Christmas In Prison
by Bruce McEwen, December 23, 2013
It’s no longer news that the career outlaw Walter ‘Kris’ Miller will be spending the rest of his days in prison for the attempted murder of a peace officer. But some of the details of the closing arguments and the aftermath of the case are worth noting. Sheriff Tom Allman himself appeared at the County Courthouse to hear DA David Eyster’s closing arguments. The cop Miller shot at was one of Allman’s deputies, Darren Brewster.
Miller had leaned out the passenger window and cranked off a series of shots at Brewster's patrol wagon during a high-speed chase up the Boonville-Ukiah Road. He didn't hit Brewster, but he did hit the deputy's radiator, disabling the deputy's vehicle. Mendo’s dynamic chief prosecutor put on quite a show putting Miller away forever.
The DA started out by telling the jury that they were under no pressure, that their job would be easy, that they needn’t fret too much over which of the various choices they would have to make. The DA's power point-style presentation started with Count One, Attempted Murder on a Peace Officer.
“It doesn’t matter,” Eyster said, “whether you pick First Degree or Second Degree Attempted Murder. Either way will be fine, whatever you think is right.”
The jury had been instructed by Judge John Behnke that they were not to consider the issue of punishment, but the DA was certain that either attempted murder one or two was still a “strike” offense, and Miller, a two striker, was about to whiff big time on a called third strike, a screaming fastball right down his pipe.
The basic facts of the charge, Eyster said, had been proved beyond any reasonable doubt; the rest was quibbling.
Count Two, Assault With a Firearm on a Peace Officer was almost superfluous, strike four so to speak. Eyster told the jurors that if Miller was guilty of attempted murder with a firearm, then he necessarily would have had to make the assault with a firearm. The DA throws on a variety of charges which he amends as the case unfolds, tossing the excess.
Some of the charges Eyster wanted to pile onto Miller were denied by Judge Behnke on the grounds that they would delay proceedings while defense attorney Al Kubanis reviewed them and worked out a defense strategy for his doomed defendant. The extraneous charges had to do with shooting from an occupied vehicle, and shooting from a moving vehicle, and shooting at an occupied vehicle — all of which are against the law.
There were already eight charges against Miller, and it turned out that the jury found him guilty of all of them. Miller’s only defense was that he didn’t actually shoot at the pursuing Deputy Brewster. He said he'd merely fired shots out of his car window in the hope that Brewster would back off. Miller said he had no idea how a bullet had ended up in the cop car. A ricochet, maybe, he guessed.
A foot up from the radiator sat the driver, deputy Brewster. Shoot in the direction of someone and…
The DA said in his closing statement that if the shot had been a ricochet it would have made a “keyhole” puncture in the car’s radiator, not a clean round hole.
There were also some burglary charges, along with the charge of being Felon in Possession of a Firearm, all of which the DA had no trouble establishing beyond a reasonable doubt.
Defense attorney Kubanis thought he could get the jury to acquit on one of the burglaries, the one on a home owned by people named Bennett who live just off the Ukiah-Boonville Road.
Nope, said the jury. Guilty on that one, too.
“What this case is about,” Eyster told the jury, “is whether we’ll tolerate someone trying to kill one of our police officers, one of the guys who are out there to protect us all.”
The DA had neatly deconstructed each of Miller’s tales the defendant had told from the witness stand the week before, starting with the one about there being a “shoot-to-kill” or “armed-and-dangerous” BOLO (be on the lookout) on Miller. This story, concocted by Miller himself, got back to some of Miller’s old girlfriends, and at least one of these tender hearts (the one this reporter spoke to) believed that Miller had been shooting at Brewster in self-defense.
“The truth,” Eyster said, “is that Deputy Brewster had no idea how well armed and highly dangerous the suspect was. His co-defendant, Ms. Tracy Cox, called Mr. Miller by his nickname, 'Ludakris'; and that’s just what this defense is: It’s ludicrous.”
As for the rest of Miller’s lengthy testimony [featured in last week’s AVA], Eyster summed up tersely with the comment that “You have to decide if the testimony of a six-time convicted felon — convicted of crimes of moral turpitude — is credible. He even lied to his own father, saying the cops had a shoot-to kill BOLO on him. ‘I had no choice but to shoot that motherfucker,’ he told his father.”
“A cold, calculated decision to kill can be reached very quickly,” Eyster told the jury, “and that’s what we have here. Mr. Miller knew he’d go back to prison if he was caught with all that stuff he’d taken from the Haga residence, and he decided to shoot and kill Deputy Brewster to prevent that. Ms. Cox testified that Miller said he’d get life if he got caught; that was when Tracy Cox was telling Christopher Skaggs (the driver of the fleeing vehicle) that he’d be better off if they went peaceably... when Miller first put it (the gun) out the window to shoot, he had to bring it back in and take the safety off. The law talks about intent — what was Miller’s intent on shots one two three four five and six? Prosecution is not required to prove motive, but look at what Tracy Cox testified he said at the traffic stop: ‘I’ll do life!’”
He’ll do life now.
The court convened the next day to hash it all out.
Count One, Attempted Murder on a Peace Officer with two strike priors: 25-to-life.
Count Two, Assault on a Peace Officer with a Firearm with two strike priors: 25-to-life. (However, for sentencing purposes, Counts One and Two will be combined.)
Count Four, First Degree Burglary (the Haga residence) with two strike priors: 25-to-life.
Count Five, First Degree Burglary (the Bennett residence) with two strike priors: 25-to-life.
Count Six, Attempting to Dissuade a Witness (threatening Bennett) with two strike priors: 25-to-life.
Count Eight, a felon in Possession of a Firearm (doubles for each count): 38 years, however the judge has discretion of eight of these years, so Miller will only face 130 years in all probability.
Formal sentencing date was set for February 7.
* * *
After the excitement of the Miller trial, the court returned to mundane matters, such as a guy who could very well be a kind of apprentice to the notorious Miller — a younger guy heading down the same path, Nathan Martin.
“This comes on for judgment and sentencing,” Judge Behnke said.
“Linda Thompson, for Mr. Martin who is present and in custody.”
“Say one more word, and you’ll be joining him in jail,” a hefty correctional officer warned a woman in the gallery.
The woman turned to me and asked, “What’s his problem?”
“It’s a violation of the Penal Code to communicate with the prisoners when they’re in the courtroom.”
“What, are you a lawyer or something?”
“Nope, just a courthouse hack.”
“Why would you wanna hang out here?”
“Wull, have you ever seen how a cat likes to play in a box?”
“Wull, when you try to force a cat into a box, it’s a different story, isn’t it? The cat don’t like it any more. It’s the same thing with the courthouse: It’s kinda interesting, if you don’t have to be here. You must be here because you have to…?
“Yeah, that’s my son up there.”
“The cute one, of course.”
Nathan Martin bore an uncanny resemblance to Walter Miller.
“Of course; the innocent-looking guy?”
“The primary case is the burglary,” Deputy DA Josh Rosenfeld said.
Primary case. You hear that phrase and you know the defendant is in deep trouble.
Judge Behnke said, “I’ve read the report and recommendation for the mid-term prison sentence from the probation office, which I’m inclined to follow; the report notes he took responsibility early on, but his record, by my reading, doesn’t lend itself to, uh, any kind of.... well, with all the repeated thefts… how much was the restitution, Mr. Rosenfeld?”
“It was over $18,000, your honor. The generator was severely damaged and the copper wire alone was of significant value. In addition, there’s the 11377a (possession of methamphetamine for sale).
Behnke said, “I thought I’d seen a petition filed by the probation office for three years and eight months on the 11377a. Also, we have Mr. Martin walking away from a rehab program.”
Public Defender Thompson said, “We could just give him credit for the time he’s already done in jail, but allow him a chance to get back into rehab. Mr. Martin left the Ark [the Salvation Army’s rehab center] after arguing with staff, and after a few blocks he realized he’d made a mistake and wanted to go back. The Salvation Army said they’d take him back, but he had to wait 30 days to re-enroll. So he came back up here and turned himself in to Probation.”
Ms. Thompson had something she wanted the judge to read and took the pages up to the bench. She said, “Mr. Martin has burned his bridges, but I don’t think his case is the best use of jail space. He started using meth when he was quite young…”
Meth had also fueled Miller's last run, and it fuels much of the crime in Mendocino County, and here was another young guy going to prison for white powder.
DDA Rosenfeld said, “Mr. Martin is ready and able to say anything we want to hear. But he left Jerico after only two days.”
“Is that a bad program?” Thompson blurted. “I dunno, but the Ark is a great program, and Nathan understands he hurt his family, but mostly he hurt himself.”
The consensus — which was apparently arrived at while our Chief Public Defender was behind the door — is that Jerico is one of the better programs — tougher than a Rottweiler on steroids, and therefore one of the more successful rehab programs, whereas The Salvation Army’s “Ark” is about as demanding as a toothless housecat. Martin lasted a couple of weeks at The Ark before he walked off, leaving a piece of his mind on a written note criticizing the smoking rules, among other things. Apparently, he thinks these programs would be more effective if the clients made the rules. Now that he’s in front of the judge he wants back in the program rather than San Quentin therapy.
Rosenfeld said, “He did more than just financial damage to that business and the community, as well.”
Behnke asked, “Was that Sparky’s business, his uncle?”
“Yes, your honor, I believe it was.”
Thompson said, “If we can just give Nathan the opportunity to complete the program at The Ark, then I believe we’ll have made a much better use of our jail space.”
Judge Behnke looked up from the pages Thompson had given him, peering over his reading glasses. He said, “The event that triggered this letter was he got a reprimand for smoking, and…”
“He should have accepted it and moved on, but…”
“But he wrote this letter instead. Did he write this letter before he left?”
“Yes,” Thompson said.
The judge didn’t seem beguiled by the defendant's prose. He laid it aside and turned to the probation officer, Rhonda Hansen.
Ms. Hansen said, “We realize Mr. Martin needs rehab and we’ve been pretty generous with him in that regard. He walked away from Jerico after two days and only lasted a couple of weeks at the Salvation Army Program, but he needs to understand that he needs to dig down deep when it gets bad.”
Behnke said, “What’s the DA’s position?”
“We’d be giving him a break he doesn’t deserve. He’s been given a lot of breaks and I have serious questions about what he can do out in the real world. He’s made the wrong decision every time we’ve given him a chance. If he wants to put his money where his mouth is, though, he’s gonna have to do the three years and eight months, because that was the deal: Either complete the program or do the time.”
The judge took off his glasses and said, “Looking at where we’ve been with this case, and where we are today — and I’m a proponent of giving a defendant with a drug problem a chance — but I remember this case, so I ask myself what has he learned, and what have we learned? And I’m a proponent of giving the young a chance, but looking back over this case, and what we’ve done in the past, I don’t see how I can do that again. If it were state prison, I’d be searching for some way out, but we have local options. He has three felonies now, and he seemed to know the surveillance cameras were on him and he went ahead and did it anyway… Somewhere, somehow, things have to change. I can’t keep telling people ‘This is your last chance,’ so I’m gonna sentence him now to the three years and eight months, locally, under 1170h. We promised it before and we’re going to deliver it today.”
Which was majorly generous of the judge because it means the guy will do most of his time in the County Jail.
The kid's mother became very angry. Her son was looking at her. She was about to go off, but the big cop was up and moving towards her and she reconsidered. You can shoot up meth and steal from your own family, but to your mother you’re still just a cute face in a dirty diaper.
Behnke put his glasses back on and scanned the file. He said, “The other case is entirely separate, the 11377a, so it’s appropriate that the sentence run consecutive, but I’ll let him serve the last eight months on supervised release — and he has substantial credits, so I’ll suspend some of the prison term. You have 60 days to appeal.”
On the way out I saw the mother arguing with the probation officer, and I was grateful I didn’t have that job. Apparently, DDA Rosenfeld doesn’t like his job either. He leaves at the first of the year for the Police Academy to fulfill his ambition to trade in his suit and tie for the uniform of the Ukiah Police Department.
Rosenfeld says it pays better.
* * *
The long arm of the law also nabbed Merritt Osborne. Mr. O had been at large for almost a year, having jumped bail on a transport of cannabis charge. Readers may recall that Mr. Osborne met some Mendo and SoHum pot pharmers at Piercy late at night in 2012 to buy a large quantity of weed. The deal went south when the pot pharmas noted that Osborne had paid them with hundred he'd run off a xerox machine. One of the growers had held a C-note up to the headlights as the sellers and the buyer were parked down along the Eel River to do their deal. There was a mutual grab for guns, and Osborne jumped in his Range Rover with the weed and roared away while the growers scrambled for cover.
The growers called the cops and Osborne was caught after a high-speed chase just north of Willits where deputies and CHP officers had place a strip of nails across Highway 101. Osborne took off on foot, finally plunging into a blackberry thicket from where the cops gleefully extracted him. The People vs. Osborne eventually arrived in the County Courthouse, Ukiah, where Osborne eventually was represented by Justin Petersen, having stalled the case for over a year by switching lawyers. Finally, Judge Leonard LaCasse brought Osborne's delaying tactics to a screeching halt, telling Mr. O, “We need to either cut bait or fish, here.”
Judge LaCasse likes fishing metaphors. He’s retired now, and he’s spending the holidays on Christmas Island in the Pacific Ocean, flyfishing.
Osborne, 42, way back had posted bail. He'd recently been caught in Concord by Dog the Bounty Hunter, or Dog's equivalent.
Judge Behnke read off the bad news to Osborne:
Three years and eight months for transporting the cannabis he'd stolen, and two years and eight months for the failure to appear in court. Total: Six years, four months.