Should Tim ‘Coke’ Elliott Get A New Trial?

by Bruce McEwen, June 1, 2011

“I respect Ms. Thompson, but this is basic stuff, right out of criminal law procedure 101,” attorney Jan Cole-Wilson said. “Any lawyer should know this.”

Ms. Cole-Wilson, as she argued for a new trial for Elliott, was referring to Public Defender Thompson’s failure to make a pre-trial motion to suppress Elliot's criminal history.

It was only one of many mistakes Cole-Wilson said Thompson made in the jury trial that convicted Elliott of the Second Degree Murder of Sam Billy at the Hopland Rez last year.

Thompson had euphemized her screw-ups during the Elliott trial as “tactical decisions," part of her overall “defense strategy.”

But Thompson's failure to suppress Elliott's legal history was, Cole-Wilson declared, only one of Thompson's failures to provide Elliott with a competent defense. Worse, Cole-Wilson said, was Thompson’s failure to call a particular witness, Priscilla Knight, to contradict the damning testimony of Patrick Zase.

Zase had testified that Tim Elliott and his girlfriend Priscilla Knight had forced their way into his house the night of the killing where Elliott had gone into Zase’s bathroom and changed into some of Zase’s clothes, leaving his own clothes and a knife behind.

Zase, it developed, was a good friend of the deceased.

This testimony seemed to mean that Elliott was dumping his clothes because they incriminated him, because of his “guilty conscience,” as the prosecution called the change even though there was no blood on the clothes tying Elliott to the killing, and the alleged murder weapon, a knife, was later convincingly shown not to be the knife that dispatched Sam Billy.

Priscilla Knight told Linda Thompson that the first she heard of this supposed visit to the Zase house was when she heard it in court from Patrick Zase on the stand.

But Thompson didn’t call Ms. Knight to testify.

Why?

Strategy, you see.

There were other problems with the story about the clothes, Ms. Cole-Wilson said.

“Mr. Zase hadn’t gone to the police with the clothes for four months after the fact, and then — only after the police were contacted by Diane Billy. How would she have known he had that stuff? And then there was the way he [Zase] was acting when he talked to the police. He was nervous, kept pulling at a rubber band on his wrist. When the officer asked about his nervous behavior, he said he was scared for his family. But nobody ever contacted him about this stuff, or threatened him or his family.”

(I should say here that I've twice been menaced by rez thugs from Hopland who have felt free to threaten me in the Courthouse halls without bothering to tell me what they're unhappy about. I can understand the fear of people who have to live in the same neighborhood with these characters.)

Cole-Wilson pointed out that Mr. Zase was a good friend of the victim, Sam Billy, and it made no sense that Elliott, Billy's alleged killer, would go to Zase's house to drop off the clothes he'd worn and the knife he'd used to commit a murder.

“That is just totally incredible,” Cole-Wilson said.

What’s more incredible is Ms. Knight, who was with Elliott, wasn’t called to contradict the story, giving the jury no reason to doubt Zase’s testimony.

“The fact that Patrick Zase’s testimony," Cole-Wilson continued, "went unchallenged, un-contradicted by Priscilla Knight who told Ms. Thompson ‘we never went there’ — Ms. Thompson didn’t even bring it up in her closing argument. Maybe she felt the case was going so well she didn’t need it. But that one omission added so much to the ‘guilty conscience’ argument made by prosecution that that alone is enough to grant the motion for a new trial.”

But there was more — lots more.

Another witness, Leanna Valesquez, was allowed to repeat some highly incriminating third-hand hearsay in front of the jury “which was completely inadmissible,” Cole-Wilson said, “and all Ms. Thompson would have had to do was ask for a sidebar to get it stopped.”

A sidebar is a brief meeting with judge where the jury can’t hear what’s being said about the legality of admitting evidence and testimony. But Thompson did not object to the incriminating testimony, vague as it was.

Ms. Valesquez had said that Derek Elliott told her that Sam Billy had told him it was Coke [the defendant] who had stabbed him. Derek Elliott didn’t say any of this when he testified — he hardly said anything.

“There should have been some clarification. Ms. Thompson should have asked to approach the bench. That is the prudent thing to do, and it is not that uncommon.”

So now we had Ms. Valesquez's third hand hearsay blurted out in open court as if it were perfectly credible when it should have been perfectly inadmissible.

“Yes, Ms. Thompson did object,” Cole-Wilson admitted. “The objection was sustained, the statement stricken from the record and the jury admonished to disregard it. But you can’t un-ring the bell and that, your honor, was strong frigging stuff. Some things can’t come un-stuck, and this was one of them. And it all could have been avoided by Ms. Thompson. As I’ve said before, I respect Ms. Thompson. But when we make tactical mistakes we get to go home. Our clients do not.”

Ms. Cole-Wilson also went over the testimony of the witnesses: Isaiah Valesquez, a seven-year-old boy, who couldn’t remember much of what happened that night; David Primo, an ex-con from Oklahoma who testified only to avoid being extradited to face outstanding warrants back home; and Bettina Torres, a friend of the victim.

None of these witnesses, except the boy, claimed to have seen Coke Elliott attack Sam Billy, and many people were amazed that the jury had taken the word of such a young witness.

It was Ms. Cole-Wilson’s point that eyewitness testimony must be corroborated by forensic evidence, which wasn’t done in this case. She pointed out numerous cases where eyewitnesses had fingered somebody for a crime and DNA or other evidence had proved eyewitnesses wrong.

“A defendant is mandated to have a fair trial by competent counsel, so when you have this testimony by these witnesses and it is not corroborated by forensic evidence and then you put in the errors made by counsel, prejudicial mistakes, the only conclusion is that my client was not given the trial he was entitled to.”

Deputy DA Rayburn Killion quietly said that there was sufficient credible evidence to convict Elliot.

“It was what it was,” Killion said flatly. “It would be nice if this were like CSI on TV and the forensic evidence was more conclusive. But we had the testimony from Isaiah Valesquez [the child]. The court talked to him beforehand and found him competent to testify. He didn’t try to exaggerate, he stayed with what he saw. He said he saw Coke punch Sam Billy and then run off. I’ll admit that David Primo is an unsavory character, but all we told him is that we wouldn’t send him back to Oklahoma; he’s still facing those warrants there. The implication from defense is that all these people had lied. But there’s no reason David Primo had to lie. Sure, Sam Billy was his cousin, but why would he pick this defendant? Bettina Torres testified that she came out later when Sam Billy was already on the ground. Patrick Zase said his testimony was extremely reluctant. He didn’t come forward, but was contacted by the police. The other point is that, why would he make up such a story about Coke Elliott coming in and taking his clothes? I’m not going to make a lot of hash about the knife. It wasn’t really the People’s contention that that was the murder weapon anyway. Like I said, there was no reason for Patrick Zase to make up that story. It’s too far-fetched to even make something like that up. As far as the part about Linda Thompson’s representation, she was pretty clear on the stand: It was a tactical and strategic decision not to call Priscilla Knight. As far as the mention by Deputy Goss that the defendant was on parole – it was just a quick mention that that was how they got his address. It was never a 'propensity argument' as defense suggests; we were never arguing that because he’d been to prison he had the propensity to commit the crime. There’s the argument that prejudicial evidence shouldn’t come into a trial, but the only question is if that outweighs its probative value. You have to look at what was made of it; it came out real quick, and it wasn’t emphasized.”

Deputy DA Killion looked at his notes. Even though he had said he wouldn’t “make any hash” over the knife, he proceeded to do so. The knife found with Elliott’s clothes was only one and a half inches, whereas the wounds in the victim were five and a half to six inches deep.

Killion said, “The defense expert at the trial, Dr. Haddox, was convinced that it would be impossible for that knife to make the fatal wounds. She was pretty much stuck on her own opinion, which is kind of silly. Given enough force anything can go that deep.”

Killion pointed out that his own expert, Dr. Trent, had a different opinion, that the knife could indeed have been the murder weapon.

“Leanna Valesquez’s testimony," Killion said, "about what Sam Billy may have said to Derek Elliott while he was on the ground was a surprise to me as well. There’s times in a trial when we’re all surprised. But it was stricken, and the court admonished the jury that they were to disregard the statement. As far Derek Elliott’s testimony, he hardly said anything on the stand.”

Killion summed up by asserting, “Taken as a whole, I think the evidence is sufficient to find that Timothy Elliott did kill Sam Billy.”

Ms. Cole-Wilson wasn’t finished. She pointed out that the only bit of forensic evidence that was found, a spot of blood on Elliot's shirt, excluded her client as the perpetrator. Moreover, she said, “When Isaiah said he saw the two men, the person he said was Coke would have had his back to him — to Isaiah. Isaiah didn’t know my client very well at the time, and when this person ran, Isaiah would have only seen him in profile, in a matter of seconds.”

The boy had been looking out his window when the late night stabbing occurred.

Cole-Wilson addressed the other points Killion had raised. “I did not claim the witnesses were all liars. I was talking about what was credible and what should have been presented. That’s why Priscilla Knight’s testimony would have been so crucial, along with the lack of forensic evidence. I said that Leanna Valesquez’s testimony was inadmissible, and Deputy Goss’s statement about my client being on parole should have been inadmissible, and it highly affects the outcome, especially in light of the fact that David Primo had said my client had just got out of prison. Everyone wants to minimize what Goss said, but taken together, these two statements solidify in the jury’s mind that my client had the propensity to commit this crime.

“The trial court,” she concluded, “is not to sustain the jury’s decision, but to independently review the trial and see whether mistakes were made.” She quoted some case law on tactical and strategic decisions before asserting, “No reasonable person would have made a tactical or strategic decision not to call Priscilla Knight. And I would ask the court to find that my client is entitled to a new trial.”

Judge Richard Henderson considered the presentation and said, “I’ll go back and review the entire trial and I’ll submit a written decision. And I’ll try to get it out as quickly as I can.”

A lawyer loitering nearby noted that no Superior Court in California has ever granted a new trial.

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