Part Three - Transcript of Charles Merritt Preliminary

This is Part Three of the Transcript for the Preliminary Hearing in the case of State of California vs Charles Ray Merritt and is a part of the larger exhibit of documentation here at State vs Merritt. 


17 MR. DAUGHERTY: Thank you, your Honor.
18 People call Special Agent Kevin Boles to the stand.
19 THE CLERK: Please raise your right hand.
20 Do you solemnly state the evidence you shall give in this
21 matter shall be the truth, the whole truth, and nothing but the
22 truth, so help you God?
23
24 KEVIN_BOLES,
25 (Called as a witness on behalf of the People, was sworn and
26 testified as follows:)
27
28 THE WITNESS: I do.
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1 THE CLERK: Thank you. Have a seat.
2 THE BAILIFF: Please be seated. Please state and spell
3 your name for the record.
4 THE WITNESS: It's Kevin Boles, K-e-v-i-n, B-o-l-e-s.
5 THE COURT: Okay, you may proceed.
6 MR. DAUGHERTY: Thank you, your Honor.
7 DIRECT EXAMINATION
8 BY MR. DAUGHERTY:
9 Q Sir, what is your current occupation?
10 A I'm employed as a special agent with the Federal Bureau
11 of Investigation.
12 Q And how long have you been so employed?
13 A Since 2005.
14 Q Ask you, do you have any particular education, training
15 and experience in cell phone record analysis and/or cell phone
16 tracking analysis?
17 A Yes, sir.
18 Q I may be using the words wrong. If I am, don't hesitate
19 to correct me.
20 Could you please describe that for me?
21 A Yes, sir.
22 Well, part of the basic FBI training does include the
23 exploitation of phone records and learning how to do that. In
24 2009 I took a position within the FBI as the coordinator of a
25 fugitive task force. A large amount of my job every day since
26 2009 has been the analysis of phone records for the purpose of
27 locating fugitives, as well as assisting local law enforcement
28 with homicide cases and other types of cases.
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1 Q And so you have, I take it, extensive on-the-job
2 training.
3 Do you have any formal classroom training or anything
4 like that?
5 A Yes, sir. I've taken approximately 120 hours of various
6 types of cell phone exploitation training over the last five or
7 six years.
8 But the majority of the experience comes from on-the-job
9 training.
10 Q Okay. Can you tell us, just generally, in layman's
11 terms, how a cell phone works?
12 A Sure. So, cell phones, when you communicate with them,
13 they maintain communications with cell towers. Those cell
14 towers usually are in the vicinity of the, of where the cell
15 phone is located. The tower that the phone chooses is due to
16 the signal strength.
17 And by analyzing records that the cell phone companies
18 give us, it allows us to get a general area of where a cell
19 phone is located when a call was made or received.
20 Q In this particular case, did you receive records for a
21 phone number, (909) 374-0102?
22 A I did.
23 Q And were those identified to you as belonging to a
24 person, or associated with a person by the name of Charles
25 Merritt?
26 A Yes, sir.
27 Q And were these records from AT&T?
28 A Yes, sir.
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1 Q What did you do with those particular records in this
2 case?
3 A I was given records approximately one year ago, and asked
4 to analyze, initially it was just a few days, to look at the
5 geographic location of where the cell towers are for the
6 individual phone calls for those few days. It was around
7 February of 2010 was the date and time in question.
8 Eventually, I was asked to expand that and do several
9 weeks in the month of February.
10 And I geographically plotted those locations on the map
11 and provided those back to the San Bernardino County Sheriff's
12 Department.
13 Q I'd like to begin with your analysis of the defendant's
14 cell phone records from February 4th, 2010. What did you note
15 on that date with regard to the defendant's cell phone record?
16 A Do you mind if I refer to my report?
17 Q Did you prepare a report in that?
18 A Yes, it's like a PowerPoint-type slide.
19 Q Did you do it at or near the time of your analysis?
20 A I did.
21 Q And would it refresh your recollection to refer to that?
22 A Yes, it would.
23 MR. DAUGHERTY: With the Court's permission?
24 THE COURT: Sure.
25 THE WITNESS: You said February 4th?
26 Q (By Mr. Daugherty) Yes, sir.
27 A My analysis on February 4th starts at 9:51 A.M. And
28 there are a multitude of calls throughout the day, through 5:48
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1 P.M. And during that time the cell phone has contact with two
2 different cell towers that are adjacent to each other in the
3 Rancho Cucamonga area.
4 Q Okay. Did the defendant's cell phone contact a number,
5 (949) 295-7451?
6 A Yes, it did.
7 Q How many times during that day?
8 A By my count, I show 16 calls where the defendant called
9 that number. And then 11 times that the number you just cited
10 called the defendant.
11 Q So, a total of 27 times?
12 A Correct.
13 Q Turning your attention, was there a call received from
14 that phone number? Was that phone number, by the way,
15 identified to you as Joseph McStay Sr.'s, phone number?
16 A It was, by the San Bernardino County Sheriff's
17 Department.
18 Q At 5:48 did the defendant receive a call from Joseph,
19 Sr., Joseph McStay, Sr.?
20 A Yes, that's accurate.
21 Q How long did that call last?
22 A Approximately 2 minutes and 37 seconds.
23 Q After that phone call, when is the next phone activity on
24 the defendant's cell phone?
25 A The next phone activity is at 9:32 P.M. on February 4th.
26 Q I'm sorry, 9 --
27 A 9:32 P.M. is the next activity that generates a cell
28 tower.
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1 Q Okay. That's -- you used the term the second time, "that
2 generates a cell tower"?
3 A Correct.
4 Q Was there any activity during that time period, that
5 almost three and a half hours, a little over three and a half
6 hours?
7 A There are. If you can bear with me while I count here.
8 Q Sure.
9 (Brief pause.)
10 A I count six incoming phone calls that go -- are routed to
11 voice mail, according to the description here on the AT&T
12 record.
13 Q And were those calls -- those are calls coming into the
14 defendant's cell phone?
15 A Yes.
16 Q Was that from a number identified to you as belonging to
17 Katherine Jarvis?
18 A This particular number, no. I don't know who it belongs
19 to.
20 Q So, you didn't receive an identification?
21 A Not for that particular number.
22 Q It's all the same number?
23 A Five of the, five of the six incoming calls are from the
24 one number. And then there's one phone call from a different
25 number.
26 Q What happened to those calls? You said they didn't
27 generate a cell tower. Why not?
28 A If they didn't generate a cell tower, there's a number of
83
1 reasons for that. The phone could be off, could be in airplane
2 mode, could be out of range of a cell tower. So, there's
3 several reasons why that could have taken place.
4 Q So, after that little over three-and-a-half-hour time
5 period at 9:32, what's the first event that occurs on the
6 defendant's cell phone?
7 A The defendant originates a phone call to the same phone
8 number that he had missed five calls from. And that generates a
9 contact with a cell tower that's located in the Mira Loma area
10 of California.
11 THE COURT: What area?
12 THE WITNESS: Mira Loma, which is -- it's a Riverside
13 County area. It's approximately 10 to 12 miles south of the
14 Rancho Cucamonga area.
15 Q (By Mr. Daugherty) And how far north of the Fallbrook
16 area?
17 A Without mapping -- I don't have that mapped out. But I
18 would estimate 45 to 50 miles, something of that nature.
19 Q After that 9:32 P.M. voice mail, is there any activity on
20 the defendant's cell phone between 9:32 on the night of the 4th
21 and 7 A.M. on the morning of the 5th?
22 THE COURT: Well, the 9:32 P.M. is not a voice mail, is
23 it?
24 THE WITNESS: No, it shows an outgoing call from the
25 defendant's phone to a phone number that he had missed five
26 phone calls from.
27 THE COURT: Right. And that was a completed phone call?
28 THE WITNESS: It appears to be.
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1 Q (By Mr. Daugherty) And, after that phone call, is there
2 any activity until 7 A.M. the following morning?
3 A No, 7 A.M. the next morning is the next line activity on
4 the phone records.
5 Q Turning to Friday, February 5th, 2010, what were the
6 results of your analysis on the defendant's cell phone records
7 on that day?
8 A Well, at 7 A.M. is when he originates a phone call. It
9 appears that he's checking his voice mail. His phone was in the
10 general area of Upland, California, at that time.
11 The next activity is at 10:45 and 10:46, which is in the
12 general area of Santa Clarita. At 10:59 A.M. he has contact
13 with a cell tower in the general area of Interstate 210 near the
14 San Fernando area.
15 And then between 12:49 P.M. and 2:23 P.M., he contacts
16 two towers that are adjacent to each other in Rancho Cucamonga.
17 Then, from 2:32 P.M. to 3:54 P.M., he contacts two different
18 towers. Both are in the Rancho Cucamonga area. And after the
19 3:54 P.M. call, which was in the Rancho Cucamonga area, there's
20 no call activity until 9:17 P.M.
21 Q So, over five hours of no activity on the 5th?
22 A Correct.
23 Q Based upon your review of the defendant's cell phone
24 records for up to a year prior to this date, is that consistent
25 with his normal cell activities?
26 A I don't know if I can comment on that, 'cause I didn't
27 review the whole year to see if there were normal five-hour gaps
28 of time. I'm sorry. I would need to review that further to
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1 comment on that.
2 Q That's okay.
3 Turning your attention to February -- well, let me ask
4 you this.
5 How many times did the defendant dial Joseph McStay
6 Sr.'s, phone number that day?
7 A I count three.
8 Q Were those all calls from the defendant to the victim,
9 Joseph McStay, Sr.?
10 A Yes, they were originated from the defendant's phone.
11 Q Backing up to February 4, is there any record on the
12 defendant's cell phone records of a call received at 8:30 P.M.
13 from the victim?
14 THE COURT: From who?
15 MR. DAUGHERTY: From the victim, Joseph McStay, Sr.
16 THE WITNESS: At 8:30 P.M.?
17 Q (By Mr. Daugherty) Right.
18 A No, sir.
19 Q Sir, is it your opinion that the phone was either off or
20 in airplane mode at that time?
21 A That's what it appears, in my experience.
22 Q Turning your attention to February 6th, 2010, Saturday,
23 what did your analysis reveal on that day?
24 A The first phone activity is at 10:46 A.M. It contacts a
25 tower in the Victorville area near Interstate 15.
26 The next activity is at 11:30 A.M., and continuing
27 through 11:52 A.M, contacts the cell tower in the Oro Grande
28 area just north of Victorville in the High Desert, near
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1 Interstate 15.
2 11:53 A.M., contacts a cell tower a little bit to the
3 south, back up near Victorville.
4 THE COURT: What time was that?
5 THE WITNESS: 11:53.
6 And 12:49 P.M., contacts a cell tower in the Victorville
7 area.
8 And then at 1:30 P.M., has contact with the cell tower in
9 the Oro Grande area, again from a direction pointing to the
10 south in that case.
11 Q (By Mr. Daugherty) Okay. I'm going to show you -- you
12 said you prepared, like, a PowerPoint presentation in this
13 matter?
14 A Yes, sir.
15 Q Do you think that would assist you in explaining your
16 testimony to the Court, your testimony regarding February 6th in
17 this case?
18 A Yes, I think so.
19 Q I'm going to show you and publish Exhibit No. 1.
20 THE COURT: Has this been marked as an exhibit?
21 MR. DAUGHERTY: It has, your Honor.
22 THE COURT: And the number is?
23 MR. DAUGHERTY: No. 1.
24 THE COURT: All right, Exhibit No. 1 for identification.
25 Thank you.
26 Q (By Mr. Daugherty) Can you tell us what we're looking at
27 here?
28 (Marked for I.D. = Exhibit 1, Voice calls, 11:30
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1 A.M.-11:52 A.M.)
2 A Yes, sir. These, what you see here is a snapshot of the
3 records regarding just the calls between 11:30 A.M. and 11:52
4 A.M., which --
5 So, here on the left you can see the connection dates and
6 time, which tells you the times that the calls were originated
7 or received, the phone numbers involved in the call. And the
8 important part for the geographic plotting comes from this, this
9 section here.
10 There are a lot of numbers, and the way this is read is
11 this first number here, 5262, indicates what's known in the cell
12 phone world as a LAC, which is essentially -- it's LAC. It
13 stands for a, it's a group of cell towers that are kind of
14 grouped together for the phone companies' identification
15 purposes.
16 The following number after that is the actual cell tower
17 identifier that identifies the exact cell tower. Followed by
18 the longitude of negative 117 here. And then the colon
19 separates the latitude here. And then the last colon tells you
20 what's called the azimuth.
21 So, in this case on the top line it's 85 degrees, where
22 90 degrees is going to be due east. So this, this data here is
23 what we use to plot where the cell tower is located and the
24 direction from the cell tower where that particular phone was at
25 the time.
26 Q (By Mr. Daugherty) Did you say -- when you say you use
27 that information to plot, did you do that in this case for these
28 coordinates?
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1 A Correct. The GPS coordinates tell you where that cell
2 tower is physically located. In this case, it's on the top of a
3 hill. I believe, I'm not real familiar with Oro Grande, but I
4 believe it's called Quartzite. It's on top of a mountain. And
5 then azimuth tells you what section you're looking at.
6 Q I'm going to show you, also, Exhibit No. 2, and publish
7 Exhibit No. 2;
8 Did you prepare this?
9 A Yes, I did.
10 Q Can you tell us what this describes?
11 (Marked for I.D. = Exhibit 2, Geographic locations of
12 Exhibit No. 1)
13 A Yes, so this is geographically what was just put out in
14 number form. So, this is the GPS position of where that -- or I
15 should say the latitude and longitude of where that particular
16 cell tower exists, which is indicated by the blue dot.
17 The other blue dots on the map indicate other AT&T cell
18 towers as they existed in February of 2010. The dark-colored
19 square here is the location of the crime scene that, that --
20 coordinates of that were provided to me by the San Bernardino
21 County Sheriff's Department.
22 So, this particular cell tower identifier, which the
23 calls generated at 11:30, 11:31, 11:33, 11:34, and 11:52 A.M.,
24 were generated from this cell tower at an azimuth of 85 degrees.
25 So, 85 degrees points nearly due east. And the cell phone
26 sector for that particular site is 120 degrees. So, as
27 indicated by the black lines, that cell phone existed somewhere
28 in this area. The call at 11:32 was generated, this tower
89
1 connection which has an azimuth of 10 degrees, which is
2 indicated by the blue sectors. As you can see, there is a
3 little bit of overlap. That's not uncommon. It does happen in
4 the way AT&T orients their towers, and various carriers orient
5 their towers.
6 Q Did you review records back to February of 2009, of the
7 defendant's cell phone records back to February of 2009 to see
8 any other times that he may have been in the High Desert area or
9 the Victorville area?
10 A I did. In particular I did because I was provided
11 information by the Sheriff's Department that the defendant does
12 have a relative in the area. So, I went back and looked, and
13 there was one time, according to my notes here. It was on July
14 12th, 2009, the defendant did contact this tower one time. At
15 the time he contacted that tower on that date he had an azimuth
16 of 325 degrees, which is pointing to the west side of the
17 hilltop, where the tower is located.
18 Q And when was that occurrence?
19 A July 12th, 2009.
20 Q And when you say it would be to the left, you just
21 pointed to the direction where it says Oro Grande there on
22 Exhibit No. 2;
23 Is that correct?
24 A Yes, with 360 degrees being due north and 270 being due
25 west, 325 would be somewhere in between that, kind of. I guess
26 that'd be northwest of where the cell tower is located.
27 Q Again, I'm referring to July of 2009.
28 THE COURT: And for the record, when you were indicating
90
1 to the west, you were indicating in -- from the blue dot of the
2 cell tower in the general direction of what's designated as Oro
3 Grande?
4 THE WITNESS: Yes, sir, that's correct.
5 THE COURT: Okay.
6 Q (By Mr. Daugherty) Was there, based on your review of at
7 least a year prior of the cell phone records, did he ever hit
8 the site of the towers that he had -- or that he hit on February
9 6th?
10 A No.
11 Q Did he ever hit on the sites of the towers on the same
12 side as the gray areas?
13 A Not in the records I have here.
14 Q How many times did he call the victim, Joseph McStay,
15 Sr., on February 6th?
16 A I'm sorry, say that again.
17 Q How many times did he call Joseph McStay, Sr., on
18 February 6th?
19 A I don't see any calls to him on February 6th.
20 Q From Saturday, February 6th at 3:14 P.M., until Sunday at
21 10:35 A.M., February 7th, is there any cell activity on the
22 defendant's cell phone, any tower activity, any activities?
23 A You said February 6th, from 3:14 P.M.?
24 Q Correct?
25 A That's his last call of the day on February 6th. His
26 first call of the day on February 7th is at 10:35 A.M.
27 Q So -- and there's no activity between that time period?
28 A No.
91
1 Q Almost 20 hours?
2 A I haven't done the math, but -- sure.
3 Q Okay. Turning your attention to February 7th, Sunday,
4 February 7th, 2010, what did your analysis of the cell phone
5 records show for that day?
6 A Starting at 10:35 A.M. and on through 11:17, he has
7 contact with one cell tower in the Rancho Cucamonga area, from
8 11:46 A.M. through 4:06 P.M., he has contact with cell towers in
9 the Rancho Cucamonga and Ontario area, which are two cities
10 adjacent to each other.
11 5:17, he has contact with a cell tower in the Rancho
12 Cucamonga area.
13 And that is his last call of the day on that particular
14 day.
15 Q So, last call on February 7th was 5:17 P.M.?
16 A Correct.
17 Q When was the first call on February 8th?
18 A 7:26 A.M.
19 Q Is there any activity between 5:17 P.M. and 7:26 A.M.?
20 A No activity.
21 Q Turning your attention to -- well, let me ask you this.
22 How many times was there contact between the victim's cell phone
23 and the defendant's cell phone on February 7th?
24 A I show two originating calls from the defendant to the
25 victim's phone, both at approximately 3:47.
26 Q So, two calls right about the same time?
27 A Correct.
28 Q Okay. Now, turning your attention to February 8th, what
92
1 did your analysis of the defendant's records that day reveal?
2 Well, let me ask you this, 'cause we are, we're drawing
3 near on lunchtime.
4 Between 7:36 A.M. and 1:31 P.M., is there any activity on
5 the defendant's --
6 A Between 7:36 and 1:31?
7 Q Correct.
8 A There is one, one incoming call that goes to voice mail,
9 does not generate a cell tower, though. So, there's no location
10 information.
11 Q Why would that be?
12 A It could have been off, airplane mode, out of range.
13 Q And the phone came back, was it fair to say on 1:31, what
14 was the location of the defendant's cell phone?
15 MR. TERRELL: Your Honor, that misstates the evidence. I
16 believe the agent says there's three types, not just that it was
17 off.
18 THE COURT: Sustained.
19 MR. TERRELL: Motion to strike. Thank you.
20 Q (By Mr. Daugherty) With the call at 1:31, were you able
21 to obtain location data from that?
22 A Yes, sir.
23 Q Where was the defendant's cell phone at that time?
24 A It was in the area of Corona in California.
25 Q Anywhere in particular, were you able to devise?
26 A It's a cell tower near Auto Center Drive and the 91
27 Freeway in Corona.
28 Q And turning your attention to February 9th, 2010 --
93
1 Actually, I do want to back up.
2 On February 8th, you said the 91 and Auto Center Drive in
3 Corona?
4 A Correct.
5 Q Were you able to opine a direction of travel of the
6 defendant after that 1:31 call?
7 A Yes, sir. He hits the tower that I previously mentioned
8 at 1:31, followed by a tower at 1:41 that's further north up on
9 the 15 Freeway.
10 And then at 1:42 he hits a cell tower adjacent to the 15
11 Freeway in Limonite -- near the Limonite exit in Mira Loma,
12 which would indicate a northbound travel, presumably on the 15.
13 Q February 9th, 2010, did your review of the records show
14 that the defendant was in the Fallbrook area?
15 A Yes.
16 Q And from 4:49 P.M. until 10:11 P.M., where was the
17 defendant's cell phone during that time?
18 A So, from 4:49 to 10:11, he contacted a cell tower
19 adjacent to the Pechanga Indian Reservation in the Temecula
20 area.
21 Q Are you familiar with that area?
22 A Yes, I am.
23 Q Is there a casino there?
24 A Yes, sir.
25 Q Did you conduct an analysis of calls either between --
26 well, between the victim, Joseph McStay, Sr., and the defendant
27 from January 15th, 2010, to February 3rd, 2010? Did you
28 determine how many calls were made during that time frame?
94
1 A I did.
2 Q And how many calls were made?
3 A The number of contacts between the two of them from
4 January 15th to February 3rd, was 123.
5 Q Between February 3rd and February 9th, 2010, how many
6 attempts to contact were there?
7 A The analysis conducted was from the 4th to the 15th.
8 Q I'm sorry, from the 4th to the 15th?
9 A So, February 4th to February 15 there were 39 contacts.
10 I believe 27 of those were made on the 4th.
11 Q Was there any attempt to contact the victim, Joseph
12 McStay, Sr., by the defendant after February 9th, 2010?
13 A Going through February 15th, it doesn't appear there was
14 any attempt to contact him after the 9th.
15 THE COURT: There was an attempt on the 9th, though?
16 THE WITNESS: After the 9th, there was no attempt to
17 contact the defendant.
18 MR. DAUGHERTY: The defendant or the victim?
19 THE WITNESS: I'm sorry, the victim.
20 THE COURT: Was there an attempt to contact the victim's
21 phone number from the defendant's phone number on the 9th?
22 THE WITNESS: I can check that, sir, if you give me a
23 minute.
24 THE COURT: Actually, I guess what I'm really interested
25 in, when was the last time there was an attempt to contact the
26 victim's phone number from the defendant's phone number?
27 THE WITNESS: Okay, I will look that up right now, sir.
28 (Brief pause.)
95
1 It appears that was on February 9th at 1:07 P.M.
2 THE COURT: Okay. And was that from the Temecula cell
3 tower?
4 THE WITNESS: That particular cell tower is located kinda
5 in between Corona and Lake Elsinore, in the south Corona area.
6 Temescal Valley is what it's often referred to as.
7 THE COURT: Okay.
8 MR. DAUGHERTY: No further questions, your Honor.
9 THE COURT: All right. It's about 12, so we'll go ahead
10 and take our noon recess at this time 'til 1:30 in the
11 afternoon.
12 We'll see everyone back at 1:30.
13 I'm afraid we'll need you back at 1:30.
14 (Whereupon the noon recess was had.)
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1 SAN BERNARDINO, CALIFORNIA, MONDAY, JUNE 15, 2015
2 -oOo-
3 DEPARTMENT '21' HONORABLE MICHAEL A. SMITH, JUDGE
4 (Appearances as previously noted.)
5 (Theresa Christine Wolfe, C.S.R., Official Reporter,
6 C-6024.)
7 THE BAILIFF: Please come to order. Court is now in
8 session.
9 THE COURT: All right, the record reflect we are now back
10 in session on the Merritt matter. Counsel and parties are
11 present. And our witness is still on the witness stand.
12 And, Mr. Daugherty, had you finished your direct
13 examination?
14 MR. DAUGHERTY: I did, your Honor.
15 THE COURT: All right. Cross.
16 MR. TERRELL: We have no questions. I apologize for the
17 delay to the agent.
18 THE COURT: Okay. All right, if we had known that we
19 might have saved you a trip.
20 One or two questions.
21 EXAMINATION
22 BY THE COURT:
23 Q Could you put Exhibit 2 back up?
24 So, you have the cell tower and you have what I'm calling
25 the vectors for the directions?
26 A Yes, sir.
27 Q So, what is the range that a call would hit that cell
28 tower, if you know?
97
1 A There's no way to say, 100 percent. I can say my
2 experience of locating phones in fugitive cases. We typically
3 look at the adjacent cell towers where the phone would likely
4 turn and contact this tower. If you look at the 50-percent
5 mark, that's where you start to see a shift. We typically go
6 out to 70 percent, just to be on the safe side. But --
7 So, that's generally --
8 But without sophisticated equipment, we can't tell for
9 sure.
10 Q And ballpark, what's that distance, if you know? Say the
11 50-percent mark between --
12 A Using this scale here of 1 to 4 miles, I would say
13 approximately 2, 2 to 5 miles is the distance between these two.
14 Q Okay, that's good.
15 Technically, if someone has a cell phone, cell phone is
16 on, not in airplane mode, they're driving up Interstate 15, not
17 receiving any phone calls, not making any phone calls and not
18 getting or receiving any texts, is the cell phone going to
19 bounce off of any cell towers?
20 A It won't reflect in the records until the cell phone is
21 in communications with the cell towers. The company needs to
22 know that, but that information is not stored in the course of
23 business with the phone companies. So, unless there's activity
24 on the phones, we won't get that.
25 Q So, if someone is out in the area of a cell phone tower,
26 their phone is on but they're not receiving or making calls,
27 there's nothing to indicate the phone was there?
28 A Correct.
98
1 Q It's only if they make or receive a call that it will
2 generate the information that you put up on Exhibit No. 1?
3 A Yes, sir. The only exception is occasionally you can get
4 the use of data on the phone. But, again, there's activity in
5 the phone.
6 THE COURT: Right. I gotcha. Okay. Thank you.
7 Anything further by either counsel?
8 MR. TERRELL: No, your Honor.
9 MR. DAUGHERTY: No, your Honor.
10 MR. TERRELL: No, sir.
11 THE COURT: Okay. Any objection to Special Agent Boles
12 being excused?
13 MR. DAUGHERTY: No, your Honor.
14 MR. IMES: No.
15 MR. TERRELL: No, your Honor.
16 THE COURT: Thank you, sir, for your attendance. And you
17 are excused.
18 THE WITNESS: Thank you, sir.
19 THE COURT: You can call your next witness.

Part Four - Transcript of Charles Merritt Preliminary

This is Part Four of the Transcript for the Preliminary Hearing in the case of State of California vs Charles Ray Merritt and is a part of the larger exhibit of documentation here at State vs Merritt.

20 MR. DAUGHERTY: Your Honor, People call Detective Daniel
21 Hanke.
22 THE CLERK: Please raise your right hand.
23 Do you solemnly state the evidence you shall give in this
24 matter shall be the truth, the whole truth, and nothing but the
25 truth, so help you God?
26 ///
27 ///
28 ///
99
1 DANIEL_HANKE,
2
3 (Called as a witness on behalf of the People, was sworn and
4 testified as follows:)
5 THE WITNESS: I do.
6 THE BAILIFF: Please be seated. Please state and spell
7 your full name for the record.
8 THE WITNESS: Daniel, D-a-n-i-e-l, Hanke, H-a-n-k-e.
9 THE COURT: Okay, you may proceed.
10 MR. DAUGHERTY: Thank you, your Honor.
11 DIRECT EXAMINATION
12 BY MR. DAUGHERTY:
13 Q Sir, what's your current occupation and assignment?
14 A I'm a detective for the San Bernardino County Sheriff's
15 Department, currently assigned to the Homicide division.
16 Q And how long have you been a sworn peace officer?
17 A Ten years.
18 Q Were you in -- well, in 2014, at some point were you
19 assigned to the investigation of the murder of the McStay
20 family?
21 A Yes, I was.
22 Q When did you get that assignment, generally?
23 A I believe it was August of 2014.
24 Q Did you, as part of that investigation, become aware that
25 Joseph McStay, Sr., utilized QuickBooks as an accounting
26 software for his businesses?
27 A Yes, I did.
28 Q And did you conduct an investigation into that, the use
100
1 of the QuickBooks?
2 A Yes, I did.
3 Q Okay. Can you tell us what you did to obtain -- did you
4 obtain records from QuickBooks?
5 A Yes, I authored a search warrant to Intuit QuickBooks
6 Company and obtained records for Joseph McStay's account.
7 Q Did you also have contact with Intuit and individuals
8 familiar with how those records are kept?
9 A Yes, I did.
10 Q Did they tell you those records are kept and maintained
11 in the ordinary course of their business?
12 A Yes.
13 Q How is that kept? Is that kept online somewhere?
14 A It was an online QuickBooks account. It was stored by
15 QuickBooks.
16 Q Were the entries or whatever happened on that QuickBooks
17 account where they were stored, created at or near the time that
18 they were performed?
19 A Yes, that's correct.
20 Q Okay. What did you learn in your investigation about the
21 QuickBooks accounts belonging to Earth Inspired Products?
22 A I learned that Joseph had two separate QuickBooks online
23 accounts, with two separate e-mail addresses.
24 Q And how were those divided up, if you know?
25 A The first QuickBooks account was created in September of
26 2004, associated with an e-mail of Contact at Earth Inspired
27 Products.com.
28 And there was a second account created in 2008 with an
101
1 e-mail associated of Custom at Earth Inspired Products.com.
2 Q Now, with regard to QuickBooks, did you become familiar
3 with the program, how to use it?
4 A Yes, I did.
5 Q How did you receive access to these records from Intuit?
6 A Intuit cloned Joseph's accounts and made me an authorized
7 user on the accounts. It was an online-based account, so I
8 signed in using my information, and I could view Joseph's
9 account. I couldn't alter it. I couldn't change it or modify
10 it. I could view and print the records, only.
11 Q And those are the records that we previously discussed
12 were maintained by QuickBooks and the entries were at or near
13 the time the events occurred?
14 A That's correct.
15 Q Okay. With regard to both of those accounts, both the
16 Contact and the Custom account, how were those divvied up in the
17 business? Was there two sides to the business, two separate
18 businesses? Or do you know?
19 A Yes, there was. The original account, the Contact
20 account that was created in 2004, had a mixture of Joseph's
21 personal finances as well as his business finances.
22 The Custom account was strictly business, but he was not
23 writing checks from that account.
24 Q When you write a check from QuickBooks, does it
25 automatically debit the money from an account?
26 A If the user has a credit card, a bank card, something
27 like that associated with QuickBooks, it can debit. It can be
28 linked to Pay Pal, those type of things. But Joseph basically
102
1 used these accounts for an online ledger where he created
2 invoices, he wrote checks and kept track of his money coming and
3 going out. But it was not actually associated to a bank.
4 Q Did you also review or speak with someone who reviewed
5 Joseph's bank accounts?
6 A Yes.
7 Q Was that at Union Bank?
8 A Yes.
9 Q Which? Did you review it or --
10 A Yes, I reviewed it and spoke with Detective Ryan Smith.
11 Q Okay. With regard to the Custom account, were any checks
12 from, you said it was opened in January of 2008, from January of
13 2008 until February 1st, 2010, were any checks listed on
14 QuickBooks or written from QuickBooks on the Custom side of the
15 account?
16 A On the Custom side, no.
17 Q So, all the checks during that time period were listed on
18 the other account?
19 A On the Contact account, yes.
20 Q Okay. On February 1st, 2010, were you able to tell from
21 the records provided by Intuit whether there was any activity
22 that day, on February 1st?
23 A Yes, I could.
24 Q What did you learn?
25 A I learned that a user -- it showed that Joseph McStay
26 logged onto the account, so that was Joseph McStay's I.D. and
27 password logged onto the account. And there was a vendor added,
28 charles merritt, all lower-case letters;
103
1 Q Why was it significant to you that charles merritt was
2 all lower case?
3 A When I looked at the Contact account, Charles Merritt was
4 already a vendor in the Contact account. And there were checks
5 written to Charles Merritt in the Contact account. And in that
6 account it had Charles Merritt with a capital C, the rest of the
7 name of Charles was lower case, and there was a capital M and
8 the rest of Merritt was lower case.
9 In this account it was all lower case and it was a new
10 vendor added.
11 Q Are you familiar -- well, do you know if the McStays'
12 computers were completed as part of San Diego's investigation?
13 A Yes, they were.
14 Q And how many computers did they have?
15 A I believe it was a desk top computer and a laptop
16 computer.
17 Q Were those provided to San Bernardino County?
18 A Yes, they were.
19 Q And are you familiar with -- well, was a forensic exam of
20 those computers conducted?
21 A Yes, there was.
22 Q And are you familiar with that exam and the results of
23 that exam?
24 A Yes, I am.
25 Q That transaction of February 1st where Charles Merritt
26 was added as a vendor, did that occur from either the laptop of
27 the McStays or the desktop of the McStays?
28 A No, it did not.
104
1 Q So, it didn't happen from either of them?
2 A It did not happen from either the desktop or the laptop.
3 Q After a vendor, the vendor charles merritt, all lower
4 case was added, what happened, what did you learn happened next?
5 And you can view this chronologically as you're looking at the
6 records.
7 A If I can review my report, I can give you better times
8 and dates as far as when the checks happened.
9 MR. DAUGHERTY: With the Court's permission?
10 THE COURT: Sure.
11 (Brief pause.)
12 THE WITNESS: Okay, on February 1st, 2010, at 12:24 P.M.,
13 Joseph McStay, the user Joseph McStay added Charles Merritt as a
14 vendor. The next activity was at 12:34 P.M., where there was a
15 check made out to charles merritt, all lower-case letters, for
16 the amount of $2500. The memo line on that one said: "deposit."
17 Q (By Mr. Daugherty) What else did you see happen on the
18 1st?
19 A At 12:37 P.M., there was another check added to charles
20 merritt, for the same amount, $2500. The memo line also stated:
21 "deposit."
22 Q Is that all lower case under charles merritt?
23 A It is.
24 Q How about on the memo line, "deposit." Is that all lower
25 case?
26 A It's all lower case.
27 Q Now, on the Contact side of the account, would Joseph put
28 information on the memo lines, occasionally?
105
1 A Yes, he did.
2 Q Did he capitalize the first letters?
3 A Yes, he did.
4 Q What happened after those checks for $2500 were created?
5 A At 12:38 P.M., the user printed the check written at
6 12:37 P.M.
7 Q And what happened next?
8 A At 12:47 P.M., the user deleted the check written at
9 12:37 P.M.
10 Q Okay. So the second check created was printed?
11 A That's correct.
12 Q Okay. And you say "deleted." If it was deleted, how
13 could you see it?
14 A So, when I looked for checks and the check transaction,
15 there was no checks shown. There was no checks written on this
16 account. But when I look through the activity log, the activity
17 log shows the user log-ins, the time of log-ins, checks created,
18 deleted, edited. And it has a whole activity log.
19 So, I pulled it up from the activity log. There were
20 multiple checks created, edited printed and deleted from that
21 same account.
22 Q Prior to February 1st of 2010, did Joseph McStay ever --
23 did he tell you about a check that he had written to QuickBooks?
24 A No, he did not.
25 Q On either side, the Custom or the Contact account?
26 A No, he did not.
27 Q I think we left off at 12:47 P.M.
28 At 12:48 P.M., what happened?
106
1 A The user printed check written at 12:34 P.M., which would
2 have been the first clerk.
3 Q Then what happened?
4 A At 12:52 P.M., the user deleted check written at 12:34
5 P.M.
6 Q Do you know if that check -- well, do you know if the
7 defendant's bank records were obtained via search warrant in
8 this case?
9 A Yes, they were.
10 Q And, as part of your investigation with QuickBooks, did
11 you also review his bank account?
12 A Yes, I did.
13 Q Did that check ever get cashed?
14 A That check did not. Either of those checks did not get
15 cashed.
16 Q On February 2nd -- and just so we're clear, this was the
17 first check ever written on the Custom side of the QuickBooks
18 account?
19 A That's correct.
20 Q Okay. On February 2nd, did anything happen?
21 A Yes, sir.
22 Q What happened?
23 A At 11:27, user added check to Charles Merritt in the
24 amount of zero dollars. The memo line stated, "deposit, sa,
25 1001." And then charles merritt is all lower case letters,
26 "deposit." "Sa" is all also lower case.
27 Q A check for zero dollars?
28 A That's correct.
107
1 Q Okay, what happened to that check?
2 A At 11:28 A.M., the user printed the check written at
3 11:27 A.M.
4 Q And did anything happen later, minutes later, in fact?
5 A Yes, sir.
6 Q What happened?
7 A At 11:29, user added check to charles merritt, all lower
8 case letters, in the amount of 2495. Memo line states: "deposit
9 sa, 1001," all lower case letters. And the date on that check
10 was 2-2 of '10.
11 THE COURT: 24.95?
12 THE WITNESS: I'm sorry, $2495 and zero cents.
13 Q (By Mr. Daugherty) Did either of these transactions, or
14 that particular log-in --
15 What occurred after that log-in, did either of those
16 happen on either of the McStays' computers?
17 A No, it did not.
18 Q Did it happen on the laptop of the McStays?
19 A It did not.
20 Q Did it happen on the desktop of the McStays?
21 A No, it did not.
22 Q What happened after that check to Charles Merritt for
23 $2495 was created?
24 A At 11:34 A.M., user printed check written at 11:29.
25 Q Then what happened?
26 A At 11:34, user deleted check written at 11:29 A.M.
27 Q Do you know what happened to that check for $2495?
28 A Yes, sir.
108
1 Q What happened?
2 A That check was cashed on February 2nd, 2010, at Union
3 Bank by Charles Merritt.
4 Q Are you aware of any other checks, or did your
5 investigation reveal any other checks that were created on
6 February 2nd?
7 A I do not believe so.
8 Q Was there a handwritten check from Joseph McStay to
9 Charles Merritt that was dated February 2nd, for $100?
10 A I don't recall the handwritten check.
11 Q Okay. On February 3rd, was there any QuickBooks
12 activities?
13 A No, there was not.
14 Q On February -- well, you familiarized yourself with the
15 investigation conducted by San Diego;
16 Is that accurate?
17 A That's correct.
18 Q Okay. Did you learn that the defendant, Charles Merritt,
19 had indicated that he met with Joseph McStay to receive checks
20 on February 4th?
21 MR. TERRELL: Objection. Foundation as to that, your
22 Honor.
23 THE COURT: Overruled. He can answer.
24 THE WITNESS: Yes.
25 Q (By Mr. Daugherty) Okay. Were there any checks created
26 on February 4th?
27 A There were. There was a check that was created on
28 February 4th.
109
1 Q One check?
2 A Yes.
3 Q What time was that at?
4 A At 7:59 P.M.
5 Q Was that transaction conducted from either of the
6 McStays' computers?
7 A Yes, sir.
8 Q Do you know if it was the desktop or the laptop?
9 A It was the desktop.
10 Q Can you tell us about that transaction at 7:59 P.M. on
11 February 4th?
12 A Yes, sir. User added check to charles merritt, all lower
13 case letters, for $4,000. Memo line states, "paul mitchell,"
14 all lower case letters, and the date on the check was 2-4 of
15 2010.
16 Q What occurred with regard to that check?
17 A At 8:05 P.M., user deleted check written at 7:59.
18 Q Was that check ever printed?
19 A It was not printed.
20 Q To your knowledge, was that the only time that Joseph's
21 computer accessed QuickBooks -- well, strike that.
22 Withdraw that question.
23 On February 4th, did Joseph log-in to QuickBooks in the
24 afternoon?
25 A There showed a log-in, but no activity as far as checks
26 or any other additional activity. But there was a log-in around
27 noon on February 4th.
28 Q Does it show you the time that log-in occurred?
110
1 A Yes.
2 Q A log-out event, is that recorded as well?
3 A I don't recall exactly what time there was a log-out. I
4 don't believe there was a log-out. I believe there was just a
5 log-in.
6 Q Did you familiarize yourself with Joseph McStay Sr.'s,
7 phone records, in particular from the date of February 4th,
8 2010?
9 A Yes, I did.
10 Q Between noon and 1 P.M., did Joseph make any calls that
11 you noted?
12 A I believe he called his bank.
13 Q All right. Was that after he logged-in to QuickBooks?
14 A Yes.
15 Q So, it was after the twelve o'clock log-in?
16 A Yes.
17 Q Other than the check created at 7:59 P.M. to Charles
18 Merritt for $4,000 and deleted but not printed, were there any
19 other checks created on February 4th, 2010?
20 A No, there was not.
21 Q And Joseph called his bank between noon and 1 P.M. on
22 February 4th. Was that the same bank that cashed the check from
23 February 2nd?
24 MR. TERRELL: Objection. Facts not in evidence, your
25 Honor. I believe he testified he looked at his phone and he saw
26 that call to the bank.
27 THE COURT: Sustained as to foundation at this point.
28 MR. DAUGHERTY: No, he --
111
1 Well, okay.
2 Q (By Mr. Daugherty) Where was the check from February 2nd
3 cashed at?
4 A At Union Bank.
5 Q What bank did Joseph McStay's phone records reflect him
6 calling between noon and 1 P.M. on the 4th?
7 A Union Bank.
8 Q On February 5th, this is Friday, 2010, was there any
9 activity on the Custom QuickBooks account?
10 A Yes, there was.
11 Q Could you describe that for us, please, what time that
12 occurred?
13 A Yes, at 12:06 P.M., user added check to charles merritt,
14 all lower case letters, for $4,500 and no cents. Memo line
15 states, "paul mitchell," all lower case letters. Check was
16 dated February 5th, 2010.
17 Q With regard to that check, did Chase -- to Charles
18 Merritt for 4,500, did anything occur later on, after 12:06
19 P.M.?
20 A At 12:12 P.M., user printed check written at 12:06 P.M.
21 Q Then what else happened to that particular check?
22 A The check was later edited.
23 Q What do you mean, "edited"? How was it edited?
24 A When there's a created check, that shows a record of the
25 check number, who the vendor is, and the amount. And the check
26 was edited. The date was edited.
27 Q How was the date edited, were you able to tell?
28 A Yes.
112
1 Q How was it edited?
2 A It was changed to February 4th, 2010.
3 Q Was that check deleted?
4 A I believe it was deleted. But I'm trying to look for the
5 time right now. I'm sorry. There was other activity between,
6 there was other vendors added between that time that it was
7 printed and deleted.
8 Q Was it deleted at 12:38? Does that help you get to the
9 right part?
10 A Yes. User -- at 12:38 P.M., user deleted check written
11 at 12:29 P.M.
12 Q Do you know what happened to that check for $4,500 to
13 Charles Merritt?
14 A That check was not cashed.
15 Q After that check was created, did any other activity
16 occur on February 5th?
17 A Yes, sir.
18 Q What was that?
19 A At 12:19 P.M., user added metro sheet metal, in lower
20 case letters, as a vendor.
21 Q Did that strike you as unusual?
22 A Yes, it did.
23 Q Why?
24 A Metro Sheet Metal was already in the Contact account as
25 Metro Sheet Metal Co. "Metro" was spelled with a capital M,
26 capital S, capital M, capital C for Company. And that was
27 another vendor being indicated all lower case letters on the
28 other account.
113
1 Q After Metro Sheet Metal was added as a vendor, did
2 anything else happen?
3 A Yes, sir. At 12:21 P.M., user added check to metro sheet
4 metal, all lower case letters, for $1,650. Memo line stated,
5 "Miscellaneous Manufacturer," and the check was backdated to
6 February 4th of 2010.
7 THE COURT: How much was that check for?
8 THE WITNESS: $1650, sir.
9 Q (By Mr. Daugherty) Was there another check added after
10 that on the same day, February 5th, to Metro Sheet Metal, for
11 $250?
12 A Yes, sir, 12:25 P.M.
13 Q Was that backdated to February 4th, 2010?
14 A Yes, it was.
15 Q Was that also printed?
16 A Yes, it was.
17 Q Was another check on February 5th, 2010, written to
18 Charles Merritt?
19 A Yes, sir.
20 Q What time was that and what was the amount?
21 A At 12:29 P.M., user added check to charles merritt, all
22 lower case letters, for $6505. Memo line states: "Balance SA.
23 (1001), period." And that check was backdated to February 4th,
24 2010.
25 Q I'm sorry if I missed it. That check for 6,505, was
26 deleted as well?
27 A Yes.
28 Q And that check was backdated to February 4th?
114
1 A Yes.
2 Q And was that printed?
3 A Yes, sir.
4 Q At 12:33, was another check written to Charles Merritt
5 for $2,350?
6 A Yes, sir.
7 Q And was that check backdated to February 4th, 2010?
8 A Yes.
9 Q And was that printed?
10 A Yes.
11 Q Was that deleted?
12 A Yes.
13 Q Was that deposited at the Bank of America by the
14 defendant?
15 A Yes.
16 Q I want to back up to the check for $4500.
17 I believe you testified that that was created February
18 5th, 2010. I believe you testified that that check was not
19 cashed. And I'm looking at your report and it indicates that it
20 was cashed.
21 A I'm sorry, what time was it?
22 Q 12:06 P.M. is when it was added. And it was deleted at
23 12:06 P.M. -- 12:38. Sorry.
24 A Okay. I'm sorry, I misspoke. That, at 12:38 P.M. that
25 deleted check, that check was cashed on February 5th, 2010, at
26 Union Bank by Charles Merritt.
27 I apologize for that.
28 THE COURT: That's the 4500-dollar check?
115
1 THE WITNESS: Yes, sir.
2 THE COURT: Okay.
3 Q (By Mr. Daugherty) So, on February 5th, five checks were
4 written? Is that fair to say?
5 A Approximately. I'd have to go back and count.
6 Q And all of them were backdated, all the ones written on
7 the 5th were backdated to the 4th?
8 A They were eventually either edited or dated back to the
9 4th, yes. The final check had the date of the 4th.
10 Q Jumping forward to February 8th, 2010.
11 A Yes.
12 Q At about 2:20 P.M., was there any activity on the Custom
13 side of the QuickBooks account?
14 A Yes, sir. User added check to Charles Merritt for
15 $6,500. Memo line states: "saudi arabia final," all lower case
16 letters. And the check was backdated to February 4th, 2010.
17 Q Was it, after it was backdated, was it -- to February
18 4th, 2010, was it printed?
19 A Yes, it was.
20 Q Was it deleted?
21 A Yes, it was.
22 Q Was it deposited into the defendant's Bank of America
23 account the same day?
24 A Yes, it was -- it was actually deposited the next day, on
25 February 9th, at Bank of America, by Charles Merritt.
26 Q Did anything else occur on February 8th, based on your
27 review of the information provided by Intuit?
28 A Yes.
116
1 Q What was that?
2 A At 2:44 P.M., it stated the user canceled QuickBooks
3 online subscription.
4 Q Do you know if that was done via phone call or online?
5 A It was through a call-intake center. It was done on a
6 phone call.
7 Q And did you review the defendant's cell phone records
8 from that date, February 8th, 2010?
9 A Yes, I did.
10 Q At around that time, was there a phone call to QuickBooks
11 online?
12 A Yes, there was.
13 Q And how long does that, how long did that call last?
14 A The phone call lasted 107 minutes.
15 Q The next day, February 9th, was there any other activity
16 on the QuickBooks account?
17 A Yes.
18 Q And what happened on February 9th, based on your review
19 of the records?
20 A At 8:06, 08:06 A.M., it stated: "The user again
21 cancelled QuickBooks online subscription."
22 Q Did anything else happen that day, February 9th?
23 A Yes, there was customer service notes placed on the
24 account.
25 Q Okay. Were you able to identify the operator who placed
26 those notes into the account on the records?
27 A Yes, I was.
28 Q What is that person's name?
117
1 A His name is Ryan Baker.
2 Q Did you speak to Mr. Baker?
3 A Yes, I did.
4 Q Did Mr. Baker tell you that -- well, what does he tell
5 you he does for QuickBooks online?
6 A He said he works, basically he works at a call center.
7 When people call for support, either sales or support with their
8 online accounts, they call him and he helps with technical
9 questions, ordering, subscriptions, that type of thing.
10 Q Did you ask him about a call placed to him on February
11 9th of 2010, regarding the Custom at Earth Inspired Products
12 QuickBooks account?
13 A Yes, I did.
14 Q Did he tell you he remembered the call?
15 A Yes, he did.
16 Q Did you ask him how he remembered the call?
17 A Yes.
18 Q What'd he tell you?
19 A He said it was a very unusual call, that in the five
20 years that he had been in the business he's had less than five
21 phone calls similar to this, and they were all --
22 MR. TERRELL: Objection. Calls for an opinion, your
23 Honor. Foundation.
24 THE COURT: Overruled.
25 THE WITNESS: That all five calls that he had were either
26 someone was trying to hide money from the IRS --
27 MR. TERRELL: Objection. Relevance about what other
28 people did with this guy.
118
1 THE COURT: Sustained.
2 Q (By Mr. Daugherty) He remembered the call?
3 A Yes, he did.
4 Q It was unusual?
5 A Yes.
6 Q What did he tell you about the phone call?
7 A He stated it was associated with a cell phone number,
8 which cell phone number was Charles Merritt's cell phone number.
9 Q When you say "associated," did the call come from
10 (909) 374-0102?
11 A That's correct.
12 Q He told you that?
13 A Yes.
14 Q Did he tell you whether the person identified himself as
15 someone who worked with Joseph McStay?
16 A He told me the caller identified himself as Joseph
17 McStay.
18 Q And what else did he tell you about the phone call?
19 A He said that he wanted to -- the caller was identifying
20 himself, saying that he wanted to transfer the account to
21 another account, and then once it was transferred and this
22 subscription was canceled, that he needed to delete all of the
23 accounts.
24 Q Now, you reviewed his notes. These were typewritten
25 notes?
26 A Yes, I did.
27 Q Did he say he wrote those?
28 A He did.
119
1 Q Did he stress the word "needs" in any way?
2 A Yes, when he wrote the notes associated with it, he said,
3 "When he cancels he needs," and "needs" was in all capital
4 letters, stressing that the caller was adamant that the account
5 be deleted.
6 Q So, this caller from the defendant's cell phone number
7 identified himself as Joseph McStay, said he needed the
8 information deleted.
9 How did Mr. Baker respond?
10 A He said he would be able to do that if this was, if he
11 was talking to Joseph McStay. He would send an e-mail to Custom
12 at EarthInspiredProducts.com to verify this master administrator
13 password. And once he received the password he'd be able to
14 delete the account.
15 Q Did he ever receive a response to that?
16 A He did not.
17 Q Did he do anything else with regard to that particular
18 call? Did he send another e-mail?
19 A I believe he sent a follow-up e-mail.
20 Q Did he ever hear back from Joseph McStay regarding
21 deleting the QuickBooks account?
22 A He did not.
23 Q On a different topic, you worked closely with Special
24 Agent Boles, whom we heard testify earlier;
25 Is that correct?
26 A That's correct.
27 Q Okay. The -- did you notice that after February 4th, or
28 beginning February 4th, onward to, say, February 9th, the
120
1 defendant's cell phone had significant times where it was either
2 out of range or turned off or in airplane mode?
3 A That's correct.
4 Q Did you look back historically prior to February 4th,
5 2010, and determine if that is consistent with his normal cell
6 phone use?
7 MR. TERRELL: Objection. Foundation, your Honor. Calls
8 for an opinion.
9 MR. DAUGHERTY: The foundation was laid.
10 THE COURT: Overruled. He can answer.
11 THE WITNESS: It was not consistent with his normal cell
12 phone pattern.
13 Q (By Mr. Daugherty) On October 22nd, 2014, did you
14 participate in an interview with the defendant?
15 A Yes, I did.
16 Q And did you do that along with Detective Bachman?
17 A Yes, I did.
18 Q Was the defendant out of custody when you conducted that
19 interview?
20 A He was.
21 Q Was he ever placed in handcuffs during that interview?
22 A He was not.
23 Q After the interview, what happened to the defendant?
24 A He was free to leave.
25 Q Okay. Did you -- well, let me ask you this. Did you ask
26 the defendant what had happened on February 4th when he met with
27 Joseph?
28 A Yes.
121
1 Q What did he tell you?
2 A He told me he discussed business deals and that he
3 received checks when they were at Chick-fil-A restaurant.
4 Q Did he say that, did he describe the nature of the
5 relationship with Metro Sheet Metal and Earth Inspired Products?
6 A Yes, he did.
7 Q What did he tell you?
8 A He said that Metro Sheet Metal had been contracted, he
9 arranged the contracts with Metro Sheet Metal, that they were
10 doing the fabrication of the fountains and he was helping. He
11 was kind of a middleman, where he was helping ship out the
12 fountains. Metro Sheet Metal was actually creating the
13 fountains.
14 Q Did you speak with anyone at Metro Sheet Metal?
15 A Yes, I did.
16 Q Did you speak with David Sequieda?
17 A Yes, I did.
18 Q What did he tell you about the business relationship
19 between Joseph and/or between Earth Inspired Products and his
20 business?
21 A He stated that he had a partnership with Joseph. That it
22 was between him and Joseph to create these fountains, and that
23 Charles Merritt worked in the shop, he helped do the creating,
24 the materials, and shipping out the product.
25 But the primary area of the business was between Joseph
26 and David Sequieda.
27 Q Did David Sequieda provide you with an e-mail from Joseph
28 regarding an unpaid invoice for a project?
122
1 A Yes, he did.
2 Q What did that e-mail say?
3 A It was an e-mail to Joseph asking about funds for
4 materials. Joseph's response to that e-mail was, as he had
5 talked about before, that Chase was responsible for the
6 materials, the creating, as far as the materials go, to ship.
7 And that if he wouldn't pay that, Joseph would take care of it
8 again, like he had done in the past. Basically, he would pay
9 the debt.
10 Q When was that e-mail?
11 A I don't recall the date.
12 Q Do you recall how long in relation to February 4th?
13 A It was approximately one month prior.
14 Q Did you ask the defendant during the October 22nd, 2014
15 interview whether Joseph owed Metro Sheet Metal money? Or did
16 you ask him about these checks that were created to Metro Sheet
17 Metal?
18 A Yes, I did.
19 Q What did he tell you about those checks?
20 A He said Joseph gave Merritt checks to pay Metro Sheet
21 Metal.
22 Q Was he able to describe for you what he did after he had
23 his meeting with Joseph McStay?
24 A I believe he said he went home.
25 Q Was he able to tell you whether he remembered what he did
26 the rest of that evening?
27 A I asked him. He said that he watched TV, and then later
28 he told me they didn't have TV at the time, so he must have been
123
1 watching a movie at his residence.
2 Q Did you ask him about statements that he had made
3 previously that he received a call from Joseph at about 8:30
4 that night?
5 A Yes, I believe we did.
6 Q Are you familiar with those statements?
7 A Yes.
8 Q Do you know he said that?
9 A Yes.
10 Q Did you ask him about that statement?
11 A Yes.
12 Q What was his response?
13 A I believe he still said that he received a call and did
14 not answer it. He saw Joseph calling, but he just let it go to
15 voice mail, did not answer the phone.
16 Q Did he tell you that that was really his wife's memory
17 and not his?
18 A I believe he did say that.
19 Q And he was just saying that because he was relying on her
20 memory?
21 A Yes.
22 Q Did you show him the checks that were created on February
23 5th and backdated to February 4th?
24 A Yes, I did.
25 Q Did he tell you he wrote those checks?
26 A I don't believe he said he -- I believe he said Joseph
27 wrote the checks.
28 Q Did he identify the typewritten entries and say: Those
124
1 were typewritten, he wouldn't have done that?
2 A That's correct.
3 Q Did you confront him with the fact that those checks that
4 were dated February 4th to himself and to Metro Sheet Metal were
5 backdated?
6 A Yes, I did.
7 Q Did you ask him why in the world they would be backdated
8 to the date this family went missing?
9 A Yes.
10 Q Did he deny backdating any of those checks?
11 A He did not deny.
12 Q Did he have an explanation as to why he would back-date
13 those checks?
14 A He did not offer any explanations.
15 Q Did you ask him about being in Victorville near the
16 graves on February 6th, 2010?
17 A Yes.
18 Q Was he able to provide you with an explanation for why
19 his cell phone was in the Victorville area on February 6th,
20 2010?
21 A He told me he was not in the High Desert on that day.
22 Q Did you ask him about deleting the QuickBooks online
23 account?
24 A Yes.
25 Q Did he tell you that he never attempted to delete the
26 QuickBooks online account?
27 A I believe he told me -- there was multiple stories. I'm
28 sorry.
125
1 Q Did you confront him with -- with several times from
2 February 4th to February 9th where his cell phone either was off
3 or out of range or in airplane mode?
4 A Yes, I did.
5 Q Was he able to give you an explanation as why that would
6 have been?
7 MR. TERRELL: Objection to the line of questioning as
8 argumentative, your Honor.
9 THE COURT: Overruled.
10 THE WITNESS: No, he could not give an explanation.
11 Q (By Mr. Daugherty) Did you confront him with the fact
12 that he did not receive a call from Joseph at 8:30 --
13 A Yes, I did.
14 Q -- as he previously said?
15 Did he have any explanation for that?
16 A No, he did not.
17 Q And you told him that his phone was off for approximately
18 four hours on February 4th. And did he provide you with an
19 explanation for that?
20 A No he could not.
21 MR. DAUGHERTY: I have no further questions.
22 Thank you.
23 THE COURT: Cross.
24 MR. TERRELL: Thank you, your Honor
25 The Defense has no questions, your Honor.
26 THE COURT: Okay. Any objections to Detective Hanke
27 being excused?
28 MR. DAUGHERTY: No, your Honor.
126
1 MR. TERRELL: None.
2 THE COURT: All right. Thank you, sir, for your
3 attendance, and you are excused.
4 And you can call your next witness.
5 MR. DAUGHERTY: People call Detective Ryan Smith to the
6 stand.
7 THE CLERK: Please raise your right hand.
8 Do you solemnly state the evidence you shall give in this
9 matter shall be the truth, the whole truth, and nothing but the
10 truth, so help you God?
11
12 RYAN_SMITH,
13 (Called as a witness on behalf of the People, was sworn and
14 testified as follows:)
15
16 THE WITNESS: I do.
17 THE CLERK: Thank you.
18 THE BAILIFF: Please be seated. Please state and spell
19 your full name for the record.
20 THE WITNESS: Ryan Smith, R-y-a-n, S-m-i-t-h.
21 THE COURT: Okay, you may proceed.
22 MR. DAUGHERTY: Thank you, your Honor.
23 DIRECT EXAMINATION
24 BY MR. DAUGHERTY:
25 Q Sir, what is your current occupation and assignment?
26 A I work for the San Bernardino County Sheriff's
27 Department. I'm a detective assigned to the homicide detail.
28 Q And how long have you been a sworn peace officer?
127
1 A About ten years.
2 Q Were you part of the homicide team in 2014 who was
3 assigned to conduct an investigation into the murder of the
4 McStays?
5 A I was.
6 Q And as part of your assignment, did you review the bank
7 accounts of both Joseph McStay's Union Bank accounts and the
8 defendant's Bank of America account?
9 A Yes, I did.
10 Q With regard to Joseph McStay's Union Bank account, were
11 you able to observe checks in particular dated February 2nd and
12 February 4th to Charles Merritt?
13 A Yes.
14 Q In particular, a check for $2495 to charles merritt, in
15 all lower case, did you review that?
16 A Yes.
17 Q Did you compare that to other checks that Joseph McStay,
18 Sr., had written prior to February 2nd, 2010?
19 A I did.
20 Q And did you notice any differences?
21 A Yes.
22 Q What did you notice?
23 A The way the checks were written were different. When
24 Joseph typically wrote a check, he would capitalize the first
25 letters in every word. He was also very good at writing
26 information in the memo line, whether it was for a job or to pay
27 someone, whatever he was paying for.
28 And I also noticed his signature. When -- it was a
128
1 cursive J into a cursive M, for the initials J.M.
2 Q Was that the same -- were your observations the same with
3 regard to the check dated 2-04, 2010, cashed by Charles Merritt
4 for $4,500, and another one for $6,500 on 2-4, 2010 -- they were
5 dated that -- and another one for $20,350 that was dated 2-4?
6 A No, those checks were different.
7 Q How were they different?
8 A They were written in all lower case. The signature was
9 off on one of the checks.
10 MR. TERRELL: Object to the signature as expert opinion.
11 THE COURT: Sustained.
12 Q (By Mr. Daugherty) Did those checks look the same to you
13 as the checks written prior to February 2nd, 2010?
14 A No.
15 Q Why not?
16 A Because of the way they were written.
17 Q Because of the signatures. Did the signature look the
18 same to you?
19 A No.
20 Q Prior to -- did you review checks prior to February 2nd,
21 2010 and --
22 I guess what I'm getting at, is there a date where the
23 signatures look different?
24 A Yes.
25 Q What was that?
26 A February 2nd, 2010, was the first signature that I
27 observed to be different.
28 Q In reviewing the defendant's Bank of America account,
129
1 when was that account opened?
2 A February 3rd, 2010.
3 Q Was it -- was there -- how was that opened? How was that
4 account opened?
5 A It was opened at a branch with a check deposit.
6 Q Was it a 100-dollar check?
7 A It was a 200-dollar check, but $100 was deposited,
8 another 100 was taken out as cash.
9 Q Who was that check from?
10 A That was from Earth Inspired Products, Joseph.
11 Q Did that signature appear consistent with the signatures
12 prior to February 2nd, 2010?
13 MR. TERRELL: Objection, your Honor, as to the
14 signatures.
15 THE COURT: Overruled. He can indicate that he observed
16 differences without offering any opinion as to the author of the
17 writings.
18 THE WITNESS: Yes.
19 I'm sorry, can you repeat it so I'm sure?
20 Q (By Mr. Daugherty) Sure. Was there a 200-dollar check
21 written by Joseph McStay on February 2nd, 2010?
22 A Yes.
23 Q Was it handwritten?
24 A Yes.
25 Q It was not printed?
26 A No.
27 Q Did that signature appear consistent with Joseph McStay's
28 signature?
130
1 A Yes.
2 Q In reviewing the defendant's Bank of America account, did
3 you observe that there was a deposit of a check for $6,500, of a
4 check dated February 4th, 2010?
5 A Yes.
6 Q Okay. Was that one of the -- one of those checks that
7 didn't look the same?
8 A Yes.
9 Q That you previously discussed?
10 Did you note any significant withdrawals from casinos?
11 MR. TERRELL: Objection. Foundation.
12 THE COURT: Withdrawals from where?
13 MR. DAUGHERTY: Casinos.
14 THE COURT: Sustained. Lack of foundation at this time.
15 Q (By Mr. Daugherty) Were you able to observe any
16 withdrawals on the defendant's bank account?
17 A Yes.
18 Q Does the -- do the bank records indicate to you where
19 those withdrawals occurred from?
20 A Yes.
21 Q Did you observe any from casinos?
22 A Yes.
23 Q In particular, on February 9th, 2010, was there a
24 1000-dollar withdrawal at Pechanga Casino in Temecula?
25 A Yes.
26 MR. TERRELL: Same objection, your Honor. Foundation,
27 that he could read and note and understand that it was from a
28 casino or some area.
131
1 THE COURT: So, in looking at the -- were you looking
2 at -- were you looking at the bank records?
3 THE WITNESS: Correct, your Honor.
4 THE COURT: And these were, I take it, ATM cash
5 withdrawals?
6 THE WITNESS: Correct.
7 THE COURT: And did it indicate a location?
8 THE WITNESS: Yeah, it says on the statement.
9 THE COURT: Okay, the objection is overruled.
10 Q (By Mr. Daugherty) On February 22nd of 2010, was there a
11 1500-dollar cash withdrawal from the San Manuel Casino?
12 A Yes.
13 Q On March 8th, 2010, was there two 503-dollar withdrawals
14 from the Commerce Casino in Commerce, California?
15 A Yes.
16 Q On March 12th, 2010, was there a 504-dollar withdrawal
17 from San Manuel Casino?
18 A Yes.
19 Q Did you interview someone by the name -- during the
20 course of the investigation in September of last year, did you
21 interview someone by the name of Carmen Garcia?
22 A Yeah, I did.
23 Q I'm sorry?
24 A I did.
25 Q Who is Carmen Garcia?
26 A Carmen Garcia was a secretary for Metro Sheet Metal.
27 Q And did you ask her about the relationship between Metro
28 Sheet Metal and Joseph, financially?
132
1 A I did.
2 Q What did she tell you?
3 MR. TERRELL: Objection. Foundation, your Honor, as to
4 what she knows or could know.
5 THE COURT: Overruled.
6 THE WITNESS: Miss Garcia told me that Metro Sheet Metal
7 and Earth Inspired Products partnered. In other words, where
8 they would do the majority of the fabricating at Metro Sheet
9 Metal and Mr. Merritt would come in and do the artistic designs,
10 electrical, motors, to get the fountains to work.
11 Q (By Mr. Daugherty) Did she, did you ask her about two
12 checks dated 2-4, 2010, that were made out to metro sheet metal,
13 all lower case?
14 A I did.
15 Q Did you show her those checks?
16 A I did.
17 Q Did she remember receiving those checks?
18 A She did.
19 Q What did she tell you about them?
20 A She hold me the checks appeared odd to her. They were
21 delivered personally by Mr. Merritt, and they -- she said the
22 signature looked off. And, again --
23 MR. TERRELL: Objection. Calls for an expert opinion.
24 THE COURT: Well, by -- did she indicate to you that she
25 had previously received checks from Mr. McStay?
26 THE WITNESS: Yes.
27 THE COURT: Okay. And as a result of that she was
28 familiar with Mr. McStay's signature?
133
1 THE WITNESS: Yes, your Honor.
2 THE COURT: And this looked, these checks that
3 Mr. Merritt delivered, the signature looked different?
4 THE WITNESS: Yes, your Honor.
5 THE COURT: Okay. The objection is overruled.
6 Q (By Mr. Daugherty) In fact, did she wait to deposit or
7 cash those checks on behalf of Metro Sheet Metal?
8 A She did.
9 Q Also as part of your assignment in this matter, were you
10 called upon to review Joseph McStay's voice mails?
11 A Yes.
12 Q Can you tell us what you did and how you did that?
13 A The voice mail was recorded previously by San Diego in
14 their investigation. And I listened to each voice mail and
15 noted the dates and time when, when someone called and would say
16 "Hey, it's Tuesday. I haven't heard from you."
17 So, I listened to all of them and I reviewed all of the
18 voice messages.
19 Q Did you hear them after February 4th, 2010?
20 A Yes.
21 Q Were any of those voice mails from, or any of the people
22 on the voices you heard identify themselves as Chase, Charles
23 Merritt?
24 A No.
25 Q Any voice mails from Charles Merritt, whatsoever?
26 A No.
27 MR. DAUGHERTY: I have no further questions.
28 THE COURT: Okay. Cross.
134
1 MR. TERRELL: None.
2 THE COURT: Okay. Any objection to Detective Smith being
3 excused?
4 MR. TERRELL: No.
5 MR. DAUGHERTY: No.
6 THE COURT: Okay. Thank you, sir, for your attendance.
7 And you are excused.
8 And we'll go ahead and take our afternoon recess at this
9 time for about fifteen minutes before our next witness.
10 (Whereupon a recess was had.)
11 THE BAILIFF: Please come to order. Court is again in
12 session.
13 THE COURT: All right, the record will reflect we are
14 back in session. Parties and counsel are present. And you can
15 call your next witness.
16 MR. DAUGHERTY: Thank you, your Honor.
17 I apologize. I have to recall Detective Smith, just
18 briefly.
19 THE COURT: Okay.
20 MR. DAUGHERTY: Just to cover one area.
21 THE COURT: Sure. I think he was excused, so we need to
22 reswear him.
23 THE CLERK: Do you solemnly state the evidence you shall
24 give in this matter shall be the truth, the whole truth, and
25 nothing but the truth, so help you God?
26 ///
27 ///
28 ///
135
1 RYAN_SMITH,
2 (Called as a witness on behalf of the People, was sworn and
3 testified as follows:)
4 THE WITNESS: I do.
5 THE BAILIFF: Please be seated. Please state and spell
6 your full name for the record.
7 THE WITNESS: Ryan Smith, R-y-a-n, S-m-i-t-h.
8 THE COURT: Okay, you may continue.
9 MR. DAUGHERTY: Thank you, your Honor.
10 DIRECT EXAMINATION (Recalled)
11 BY MR. DAUGHERTY:
12 Q Detective Smith, during the course of the investigation,
13 did you interview a person by the name of Juanita Merritt?
14 A I did.
15 Q Is that the defendant's sister?
16 A Yes.
17 Q Did you have information that in 2010 she lived in the
18 Oro Grande area?
19 A Yes.
20 Q When you interviewed Juanita Merritt, did you ask her
21 whether or not the defendant was at her residence in February of
22 2010 around the time of the murder of the McStays?
23 A Yes.
24 Q What was her response?
25 A He was nowhere in the area, or if he was in the desert,
26 he didn't come visit her.
27 Q And did she indicate to you when the last time he had
28 been at her residence in that area was?
136
1 A Yes.
2 Q When was that?
3 A The last time she recalled seeing Mr. Merritt was in
4 2009. She thought it was the summertime.
5 She recalled they stopped, her and James McGill, her
6 boyfriend at the time had breakfast with the family at Coco's
7 restaurant. After, they continued going. They were on their
8 way to either the river or a water park, she didn't recall
9 which.
10 Q This was in 2009?
11 A Correct.
12 MR. DAUGHERTY: No further questions.
13 THE COURT: Cross.
14 MR. FARRELL: No questions.
15 THE COURT: You can step down again.
16 And you can call your next witness.
17 MR. IMES: Ask to recall Detective Edward Bachman,
18 please.
19 THE COURT: Okay.
20 You're reminded you're still under oath.
21 THE WITNESS: Yes, your Honor.
22 THE COURT: Okay, you may continue.
23
24 EDWARD_BACHMAN,
25 (Previously called as a witness on behalf of the People, having
26 been sworn, testified further as follows:).
27 ///
28 ///
137
1 DIRECT EXAMINATION (Recalled)
2 BY MR. IMES:
3 Q Detective Bachman, who is Susan Blake?
4 A Susan Blake is Joseph McStay Sr.'s, mother.
5 Q Did you have an occasion to speak with her during the
6 course of this investigation?
7 A I did.
8 Q Did you ask her, specifically, about events surrounding
9 February 9th of 2010?
10 A Yes.
11 Q What did she tell you in relation to speaking with the
12 defendant?
13 A Basically, that the defendant stopped at her house, had a
14 conversation about the fact he was going to check in on her son,
15 and would keep her updated on what he found out.
16 Q Did she say coming to or coming from?
17 A You -- you know what, I'll have to double-check to
18 confirm that one, sir.
19 Q Would it refresh your recollection to do so?
20 A Yes, sir.
21 Q Please do so.
22 MR. IMES: With the Court's permission?
23 THE COURT: Sure.
24 (Brief pause.)
25 THE WITNESS: He was coming from.
26 THE COURT: Coming from where?
27 THE WITNESS: From the McStay residence.
28 Q (By Mr. Imes) And at the time did Miss Blake live in
138
1 what's called the Glen Ivy area?
2 A That's right.
3 Q Where is that?
4 A The Temescal Canyon area, down near Corona.
5 Q At some point did you have occasion to interview a
6 Katherine Jarvis?
7 A I did.
8 Q And who is that?
9 A That would be what I talked about earlier. That was
10 Mr. Merritt's former girlfriend. It's his children's mother.
11 Q Did you ask Miss Jarvis regarding whether or not the
12 defendant received a phone call from Joseph McStay, Sr., after
13 he had returned home on February 4th, 2010?
14 A I did.
15 Q And what did she explain to you?
16 A Her initial statement was she recalled the night of
17 February 4th after he returned home, that they were standing
18 around the bar area of their apartment. She described
19 Mr. Merritt's phone as lying face up on the counter. And his
20 phone rang and she could see Joseph's name pop up on the
21 display.
22 She said that she asked Mr. Merritt if he was going to
23 answer the phone. And he said, no, and he wasn't going to. He
24 had already talked to Joseph that day and he didn't want to
25 answer it.
26 She thought it was odd that he didn't want to answer it
27 and he let it ring all the way out until it went to voice mail.
28 Q Why did you say that was her initial story?
139
1 A She changed it. Later, she changed her statement, when
2 she was confronted with cell phone records to show there was
3 never a phone call received on Mr. Merritt's phone from Joseph
4 McStay, Sr., that night.
5 Q What was her response at that point, when she was
6 confronted with the phone record?
7 A That she was mistaken. And she remembered the phone call
8 happening that way, but it was possibly a different night.
9 Q Did you ask Miss Jarvis about whether or not the
10 defendant frequented the High Desert around February 4th, 2010?
11 A I did.
12 Q And what was her response to you?
13 A To her knowledge, he did not.
14 Q Did you ask Miss Jarvis whether or not the defendant was
15 a person that was typically hard to get ahold of via cell phone?
16 A She said that sometimes he was hard to get ahold of.
17 That he would go to the casino, it could be for up to a couple
18 of days at a time, and if he was at a table, he typically
19 wouldn't answer his phone.
20 Q Was it -- did you ask her whether or not it was his habit
21 or common behavior to turn off his cell phone for long periods
22 of time?
23 A She said it was not. He did not shut his phone off.
24 Q Did you ask Miss Jarvis whether or not she urged the
25 defendant to make a report about the McStays being missing?
26 A I did.
27 Q And what was her response? What did she tell you?
28 A She did say she urged Mr. Merritt to contact law
140
1 enforcement and report the McStays missing.
2 Q Was there a response from him after she urged him to,
3 according to her?
4 A He did not want to get involved.
5 Q Did you ask her -- or, by the way, I'm sorry --
6 Let's try starting over with that.
7 Did you confirm with her, her cell phone number at the
8 time?
9 A I did. I don't -- I can get that if you need it.
10 Q We've heard about it in earlier testimony, right?
11 A That's correct.
12 Q Did you also confirm with her the defendant's cell phone
13 number?
14 A I did.
15 Q The one we heard about earlier?
16 A Yes, sir.
17 Q At the time did you ask, also ask her what kind of
18 vehicle the defendant was driving around the time of the
19 McStays' disappearance?
20 A Yes, sir.
21 Q And what did she indicate to you?
22 A That he had a white Chevrolet. It was like a utility
23 truck. I don't believe she knew the exact make and model of it,
24 but she was shown a photograph of what we determined was
25 Mr. Merritt's truck at the time they were together.
26 Q And what was her response when seeing that photograph?
27 A That it looked similar to the truck she remembered.
28 Q So, moving away from her interview, how were you able to
141
1 track down or determine what vehicle Mr. Merritt was driving at
2 or near the time of the McStays' disappearance?
3 A At the time we did some records inquiries and things to
4 find out what the license plate was on Mr. Merritt's truck at
5 the time he owned it.
6 We ended up finding out it was repossessed, and that it
7 went to an auction company out of, I believe it was Perris,
8 Perris, California.
9 And from there it was sold to another company. We ended
10 up conducting a records check into that. We contacted the
11 business owner and went out and spoke with them regarding the
12 truck.
13 Q When you spoke to them, were you able to come into
14 possession of the truck?
15 A We were.
16 Q And did you have a chance to examine the features of that
17 truck?
18 A We did.
19 Q Including taking certain measurements of certain unique
20 aspects to that truck?
21 A Yes, sir.
22 Q And was the wheel base determined on that truck?
23 A It was.
24 Q And what was result of that?
25 A Outside tire, or outside of the, I guess corresponding
26 left and right tires was 73 inches.
27 Q During the course of the investigation, did you also make
28 attempts to determine the weather pattern around February 4th
142
1 and the surrounding dates of 2010?
2 A We did.
3 Q Was there anything of significance that you noted in your
4 research?
5 A Yeah. As part of the investigation we conducted
6 inquiries into the calls for service in the area. We found a
7 call for service on February 6th, 2010. It was at roughly 4:30
8 in the morning, where a patrol deputy, Deputy Sahagun from
9 Victor Valley station, was conducting an extra patrol. Deputies
10 do that all the time, just to check on the area, especially
11 because Oro Grande is kind of desolate, they'll just also drive
12 through the area to provide extra patrol. He noted in his
13 display information for the call that there was heavy rain going
14 on in the area at that time.
15 Q Have you ever stepped in a mud puddle?
16 A I have.
17 Q What happens to your footprint when you step in loose
18 mud?
19 A It spreads out from where your initial shoe print would
20 be.
21 Q During the course of the investigation, did you speak
22 with a Detective Liabach from San Diego County, spelled
23 L-i-a-b-a-c-h?
24 A I did.
25 Q And who is he?
26 A He was assigned to the Fallbrook Sheriff's station. He
27 was a detective with the San Diego County Sheriff's Department
28 at the time the McStays went missing.
143
1 Q Did you obtain a piece of evidence from him?
2 A I did not obtain a piece of evidence from him, but it was
3 through all the evidence we received, yes, of this. Not from
4 him, per se.
5 Q Specifically, did you obtain a surveillance video from
6 the neighborhood?
7 A Yes, sir.
8 Q And where did that surveillance video come from?
9 A That was a, on a neighbor's residence. If you're
10 standing at the McStays', what was previously the McStays' door,
11 across the street, and it would be kitty-corner to the left,
12 there was a neighbor there that had video surveillance affixed
13 to her residence.
14 Q And was there something significant in the review of her
15 video surveillance that was pertinent to your investigation?
16 A There was.
17 Q And what was that?
18 A On the night of February 4th, there's a vehicle seen
19 leaving the McStays' residence. It is -- just before 2000
20 hours.
21 Q 1947 hours?
22 A Yes, sir.
23 Q In speaking with the detectives from the San Diego
24 Sheriff's Department, including Detective Liabach and Detective
25 DuGal, was there an opinion at the time as to what vehicle that
26 may or may not have been in the video?
27 A At the time they formed the opinion --
28 MR. TERRELL: Objection. Opinion. And also foundation.
144
1 THE COURT: Sustained as phrased.
2 MR. IMES: May I be heard?
3 THE COURT: Sure.
4 MR. IMES: He's referring to what they told him, what
5 they observed. Not to whether or not it's their expert opinion.
6 It's their lay opinion, or their observations of what
7 they saw. Therefore, under Prop 115, it's admissible. And
8 their opinion is a lay opinion based on their observation.
9 THE COURT: Well, what's your offer of proof as to what
10 their opinion was as to the vehicle?
11 MR. IMES: It's been widely publicized that their opinion
12 was that it was the Isuzu Trooper.
13 And I'm about to debunk that.
14 THE COURT: Well, I mean, they can -- they can describe
15 what they believe that they saw. What type of vehicle they
16 believed it was.
17 MR. IMES: That's all I asked, your Honor.
18 THE COURT: All right. The objection is overruled.
19 THE WITNESS: They believed that it was the McStays'
20 Isuzu Trooper leaving the McStay residence.
21 Q (By Mr. Imes) Did you take efforts to analyze that and
22 watch that video yourself?
23 A Countless times, yes, sir.
24 Q And did you do that in comparison with photographs and
25 also viewing of -- of the Isuzu Trooper?
26 A Viewing of the Isuzu Trooper as well as other vehicles,
27 yes.
28 Q What are the other vehicles?
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1 A Mr. Merritt's Chevrolet 3500 pickup truck.
2 Q And were there things that were distinct in the video
3 that you noted?
4 A There were.
5 Q And what were they?
6 A The way we excluded the McStays' Isuzu Trooper as being
7 the vehicle leaving is, on video surveillance if you pause it,
8 at the rear portion of the vehicle you can see a muffler. When
9 the brake lights illuminate it, it backlights a muffler that
10 would be on the passenger side of the vehicle. The McStays'
11 Isuzu Trooper's exhaust pipe is actually on the driver's side of
12 the vehicle, which excluded that from being the vehicle seen
13 leaving the residence.
14 Q Were there any other distinctions that led you to that
15 opinion?
16 A In some of the video comparison you can see lighting that
17 shines off of a particular marker on the front bumper of the
18 vehicle leaving the scene, as well as there's also inside marker
19 lights on the passenger side rear portion of the vehicle leaving
20 the house.
21 Neither one of those markers were present on the McStays'
22 Trooper.
23 Q The street, Avocado Vista Lane in Fallbrook, can you
24 describe the layout of that street for me?
25 A It's basically a, I think it runs northwest to southeast.
26 It's a cul-de-sac. The McStays' residence was roughly, I
27 believe, between five and ten houses southeast of the next
28 intersection up. I may be off on the houses there, but it's
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1 essentially a cul-de-sac. And their residence is about three
2 houses northwest of the end of the cul-de-sac on, on -- I guess
3 it'd be the southwest side of the street.
4 Q When you say the end of the cul de sac, you're talking
5 about the dead-end portion or the exiting end?
6 A The dead-end portion.
7 Q I want to go back to, were you also present with
8 Detective Hanke when the defendant was interviewed?
9 A I was.
10 Q I just want to clear up a couple parts.
11 During that interview did he indicate to you whether or
12 not he had been recently in the Victorville area?
13 A Yes. He said he had not.
14 Q Do you recall, specifically, what he said?
15 A He said that the only way that he could have been up
16 there would have been at his family member's house, but that he
17 did not recall being up in the area.
18 Q Did you ask him, out of his alleged concern for
19 Mr. McStay and his family, whether or not he attempted to
20 contact Joseph via cell phone?
21 A Yes.
22 Q And did he indicate to you whether or not he was able to
23 reach Joseph, Sr.?
24 A He said it went to voice mail.
25 Q Did he indicate to you whether or not he had left voice
26 mail messages for Joseph, Sr.?
27 A He indicated that he had.
28 Q Did you ask him his opinion of Summer?
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1 MR. TERRELL: Objection. Relevance.
2 THE COURT: Relevance?
3 MR. IMES: An admission.
4 THE COURT: All right. Overruled.
5 THE WITNESS: He did not like Summer.
6 Q (By Mr. Imes) During the course of the interview, did he
7 indicate that he was friends with Joseph and the family?
8 A Yes.
9 Q How many times did he forget Summer's name during the
10 interview?
11 A Countless times.
12 Q During the course of the interview, did you ask him about
13 the truck that he drove at or near the time of their
14 disappearance?
15 A I did.
16 Q And what did he tell you?
17 A I showed him photographs. He identified the truck as
18 being the truck he owned at the time the McStays disappeared.
19 Q The same Chevy 3500 we've talked about previously and
20 earlier today?
21 A That's correct.
22 Q Did you note something interesting in the course of the
23 interview about the amount of detail the defendant was able to
24 give you about February 4th?
25 A Yes, sir.
26 Q And what was that?
27 A Mr. Merritt was able to recall, have a good recollection
28 of everything that occurred from the time he got up in the
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1 morning, until approximately 1700 hours. After 1700 hours he
2 didn't recall, basically, anything that occurred. And he
3 indicated that his best recollection of anything after that
4 would have been off Jarvis's memory.
5 Q Catherine Jarvis?
6 A That's correct.
7 Q Last but not least, did you happen to view an interview
8 of the defendant done by Randi Kay?
9 A I did.
10 Q Do you recall a statement by the defendant during that
11 interview about who would have been the last person to see
12 Mr. McStay alive?
13 A During the interview with Randi Kay, Mr. Merritt said,
14 "I was definitely the last person he saw," end quote.
15 MR. IMES: Nothing further.
16 THE COURT: Cross.
17 MR. TERRELL: Defense has no questions, your Honor.
18 THE COURT: Okay.
19 Thank you. You can step down, again.
20 THE WITNESS: Yes, sir.
21 THE COURT: Okay, next witness.
22 MR. DAUGHERTY: Your Honor, the People would move
23 Exhibits No. 1 and 2 into evidence. And People would --
24 THE COURT: Those were the cell phone documents detailing
25 the calls and the locations, and then the other was the map of
26 the area?
27 MR. DAUGHERTY: Correct.
28 THE COURT: Any objection?
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1 MR. TERRELL: No objection to those, your Honor.
2 THE COURT: Exhibits 1 and 2 are admitted for purposes of
3 preliminary hearing.
4 (Admitted in Evidence ^ Exhibits 1 and 2)
5 MR. DAUGHERTY: People rest.
6 THE COURT: Okay. Any affirmative evidence?
7 MR. TERRELL: No affirmative evidence, your Honor.
8 THE COURT: Okay. So, I understand there's some media
9 folks with cameras that want to be here for any arguments or
10 motions.
11 So, we'll take a brief recess and we'll let them come in
12 and get set up.
13 (Whereupon a recess was had.)
14 THE BAILIFF: Please remain seated and come to order.
15 Court is again in session.
16 THE COURT: All right, the record will reflect we are
17 back in session. Parties and counsel are present.
18 The People have rested after the introduction of Exhibits
19 1 and 2, correct?
20 MR. DAUGHERTY: Yes, your Honor.
21 THE COURT: And no affirmative evidence on behalf of the
22 Defense at this hearing, correct?
23 MR. TERRELL: No, your Honor.
24 THE COURT: All right. Any motions?
25 MR. DAUGHERTY: Yes, your Honor. The People move to hold
26 the defendant to answer for any and all crimes shown by the
27 evidence.
28 THE COURT: Wish to be heard?
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1 MR. TERRELL: Yes, your Honor.
2 I'll defer to Mr. Mettias.
3 THE COURT: Okay.
4 MR. METTIAS: Your Honor, we, obviously, have been
5 listening to this testimony all day long. And the important
6 fact is that there hasn't been anything, not one shred of
7 evidence that has pointed to Mr. Merritt having committed these
8 murders.
9 We've heard about a lot of different places that he may
10 have or may not have been, but we didn't hear that he was at all
11 in the Fallbrook area any time when these people went missing.
12 We've heard about him being in Victorville, possibly, or
13 his phone allegedly being in Victorville. But, again, there has
14 been nothing that ties Mr. Merritt to these murders.
15 Not one shred of evidence was given to us that said that
16 Mr. Merritt committed these murders. Everything thus far that's
17 been presented has no bearing at all on whether or not these
18 murders were committed by him. They may have other inferences
19 that are brought up, but there is not at, any way, shape or form
20 at the level where Mr. Merritt should be held to answer for four
21 murders, your Honor.
22 There hasn't been any DNA evidence that has linked Mr.
23 Merritt to these crimes, nothing at all that would link him
24 directly to this crime.
25 So, we'd ask that the Court at this point dismiss this
26 matter, because the D.A. hasn't met their burden on showing that
27 Mr. Merritt committed these crimes.
28 And, on that, we'll submit, your Honor.
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1 THE COURT: People wish to be heard?
2 MR. DAUGHERTY: Yes, your Honor. The People met their
3 burden in this case. The evidence has been presented.
4 The defendant's close to the victim. The evidence has
5 been presented that the defendant lied about his last
6 experiences with the victim on February 4th, and that he said he
7 needed to get checks, checks that weren't created until the next
8 day by Mr. Merritt.
9 To say there is no DNA evidence, I recall a long portion
10 of testimony regarding the defendant's DNA on gears that a
11 driver of a vehicle would normally touch, on a car that was
12 found down by the border, that was the McStays' vehicle.
13 To say there's no DNA is flabbergasting.
14 And, then, in combining all of that, all of the backdated
15 checks to the dates that the family was murdered, all the
16 backdated checks on the 5th, all the backdated checks on the
17 8th, and in addition, his cell phone being right near the
18 graves, there's plenty of evidence here, presented at this
19 preliminary hearing, to show that we met our burden.
20 And we'd ask you to hold the defendant to answer.
21 THE COURT: All right.
22 Well, first of all, of course, this is a preliminary
23 hearing. And the prosecution's burden is to present sufficient
24 evidence for the Court to have probable cause to believe that,
25 No. 1. That a crime was committed. And,
26 No. 2. Probable cause to believe that the defendant was
27 a participant in that crime.
28 The evidence here, the Court is satisfied that the
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1 evidence is sufficient for the Court to make those findings.
2 The Court does find that there is probable cause to
3 believe that the four counts of murder were committed, and
4 probable cause to believe that the defendant, Mr. Merritt, was a
5 participant in those four crimes of murder.
6 A few of the key points of the evidence that leads the
7 Court to that conclusion are,
8 No. 1. The evidence clearly indicates that the victims
9 of the homicide, the McStay family, disappeared on February the
10 4th, 2010. The evidence indicates that the defendant met with
11 Mr. McStay that afternoon, or around noontime.
12 The defendant reported that he received checks from
13 Mr. McStay at that time. The other evidence indicates that the
14 checks that the defendant -- that were subsequently deposited
15 into the defendant's account were actually made on the victim's
16 account after February the 4th, and backdated to February the
17 4th. Which is a strong inference that the defendant was
18 involved in the disappearance and the ultimate death of the
19 victims.
20 Further, the victims', the McStay vehicle, the Isuzu
21 Trooper, was apparently taken from their residence, left at San
22 Ysidro, and the DNA evidence suggests that the -- not
23 suggests -- the defendant's DNA was found on -- both on the
24 steering wheel and on the gearshift lever of that vehicle,
25 indicating that the defendant had driven or at least handled the
26 steering wheel and gearshift at some time.
27 Other circumstances, when the defendant was interviewed
28 shortly after the defendant -- after the victims' disappearance,
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1 he referred to the victims in the past tense. And this, of
2 course, was long before anyone knew that they were deceased.
3 And when you combine that information with the fact that
4 two days after the disappearance, the defendant's cell phone is
5 pinging off of the cell phone tower in the immediate vicinity of
6 where the victims were buried, all creates a strong inference
7 and strong conclusion that there's probable cause to believe
8 that the defendant was a participant in the homicide of the
9 victims.
10 And finally, of course, is the fact that the tire tracks,
11 at least one set of the tire tracks at the scene where the
12 victims were buried matches, or at least is consistent with the
13 wheel base of the tires on the defendant's vehicle that he was
14 driving at the time.
15 So, a conclusion of all of that evidence creates a strong
16 inference, and definitely supports, at a minimum, a probable
17 cause determination that the defendant was a participant in the
18 homicide.
19 The Court, therefore, will grant the motion to hold the
20 defendant to answer for those offenses.
21 Order that he appear in Superior Court, Department 21,
22 on --
23 Is there a particular day next week that's better or
24 worse for everybody?
25 MR. IMES: How about the week of the 29th, your Honor,
26 are you available?
27 THE COURT: Sure. I believe that's within the 15 days.
28 Yeah, we would have up to July the 6th. So, anytime
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1 during the week of June 29th would work.
2 MR. TERRELL: That's fine, your Honor.
3 THE COURT: Any particular day better or worse for
4 anybody?
5 MR. DAUGHERTY: No.
6 THE COURT: Monday, June 29th --
7 Actually, wait a minute. Today is the 15th? Actually,
8 the 29th would be the last day.
9 MR. METTIAS: Your Honor, we'd ask that it be prior to
10 the 29th. I'm out the week of the 29th, your Honor.
11 THE COURT: Okay. Any day during the week of the 22nd?
12 MR. METTIAS: Any day is fine with me, your Honor.
13 MR. TERRELL: That's fine.
14 THE COURT: Want to do it either --
15 MR. IMES: We can do it the 22nd or the 23rd.
16 THE COURT: How about Wednesday the 24th?
17 MR. IMES: Okay.
18 MR. METTIAS: That's fine with us, your Honor.
19 THE COURT: All right. Wednesday, June 24th, 8:30 in the
20 morning in Department 21 for the arraignment on an Information
21 to be filed at that time.
22 Bail to remain as set, if there is bail.
23 MR. DAUGHERTY: Thank you, your Honor.
24 THE COURT: I'm also aware there was previously a motion
25 by several media outlets for the search warrants and return on
26 the search warrants. What's the People's position on those at
27 this time?
28 MR. DAUGHERTY: Perhaps we could address that at the
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1 arraignment. I need to speak with Mr. Voss.
2 THE COURT: Okay. So, we'll put that over to the June
3 24th date, as well. If there are no objections to those, they
4 would be given to our court liaison person and you'll be advised
5 of who that is and within a day or so we should be able to get
6 copies of that to you.
7 MR. DAUGHERTY: Thank you, your Honor.
8 MR. TERRELL: Thank you.
9 (Whereupon the day's proceedings were concluded.)
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1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 FOR THE COUNTY OF SAN BERNARDINO
3 DEPARTMENT '21' HON. MICHAEL A. SMITH, JUDGE
4
THE PEOPLE OF THE STATE OF )
5 CALIFORNIA, )
)
6 PLAINTIFF, )
)
7 -VS- ) No. FVI 1404194
)
8 CHARLES RAY MERRITT, ) Pages 1 through 155
)
9 )
DEFENDANT. )
10 ______________________________)
11 REPORTER'S_TRANSCRIPT_OF_ORAL_PROCEEDINGS
12 June 15, 2015
13 APPEARANCES:
14
FOR THE PEOPLE: MICHAEL A. RAMOS
15 District Attorney
BY: SEAN DAUGHERTY and
16 BRITT IMES
Deputy District Attorneys
17
18
FOR THE DEFENDANT: JIMMY PHILIP METTIAS,
19 JAMES S. TERRELL,
SHARON J. BRUNNER,
20 DAVID S. ASKANDER,
Attorneys at Law
21
22
23 REPORTED BY: THERESA CHRISTINE WOLFE, C.S.R.
Official Reporter, CSR 6024
24
25
26
27
28
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 FOR THE COUNTY OF SAN BERNARDINO
3 DEPARTMENT '21' HON. MICHAEL A. SMITH, JUDGE
4
THE PEOPLE OF THE STATE OF )
5 CALIFORNIA, )
)
6 PLAINTIFF, )
)
7 -VS- ) No. FVI 1404194
)
8 CHARLES RAY MERRITT, ) REPORTER'S CERTIFICATE
)
9 )
DEFENDANT. )
10 ______________________________)
11
12 COUNTY OF SAN BERNARDINO )
) ss
13 STATE OF CALIFORNIA )
14
I, THERESA CHRISTINE WOLFE, C.S.R., Official Reporter
15
of the Superior Court of the State of California, for
16
the County of San Bernardino, do hereby certify that the
17
foregoing pages, 1 through 155, inclusive,
18
comprise a full, true and correct transcript of the requested
19
proceedings held in the above-entitled matter reported by
20
me on June 15, 2015.
21
22
DATED this 19th day of June, 2015.
23
24 ___________________________
THERESA CHRISTINE WOLFE, C.S.R.
25 Official Reporter, C-6024
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1 INDEX TO PROCEEDINGS
2 PROCEEDING PAGE
3 June 15, 2015 (A.M.) 1
June 15, 2015 (P.M.) 96
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5 Preliminary Hearing 1
Preliminary Hearing 96
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1 CHRONOLOGICAL INDEX TO WITNESSES
2 WITNESSES Page
3 HART, GARY
Direct Examination by MR. IMES 4
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AVILA, JOSE
5 Direct Examination by MR. IMES 8
Examination by THE COURT 17
6
BACHMAN, EDWARD
7 Direct Examination by MR. IMES 21
8 STEERS, JOSEPH
Direct Examination by MR. IMES 45
9
DUGAL, TROY
10 Direct Examination by MR. DAUGHERTY 54
11 BACHMAN, EDWARD
Direct Examination (Recalled) by MR. 68
12 DAUGHERTY
Cross Examination by MR. TERRELL 76
13 Redirect Examination by MR. DAUGHERTY 77
14 BOLES, KEVIN
Direct Examination by MR. DAUGHERTY 78
15 Examination by THE COURT 96
16 HANKE, DANIEL
Direct Examination by MR. DAUGHERTY 99
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SMITH, RYAN
18 Direct Examination by MR. DAUGHERTY 126
Direct Examination (Recalled) 135
19 By MR. DAUGHERTY
20 BACHMAN, EDWARD
Direct Examination (Recalled) by MR. IMES 137
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1 ALPHABETICAL INDEX OF WITNESSES
2 WITNESSES Page
3 AVILA, JOSE
Direct Examination by MR. IMES 8
4 Examination by THE COURT 17
5 BACHMAN, EDWARD
Direct Examination by MR. IMES 21
6 Direct Examination (Recalled) by MR. 68
DAUGHERTY
7 Cross Examination by MR. TERRELL 76
Redirect Examination by MR. DAUGHERTY 77
8 Direct Examination (Recalled) by MR. IMES 136
9 BOLES, KEVIN
Direct Examination by MR. DAUGHERTY 78
10 Examination by THE COURT 96
11 DUGAL, TROY
Direct Examination by MR. DAUGHERTY 54
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HANKE, DANIEL
13 Direct Examination by MR. DAUGHERTY 99
14 HART, GARY
Direct Examination by MR. IMES 4
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SMITH, RYAN
16 Direct Examination by MR. DAUGHERTY 126
Direct Examination by MR. DAUGHERTY 135
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STEERS, JOSEPH
18 Direct Examination by MR. IMES 45
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1 EXHIBITS FOR IDENTIFICATION
2 Exhibit For ID
Number Description Page
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1 Voice calls, 11:30 A.M.-11:52 A.M. 87
4 2 Geographic locations of Exhibit No. 1 88
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1 EXHIBITS IN EVIDENCE
Exhibit In Evd
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Arraignment for Charles Merritt

The Arraignment for Charles Merritt will be held on Wednesday, June 24th, 2015 at 9:00 A.M. At the Hearing, The District Attorney will file the charges and announce if the State will be be seeking the death penalty for the crimes. On this date,  Judge Smith will rule on the release of the search warrants.