Prices Down, Murder Up
by Bruce McEwen, February 10, 2010
Phillip Frase & Steve Schmidt
Bells Springs Road meanders northeast off Highway 101 beyond Laytonville, rising in the wild hills before dropping down to Alderpoint on the Eel River. Way back, before 101 and the marijuana business, the back country traversed by Bell Springs Road was cattle and sheep ranches, culminating in a cluster of tidy little hotels at Alderpoint that served the bustling rail traffic between Eureka and Sausalito.
In the middle to late 1960s, the outback ranches were subdivided, and the hippies came back to the land where they grew marijuana to make their mortgage payments. It was peaceful in the mountains from, say, 1975 to, say again, 1995 when the love generation was supplanted by persons unwed to non-violent principles.
By 2009 the love drug had attracted so many people to the production end of the business that supply was closing in on market demand. This year, there's a cannabis glut; supply is way up, prices way down, even if you can find a buyer, and a kind of desperation is rippling through the north hill country of Mendocino County as land and pot partners turn on each other and ruthless bands of home invaders cruise the mud dirt roads from Branscom to Spy Rock to Alderpoint and points between.
Last week Steven Schmidt, 49, was found dead under what looked to be a hastily accumulated pile of brush on the Bell Springs property of Phillip Frase. Schmidt died of “blunt force trauma to his head.” He'd been fatally struck, and struck more than once, with a hammer. Police soon learned that Frase and Schmidt had been business associates and that Frase might know where Schmidt was.
Frase told deputies he didn't know where Schmidt was, but he invited detectives and the County's Major Crimes Task Force, reinforced by a cadaver dog from Nevada County, to have a look around. The dog soon found Schmidt and Phillip Frase was arrested and charged with his murder.
Just prior to their appearance at Frase's Bell Springs property, several Sheriff's Department vehicles had been seen clustered at The Elk Store. Schmidt was mostly a No Fixed Address Guy but was often seen in Elk. He lived out of his van, which has been found abandoned in Fort Bragg. The late Mr. Schmidt was said to be a friend of the lady who owns the Elk Store. Somebody had left two boxes of his clothing and personal possessions on the store's front steps, and who'd done that and why?
Steven Schmidt hadn't left his things at the Elk Store because he was dead under a clump of freshly cut brush at 59659 Bell Springs Road three hours north and east of Elk but still in Mendocino County. Then again, maybe he'd left his things at the Elk Store prior to his blunt force trauma. Maybe he knew he might not survive his trip to Bell Springs Road. Timelines aren't known. Steven Schmidt liked Elk, though, and he liked the lady who owned the Elk Store.
Superimposed on the current trials of another Laytonville resident, Terry Cohen, who is accused of murder his former business associate, and the home invasion trial of a large Hispanic man called The Pelican, the murder of Steven Schmidt in the same general area has definitely added to the winter time anxieties of the many persons engaged in the North County's marijuana trade.
Sean Jason Piper, the man Mr. Cohen is accused of shooting, was not shot five times as I wrote last week, Piper, it develops, took a total of eleven bullets from two different guns, a .45 semi-automatic and a .357 Magnum revolver.
Tesha Bushnell is also a resident of Terry Cohen's fraught Laytonville property. She called 911 after Cohen left an ominous message on her answering machine that something bad had happened on the otherwise tranquil pot plantation acres they shared. Ms. Bushnell testified that she and her fiancee, a certain Mr. Arnold, had been at the scene before deputies arrived. She said she and her betrothed, as they arrived at Cohen's place, had heard gunfire. Arnold had hustled across the yard, up the stairs, and into Cohen's house where he said he pulled Piper off Cohen then ran back outside and took off.
Ms. Bushnell called the cops and she and Arnold returned to the scene where deputies found Cohen in the front yard mumbling to a World War Two photograph of his father. Cohen was at first assumed to be drunk but later assessed as under the influence of a variety of prescription drugs.
Mr. Piper was found shot to pieces under the back stairs, both legs shattered from the big copper-jacketed Hard Ball .45 slugs. Mushroomed ‘hollow-points’ from the magnum ‘hog’s-leg’ (as gunslingers used to call ’em) were taken from Mr. Piper's upper aorta, right temporal lobe, and the base of his neck. A life-sized mannequin stood naked before the jury with pins the size of knitting needles marking the bullet holes in the proxy decedent as determined by the doctor who had autopsied Piper.
Medical examiner Dr. Jason Trent was on the witness stand.
DA Scott McMenomey asked Dr. Trent, “Is there any way the victim could have stood before the final shot to the head was fired?”
Cohen claims self-defense, says Piper was the aggressor.
The question elicited a mirthless chuckle from the doctor who shook his head and said, “There is really no way.”
McMenomey put a photograph of the victim on the big computer screen behind the next witness, a firearms analyst from the crime lab in Eureka. There was the unfortunate Mr. Piper face down on the unfinished concrete pad under the back stairs of the defendant’s house, a blindfold of black, caked blood over his eyes. Mr. Piper's people were in the courtroom; an older man in a trim, dark suit, and three generations of women who looked very much alike with their curly black hair and black dresses. It wasn't easy for them to look at the blow-up of their loved one.
Defendant Terry Cohen sat at the defense table with his lawyer, Katherine Elliot, and an investigator.
McMenomey asked the gun expert, Mr. Dale Coultier, “Considering the gunshot wounds below the one in the neck, is the angle of the shot to the head consistent with someone lifting their head at the sound of someone approaching from behind.”
Mr. Coultier said it was.
“Nothing further, your honor.”
Cohen's self-defense strategy didn't look too good if Piper had been shot from the rear.
Ms. Elliot rose to cross examine the expert witness. “How many time have you been to the scene of a crime?”
“I don’t know, just off hand.”
“More than 10?”
“Between 10 and 20,” Coultier, a young man, answered.
A shadow passed over Judge Ron Brown’s face. He was fuming over the grizzly photo having been left up on the screen in front of the court to no apparent purpose. The Deputy DA shot out of his seat and promptly snatched it out of the little lighted tray where it had been projected onto the big screen, and not without a few words of contrition to the court.
Ms. Elliot asked, “Did you go to this scene?”
The expert said he hadn’t visited the scene of the crime.
Ms. Elliot acknowledged this admission with satisfaction.
* * *
The jury hadn’t come in yet. The defendant, Terry Cohen, had been sitting with some of his supporters in the gallery. As he was about to take his seat at the defense table, he veered off to say something to the bailiff, Karen Beaman. Cohen didn't look happy. The bailiff listened for a moment then firmly ordered Cohen to take his seat and stay there.
When Cohen’s attorney, Katherine Elliot, arrived, the bailiff told her there was a problem. Beaman told Elliot that her client had said someone was staring at him and that he wanted to “strangle them.” (I hope he didn’t mean me. One might ordinarily expect a guy on trial for murder to keep his kill impulses to himself, but.....)
Ms. Elliot said she’d take care of it. There was a hushed discussion between lawyer and client. No one was strangled.
The judge came out and began reading the jury instructions. There were many instructions, and this took quite a while. When this was over, Deputy DA Scott McMenomey began his closing argument.
He recapped the jury instructions, and reminded the jury that the charge of First Degree Murder required “malice aforethought.” He then brought out the mannequin with the eleven bullet holes marked in it, and said that after talking to Sean Piper on the phone, Cohen got out all three of his guns and loaded them, waiting for Piper to arrive.
“He knew Sean was coming,” the prosecutor emphasized. Piper had called Cohen and Cohen had written Piper’s number down and called him back. Cohen waited for Piper and opened fire when Piper came through the door. The first shot had hit Piper as the doomed man crouched behind a wall near the entryway.
Jonathan Arnold arrived and found Piper pinning Cohen to the floor. (They always told us in the Marines to “charge a gun, run from a knife.”) Arnold pulled Piper off and punched him several times, only then noticing that Piper had been shot. Arnold fled.
“Piper had probably tried to get away down the back stairs but Cohen followed and continued to fire until Piper was dead.”
Cohen had then consumed a large amount of prescription drugs to commit suicide, McMenomey said.
“It’s not reasonable to attempt suicide if you are the victim of a home invasion robbery, as Cohen claims.”
Dismissing Cohen’s self-defense — Cohen claims that there had been a desperate struggle — the prosecutor showed pictures of Cohen taken at the Laytonville substation saying, “There was not a mark on him, not a scratch. There was no damage to his clothes to indicate a struggle. The only blood on his clothes was Piper’s.”
Mr. McMenoney wore a black suit with a red tie; he presented his case as black and white, no gray, the only blood the victim's. The prosecutor showed pictures of the dead man, showed them in swift succession almost like flash cards, stating that Cohen intended to kill Piper with malice aforethought, had premeditated the murder. Piper’s friends and family, seated behind McMenomey, were weeping. The numerous bullets had broken both of Piper’s legs and his right arm. The last picture was of a shot to Piper’s back. “Eleven times,” McMenomey said Piper was shot.
Ms. Elliot wore a gray suit. She rose and said, “They’re trying to count the number of times he was shot. But if Terry Cohen intended to kill Sean Piper, he would have shot him three times straight in the chest.” She wanted the jury to “look at how many were not aimed at — at how many were not fatal shots.”
She paced thoughtfully in front of the jury box and said, “You’ve had three days to contemplate the evidence and testimony. But you hadn’t heard the jury instructions, so I need you to step back.” She paused again and said, “I’ve chosen a good jury, a critically thinking jury; you are reasonable people and I think any reasonable person would see that at the end of this trial there are more questions than there are answers.”
She said, “Terry threatened Sean that if he ever came over there he would kill him. So why did Sean go that day? Why go to Terry Cohen’s? Why bring beer? Terry said he doesn’t drink beer. He’s on a lot of medications.”
Elliot said that Sean Piper was a man of a certain “bravado” which was evident by his carrying large amounts of cash and selling marijuana for over ten years. She suggested that this bravado intimidated Terry Cohen and made Cohen fearful. She said Cohen was afraid of Piper. She pointed out that the angle of the final shot to Piper’s head meant that Piper could have been crawling after Cohen — and Cohen still couldn’t have known that Piper didn’t have a gun — when Piper reached in his pocket and took out a wad of cash and clutched it to his chest — his dying act, according to Cohen.
“I’m asking you to look very critically at this evidence,” she said.
Elliot added, “This case is more circumstantial than most. It is circumstantial, but is it reasonable? There are other possibilities, but if there is any doubt, you’ve got to go with the one that says Terry Cohen is innocent,” she told the jury. “And there’s no evidence of a calculated intent to kill Sean Piper. Look through the instructions, the issues — we’ve got bullet holes in the walls — is it reasonable to assume everything happened in the house? Again, I wish Terry was able to describe this event to you, but he is what he is…” Ms. Elliot was quite emotional, and her voice broke.
Elliot’s argument was impassioned and lengthy and I may have neglected important factors. The jury will have the trial transcripts available to examine her points more thoroughly than my scribbled notes afford me, but it seemed the cold hard facts of McMenomey’s presentation would be difficult to refute. It is hard to see how the defendant with his many physical disabilities could have gotten the victim out of the house and down the stairs without leaving a drag trail of blood if everything happened in the house. Another difficulty for this jury will be that they could be setting a precedent for getting yourself sent to prison merely for defending your proverbial castle from invasion. With all the home invasions going on in Mendocino County, this could be a bad, a very bad, precedent to set.
* * *
The Pelican? Juan Octavio Fernandez?
He fell hard.
Guilty on 12 counts out of 14, with all the special allegations found true by the jury across the hall in Judge Richard Henderson’s court.
The Pelican's looking at a lot of time. He'll be sentenced March 9th.
* * *
Note: My colleague, Freda Moon, once asked me about my background. I looked back over the checkerboard of my past and confounded by the M.C. Escher conundrums, answered vaguely. But now, I understand. My background is in magazines where my editors encouraged me to be more literary than the kind of writing that passes newspaper muster. The AVA reader will scarcely credit the debt I owe my editor, because I develop my stories the way a novelist would, through dialogue.
This is the case with the Pelican's home invasion trial I was trying to cover, as well. I’m not used to so much murder and mayhem, my experience being at the Ten Mile Court in Fort Bragg, where abalone poaching and DUI trials are more the norm.