Last week we tried a practice run here at America’s Last Newspaper of re-instating a traditional element to court reporting, and that is the courtroom sketch artist. As the astute reader knows, in unusually high-profile cases like the O.J. Simpson trial and a very few others, the protocol has always been for newspapers to employ a sketch artist to work with the reporter to better delineate the courtroom drama by depicting the expressions on people’s faces as they encounter, by turns, some of the most devastating and exhilarating developments in their lives, those sublime moments when a jury delivers a verdict, a judge reads a sentence, or a witness breaks down on the stand under pitiless cross-examination by a skilled and relentless lawyer.
With that in mind your trusty courthouse correspondent and his colleague, the Ukiah native and sketch artist Pete Castro, went to cover a preliminary hearing in Judge Keith Faulder’s court last Wednesday.
The case was brought against Rudy Flores and featured his defense lawyer, Ukiah attorney Macci Baldock and Deputy DA Houston Porter for the prosecution. Readers will remember Mr. Porter as winner of last year’s award for Most Pitiless DUI Prosecutor after threatening a defendant with perjury charges for telling his version of events on the stand. Judge Cindee Mayfield reminded Porter that in our adversarial system, which pits the exaggerations of prosecutors against the minimizations of defendants, that’s just the way it works; nothing to get all indignant about.
The prelim for Rudy Flores was calendared to begin at 10 o’clock, but by a quarter after there were still no prosecutors in the courtroom, although all the defense lawyers had been punctual and were waiting patiently. There were four prelims set to go, all being handled by different prosecutors, and not a single one had shown up. Judge Faulder said he was becoming “frustrated,” a courthouse euphemism for damned good and mad, and his honor asked his bailiff Deputy Mark McNelly to put out a call for the tardy lawyers, then he went back in his chambers and, for emphasis, slammed the solid maple door, sending a shudder through the fenestration (and perhaps the composure of the defendants, as well, for who wants to face an angry judge?).
Finally, Mr. Porter was found and, though he tried to make excuses and leave again, Judge Faulder ordered him to call his first witness, CHP Officer Baker of the Ukiah office.
Officer Baker took the stand and related that on May 20th of 2018 he received a midnight call to investigate a traffic collision north of Hopland where he found a pickup had gone off the road and an injured man was lying on the shoulder of the road, the defendant, Rudy Flores. Officer Baker attempted to speak to Flores but he (Flores) had substantial injuries and was in too much pain to talk.
“He was lying on his back on the ground, crying out in pain,” Baker said.
Porter asked, “Did you make contact with anyone else?”
“Yes. With his [Flores’] wife, Melanie Mendez.”
“Did you ask her what happened?”
“Yes. She said they were coming home from a wedding when an animal ran into the roadway and she swerved…”
Ms. Baldock objected that this testimony was hearsay.
Judge Faulder sustained the objection.
Mr. Porter griped that it wasn’t being offered for the truth of the matter, only to show what affect it had on the witness.
This is a bit of legal sophistry wherein prosecutors are allowed to break the hearsay rule. Porter used it to elicit a long tedious narrative about how Flores and Mendez were going through a divorce and that they had gone to this wedding together and – like in the Dwight Yokum song, “You Might Wish You’d Never Asked,” Ms. Baldock renewed her objection that it was not only hearsay, but now had become irrelevant, as well.
Faulder sustained the objection and the soap opera about the divorce went to a commercial break. There was no foundation for the hearsay, Faulder ruled, and he asked for an offer of proof. Porter said, “The offer of proof is the wife changed her story. In the new version there was no animal in the road, but Flores grabbed the wheel and…”
Baldock objected again, a little more insistently this time, as Porter was getting away with not only breaking, but pretty much going on to mangle the hearsay rule.
Faulder sustained Baldock’s objection and told Porter to move on.
“Did Ms. Mendez receive any injuries, Officer Baker?”
“She had a few minor cuts and abrasions.”
“Was she transported to the hospital?”
“Did you speak to her at the hospital?”
“Yes. Dispatch advised [where she was ] and I followed up.”
“Is that where you found out she had changed her story?”
Officer Baker then related that he contacted the Santa Rosa CHP office to send an officer to Santa Rosa Memorial Hospital to do a DUI evaluation on Rudy Flores.”
Ms. Baldock had no questions for this witness and Baker was excused.
Porter then called the Santa Rosa CHP Officer Salvador Pecera, who said he went to the hospital and did the evaluation – limited though it was, due to Flores’ condition. Pecera did the horizontal gaze nystagmus test [aka “follow my finger”], noted the red watery eyes, and smelled the odor of alcohol, concluding that Flores was impaired. But by then it was five in the morning and although Flores admitted he had drunk six or seven ales at the wedding, he only blew a .04 on the breathalyzer – below the legal limit by half.
Officer Pecera said, “I established him as the driver since he reached over and grabbed the wheel, and that he was intoxicated at the time [five hours earlier].”
On cross Ms. Baldock asked, “Did you record your encounter with my client?”
“No. The ENBARS doesn’t operate when we enter a building.” (ENBARS is a recording device in a CHP patrol car that records where the officer goes and what he does outside the car.)
“And the CHP officers don’t wear body cams?”
“My client didn’t actually say that – that he grabbed the wheel – did he?”
Deputy DA Porter: “The collision occurred because the defendant grabbed the wheel. He initially conveyed that he didn’t remember anything, that he was ‘tanked on ale’ and when told by the officer that he woke up and grabbed the wheel he said he may have and felt like a jackass. Five hours later he had a blood alcohol content of .04 and that was enough for the officer to determine that he was impaired while driving. The injuries to an infant resulted in a broken femur, which qualifies as great bodily injury, and Ms. Mendez suffered scraps and cuts, so the People would be asking for a [felony] holding order.”
Ms. Baldock said, “There’s no evidence that my client grabbed the wheel. He made a statement that he may well have, but there’s no evidence that he did.”
Judge Faulder said, “The two questions are, One, is there enough evidence that he grabbed the wheel – he said he may have and felt like a jackass – and Two, five hours later his blood alcohol level was .04. I don’t know the time frame of the drinking [at the wedding] but it was about midnight [when the collision occurred] and at one point he was impaired, but what evidence shows he was impaired at midnight?”
Porter said, “He [Flores] was .04 five hours later; and said he felt like a jackass -- that’s an admission of guilt.”
Faulder: “Based on the evidence, I don’t find enough evidence to hold him. I don’t know whether he was impaired or not, or whether or not he grabbed the wheel, and I cannot hold him to answer.”
Mr. Flores was suddenly on his feet and a very audible sigh of relief had escaped into the courtroom – so audible, in fact, that had the judge had a gavel, his honor would have had ample cause to employ it. As it was Faulder said, “Mr. Flores, please contain yourself, we’re still on the record, here, and I’d like to get some more of the court’s business done today. Mr. Porter, I need prosecutors for these other cases, if you’d be so kind as to go get some of your colleagues in here we can proceed. I have three more prelims to get through and I must say I’m getting very frustrated…”
It is a very rare occurance when a prosecutor doesn’t get a holding order and Ms. Baldock was justifiably quite pleased with her success.