My Opening Statement (continued)

John’s Involvement with the Band

I moved on to John’s involvement with Below The Fault Line, Victor Garcia’s garage rock band, where, in the beginning, John subbed in and otherwise helped out by playing phaser guitar or bass guitar here and there. I explained that starting around September 2016, John became a de facto “full time” band member whose value to them skyrocketed once he started supplying them with at-cost musical equipment and even more so when he gave them free equipment.

Next, I began sowing the seeds of John’s self-defense claim by stating that in December 2017 (one month before the incident), John secured them what could potentially be a lucrative guitar-strap sponsorship – a detail I am remiss in failing to previously mention. But, as I told the jurors, this is when Victor’s bullying behavior started intensifying after the band signed the sponsorship contract. Victor was concerned that John’s leaving the band might jeopardize what could be a possible payday in the tens of thousands of dollars.

Victor’s Bullying and Gang Affiliation

Although at the time I made my opening statement I fully intended to subsequently introduce evidence of Victor’s gang affiliation to bolster John’s self-defense claim, as I mentioned in a previous blog, I ultimately changed my mind. As a result, in my opening I did mention that Victor (“Vic” to his friends) hung out with gang members with the names of “Bone Thugs” and “Psycho Realm”, and that prior to Beneath The Fault Line he had been a member of a gangsta-rap band that was also called “Psycho Realm”.

In fact, I said that Victor had initially introduced himself to John as being from “East Side Longos”, a Long Beach-based street gang (which John, who had no knowledge or interest whatsoever in street gangs, had no idea what “Longos” meant). See: unitedgangs.com.

Next, I explained that as they worked together more frequently, Victor became more and more bossy, pushy, and aggressive about John not leaving the band and that things started to escalate.

Trial Tip:

You should always imagine your jury as an audience watching a movie or a play. They are expecting to hear a good story, so your opening statement must lay out the highlights of that story, so as long as you deliver by never making a promise you can’t keep (i.e., by failing to provide promised exculpatory evidence), and so long as your “story” is more emotionally engaging than the prosecutor’s (which shouldn’t be too difficult since prosecutors rarely apparently don’t prioritize engaging with the jury as opposed to laying out all the “facts” and purported evidence in a systematic, linear, and ultimately boring manner). In other words, never make promises in your opening that you can’t keep.

As I made my opening statement, I made sure to make direct eye contact with each of the jurors, and I could sense that they were with me – i.e., I could see them leaning forward with intense looks, clearly focused on my every word. I therefore decided to get into more detail about Victor’s bullying f John. Specifically, I went into how Victor became increasingly pushy, aggressive, demanding, and insisting that John needed to do things for the band, such as buy gear or instrument parts for Victor’s idea to build a special guitar. In short, Victor became bossy and threatening.

Trial Tip:

If you have the “ammunition”, such as I did here, you should take every advantage to “smear” the prosecution’s witnesses – piece by piece, word by word – so the jury sees and hears that everything they say is either at worst an outright lie or, at best, an evasion of the truth.

Here, by my opening statement, I primed the jury to be inclined to see DDA Kim’s witnesses – namely Detective Sellers, Victor, Miguel Rea, and Ramon Chavarria – as individuals willing to say whatever would be necessary to protect their friend Victor by nailing the coffin in John’s prosecutorial grave. By the end of the trial, the jurors had little, if any, sympathy towards these people, including Victor, whom would across to them as a brutal, violent, and altogether reprehensible individual.

Of course, there was nothing to smear about Susan Garcia, but I knew that so long as I could prove that her death was the tragic result of Miguel attacking John – and therefore the product of self-defense – then I thought the jury would see her death as a tragic accident that, but for Miguel’s attack, would never have occurred. The same went for the near shooting of almost-three-years-old Ray Garcia.

I emphasized how Victor directly ordered John to remain with the band with an unspoken threat emphasized by the former’s brandishing of his Mossberg tactical assault shotgun (see: outdoorlife.com): “You will do this, you’re in the band.” I pointed out that Victor’s implied but nevertheless clear physical threats were only made when he and John were alone. I also laid out all the reasons John had felt Victor and the other band members were trying to take advantage of him. John had felt trapped/scared, thought about calling police but worried about consequences. Thus, little by little, I was able to portray Victor as the menacing bully he in fact was.

Importantly, all three of the prosecution’s witnesses greatly downplayed John’s role in the band – once again, a foolish tactic on DDA Kim’s part because – yet again – it showed that these individuals were willing to lie on the stand. Indeed, they all testified that John was basically a “groupie” and “wannabe”. But I excoriated them on the stand with evidence – including their own hesitant admissions – that John played regularly for them, gave them instrument parts for free, sold them larger equipment at cost through his employer (Kay’s Guitars in Irvine), and that he helped them secure the guitar-strap sponsorship deal. For the jury, it was just one more lie piling upon their previous lies (the whiskey drinking, Miguel’s beating of John, the ludicrous allegation that no had seen the first shot despite standing only a few feet away, etc.).

John’s Frail Condition and Chronically Degenerative Diseases

Now that I had portrayed how scary Victor was – including his superior weight and strength in comparison with John – I then emphasized how John could not possibly have hoped to defend himself against a physical attack by either Victor or Miguel. Specifically, I identified John’s suffering from long-term rheumatoid arthritis and Crohn’s disease – the latter being an autoimmune disease that leaves the body perpetually weak.

Trial Tip:

Anytime you’re arguing self-defense in a criminal trial (or, in certain circumstances, a civil trial), you want to always keep in mind the fact that self-defense is essentially based on reasonable subjectivity. This means that each juror must place themself in the position of the defendant – while accounting for all the defendant’s infirmities and mindset – so that hopefully he or she agrees that based on the history between the assailant, the physical and psychological state of the assailant, and the precise circumstances of the subject incident, the defendant was reasonable in believing that he or she was in imminent danger of being seriously injured or killed by the assailant.

I summed up this portion of my opening by stating that it could not be reasonably disputed that based on how John was so physically weak – i.e., quasi-emaciated at six feet tall but only weighing 150 pounds with no muscles to speak of – that he was literally unable to protect himself without a firearm. To garner further sympathy from the jury, I also explained that John was a meek, gentle, and sensitive person who had been traumatized by having been raised by a severely bipolar mother who was an up-and-down manic depressive who acted very aggressively at times towards her own son. I suggested that Victor’s own behavior towards John – i.e., where he was sometimes friendly and other times threatening and hostile – itself seemed symptomatic of undiagnosed bipolar disorder that in and of itself triggered John’s childhood trauma.

The Gun

I could see at this point in my opening that every one of the 12 jurors and two alternates were enthralled by the compelling details of John’s story and how he ended up on trial for murder. This interest only increased when I turned my attention to the post-Civil War era .41-caliber Colt revolver at issue here. See: gunsmagazine.com.

I explained that because of Victor’s increasing hostility, aggressiveness, and threats, he started bringing the gun to band rehearsal for his own protection.

The details of the firearm itself were understandably fascinating to the jury – it was a 120-year-old heirloom (dating from the late 1880’s) that had initially been acquired by John’s great-grandfather when he worked on railroad trains, and that he carried for protection against train robbers so prevalent at that time (think Jesse James and his gang). I told them that the revolver was typically secured in a glass display case at his father’s house. And up until 2013 (four years prior to the incident), when John purchased ancient bullets at a gun show, he had never once fired it. He did so at some point thereafter because he was curious to see if it would actually fire. So he went into the woods, fired it twice, saw that it worked, replaced it in its display case, and promptly forgot about it – that is, until Victor started threatening him four years later.

The Day of the Incident

Now that I had set the proverbial stage for the jury – i.e., the history leading up to the fateful day at issue – I stated that the day before that night, Victor had called John to come to band practice as proven by John’s text message to his sister confirming that he was heading up that day to band practice at the Garcias’ Long Beach home.

Next, I laid out the 90 minutes leading up to the incident – beginning with Miguel buying a bottle of Jack Daniel’s whiskey at approximately 5pm, then arriving at Victor’s house around 10 minutes later. I then explained that Miguel and Victor together consumed about 90% of the entire bottle in less than an hour-and-a-half by knocking back shots and chasing it with Jack-and-Cokes. I told the jury that this 750-millimeter bottle was almost empty when John arrived.

Trial Tip:

Throughout your opening statement, you should be constantly referring to evidence – whether in the form of testimony of witnesses (and in rare occasions such as here, your own client/the defendant), documents, videos, photos, etc. The jury will be taking mental notes (or, if the judge allows, written notes on actual notepads) so it is critical that you come through on each of those promised evidentiary items. Otherwise, the jury will remember that you essentially tried to mislead them. I see deputy district attorneys (or, in misdemeanor trials, sometimes deputy city attorneys) doing this frequently at trial so ensure you don’t do the same.

I then went on to set out John’s purpose in going to Victor’s house that night – i.e., John’s plan was to leave/quit the band and cut things off because he had grown tired of Victor’s aggressive behavior. He also went to return a piece of equipment that belonged to the band. But, of course, he had the ancient Colt hidden in his rear waistband just in case things got out of control. Finally, I said that John would normally go straight into Victor’s sound-proofed garage where the band practiced but that since everyone (band members Victor and Ramon, hanger-on Miguel, Victor’s wife Susan, and their toddler, Ray) was hanging out in the house, he went in there as well.

How the Tragic Events Unfolded

I laid out beat by beat what led to the first gunshot being fired. I could see that the jury was definitely hanging on my every word. I may have even switched to speaking in the present tense at that point in order to “transport” the jurors into that house at that time. I said that when John gets there, it was obvious to him that they (Victor, Susan, Miguel, and Ramon) had been talking about politics while drinking and watching Obama’s concession speech, and that they continued to do so in his presence.

At that point, Victor said he had voted for Trump so the others (Miguel, Ramon, and perhaps also Susan) began good-naturedly giving him a hard time while John remained uneasily silent, concerned about how obviously drunk both Victor and Miguel were – especially Victor, who was speaking very loudly and gesticulating.

John then used the restroom and when he came out, Victor asked him whom he had voted for and he said Hillary Clinton. As John feared, Victor became instantly hostile and aggressive, and used racist, violent, and threatening language towards him. Victor started yelling at John, threatening him. I told the jury that they would hear the details of what Victor said from John himself.

Trial Tip:

Always sprinkle “cliffhangers” throughout your opening statement so that the jury can look forward to the “payoffs” – here, for example, I knew the jurors would be eagerly awaiting to hear what John had to say about the specifics of Victor’s hostile and racist remarks. An even bigger “hook” or cliffhanger I dropped was the promised testimony (again, from John) and evidence (in the form of the photograph) about the object Victor used to attack him.

Next, I will rarely have my client testify – either at the preliminary hearing or at trial – because doing so exposes them to cross-examination and impeachment by the prosecuting attorney. It also results in the defendant opening doors to lines of questioning (via cross) that otherwise wouldn’t be allowed by the judge.

But I made an exception in John’s case because I knew that his entire defense would come down to his word against that of the three prosecutions witnesses (again, Victor, Miguel, and Ramon – not including Detective Sellers). I also knew that John’s personality and truthfulness would come through on the stand and allow the jury to emotionally connect with him. My hope was that they would not only sympathize with him, but actually empathize with him. So when your client has nothing to hide – particularly when the case comes down to “he said, she said”, then you should consider putting him or her on the stand.

The Shooting of Victor

I finally came to the firing of the first bullet, explaining that Victor had grabbed a dangerous metal object off the kitchen counter and tried to attack John with it. I said that it was only then that John had pulled out the ancient Colt and pointed it at Victor, telling him to “Get back.” But instead, Victor lunged towards John, who then tried to shoot the object out of his hand. Unfortunately, however, because Victor lowered his head as he charged John, the bullet instead carved a groove across the top of his head, seriously injuring him.

The Killing of Susan and Near-Miss of Ray

I next explained that Miguel then also rushed at John, grabbing his “gun hand” and thereby causing the second bullet to fire – this time unintentionally with the tragic and accidental result of it striking Susan in the upper torso, killing her, and missing Ray by inches. I quickly moved on to describing the horrific beating Miguel inflicted on John who, without the gun, was utterly defenseless.

I’ll finish up my comments about my opening in the next blog.