by Nabil Sirur
San Francisco – Will a San Francisco judge throw out 13-year-old murder convictions under the recently passed SB 1437 law that eliminates the felony murder in cases where the individual was neither the actual killer or a major participant?
The key question before the court this week will be whether they can prove beyond a reasonable doubt who was the driver and whether either man was a major participant in a case that started as a robbery and ended in tragic death from the ensuing car chase.
Proceedings were underway Monday morning in Department 13 for an evidentiary hearing in the cases of two co-defendants (Mr. Wilson and Mr. Lewis) who were convicted of felony murder in 2006. Deputy Public Defenders Nikki Solis and Kristen Hucek are representing Mr. Lewis. Mr. Wilson is assisted by separate counsel. This case was about an incident that occurred around July 2003 in which the complaining witness, (Ms. “M”) testified in 2006 of her purse or bag being taken. Ms. M at the time of trial claimed the co-defendants took part in a robbery where Mr. Wilson got out of the car, took her bag and went back in the passenger seat of a car.
Assistant District Attorney David Merin stated that 35 seconds after that occurred, the truck they were operating crashed and unfortunately killed a person by the name of Mr. Atsik. The A.D.A placed Mr. Lewis as the driver due to testimony from witness Mr. “M” in the 2006 trial. Notably, there were contradicting statements between different witnesses regarding their observations.
Before the change of the law in 2019, it would not have mattered for the courts to distinguish who was the driver since both co-defendants were in the car and involved in a robbery that led to the unfortunate death of Mr. Atsik. They were convicted on that basis under the felony-murder doctrine which has since been amended.
The new law, which came into effect this year, allows for the co-defendants to have their case be heard in regard to re-examining the evidence, especially concerning who was the driver that struck Mr. Atsik and therefore committed the actual killing. This changed law limits the legal bases for convicting someone of murder, especially if they individually didn’t do it or it was not intentional. Now, this case is about who was driving the car at the time of the tragic incident.
The evidentiary hearing proceeded and Assistant District Attorney Merin stuck with his argument that Mr. Lewis was the driver, while Mr. Wilson was on the passenger side on the day of the 2003 incident. On Monday, the A.D.A brought in Officer Stefani to testify about a parole violation in 1994 where the same co-defendants were together in a car and Mr. Lewis was the driver. The officer testified that he and his partner stopped the vehicle because of expired tags. He claimed that once he got out of his marked vehicle to approach the car, Mr. Lewis sped off and evaded the stop. He, along with other officers, eventually caught them on the parole violation. The A.D.A. stated the purpose of this testimony was to show the court that Mr. Wilson was put on notice about Mr. Lewis violating the law and about his driving behavior.
Officer Stefani testified to a police report of the incident which was shown as incomplete and would not have been admitted as evidence to the trial court. The defense counsel strenuously argued that the testimony lacked foundation. First, there were a couple of pages missing within the police report itself in the copies provided to defense counsel and the court. Second, there were statements in the report that were redacted. Most importantly, Officer Stefani was not sure of certain details of the incident when cross-examined by the defense, since it happened 25 years prior.
Defense counsel Nikki Solis and Kristen Hucek presented strong evidence to lead the judge to question the account of Mr. Merin. She pointed out that in 2006, when the trial occurred, it did not matter who drove because under the law at the time, as a robbery that ended with a death was felony murder. But the law has changed.
Ms. Hucek in her opening arguments argued that Mr. Lewis had to have been on the passenger side of the vehicle, not the driver’s side. She pointed to eyewitness testimony that seemed to identify Mr. Wilson as the driver, not Mr. Lewis. There was also evidence from another witness that it may have been the driver who robbed the woman, rather than the passenger. Both of these, she argued, pointed at Mr. Wilson not Mr. Lewis
In addition, she stated that Mr. Lewis was found with lacerations and cuts to his head after the crash incident that took place. Blood was shown specifically on the dashboard on the passenger side of the vehicle and DNA tests showed that it was Mr. Lewis’s blood that was on the passenger side.
Deputy Public Defender Nikki Solis also pointed to the fact that officers found Mr. Lewis out of the car roughly 20 feet away from the passenger side with one shoe on. The investigation showed that there was one shoe left inside the car on the passenger side of the vehicle. Furthermore, the defense argued, when re-examining the photos of the inside of the car the purse or bag that was stolen was under the steering wheel column. The defense argued that these facts contradict the A.D.A.’s theory that Mr. Lewis was the driver of the vehicle.
The defense counsel will be bringing in the accident reconstructionist who testified previously in their case to determine who was most likely the person driving at the time of the incident.