LAKEPORT, Calif. – The trial of two young Clearlake Oaks men accused of killing a small boy and wounding five others in Clearlake last June will continue after the defense and prosecution reached an agreement that resulted in the disposition of a mistrial motion.
Paul William Braden, 22, and Orlando Joseph Lopez, 24, are being tried on 15 counts each for the shooting death on June 18, 2011, of 4-year-old Skyler Rapp and the wounding of his mother, Desiree Kirby; her boyfriend, Ross Sparks and his brother, Andrew Sparks; and friends Ian Griffith and Joseph Armijo.
Last Thursday, April 5, Lopez's defense attorney, Stephen Carter, moved for mistrial, alleging that District Attorney Don Anderson had committed prosecutorial misconduct by abusing Carter in front of the jury.
Specifically, Anderson had said Carter was being “artful” in trying to get around a hearsay objection.
Carter said that was a slur against his integrity, and at a subsequent hearing that day outside of the presence of the jury he moved for mistrial.
The hearing on Carter's mistrial motion was set to begin at 1:30 p.m. Thursday, but it was just under an hour late in getting under way, with Carter, Anderson, Braden's attorney Doug Rhoades and visiting Judge Doris Shockley in chambers discussing a resolution.
When they emerged, Carter told the court. “We have all of us met in chambers and we've produced a stipulated admonition that all parties agree can be read to the jury.”
That admonition, he said, is a lesser sanction than mistrial.
The admonition to be read to the jury states, “It is always inappropriate for attorneys to address each other in the courtroom during objections and testimony. Please disregard any extraneous comments made by an attorney while objecting to another attorney's questioning.”
Carter added, “That will dispose of the motion properly.”
In response, Anderson said the wording Carter had read was different than what he remembered being stated in chambers. Carter insisted it was the same wording.
Anderson wanted the second portion of the admonition reworded. Carter replied, “I'm a little surprised now we're on the record that Mr. Anderson balks,” he said.
Anderson repeated that the language wasn't the same as what he had agreed to in the chambers discussion. Carter insisted it was.
Shockley, who said she thought the matter had been settled in chambers, said there was a separate issue which she was putting on the record, and which echoed comments she had made to the attorneys last week.
“Attorneys address all objections to the court,” she said. “They do not discuss with each other anything on the record.”
When questioning witnesses, the attorneys are not to comment on the testimony, summarize it or do anything to draw attention to themselves, she said. “The only evidence before the jury is the witness' answer.”
Shockley said the attorneys in the case had been “lax” in how they conducted cross-examination. She said she had not had objections, and doesn't take action to address such issues unless she feels it necessary.
“Because of the way things are going here, it's necessary,” she said.
She said the attorneys know the rules of evidence and they need to follow them, adding she would no longer allow the comments to continue.
“I don't know how to be any more direct, but, I can be if called upon to do so,” she said.
The judge said they needed to “back up and realize what our function is here.”
She added, “Don't mistake kindness for weakness.”
As they returned to the issue of the stipulation, Anderson ultimately agreed to the wording Carter had offered the court.
Shockley said it will be read to the jurors when they return to court next Wednesday, April 18. Testimony this week has been delayed due to a juror's illness.
Witness arrested for failing to appear for testimony
In other case business Thursday, the court dealt with the failure by 20-year-old Leonardo Lopez, Orlando Lopez's younger brother, to appear for testimony last month.
Leonardo Lopez had been subpoenaed to appear on March 20. He failed to appear that day but showed up the next, with Shockley ordering him to return on March 23. He didn't.
He appeared in court on Thursday afternoon, wearing a jail jumpsuit and handcuffs. He was arrested on a bench warrant for failure to appear on April 2.
Lopez also had failed to appear for testimony during the case's preliminary hearing last fall.
Defense attorney Steven Brown, appointed to represent the younger Lopez, wanted the court to give his client an opportunity to explain his failure to comply.
Called to take the witness stand, Lopez admitted his failure to appear, saying he could not get a ride. He also admitted he did not attempt to call the court, the District Attorney's Office or Victim-Witness to rectify the situation. When asked why he didn't take such actions, he responded, “I don't know.”
Under questioning from Shockley, Lopez said he understood his obligation to appear, but in response to further questions from Brown, said he didn't know there was anything he could do.
Brown told the court that since the failure to appear he had become Lopez's attorney, and he would help Lopez resolve his transportation issues.
He added that there is now an immunity agreement for Lopez in effect with the District Attorney's Office, which can't be enforced unless he testifies.
“He has certainly learned his lesson and he will be here when the court orders him to be here,” Brown said.
While Anderson said he had a lot of faith in Brown, he was concerned that Lopez “has thumbed his nose at us” after the warrant was issued.
Shockley said she didn't like keeping witnesses in custody. However, she initially was going to deny the request to release Lopez due to concerns that he hadn't spoken with his mother, who lives in Lakeport, about staying with her in order to make his court appearance, which was an option Brown had offered the court.
After a break, an agreement was reached to have Lopez stay with his mother. By that time Lopez had been returned to the jail, but Shockley ordered him released.
The hearing on another matter, relating to the admissibility of evidence found on a cell phone given to police by Ross Sparks, began on Thursday afternoon but Anderson asked that it be continued.
Shockley ordered the hearing to take place at 8:15 a.m. Wednesday, April 18, out of the jury's presence. Jurors will return that day by 10 a.m.
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