia said, “I believe he did,” contradicting the testimony of Sequeida’s son, also named David, who was called as a prosecution witness and said that he and his father considered Merritt untrustworthy and did not allow him access to the Metro Sheet Metal facilities without supervision.
Queried about a “hostile discussion” that involved Metro Sheet Metal and Earth Inspired Products, Garcia said the issues were not between Sequeida and Merritt but rather between Sequeida and McStay, because Sequeida felt McStay was acing him out of his share of the profits from the manufacturing of the water features.
“I know that Dave had issues with Joseph because Joseph wasn’t being forthcoming” about the prices customers paid for the fountains and Sequeida couldn’t “calculate the percentage because he didn’t know what the items were selling for,” Garcia said.
Garcia said she had tried to reach Joseph McStay on February 5, 2010 by both phone and email but was unsuccessful. She said Joseph McStay typically was responsive to her efforts to contact him. She said that on February 5 she was able to leave messages on his cell phone. She said she did not hear back from him.
Garcia did not recall seeing the defendant at the Metro Sheet Metal Shop on February 5. She said that on the following Monday, February 8, Merritt was present. “When he came in on Monday, I told him that we’d been trying to contact Joseph, we were unable to and ‘What was going on?’” she said. “I just told him we were trying to contact Joseph and he hadn’t gotten back to us. He asked me, ‘Well, why do you have to get in touch with him?’ And I said, Dave [Sequeida] has questions that we were working on.”
“Did he appear concerned at that time?” Rodriguez asked.
“No,” said Garcia. “He said he had been trying to get in touch with him as well over the weekend.”
“Did it seem to you that he was more worried about something else?” Rodriguez probed.
“No,” said Garcia, but a defense objection to the question was sustained, obliterating an answer that had been favorable to the defense.
“Did you ask him or talk to him about whether or not he had called any law enforcement about them missing?” Rodriguez asked.
“No,” said Garcia. “He said he hadn’t. He said he was going to wait a few days.”
With regard to whether Merritt was going to contact any of Joseph’s family, Garcia said, “He said he was going to hold off on that and he was going to go to the house and check it out himself.”
“At that point you had tried calling Joe on that Friday and then that you had emailed him,” said Rodriguez. “Did you continue trying to get a hold of Joseph after that?”
“I think we kind of left it up to Chase to try to follow up on that,” said Garcia.
Garcia said Metro Sheet Metal was involved with two projects in connection with Earth Inspired Products that were ongoing at the time of Joseph McStay’s disappearance.
“Did you continue to see Mr. Merritt that week after you had a conversation with him on the eighth?” asked Rodriguez.
“Yes,” said Garcia.
Do you recall receiving a couple of checks, at the time the McStay family went missing, from the defendant?” Rodriguez asked.
“Yes,” said Garcia.
Two checks drawn on the Earth Inspired Products account were displayed on the courtroom’s overhead monitor, one numbered 4236 and dated 02/04/2010 made out to “metro sheet metal” for $1,650 and a second one numbered 4238 and dated 02/04/2020 made out to “metro sheet metal” for $250.
With regard to the first check Garcia recognized it as one she had received from Merritt. “When you received this check, did you notice something different about it?” asked Rodriguez.
“I remember mentioning to Dave that the signature looked different,” she said.
Garcia said she recalled the signature anomaly on the second check as well, and noted the February 4 date, saying she had received them “maybe Monday or Tuesday of the following week.”
Rodriguez had Garcia compare check 4236 with a check Metro Sheet Metal had earlier received form Earth Inspired Products, check 4155 dated 01/22/2010 for $1,450, as both were displayed together on the courtroom’s overhead visual displays.
“You had had occasion to receive multiple checks from Joseph in the past, is that correct?” asked Rodriguez.
“Right. I was the one that was processing them. Yes,” Garcia said.
“And so when you received this check, it looked different to you, is that right?” asked Rodriguez.
“Right, the signatures struck me,” Garcia said.
She said the signatures of both seemed “odd.”
Garcia acknowledged that Metro Sheet Metal hung onto checks 4236 and 4238 longer than was the typical time that usually elapsed before depositing checks that were received from Earth Inspired Products but said that it was Dave Sequeida who usually deposited checks. “He sometimes held onto checks longer than I felt was necessary,” Garcia said.
Garcia said Merritt continued to work out of Metro Sheet Metal’s facility well after the disappearance of the McStay family, indicating she left the company in February 2011 and that Merritt was still there. “I believe he was coming in and out,” said Garcia. “I can’t recall what he was working on, but I think he still maintained a relationship with Dave.”
Garcia said Merritt “might have” been doing work outside of what he was doing for Earth Inspired Products. “He talked about having a lot of things going, so he may have been.”
Garcia testified that on occasion Merritt installed the waterfalls.
While the prosecution was able to use the testimony from Fonseca and Garcia to advance a certain element of its theory and narrative of Merritt’s guilt through attacks on his character and honesty, and by suggesting that financial desperation may have motivated the killings, there were inadvertent elements in the testimony of both women that aided the defense. Fonseca indicated that Merritt’s financial woes dated back to at least two-and-a-half years before the killings and that McStay had come to Merritt’s assistance at that time. Fonseca also gave indication of Merritt’s familiarity with the QuickBooks accounting system, which runs counter to prosecution suggestions that he was unskilled in using the program. Garcia refuted prosecution suggestions that Merritt was on the outs with Dave Sequeida and his son and that he was worried about some impending issue in the days following the McStay family’s disappearance. By confirming that Merritt installed the water features he built, Garcia also upended the prosecution’s contention that he was not productive during the latter stages of his working relationship with Earth Inspired Products.
Detective Joseph Steers with the San Bernardino County Sheriff’s Department’s homicide detail testified on Tuesday as well. He reviewed the San Diego Sheriff’s Department’s missing persons investigation relating to the McStay family in the light of the discovery of the two graves containing their bodies in November 2013. He reviewed the photographs taken by San Diego County investigators during the serving of a search warrant at the McStay residence on February 19, 2010 and compared items found in the graves, in particular items of clothing, towels, a bathrobe and futon covers.
He also, after obtaining another search warrant, returned on August 5, 2014 to the former McStay home, at that time occupied by Sean and Sandra O’Callahan, so he could determine if there was any evidence that the earlier investigation had missed. Steers said that the house had changed somewhat and that the front door had been repainted, flooring replaced and the carpeting downstairs removed and replaced with the exception of downstairs bedroom.
There were still questions remaining, Steers indicated.
“Did you attempt to look at the evidence that was recovered from the grave excavation to see if you could answer any of those questions?” asked Imes.
Steers said he had located a beige woven cloth material from the grave he thought made a match to the futon covers in the McStay home. Steers said he made comparison of various items of fabric, including towels and a bathrobe which he thought might be one of a matching set, to fabric items found in the graves, all of which were depicted in photographs displayed to the jury amid objections from the defense of the comparisons as speculation.
“Given the degraded state of the materials that were recovered from the grave, were you able to conclusively make any particular matches to any particular items?” Imes inquired.
“No,” said Steers.
Steers also said he found significant the presence of paint cans in both the McStay house and in the garage and laundry room, along with other painting supplies present at the home, and he drew a connection between those items to paint on the handle of the Stanley sledgehammer and Summer McStay’s bra found in and out of the grave site.
Asked about the paint on the bra and hammer, Steers said, “Those are consistent with the paint at the residence in Fallbrook.” He said the paint on the hammer and bra were sent out for further testing. Steers also remarked on the clump of material extracted from Summer McStay’s grave, which he said had within it the same type of blue painters tape that was used at the McStay house in the days leading up their disappearance.
A photo was also exhibited for the jury in which Joseph McStay Jr. was seen in a toddler’s bathrobe, and Steers said that item appeared consistent with a bathrobe found in the grave that contained Joseph McStay and Joseph McStay Jr.
Steers said he took samples of paint from the walls in the family room and from the entranceway to the kitchen.
On cross examination by Merritt’s defense co-counsel Jame McGee, Steers was shown a photo of the two McStay Children seated on the futon taken over what was apparently the 2009 Christmas Holidays that Steers had himself retrieved from either a camera, a computer or a phone. That photo showed the futon’s cover fabric as tight-woven.
McGee displayed a close up of the blanket wrapped around Joseph McStay when he was found in the grave north of Victorville, which showed a far coarser fabric pattern.
“Would you agree now that the blanket found wrapped around Joseph McStay does not match the futon cover?” asked McGee
Steers said he could not tell.
McGee asked Steers “Is it true in your experience that when there is excessive blunt force trauma of the kind that happened to the McStay family it would create blood stain patterns and a large amount of blood at the scene of the crime?”
“It’s possible,” said Steers. “Every situation is different.”
“Your concern was that [the] San Diego [Sheriff’s Department] when they were in the house did not find any scene of a crime so you thought it was important to go back into the house to look for evidence, correct?” asked McGee
“Correct,” said Steers.
“Isn’t it true it’s your experience that if there are bloodstains on a wall, even if they are painted over, they can still be detected?” asked McGee
“It’s possible, yes,” said Steers.
“If the correct forensic process is done, you can find it, correct?” asked McGee
“Yes,” said Steers.
“And you went there with that intent?”
“Yes,” said Steers.
McGee then went over places in the residence that during the August 5, 2014 serving of the search warrant at the O’Callahan home seemed to offer some promise, including one stain on the second floor wall, on the exterior of the master bathroom door, a stain on the carpet on the stairwell and the doorframe to the southwest bathroom door, all of which tested positive to a presumptive but less than fully indicative test for the presence of blood. At that point, McGee did not ask and Steers did not testify with regard to whether those samples panned out.
Under further questioning by McGee, Steers testified that he had gone down to San Ysidro and the shopping mall where the McStay family’s Isuzu Troper was left on February 8, 2010 and had noted that there were payphones in the shopping center. McGee got Steers to confirm that either he or his partner had searched the records of calls placed from those payphones to see if any calls were made from them to Merritt’s girlfriend/common law wife Cathy Jarvis’s cell phone or home number, or to the McStay residence, Joseph McStay’s cell phone, Summer McStay’s cell phone or Merritt’s cell phone, and that no such calls had gone through.
“After reviewing the San Diego [County Sheriff’s Department’s] investigation, all their reports and photographs, and you returning to the house and doing your tests, is there anything in that house that you found or you read or have seen that tells you those murders happened in the Fallbrook house?” asked McGee
“In totality?” Steers responded.
“In totality and everything you have seen,” said McGee.
“In totality, I believe it did occur at the house,” said Steers.
“That’s not my question,” said McGee. “I didn’t ask what you believe. I said, ‘Did you see any evidence that shows you the crime happened in that house?’”
“No,” said Steers.
“But you believe it did,” said McGee.
“Yes,” said Steers.
“Without evidence,” said McGee.
“Objection, argumentative,” said Imes.
“Sustained,” ruled Judge Smith.
“Isn’t it true if you can’t find evidence that makes that murder happen inside that house you can’t prove a case against my client?” McGee asked.
“Objection,” said Imes. “That’s argumentative, assumes facts not in evidence and [calls for] a legal conclusion.”
“Sustained,” said Judge Smith. “You can save that for your closing arguments, Mr. McGee.”
Diana Wright, a forensic examiner and chemist with the FBI’s laboratory in Quantico, Virginia who specializes in analysis of plastic materials and coatings such as paints, testified on Tuesday afternoon.
Wright, who has a certificate from the American Board of criminalists in the area of paints and polymers and is a member of the American Society of Trace Evidence Examiners, said she was called upon through the FBI field office in Los Angeles to do some paint analysis of items relating to the McStay family murder in September 2014.
“The first analysis I received was labeled possible paint transfer on a garment of clothing,” Wright said. “Also I received an item with possible paint on a sledgehammer. And I received two samples which were submitted as known paint samples from a residence, one from a living room wall and one from a kitchen entryway wall.”
Wright said, “I looked at each of those items independently.”
Wright said she made a visual examination, and examined them under a microscope, and used instrumentation available to her in the laboratory to determine their composition, including subjecting them to infrared spectroscopy.
As a result of that examination, Wright testified, she determined the four substances she was analyzing were paint but was further able to exclude items one and two, the paint on the bra and the sledgehammer, from the paint samples provided from the living room and kitchen entryway walls.
Wright said that in October 2014 she was provided with a paint sample collected from the former McStay residence, one taken from the kitchen wall and one taken from an island within the kitchen.
She said there were two layers of paint in that sample but that she found a degree of commonality between the underlayer and the paint on the two earlier submitted items, the bra and the sledgehammer.
Despite the commonalities, she said there were minor chemical differences which led her to a finding at that point that the match was “inconclusive.”
Sergeant Ryan Smith, who has been with the San Bernardino County Sheriff’s Department for 15 years, began testifying late on Tuesday afternoon. He was assigned to the team investigating the McStay family murders once that investigation began in earnest in San Bernardino County.
Smith said the team reviewed the report relating to the McStay family disappearance generated in San Diego County that included 3,500 pages of reports and documents, and that physical items and computers were examined, as well as the family’s Isuzu Trooper. He said from his own personal knowledge, he knew over 60 search warrants relating to the case were obtained and executed and that over 200 interviews were carried out.
Asked if the investigation had focused solely on the defendant, Smith said that was not what occurred.
“Why?” asked Imes. “Because it was important for us to include and exclude everyone,” said Smith. “There was no known suspect when we received the case from San Diego.
Early in the sergeant’s testimony, Imes drew out from Smith that a key to the Isuzu Trooper that was among several keys in the shorts that Joseph McStay was clad in when he was found in the grave was not confirmed as fitting the Trooper until January 15 of this year. Smith said the belief and expectation that the key was to the Trooper was discussed over the years but not acted upon until January 15 when “it became relevant during the course of this trial. It fit both the door and the ignition.”
Among the other keys contained on Joseph McStay’s person was a Chateau padlock key, which Smith said was “significantly deteriorated. Chateau is a lock company. They specialize in padlocks typically found in storage sheds.
Smith further testified about a Chevrolet 3500 pick up truck that belonged to the defendant in 2010. A check of records showed the defendant then owned a truck with the license plate number of 6KSX661, and that the truck had been sold through the Ritchie Bros Car Auction and at some point outfitted with different license plates, 33292D1. Despite the new license plates, the truck had the same vehicle identification number and was registered in 2014 to Nels Bloom. The investigators then contacted Bloom, who lived in the area of Lake Elsinore in Riverside County, taking temporary possession of the truck and subjecting it to a set of thorough searches, tests and measurements. Smith said he was assisted in processing the truck by crime scene investigator Mike Russ. Some indication of blood was found in the cab of the vehicle, Smith testified, but he gave no indication that it was in any way linked to the murders. Several photos of the truck were displayed to the jurors on the courtroom’s viewing monitors.
Measurements of the rear cargo area of the vehicle were made. The cargo area had a diagonal length of six feet to six-feet-one-inch, he said. The height of the cargo compartment was about two feet-three inches, Smith said.
Smith said the investigators measure the wheel base of the truck, which he said was 73 inches measured from the outer edge of the tread on each wheel. Smith said the measurements had been made by measuring the wheel base with a tape measure by starting at the one foot mark. “We didn’t start from the end of the measuring tape,” Smith said. “We started at the first foot, so that way. if there’s any dings on the measuring tape you’re not counting that. You’re going foot one all the way through the end of the measurement.”
Despite Smith’s assertion, when the close up of the truck’s wheels with the yellow measuring tape spanned across them was shown, it appeared that the tread on the left side started at the 11 and 5-eighths inch mark on the measuring tape and ended at the 83 and three-eighths inch mark, such that the actual width appeared to be 71 and three-quarters inches.
The width of the wheel base of Merritt’s truck is of some moment, as last week, Heatherly Radeleff, a San Bernardino County Sheriff’s Department crime scene specialist, testified that measurements taken of separate sets of tire tracks leading to the two graves in which the McStay family members were buried had a width from the outer side of the right tire to the outer side of the left tire of 73 inches at one grave and 76 inches at the other grave.
Smith testified about further measurements made of the truck’s dimensions, including the height of the headlights, tail lights and running lights. These were compared and contrasted with the respective distance of the lights to the ground on a vehicle that was briefly caught on the security camera of one of the McStay family’s neighbors on Avocado Vista Lane, Jennifer Mitchely, and which appears to have turned into the McStay home’s driveway on the evening of February 4, 2010.
During cross examination, there was some back and forth between Merritt’s defense co-counsel James McGee with regard to whether the what Smith called running lights on the vehicle seen in the Mitchley security video were indeed running lights or whether what Smith characterized as running lights were merely the reflection off the bumper.
Under cross examination by McGee, Smith acknowledged that keys, including a key to the Isuzu Trooper, were found in the gym shorts Joseph McStay was clad in when he was found in the grave.
“If you have house keys and car keys in the pocket of your clothes, is it not a reasonable inference to look at from an investigative standpoint did Joseph drive that car to San Diego, where it was found?” McGee asked.
“I’m not sure what you’re trying to get at, but my testimony is that it was abundantly clear they didn’t drive themselves to the desert and then drive the car down to San Diego, and that key was clearly a copy,” said Smith.
“Right,” said McGee, “but did you eliminate the idea that they drove the car down to San Ysidro and were taken there to deposit in the desert?”
Imes objected to the question and Judge Smith sustained it.
“Did that become part of your investigation, that maybe they were taken outside the house?” McGee persisted.
Imes again objected, but Smith overruled the objection.
“When you say taken… what?” responded Smith.
“If they drove the car down to San Ysidro and somehow they were taken from where they drove the vehicle, and ended up in a grave in Victorville,” said McGee. “Did that come into your investigation?”
“Absolutely,” said Smith. “That was part of the investigation from the time the McStays were missing. The video down at the border and the stores was pulled. The video at the border was pulled. There was no evidence that the McStays were down there other than that border video that wasn’t them. So, I would say that was checked and we did review that.”
“You just said that wasn’t them in the video,” said McGee. “How were you able to conclude that?”
“Well, there were multiple pieces of evidence at the house that indicated that the video was not them,” said Sergeant Smith. “For example, the Ugg Boots they thought Summer was wearing were outside the house by the door during [the execution of] San Diego’s search warrant. The backpack Gianni was wearing was found in the car at the house.”
McGee pressed Smith as to whether there was anything at the gravesite that would give a precise date as to the day or time at which they were buried.
“There is nothing at the gravesite where the bodies were buried that you can get a date from as far as what is on the ground or in the ground, soil samples, stuff like that,” said Smith. “There is other evidence that would indicate the time.”
McGee angled for information about Kavanaugh in his questioning of Smith.
“Now, you eliminated other suspects,” said McGee. “Did you learn that Kavanaugh sold the company [Earth Inspired Products] …
“Objection,” interjected Imes. “That’s hearsay.”
“Overruled,” said Judge Smith.
“Yes,” said Smith. “We learned that Mr. Kavanaugh sold the company. Yes.”
“And did you confront Mr. Kavanaugh about that sale?” McGee asked.
“Objection,” said Imes. “Relevance. Beyond the scope at this point.”
“Overruled,” said Judge Smith. “He can answer.”
“I didn’t interview Mr. Kavanaugh,” said Smith.
“Objection,” said Imes. “Move to strike.”
“That last answer will be stricken,” said Judge Smith.
“Did you instruct anybody to ask Mr. Kavanaugh about the sale of that business?” McGee asked.
“Objection, relevance as to whether he instructed anyone to do anything,” Imes protested.
“Mr. Kavanaugh’s interview was conducted by detectives [Edward] Bachman and [Daniel] Hanke,” Smith said after the judge overruled the objection.
“The question was,” McGee said, “’Did you ever instruct anyone to question him about the sale of the business?’”
“I did not instruct anybody, no,” said Sergeant Smith.
“Did you subpoena the contract for the sale of the business,” asked McGee.
“I did n-” Smith started and then was interrupted by Imes, who objected, citing relevance.
“Overruled,” said Judge Smith.
“I did not do that, no,” said Sergeant Smith.
“Did you make any effort to determine the terms of that?” asked McGee.
“Objection, lacks foundation,” Imes said.
“Overruled,” said Smith.
“No,” said Smith. “I didn’t do anything with Mr. Kavanaugh.”
“Did you subpoena Mr. Kavanaugh’s bank records?” McGee asked.
“I did not subpoena Mr. Kavanaugh’s bank records, no,” said Smith.
“Did you subpoena his PayPal records?” asked McGee.
“No,” said Sergeant Smith.
“Did you follow up for financial motive that Mr. Kavanaugh might have had in the disappearance of the McStays?” McGee asked.
“We followed up with Mr. Kavanaugh, and we verified he was in Hawaii,” Smith answered.
“I believe the testimony was, You asked him, he told you the dates and then you called the airline, correct?” McGee asked.
“Objection,” said Imes, “assumes facts not in evidence.”
“Sustained,” said Judge Smith. “Calls for hearsay.”
“How did you verify he was in Hawaii?” asked McGee.
“Objection, lacks personal knowledge,” Imes intervened.
“The objection is sustained,” said Judge Smith, but then said, “Well, if he did it personally, he can answer. If someone else did it you will have to call that person.”
“Were there steps taken by you to verify?” asked McGee.
“There were steps taken by the team to verify Mr. Kavanaugh was in Hawaii,” said Smith. “I did not personally do that.”
McGee was thwarted by Imes’ objections when he asked Sergeant Smith about how much money Kavanaugh had taken out of the Earth Inspired Products operation after the McStay family disappeared, rephrasing the question several times, encountering Judge Smith’s sustaining the objections each time. He then took a slightly different tack.
“Did you investigate to see if Kavanaugh even profited?” McGee said.
“Objection, relevance, beyond the scope and lacks foundation,” Imes chimed.
“Overruled,” said Smith. “He can answer.”
“Again, I didn’t do, or participate in, Mr. Kavanaugh’s interview,” said Sergeant Smith. “However, Mr. Kavanaugh was asked about PayPal transactions that happened after the McStays’ disappearance. I can’t, couldn’t number that for you. I wasn’t there. I didn’t review those records.
Sergeant Smith testified that he went to a storage shed that Merritt and Joseph McStay had rented together.
On Wednesday the jury went to the gravesite.
Thursday morning, Sergeant Smith was again on the witness stand. Supervising Deputy District Attorney Brit Imes was not present at that point, having to tend to some other issue. Present, however, were the two other members of the prosecution team, Sean Daugherty and Melissa Rodriguez.
In continuing his cross examination, McGee queried Smith about efforts to determine if there was any blood found in Merritt’s truck.
Smith said that they had some false reading of blood from the reaction of iron in the cargo area but that none of those proved to be blood and that there was no subsequent DNA or anything from that.
Inside the truck, Sergeant Smith said, “I believe there was a hit in the cab, on the seat, but it didn’t come back to anyone involved in the investigation.”
Smith also testified that investigators found Joseph McStay’s wallet but that it turned out that it had “old cards” in it. “I believe it was an old wallet he maybe gave to one of his kids, but it wasn’t his current wallet,” Smith said. He confirmed Joseph McStay’s current wallet was never located.
Smith said the San Bernardino County Sheriff’s Department did not release any information about the investigation until after Merritt’s arrest was made.
Smith confirmed that before the arrest was made the department had received a tip about internet searches on the McStay computer.
From there, McGee delved further into the issues relating to Kavanaugh.
“There was one [tip] in particular that there was an internet search done on a computer, correct?” McGee started.
“Correct,” said Smith.
“And that was done by Dan Kavanaugh…”
“Objection, hearsay, lacks foundation, relevance,” said Supervising Deputy District Attorney Sean Daugherty.
“Overruled,” said Judge Smith. “It’s not admitted for the truth of the matter asserted but only to show that they received information, what if anything they did with that information as a foundation. So, the objection is overruled.”
“Missing a little bit, we received an anonymous tip Kavanaugh conducted that internet search,” Sergeant Smith said. “I was unable to locate the anonymous tipster because they were gone.”
“The anonymous tipster said that Kavanaugh conducted [an] internet search on his computer, lured the family out…”
“Objection, hearsay,” said Daugherty. “Lacks foundation.”
“Overruled,” said Judge Smith. “Again it’s not meant to prove the information was in fact true, going to show this is information that was received and what was done with that information.”
“Well, then I’m going to object as to the relevance of whatever the information is,” said Daugherty.
“Overruled,” said Judge Smith.
“McGee continued, “Kavanaugh lured Joseph and the family out of the house, killed them and buried the bodies. That’s part of the tip, correct?”
“Correct,” said Sergeant Smith.
“And that he drove the truck to the border…” began McGee.
“Correct,” said Smith. “It basically stated all the information that was out from San Diego.”
“But the internet searches weren’t out, correct?” asked McGee. “It was your department that looked into the cases here.”
“Objection, argumentative,” said Daugherty.
“Sustained,” said Judge Smith.
“You could not contact the tip person because they were anonymous, correct?” asked McGee.
“That is correct,” said Smith.
“Did you contact Kavanaugh and ask him about that information that should not have been known by the public?” asked McGee.
“Objection, lacks foundation and misstates the evidence,” said Daugherty.
“Sustained as to foundation,” said Judge Smith.
“Did you contact Kavanaugh and question him about the contents of this tip?” asked McGee.
“I was not involved in Mr. Kavanaugh’s interview,” said Smith. “He was interviewed by Detective Bachman and Hanke.”
“Was he interviewed before or after this tip was reviewed by you?” McGee asked.
“After,” said Sergeant Smith.
McGee then referenced information that came to the department through a tip saying that a comment made to a news report by someone who had given a first name said that Dan Kavanaugh had been bragging for years in San Diego about having killed the McStay family in San Diego. Daugherty made two separate objections to the question, both of which were overruled by Judge Smith.
“The news report had a comment, somebody stating that was related to the deaths, correct?” McGee said.
“Yes, sir,” said Smith.
“And it had a name associated with the comment,” said McGee.
“Yes, sir,” said Smith.
“Did your department follow up with the news agency website to get the contact information or the IP address of who made that comment?” asked McGee.
“Objection, lacks foundation, calls for speculation,” said Daugherty.
“Overruled,” said Judge Smith. “He can answer.”
“I believe this was just like a screen shot of a caption,” said Smith. “I’m not sure that it provided the news agency so we could do what you are suggesting, because it was just a single name anonymous source.”
“The comment came in anonymously, but there was in your file that it was a CBS local news website…” said McGee
“Objection, argumentative,” said Daugherty.
“…would that refresh your memory?” McGee finished.
“The objection is sustained as assuming facts not in evidence,” said Judge Smith.
“Do you remember seeing a screen shot of a CBS local news website?” McGee persisted.
“Yes,” said Smith.
“And did you contact the CBS local news in San Diego to get the contact information or any information about the person who posted the comment?” McGee asked.
“Objection, broke down and vague,” said Daugherty.
“Overruled,” said Judge Smith. “He can answer.”
“I’d have to look at my report,” said Smith. “Off hand, I don’t remember speaking with anyone from CBS.”
Michael Dominic Bosillo from Dallas Texas, a retired police detective who is currently employed as a custodian of records testifier by T-Mobile, testified on Thursday afternoon.
“If you have a T-Mobile cell phone, a T-Mobile account, does T-Mobile keep track of the activity on that phone?” asked Supervising Deputy District Attorney Sean Daugherty.
“Yes, sir, we do,” said Bosillo. “We monitor the activity through the actual processing of the phone.”
“So, if you place a call from a T-Mobile cell phone, does T-Mobile retain records of that call?” asked Daugherty.
“Yes, sir, we maintain those records, as much as they are humanely possible, at the time they are made and received,” said Bosillo, who testified that in the normal course of business records T-Mobile records the time of calls are made, text messages and internet access.
He said T-Mobile maintains for all phone service subscriber accounts a “call detail record sheet for subscriber information” on which one can “see what that activity is on that number for a designated period of time, the date, the time, who you called, who’s called you, the tower locations, switch locations, things of that nature. It’s a good across-the-board identifier as to what the call consisted of. Subscriber information is just that. It’s the name of the individual that solicited the phone and the phone account and the phone number and a variety of other identifying numbers associated with both the subscriber and the hands-down or phone.”
Bosillo testified that T-Mobile had received a subpoena for “call detail records and subscriber information” from the San Diego Sheriff’s Department dated February 24, 2010. In his testimony, Bosillo referred to the county sheriff’s department as the San Diego Police Department. He said that as a consequence there was generated a document associated with Joseph McStay with a cell phone number of 949 295-7451.
Daugherty had Bosillo examine two sheets form the larger packet of documents relating to McStay’s cell phone use records running from February 2009 through February 2010, consisting of pages 49 and 50 in the sheaf of papers handed to him on the witness stand.
From where his attention had been vectored, Bosillo identified the last call made from McStay’s phone as having gone out from McStay’s number, 949-295-7451 on 2/4/2010 at 20:28:00 and lasting one minute. The documentation showed a cell tower in Fallbrook as the cell site that activated the call.
To Daugherty’s question, Bosillo identified it as an outgoing call at “8:28 in the P.M” to 909 374-0102. Subsequently, the 909 374-0102 number would be identified as Charles Merritt’s cell phone.
To Judge Smith’s interjected question “Can you tell from that whether the call was answered or not?” Bosillo said, “Showing the one minute [call duration], it would either be answered or it could have gone to voice mail.”
“Do you have an explanation as to why another cell phone company’s records might not show that call?” asked Daughterty. Bosillo said he could only speculate and Judge Smith did not allow him to answer using speculation.
Bosillo said that at a later date T-Mobile had received a subpoena for the same records from San Bernardino County.
Bosillo also examined a billing sheet for Joseph McStay. That document showed that the last text message related to McStay’s cell number was an incoming one received at 5:47 p.m. on February 4 from a number associated with Long Beach, 949 295-6411.
Extrapolating from the billing records, Bosillo said the last time the phone had internet access was at 8:27 p.m. on February 4, 2010.”
Under cross examination by McGee, Bosillo was asked about a call detail record sheet for a T-Mobile account associated with Daniel Kavanaugh and the phone number 858 717-6508. The first date for those records was February 1, 2009. Based upon numeration related to some of the calls including the prefix 011, which Bosillo called an “international code” Bosillo said they “look like international calls.”
Bosillo said the subpoena for Daniel Kavanaugh’s phone records had been submitted by San Bernardino County Sheriff’s Detective Edward Bachman on December 27, 2013.
McGee asked if it was possible for one T-Mobile customer to listen to another T-Mobile customer’s voice mails. Bosillo said it was possible if the pass code was available. McGee asked Bosillo if it was possible for the owner of a T-Mobile phone account to delete phone messages from another T-Mobile customer’s account. Bosillo said he didn’t know if it was possible.
David Lipnitzky a compliance analyst and records custodian for AT&T, came in to testify immediately after Bosillo.
Lipnitzky said AT&T maintains information about the time the calls and text message take place recorded at the time the calls are made and which are kept in in a central data base. The AT&T system also records cell site locations, he said.
Lipnitzky was asked to review a call detail report associated with 909 374-0102, the subscriber being Catherine A Jarvis residing on Church Street in Rancho Cucmaonga for the dates running from February 1, 2009 through February 19, 2010.
Catherine Jarvis is, or was, Merritt’s common law wife. 909 374-0102 was Merritt’s cell phone number.
Lipnitzky was asked by Daugherty to examine the records contained within the sheaf pertaining to February 3, 2010 to February 5, 2010.
Lipnitzky indicated calls can go directly from phone to phone if they were proximate to one another. The records AT&T keeps, Lipnitzky said show the location, area code, the caller number, the number called, and identifies the antenna the phone hooks up with. It also provides an indication of whether calls go to other AT&T subscribers or to non-AT&T subscribers or non mobile callers.
An examination of the 909 374-0102 records showed that on February 4, 2010 between 4:09 p.m. and 9:04 p.m Merritt’s phone was off-line or turned off.
According to the records, there were incoming calls to Merritt’s phone at 4:09 p.m. from 909 226-1197, at 6:10 p.m. from 909 226-1197, at 6:12 p.m. from 909 374-8951, at 6:17 p.m. from 909 226-1197, at 7:18 p.m. from 909 226-1197, and at 9:04 p.m. from 909 226-1197, all of which were routed to voice mail because there was no cell tower link up to the phone.
“That typically means that the phone was off network, so either power off or in an area where there’s no service,” said Lipnitzky.
The records show that Merritt, or someone, made an outgoing call from Merritt’s cell phone at 9:12 p.m. to 909 226-1197.
After 9:32 p.m. on February 4, when a phone call was placed from Merritt’s phone, there was no activity on his phone until 7 a.m. on February 5, when a call was placed to 909 213-2104.
There was no record of an incoming call from McStay on the phone at 8:28 p.m.
“Is there a call at 8:28 p.m.?” Daugherty asked with regard to Merritt’s phone records.
“I don’t see a call at 8:28 p.m.” responded Lipnitzky.
“If another cell phone carrier had a record of a call being placed to this number, do you have an explanation as to why it wouldn’t show up on AT&T’s records?” asked Daugherty
“I don’t,” said Lipnitzky.
Daugherty thereafter turned to the cell phone activity on February 6, 2010.
“February 6, 2010, 3:14 p.m., there’s no more activity until February 7 at 10:35 a.m., is that accurate?” Daugherty asks.
“Yes,” said Lipnitzky.
In his cross examination, McGee queried Lipnitzky about his understanding of the technical data that could be extrapolated from the records, including the location code, the cell ID, the latitude and longitude for all their cell towers, multiple attitudes, azimuth differentials, azimuths of those antennas and the megaHerz for those antennas.
To more involved questions, Lipnitzky acknowledged he had no knowledge of how the towers work and that he just knows what the records mean. “It’s not my area of expertise,” said Lipnitzky.
“As a compliance officer, do you have any knowledge about how the towers actually work?” McGee asked.
“No,” Lipnitzky said.
“You just know what the records mean,” said McGee.
“Correct,” said Lipnitsky.
“There could be information behind these records that an engineer may understand and you may not?” asked McGee.
“It’s possible,” said Lipnitzky.
As Lipnitzky’s testimony was drawing to a close, Judge Smith initiated questioning that led to the potential unraveling of the mystery of how it was that Joseph McStay’s phone records showed a phone call made to Merritt’s cell phone at 8:28 p.m. on February 4 but Merritt’s phone records did not reflect receiving the call. Picking up on where Judge Smith left off, McGee completed that circle, though it may have, in fact, done his client more harm than good.
Judge Smith asked, “So, if a cell phone is off, and someone calls that cell phone, obviously, it is not going to ring or anything, correct?”
“Correct,” said Lipnitzky
“But the call could still go to voicemail, correct?” the judge continued.
“Yes,” said Lipnitzky.
“And so, someone calls, phones off, they leave a voicemail,” said Judge Smith. “Would AT&T records for the receiving phone show that it received a call on voicemail?”
“Yes,” said Lipnitzky.
“Okay,” said Judge Smith. “But it wouldn’t show the cell tower?”
“No, it doesn’t hit a cell tower,” said Lipnitzky. “The phone is off.”
At that point, McGee completed filling in the gap.
“Let’s just say I call your cell phone,” he began. “Your cell phone is not in service, and it rings, and I just hang up. I don’t leave a voice mail. I assume that’s not on the record.”
Lipnitzky responded, “If it doesn’t get routed to voice mail, then it might not show on these particular records.”
“It would only show on the records if it was connected somewhere or routed to AT&T in someway, whether to the director of the call or the sender of the call?” McGee continued.
“Correct,” said Lipnitzky.
The tension, on some occasions welling over into hostility, between the prosecution and the defense in the Merritt case, is palpable to trial observers. On Tuesday, the degree to which the contretemps is manifest was remarked upon by Judge Smith.
While the jury was not present, the defense was lamenting to Smith that the prosecution has not provided it with contact information on the prosecution’s witnesses. “We received more discovery this week of reports they are writing now, investigations they started after testimony started,” said McGee, who indicated the defense was going to request “the exclusion of of witnesses that the People want to call that did not get involved in this case until after opening statements.”
Judge Smith responded, “It is certainly not uncommon for continuing investigation to occur during a trial.”
McGee, however, indicated he believed the prosecution was hiding evidence and witnesses, saying the prosecution’s “unprofessionalness has been the highest I’ve seen.”
This brought a thunderous protest from Imes, who was cut short by Judge Smith.
“The unprofessional conduct, I think, is equal on both sides,” said the judge. “The level of speaking objections, the level of argumentative objections, the disrespect to the court, and the arguments on both sides is unparalleled in my 33 years. I am trying to exercise patience and not starting to cite counsel for misconduct and trying not to be exceptionally critical of counsel in front of the jury, but my patience is wearing thin, as you can tell from some of our comments and some of the arguments and your objections. So both counsel would be well-advised to understand if you have an objection on legal grounds, you state the legal grounds, I will rule on it. If you feel it is something you must be heard on, you can request to approach. I may or may not grant that. But continuing to argue, particularly when it relates to disputed evidence on an objection in front of the jury, is unprofessional and improper.”
-Mark Gutglueck

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