April 8, 2008. El Dorado Co. Superior Court. People vs. Mario Lozano.
Case # P06CRF0427 (After Lunch)
2:12 The Judge, Atwell and Gomes enter.
The jury enters and are seated.
The Judge instructs the jury. It is their job to determine the facts. The outcome is
up to you and you alone. Your decision must be based only on the facts without bias. He gives the court’s description of what constitutes first-degree murder, second-degree murder, manslaughter and involuntary manslaughter. If they decide on guilty, they must decide unanimously on which degree…
2:54 The Judge concludes the jury’s instructions.
Gomes brings in another shotgun. He starts his closing statement, good afternoon, first I want to thank the jurors. Let me take you back to July 26th 2006 at 12:00 PM. Remember that Mike Thompson and Gary Chapman just left with the defendant and Kacie irritated. Her son said in the morning that she wanted the defendant gone. They all agreed to that but she was not scared. Everyone testified that Kacie had no idea what was going to happen… The defendant knew.
At 12:07 Kacie dials 911, We determined this when Detective Nida went through the cell phone history. It’s probably not the first time that day Kacie’s afraid. She knows the defendant is serious. At 12:09 Kacie’s second call for help. She knows that Gary Chapman just left and must be the closest to the house for help. 12:10, Kacie’s last call to Mike Nuss. She must know by now what’s going to happen. 12:11, Kacie’s phone rings. Mike is calling back in less than 1 minute.
This case is not about 2 bags. We went through this step-by-step. What was in those bags? (Glancing at the jury, I can see their disgust.) That’s what he told Detective Nida, 2 duffle bags of nothing. 2 shirts, dirty socks, pajama pants… This case did not have anything to do with the bags. This case has to do with: 1, murder; 2, stealing Kacie’s car; with additional allegations for the discharge of a gun.
Gomes begins a power point presentation on the large screen. (I try to keep up with my notes but only manage to catch most of it.)
The jury has 2 tasks here. To determine what facts have been proven. To apply the facts to the Law applied here.
Use elements of each charge to apply the facts to the law. Each element must be proven. Think of the elements as questions you have been called upon to prove.
Elements on count. 2 of 2.
Did the defendant take or drive someone’s vehicle without the owner’s consent. When the defendant did so, did he intend to deprive the owner of possession of the car.
Elements of murder.
The defendant committed an act that caused death.
When the defendant acted, he had a state of mind called malice aforethought.
He killed without lawful excuse or justification.
Lets look at malice aforethought. There are 2 kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
The defendant acted with intended disregard for life and limb.
He intentionally committed an act
The act was dangerous to life and limb.
When he acted, he knew how dangerous.
He deliberately acted with conscious disregard for life and limb.
Gomes then illustrates conscious disregard. Remember that he went back to the bedroom. Before he took the gun to shoot her, he had to cycle it to load a round into the firing chamber. (He pumps the illustration shotgun.) He had to disengage the safety. He had to point it at her chest. One more, he had to have his finger on the trigger. Each act was dangerous to life and limb. He knew it. Each of these things puts it in the case of implied malice, conscious disregard of life and limb. Imagine the example of a 7-year-old child. He brings a friend home and wants to show off his dad’s gun. While they are playing with it the trigger is pulled and his friend is shot. He wasn’t aware of the danger that was involved. The defendant is not a child. Can you put this man in the category of the 7-year-old child not knowing the danger of his actions?
It does not require hatred or ill will toward the victim.
It is a state of mind that must be formed before the act that causes death is committed.
It does not require deliberation.
Gomes continues, after you decide that the defendant is guilty of murder, you must determine at what degree.
1st degree murder.
The defendant acted willfully, if he intended to kill.
The defendant acted deliberately if he carefully weighed the considerations for and against his choice, and knowing the consequences he decided to act.
The defendant acted with premeditation if he decided to kill the victim before committing the act that caused death.
2nd degree murder.
Implied malice = 2nd degree murder.
Think about what he said, he looked down the barrel of her shotgun and expected her to pull the trigger.
Someone was going to die, him of her.
Even if he wanted Kacie to kill him. That’s implied malice. (It's not legal to kill your self or to arrange for someone else to kill you.)
Then, Gomes explains, there’s the lesser offence of manslaughter.
There are two ways to commit voluntary manslaughter.
Heat of passion.
Heat of passion.
Heat of passion is an instant action without taking time to consider the consequences of the act. Take the illustration of the man who comes home from work early and finds his wife in bed with his best friend. He goes to the other room, gets a gun and returns to shoot them. That’s within seconds he acted without weighing the consequences of his actions. If he went next door to get his neighbors gun, then he had time to cool off and think about what he was doing. Mario stated it took about 3 minutes for him to go into the bedroom and get the gun.
Who has the right to defend themselves with deadly force? Anyone who fears they will be harmed or killed has the right in the state of California to defend him or herself with deadly force.
The law states that an aggressor whose victim fights back in self-defense may not invoke the doctrine of self-defense against the victim’s justified acts.
Gomes explains that if Kacie had pulled the trigger and killed Mario, she would have been justified trying to defend herself. This doesn’t apply to Mario. He said: I wanted my bags. I got a shotgun to get my bags. The defendant indicated that this was a gunfight.
Circumstantial evidence does not get impeached.
It does not tell lies.
It does not have an agenda.
It simply means what it means.
Gomes states, Kacie’s gun, the safety was on, the feeding tube was full. The firing chamber was empty. It was not readied to be fired. She neither had the desire or the ability to ready it. Nick testified that she was familiar with guns. They went out to shoot a couple times a month. If she was aware of what was about to happen, don’t you think that while she called 911, Gary and Mike, she would have readied the gun to defend herself? There was blood spatter inside the barrel of her gun and it was on the opposite end of the trailer from where she was first shot. The defendant says she had her gun in her right hand at her right shoulder when she was shot. How did it get across the trailer? Yount’s 3 theories are: the dog splattering the blood in the gun, possible but not likely. The gun could have been propped up when Kacie was shot. The only other scenario is that it was on its side where it was found. She’s shot in the chest, staggers back, her head jerks back when she’s shot in the head. It was not in her hand.
The defendant’s gun. The safety was off, the gun was in the fire position. It was found with 2 shells left in the loading tube with one still in the firing chamber. There were 2 rounds on the ground. Gomes pumps the shotgun again and says, the defendant had to chamber another round after shooting Kacie in the head. Why do you chamber a 2nd round if the first was an accident? He takes aim and shoots her in the head. Then he chambers a third round. Gomes pumps the shotgun again and continues, the only reason to cycle that gun is to ready it to fire.
Let’s look at the distance Kacie was from the first shot. Remember the pained illustration we gave and John Yount’s testimony. The shot was straight on. Gomes then holds the shotgun to his right shoulder reaching out with his left hand and says, think about how that could happen. The distance answers the question. John Yount testified a distance greater than 2’ and less than 5’. Look at the cardboard targets, no shot below 3’ matched the size of Kacie’s chest wound. The test shots find between 3’ and 4’ most closely approximate the size of Kacie’s chest wound. When that gun was pointed at me standing square at 2’, I could barely touch the barrel. At 2’ 3” I couldn’t touch the barrel. That’s the power of circumstantial evidence. Test shots at 5’ were closer to Kacie’s chest wound than 4 out of 5 shots at 2’ to 2 ½’. The defendant lied, trying to convince Lieutenant Nida that it was something other than cold-blooded murder. Shot #1 was as deliberate as shot #2. Lets look at motive.
He moved back from Hawaii expecting a relationship with Kacie and didn’t get it. That made him angry.
He found that his money was gone. That made him angry.
Kacie was trying to get rid of him. That made him angry.
He found a crank fXXXing inferno.
Kacie had a new boyfriend. That made him angry.
Kacie spent the previous night at a motel. That made him angry.
This was a cold calculated act of first-degree murder. He acted willfully. It was not an accident. The 2nd shot proves that. The distance of the 1st shot if she pulls the gun, the defendant’s reaction proves that. He didn’t chamber rounds shot after shot, (Gomes pumping the shotgun again.) If # 1 was by accident, why he did load round #2. And shot #2 was not by accident.
What if there was no shot #2?
The defendant would still face nothing less than second-degree murder with personal use of a firearm. Implied malice applies. He intentionally committed an act. The act was dangerous to life and limb. When he acted, he knew how dangerous. He deliberately acted with conscious disregard for life and limb. Going into the bedroom, grabbing the shotgun, turning the safety off, chambering a round and pointing it at Kacie inside the trailer. Nothing could have been more dangerous. He created the situation where someone was going to die.
But there was a shot #2. About 30 second after shot #1, the defendant stated. That’s how much time the defendant had to think about shot #2.
Gomes has the seconds marked off on the large screen. (Take a moment and see just how long 30 seconds is.) Premeditation and deliberation can happen in an instant. Do I get her help or do I chamber another round and kill her?
4:15 The Judge and council are seated.
The jury enters.
Atwell stands and acknowledges Lieutenant Nida and Gomes. Then he says, I’m going to recognize the realities of life and that it’s late in the afternoon and everyone’s attention spans are shortened.
Consider all the evidence. All of it, not part of it or bits and pieces. Look at the Judges instructions about weighing the evidence. Not Gomes’ power point presentation… with respect to circumstantial evidence… does not have a voice… circumstantial evidence doesn’t lie… it can’t talk at all. It has meaning as it relates to other evidence.
You heard Gomes’ presentation … He spoke very eloquently. Did he describe all the evidence accurately?… firearms… shells… videos, One with sound and one without….
Will Mario get the kind of verdict you promised to give? According to the law and what the facts actually are? This is not a case of who done it.
The District Attorney refers to the “murder weapon”. The homicide weapon. Was there a murder? Gomes had a similar weapon and racked it several times… I only have one opportunity to talk to you… and rather than looking at bits and pieces. Looking past the lawyer’s selective focus to come out with… a tragic set of circumstances, which produced an accidental death.
The potential charges to consider are murder 1, murder 2, manslaughter and involuntary manslaughter. This was a horrible accident. I hope you will look at it like this.
Look at the evidence. Look at your instructions and decide what happened. Not the picking and choosing… I’m interested in you remembering the pathologist’s report… no soot or stippling. John Yount’s testimony… wasn’t found on skin and it occurs within inches. The pathologist found none on the body. John Yount took a look at the shirt mostly covered with blood from the 2nd shot… No soot and stippling found… not surprising… it was soaked in the blood… not looking in the trailer… looking at the shirt… not his conclusion, Gomes’s conclusion. John Yount was careful about declaring distances, he didn’t do enough tests… he told Gomes that… Gomes had to draw him out. Re-read his testimony. The statements of Mario Lozano. Or disagreements. You can hear it again. My statements in evidence, Gomes’ statement is in his power point not evidence… He spent a lot of time at the start, about the distance at which the first shot was fired. The illustrations were outside the trailer in its entirety and how could Kathleen Barron grab it. In the video, both Mario Lozano’s statements and Lieutenant Nida’s questions show that the shotgun was inside the trailer up to the trigger guard… The only dimensions come from Officer Jordan of outside the trailer with estimates of the floor height. 7’ 10” with approximately 2” wall… lets see… 7’ 6”… I’m challenged in math… 3’ 9” to the center of trailer. The barrel of the shotgun could have come much farther in.
According to Dr Albert there were 4 separate, independent fatal wounds. One to the lungs, 2 separate wounds to the aorta and a massive injury strongly disrupting the heart and valves. And the way that occurred comes only from the statement of Mario Lozano. That’s the evidence we have.
Evidence collected does not disprove that because it’s simply circumstantial evidence. It does not lie because it does not speak without supporting evidence. If there are two reasonable interpretations of circumstantial evidence, one for guilty and one for innocent, we must adopt innocence.
The sequence of phone calls is Gomes’ interpretation. 911 was called, the rest we know nothing.
In spite of the rather clear statements of John Yount… that conclusions be drawn from the cardboard test boards were that you couldn’t tell except for that 2’ to 5’ range. The defense says 3’ to 4’… not only he is ignoring the clear scientific evidence; he is applying his own interpretation.
Even if we do think about the wound and remember that John Yount reminded us about elasticity… and when we were injured by small things and left a large wound. All it is, is circumstantial evidence.
John Yount and Dr. Albert’s testimonies are consistent with Mario Lozano’s statements to Lieutenant Nida. Having been threatened with a weapon, he got another weapon. I don’t recall Lieutenant Nida asking: did you load the weapon? Chamber one round? Take off the safety? We don’t know weather or not the shotgun Mario Lozano picked up in the bedroom was safety on or off.
All we know about what happened in the trailer is what Mario Lozano told Lieutenant Nida. Lieutenant Nida didn’t look in the house, entered the trailer and left Officer Jordan to collect evidence. No measurements were made but two.
The photographs shown tell us of an unfortunate incident. They don’t tell us why or how…
Speculation is not evidence… Bias is not evidence…
Be honest with the evidence… Be honest with the instructions…
You will return a proper verdict.
4:42 Gomes responds with: Atwell’s statements would have you disregard circumstantial evidence as not being scientific. Remember, the Judge’s instruction says to consider it as it supports other evidence. Review the explanations of manslaughter, involuntary manslaughter, second-degree murder and first-degree murder.
4:52 Judge Keller instructs the jury. They will assemble to start deliberation at 9:00 AM.
The bailiff is sworn to take charge of the jury.