Opening Act: Video of Police Shooting Draws Emotional Response from Family of Slain Deputy

Judge Richardson Denies Defense Motion For Mistrial –

Given the twists and turns in the now three-year-old murder case involving Marco Topete, who faces the death penalty for shooting and killing Sheriff Deputy Tony Diaz in June of 2008, it should be no surprise that the first day of opening arguments would not run smoothly.

The scene prompted defense attorneys Hayes Gable and Dwight Samuel to seek a mistrial.

“This was the worst outcry I have ever seen,” Mr. Samuel told Judge Richardson.

Judge Richardson relied on case law, citing a much more egregious case in which a woman of a victim screamed things that were inadmissible to the jury, upon their exit from a court room.  In that case, the court ruled that the trial judge had complete discretion, and citing the lack of mistrial in that case, Judge Richardson allowed the case to move forward.

There are no cases in California where such displays have resulted in a mistrial, according to Judge Richardson.

The reality is, regardless of legal precedent, Judge Richardson would face another six to eight week jury selection process and more delays had he granted the motion.

“Norteno Gangs,” were the first words uttered by Deputy District Attorney Garrett Hamilton, demonstrating the continued District Attorney’s office focus on gangs and gang activities.

The defense deferred their opening statement to the beginning of their case.

Mr. Hamilton attempted, in his opening statement, to draw a picture of Mr. Topete as a violent gang member, just paroled from prison, about to be violated and facing a third strike.

Gang are fueled by the need to create influence and respect.  He argued that gang crimes are how gang members get respect, that putting in work and committing violent crime are the ways in which a gang member’s reputation grows.

He painted Mr. Topete as an influential member of the prison’s Northern Structure, part of the Norteno progression who returned to Woodland where he could become a leader of the Woodland 14 Criminal Street Gang of Nortenos.

From 1998 until 2007 he was in prison, then he was paroled.  He had failed to report his address to his parole officer and had repeatedly been warned of the consequence for the failure to file his new address.

On June 15, 2008, Mr. Hamilton argued he was running out of time.  It was a Sunday, Father’s day.  And he was wearing a bright red shirt, the colors of the Nortenos, driving around with a baby in the car.

At 6:30 in the evening, an individual in Davis called 911 to report a guy with a baby in a Ford Taurus who had been drinking.

His wife Angelique, off from work at 8 pm, ended up on the side of the road as a result of a disagreement in which Mr. Topete would drive off with the baby.

Later, around 8:53 pm, there were reports of shots fired in North Woodland, which were connected to a gang member and reports had a Ford Taurus with a baby seat leaving the scene.

Deputy Diaz would come across Mr. Topete at the truck stop off I-5.

Mr. Hamilton argued, “Deputy Diaz had no idea the true threat to his own safety he had come across.”

He believed he was stopping a DUI with a baby, he did not know the suspect had an AR-15 style gun in his car.

It was at this point where the video clicked on and the public and family members watched in horror as Mr. Topete led Deputy Diaz on a long highspeed chase that ended on a dirt road next to I-5, the home of Mr. Topete’s good friend and fellow gang member Jesse Gonzalez.

There Mr. Hamilton coldly described that Mr. Topete lay in wait, setting the officer up for an ambush that would end his life.

On the video we see the Tauras stopping in a cloud of dust.

Deputy Diaz parked his vehicle and we can hear him mistakenly believing that Mr. Topete had fled to the south side of the vehicle.

Mr. Diaz is seen scanning the field with his flashlight when we hear a series of gunshots, which Mr. Hamilton claims to be 17 shots plus some return file.  We see debris and glass flying across the in-car video screen.

And then, horrifically, Mr. Diaz appears on camera as he staggers upon being hit by a single rifle shot that pierced his Kevlar vest.

As Mr. Hamilton said, he was wearing a vest, but the vest was no match.  Deputies found 17 spent shell casings near Mr. Topete’s vehicle.  They found the weapon later with Mr. Topete’s thumb print.

“He lured him like a predator lures his prey to an area where he had a total advantage,” Mr. Hamilton told the jury.

He was “lying in wait having totally set him up, in so doing he was doing the ultimate as a Norteno,” he added.

It was during the shooting, that horrifying moment, that family members began openly and loudly weeping in the courtroom.

Some left the courtroom and could be heard outside in the hall.  Others remained inside.

The court patiently waited a number of minutes, or so it seemed, before Mr. Hamilton could resume his opening remarks.

Judge Richardson finally asked the people quiet down or that they would have to leave.

Mr. Hamilton would resume arguing that, for a gang member, killing a cop is the ultimate “prize.”

He told the jury, “We’re going to do what we can to get you the truth.”

He said that people are reluctant to speak out against gang crimes due to fear and intimidation, but they have techniques to get the truth out and compare current statements and put them up against past statements.

—David M. Greenwald reporting