Defense Objects to Result of Own Questioning – Uses It as Basis for Mistrial; Judge Disagrees

By Michael McCutcheon

RIVERSIDE, CA – In an odd sequence of events, defense counsel for Christian Velasquez Rosales made a series of objections to a line of questioning brought on by defense counsel of co-accused, Manuel Silverio Barbarin, Jr., in a trial here in Riverside County Superior Court Monday.

Rosales’ lawyer then used the reactionary question of the prosecutor as the basis for a mistrial, but it was rejected by Judge Bernard Schwartz.

On Feb. 23, 2012, Lareanz Simmons, a 14-year-old African American and Riverside Poly High School student, was walking home from a friend’s house when a car pulled up beside him and a man stepped out, pulled out a handgun, and shot Simmons, killing him.

Christian Velasquez Rosales and Manuel Silverio Barbarin, Jr., were charged with the murder.

The prosecution is seeking various enhancements, most notably for a hate crime, as District Attorney Kevin Beecham and the police argue Simmons was randomly targeted because of his race.

Barbarin, Jr.,’s attorney was the first to cross-examine one of the primary investigators in this case, Police Detective Tillet.

Detective Tillet recounted that in 2015, Rosales was a prime suspect in this case and was, at the time, in jail. Detective Tillet swore an affidavit and got a warrant to collect Velasquez’s DNA from clothes found in Velasquez’s car. However, he never submitted the evidence for analysis.

Detective Tillet noted he had two reasons for doing so. First, he had no reason to believe that the investigation would gain anything new from submitting the DNA for analysis, as, given the clothes were in Velasquez’s car, he assumed the clothes would also have his DNA.

Second, the true purpose of taking Velasquez’s DNA, whether it was tested or not, was that it would stimulate conversation on Velasquez’s jail phone calls, which were being monitored by police. However, he admitted no evidence was ever gained from these calls.

Velasquez’ lawyer began their cross-examination, arguing Detective Tillet purposely left the DNA evidence untested, because if the clothes tested negative for Rosales’ DNA, then it could serve as exculpatory evidence.

“If you tested it and it excluded Mr. Velasquez, that would not support your theory, said the defense. Detective Tillet responded, “I don’t…No, I didn’t have a theory.”

Velasquez’ defense counsel rebutted, “You did have a theory because you focused on Mr. Velasquez, and you were looking through phone calls and monitoring his phone calls and he was a suspect. And, actually, he had a lawyer and had been going to court. You went in and collected his DNA in custody because you had a theory of the case.”

He added, “He would talk about it and implicate himself, and you let the DNA sit in a lab for all these years, and never tested it because if it excluded Mr. Velasquez, you would be in the position of having evidence that shows he’s innocent.”

Detective Tillet refuted the defense’s claim the clothing was exclusionary evidence, noting that the DNA collection was just a tool in the investigation, and that, because the DNA was never tested, it did not have any influence on the identification of Velasquez as a suspect of the murder.

The prosecution later responded by asking whether Detective Tillet had ever received a request for or to test the DNA evidence by anyone on the defense team.

Velasquez’ lawyer objected to this question on the basis of the Fifth Amendment’s protection against self-incrimination, which was overruled. Detective Tillet answered that he had not been contacted.

Judge Bernard then dismissed the jury to talk with the attorneys privately.

In this discussion, the defense addressed its basis for a mistrial, noting an objection based on the Fifth Amendment in combination with a discovery violation, because the defense was not informed of Detective Tillet’s reasons for not submitting the DNA evidence for analysis.

Judge Bernard addressed the discovery violation first, noting the rule requires evidence that will be presented by the prosecution to be shared with the defense.

The judge added that not only did the prosecution not present the evidence being referenced, the defense did, but the evidence does not support either side, because it remains untested.

The judge turned his attention to the objection to the prosecution’s answer, again noting the defense brought up this particular piece of evidence and chose to focus on the lack of DNA analysis for it. By doing so, the defense opened themselves up to a similar line of questioning, which the prosecution took advantage of, the judge noted.

Velasquez’ defense counsel reinforced the claim, stating that the initial line of questioning was brought forth by Barbarin’s defense counsel, therefore causing a lack of foundation when the prosecution asked its question about evidence testing during the cross-examination by Velasquez’ attorney.

However, given that Barbarin and Velasquez are co-accused, said the judge, it is expected that their counsel acts as one entity in this context, which therefore makes the prosecution’s question applicable without a violation of the Fifth Amendment.

In talking about this, Judge Bernard said, “There’s an implication that you don’t have access to establish the validity of that information as to whether it would be relevant or not to the trial. That you can’t do, because that’s an improper inference to the jury that you don’t have the same tools available, the same investigation, the same right to seek experts, to seek evidence—you do…to give a false impression to the jurors that the only party that can test a piece of evidence is the prosecution, and the fact they didn’t do it is sinister, or they’re hiding evidence, that would be an inappropriate conclusion to leave in the jurors’ minds.”

The discussion ended with a summation by Judge Bernard.

“I don’t see that there’s prejudice to your client in any of this discussion. Quite frankly, I think it’s a rabbit hole that we went down and we just keep digging deeper and deeper. I do not believe there’s basis for a mistrial. There’s no basis to sever [the co-accused] … It’s a road that leads to nowhere.”

The trial is ongoing this week.

About The Author

Michael is a senior at CSU Long Beach majoring in Criminology and Criminal Justice. After graduating with a BS, Michael plans to attend grad school and receive his Masters with a thesis on interrogation techniques.

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